FAKIR MOHAMMAD Vs. KING

JUDGEMENT

(1.) This arises out of a rule issued against an order of conviction passed by the Sub-Divisional Magistrate, Ghumusur Division and confirmed by the learned Sessions Judge of Ganjam. The conviction is under Section 7 of the Essential Supplies (Temporary Powers) Act, 1946 (Act No. XXIV (24) of 1946), for purported contravention of an order purporting to have been passed under Section 3 of the Act by the Sub Divisional Magistrate of Ghumsur Division. (I do not like to discriminate between Sub Divisional Magistrate and Sub-Divisional Officer as both the terms are understood as meaning the same officer.) The order was to the effect that the petitioner should supply a certain quantity of paddy at certain price. The petitioner's defence was that he had not the requisite stock with him. In this respect, the finding is against him. The finding has, no doubt, been arrived at in the most queer manner. It has been said he possesses so many acres of lands and each acre must have or might have produced paddy at such and such rate, and his family expenses, being a family consisting of six members, must not exceed certain quantity or extent, and according to mathematical calculation, the balance must be the stock. If the finding rested on this basis, I should never accept it. What the prosecution, in such cases has to prove is the existence, real as distinguished from notional, of the stock required of him and that exclusive of his own necessities. Otherwise, execution of such a law would amount to confiscation of private property. That is never the intention of the law. But, In this particular case, it appears that the petitioner had agreed to supply 400 maunds of paddy. Out of that he had supplied certain quantity and did not supply the rest. No doubt, this amount is not fully 200 maunds but approximately so. Therefore, so far as the factual portion of the judgment is concerned, I cannot disagree with it; but there is a legal difficulty which to me appears unsur-mountable in the way of upholding the conviction. I am fully alive to the situation that the consequences of this decision might, for the time being, be unfortunate but this is no consideration worth while for a Court of law to come to a decision not sanctioned by law.

(2.) An order of which contravention can attract penalty must be a legally good order under Section 3 of the Act. Section 3 empowers the Central Government to provide, by notified order, for regulating or prohibiting the production, supply and distribution of essential commodities and trade and commerce therein. Within the ambits of the general power is included the power of requiring any person holding stock of an essential commodity to sell the whole or a specified part of the stock at such price and to such persons or class of persons or in such circumstances, as may be specified in the order. This power, however, under Section 4 of the Act, may be delegated to certain authorities named and specified therein. Section 4 reads:

(3.) Next we come to Clause (b). I shall quote the section over again omitting Clause (a) and omitting such other parts of it as are not material for the purpose in hand. The section will read :