PUBLIC PROSECUTOR Vs. AVENHAYYA

JUDGEMENT

(1.) The respondent was charged in the Court of the Sub-Divisional Magistrate of Gudur with having been engaged in an undertaking which involved the purchase, sale and storage for sale in wholesale quantities of foodgrains without a licence issued under the Foodgrains Control Order, 1942, and that thereby he had committed an offence punishable under Rule 81 (i) of the rules framed under the Defence of India Act, 1939, read with Rule 81 (2) (a). The Sub-Divisional Magistrate held that the offence had been proved and sentenced the respondent to pay a fine of Rs. 500. In default of payment of the fine he was sentenced to undergo simple imprisonment for two months. The respondent appealed to the Sessions Judge of Nellore, who set aside the conviction and sentence. This appeal has been preferred by the Provincial Government from the order of the Sessions Judge acquitting the respondent.

(2.) The judgment of the Sessions Judge is of unnecessary length and certainly cannot be commended for clarity of expression. In fact, in places it is very difficult to follow what is meant. So far as we understand the judgment, the Sessions Judge was of the opinion that Clause (3) of the Foodgrains Control Order which requires a dealer in wholesale quantities of foodgrains to take out a licence is ultra vires the Central Government because if given effect to, it may operate to prohibit a dealer carrying on his business. The Sessions Judge also indicated that if he had not formed the conclusion that Clause (3) of the Foodgrains Control Order was ultra vires he would have felt constrain-ed to direct a re-trial. For reasons which we shall state we consider that the Sessions Judge erred in holding Clause (3) of the Foodgrains Control Order to be ultra vires and that a re-trial would be necessary if it were intra vires. Sub-section (1) of Section 2, Defence of India Act, 1939, states that the Central Government may, by notification in the official Gazette, make such rules as appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of the War, or for maintaining supplies and services essential to the life of the community. Subsection (2) states that without prejudice to the generality of the powers conferred by Sub-section (1), the rules may provide for, or may empower an authority to make orders providing for, all or any of the matters set out in the sub-section. Clause (20) of the sub-section reads as follows: The control of agriculture, trade or industry for the purpose of regulating or increasing the supply of, and the obtaining of information with regard to, articles or things of any description whatsoever which can be used in connexion with the conduct of the war or for maintaining supplies and services essential to the life of the community.

(3.) Sub-section (4) of Section 2 provides that the Central Government may by order direct that a power or duty which by rule under Sub-section (1) is conferred or imposed upon the Central Government shall in such circumstances and under such conditions, if any, as may be specified in the direction be exercised or discharged, (a) by an officer or authority subordinate to the Central Government, or (b) whether or not the power or duty relates to a matter with respect to which a Provincial Legislature has power to make laws, by a Provincial Government or by an officer or authority subordinate to such Government, or (c) by any other authority. Sub-section (5) gives to the Provincial Government a power of delegation of a power or duty which by rule made under Sub-section (1) is conferred upon it. In Kewalram V/s. Collector of Madras , this Court held that when a power had been delegated under Section 2 (4), a person or authority to whom the delegation has been made has all the power of the Central Government unless the order of delegation contains some restriction on the exercise of the power. Sub- rule (2) (a) of Rule 81 of the rules made under Section 2 of the Act states 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 production, treatment, keeping, storage, movement, transport, distribution, disposal, acquisition, use or consumption of articles or things of any description whatsoever and in particular for prohibiting the withholding from sale, either generally or to specified persons or classes of persons, of articles or things kept for sale, and "for requiring articles or things kept for sale to be sold either generally or to specified persons or classes of persons or in specified circumstances.