- (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 : "subject to the other provisions of this Code, any offence under any other law shall when any Court is mentioned in this behalf in such law, be tried by such Court. " It is submitted by Mr. Dalai that no Court is specifically mentioned in the body of Act No. XXXVI [36] of 1947 which can try an offence under Section 2 (1) of that Act. Next, Mr. Dalai has referred to Sub-section (2) of Section 29, Criminal P. C. which provides as under : ''when no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the second schedule to be triable. " now, if we turn to the eighth column of the second schedule to the Criminal P. C. , we find under the caption "offences against other laws" that if an offence is punishable with death, transportation or imprisonment for seven years or upwards, Court of Session is the only Court which can try it. From this it is argued by Mr. Dalai that as an offence under Section 2 (1) of Act No. XXXVI [36] of 1947 is punishable with impri- sonment which may extend to seven years, a Court of Session alone is competent to try it. Referring to Section 3 of Act No. XXXVI [36] of 1847, it is argued by Mr. Dalal that it only lays down that a specially empowered Magistrate of the First Class may impose enhanced penalties. It is then contended by him that there is a real distinction between power or jurisdiction to try an offence or take cognizance of an offence and power to inflict punishment for an offence, and that, therefore Section 3 of Act No. XXXVI [36] of 1947 which only deals with the power of certain specially empowered Magistrates to award enhanced penalties can confer no competence on those Magistrates to try offences under Section 2, sub Section (1), of Act No. XXXVI [36] of 1947.;