EMPEROR Vs. PURSHOTTAM DEVJI PATEL

JUDGEMENT

(1.) The applicant was tried by the Resident First Class Magistrate, Anand, for having attempted to export 250 maunds of tur, which he had purchased at Sarsa in the Kaira District, to Bakrol in the Baroda State, in contravention of Notification No. W.A.R. 206 issued by the District Magistrate of Kaira in exercise of the powers conferred by Rule 81 of the Defence of India Rules, 1939, directing that no person should remove wheat, wheat products, tur or tur- dal from any place within the limits of the Kaira District to any place outside the District except under a permit granted by the District Magistrate, Kaira. The offence is alleged to have been committed on the morning of September 1, 1943. He was also charged with trading in tur without a license in contravention of the Bombay Retail Trade Control and Licensing Order, 1942, made and published by the Government of Bombay on July 29, 1942, which provided that no person should engage in any undertaking which involved the sale, or storage for sale, in retail quantities of any controlled articles except under and in accordance with a license issued in that behalf by an officer authorized by the Provincial Government ( Section 3(1)). Pulses of all kinds were included in schedule I appended to the Order which specified the controlled articles..

(2.) The accused pleaded guilty. The learned Magistrate convicted him under Rule 81(4) read with Rule 121 of the Defence of India Rules for having attempted to export tur without a permit and sentenced him to suffer rigorous imprisonment for two months. He also sentenced him to suffer rigorous imprisonment for one month under Rule 81(4) for trading in tur without a licence. He further directed that the tur attached from the accused, which amounted to 250 maunds, should be forfeited. The accused made an appeal to the Sessions Judge who confirmed the convictions and sentences, but altered the order of confiscation from one under Rule 81(4) of the Defence of India Rules to one under Section 517 of the Code of Criminal Procedure. The accused has come to this Court in revision.

(3.) The first contention urged on behalf of the accused is that the notification issued by the District Magistrate, Kaira, under Rule 81(2) is ultra vires. Rule 81(2) provides that the Central Government or the Provincial Government, so far as appears to it to be necessary or expedient for securing the defence of British India or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, may by order provide for regulating or prohibiting the transport of articles or things of any description whatsoever. By a notification issued by the Provincial Government, No. S.D./W. 3401 of December 19, 1941, in exercise of the powers conferred by Sub-section (5) of Section 2 of the Defence of India Act, 1939, the Government of Bombay directed that the powers or duties conferred or imposed on it by Rule 81 of the Defence of India Rules should be exercisable or dis-chargeable by all District Magistrates within the limits of their respective jurisdictions. The accused was charged with having attempted to export tur from the Kaira District into the Baroda State. It is contended that under Section 297 of the Government of India Act no Provincial Legislature or Government can, by virtue of the entry in the Provincial Legislative List relating to trade and commerce within the Province, or the entry in the list relating to the production, supply and distribution of commodities, have power to pass any law or take any executive action prohibiting or restricting the entry into, or export from, the Province of goods of any class or description. By Section 102 of the Government of India Act power is given to the Federal Legislature to legislate for a Province or any part thereof with respect to any of the matters enumerated in the Provincial. Legislative List, if the Governor General has declared that a grave emergency exists whereby the security of India is threatened. The preamble to the Defence of India Act states that such a state of grave emergency had been declared to exist by a proclamation by the Governor General under Section 102 of the Act. It is conceded that in these circumstances the Central Government had power to make rules under the Defence of India Act dealing with subjects falling within the Provincial Legislative List, and in particular dealing with trade and commerce within the Province which is one of such subjects. It is contended, however, that the power given to the Government of India by Section 102 of the Act to legislate on such matters would be subject to the same restrictions to which the Provincial Government would be subject and since under Section 297 a Provincial Government could not legislate so as to prohibit export from the Province, the Government of India also could not do so, and therefore the notification of the District Magistrate which was issued in the exercise of the powers conferred by Rule 81(2) of the Defence of India Rules was ultra vires of Section 297 of the Government of India Act. In our opinion there is no force in this contention. Section 297 deals with Provincial Legislatures or Governments and provides that their power to legislate with regard to production, supply and distribution of commodities is subject to the limitation that they cannot prohibit or restrict import into or export from the Province. But when the Government of India acquires powers under Section 102 to legislate with regard to Provincial subjects, there is nothing in the Act to show that its legislation on such matters is subject to the restrictions laid down in Section 297. That section does not refer to the Federal Legislature at all, and since all province are subject to the Federal Legislature, that Legislature would have power to make legislation prohibiting or restricting import into or export from a province.