AKBARALLI TAYABALLI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal by the original accused 1, who has been convicted by the Presidency Magistrate, Fourth Court, Girgaum, Bombay, under Section 2 (1), Bombay Essential Supplies (Temporary Powers) and the Essential Commodities and Cattle (Control) (Enhancement of Penalties) Act, 1947, (Act No. XXXVI [36] of 1947), read with Section 4, Bombay Essential Commodities and Cattle (Control) Act, 1946, (Act No. XXII [22] of 1946) read with Notification No. 129-IP (5), dated 6-7-1946, issued under Sub-section (1) of Section 4 of the above mentioned Act (No. XXII [22] of 1946 ).

(2.) THE gravamen of the offence alleged against accused l is that on 7-6-1949, he and accused 2 sold to a bogus customer, one Amritlal Girdharilal Mehta, 100 bags of pure cement at Rs. 9 per bag without having authority from the Cement Adviser to the Govt. of India or the Regional Cement Adviser, Bombay. Notification No. 129-IP (5), dated 6 7-1946, issued under Sub-section (1) of Section 4, Bombay Essential Commodities and Cattle (Control) Act, 1946, (Act No. XXII [22] of 1946), directed that no person could sell cement unless authorized in writing to do so by the Honorary Cement Adviser to the Govt. of India or the Regional Honorary Cement Adviser to the Govt. of Bombay or by a person authorized in this behalf by the said authority. Section 10 (1) of Act No. XXII [22] of 1946 provided that if any person contravened any order made under Section 4 of that Act, he would be liable to imprisonment for a term which may extend to three years and would also be liable to fine. By Act No. XXXVI [36] of 1947 the penalties prescribed in Section 7, Sub-section (1) of the Essential Supplies (Temporary Powers Act) 1946, (Act No. XXIV [24] of 1946), for contravention of the orders made under 3. 3 of that Act and those prescribed in Section 10, Sub-section (1), Act No. XXII [22] of 1946, for contravention of orders made under Section 4 of the Act were sought to be enhanced. Section 2 (1) of Aot No. XXXVI [36] of 1947 lays down that the penalties for breaches of orders made under Sections 3 and 4 of Act No. XXIV [24] of 1946 and Aot No. XXII [22] of 1946, respectively, may extend to seven years, but shall not, except for reasons to be recorded in writing, be less than six months, and provides further that the delinquent shall also be liable to fine. It is in this way that both the original accused were charged under Section 2 (1) of Act No. XXXVI [36] of 1947 read with Section 4 of Act No. XXII[22] of 1946 read with Notification No. 129-IP (5), dated 6-7-1946, issued under Section 4 of Act No. XXII [22] of 1946.

(3.) NOW, Mr. Dalai for the appellant has con-tended that the Court of the Presidency Magistrate who tried the appellant had no competence at all in law to try an offence under Section 2 (1) of Act No. XXXVI [36] of 1947, and a reference is made by him in this connection to Section 29 (1), Criminal P. C. , which lays down :