NIMAI CHAND BHABAK Vs. STATE

JUDGEMENT

(1.) This is a Rule upon the State of West Bengal to show cause why the prosecution of the petitioner under Section 7(2), Essential Supplies Act (Act 24 of 1946 in the Court of the Sub-divisional Magistrate, Baraset in the district of 24-Parganas should not be quashed. The facts of the case which are undisputed are these: A consignment of 250 bags of rice arrived at the Baraset Railway Station on 11-5-1953 in the name of the consignee Amulya Kumar Ghose, One Gour Mohan Pal, acting as the agent of the consignee, took delivery of the consignment and engaged Lorry No. WBC 7934, of which the petitioner was the driver, to carry the rice from the Railway Station to the godown of Amulya Kumar Ghose at Baraset, and loaded 72 intact bags and 14 torn bags of rice in that lorry. When the petitioner was passing through Chapadali crossing, on his way to Amulaya Ghose's godown, he was challenged by the Police to produce is carrier's license, required to be kept under the W. B. Food Grains Control Order of 1951, and on his failure to produce the same he was arrested. A first information report was lodged by S. I. Sukumar Bose of Baraset P. S. at 19-30 hour on 11-5-1953. The petitioner was produced before the Sub-divisional Officer of Baraset on 12-5-1953 and a case under Section 7(2), Essential Supplies Act (Act 24 of 1946) was started against him for having violated the provisions of Para. 3 of the West Bengal Food Grains Control Order of 1951. It is admitted that the truck which the petitioner was driving did not belong to him and that it belonged to one Paramnidhi Sadhukhan.

(2.) The questions on which there has been a difference of opinion between my learned brothers Mitter and Sen JJ. for which this case has been placed before me for disposal are (a) whether the provisions of the West Bengal Food Grains Control Order of 1951 are in force in the district of 24-Parganas in the absence of a notification under that Order and (b) whether the petitioner can be said to be a earner within the meaning of that order. Besides these two points there is a third point as to the constitutional validity of Para. 3 read with Paras. 4, 13{2) and 17 of the W. B. Food Grains Control Order of 1951 on which Mitter J. has expressed no opinion but which has been decided against the petitioner by Sen J. This last point has been argued at length before me. I shall take up these points one by one.

(3.) Section 3, Essential Supplies Act (Act 24 of 1946) authorises the Central Government to issue orders for maintaining or increasing supplies of essential commodities (including food stuffs) or for securing their equitable distributions and availability at fair prices and Section 4 of the said Act empowers the Central Government to delegate its power of issuing orders in regard to the aforesaid matters to a State Government. Prior to the passing of the Essential Supplies Act in 1946 similar powers could be exercised by the Central and Provincial Governments under R. 81(2) of the Defence of India Rules. In the year 1945 the Governor of Bengal in exercise of the powers conferred by Rule 81(2) of the Defence of India Rules issued an order known as the Bengal Food Grains Control Order, 1945, for regulating the supply and equitable distribution of food-grains. The proviso to Clause (3) of para. 1 of that Order laid down that the provisions of the Order relative to carriers would not come into force in any area until and unless they had been expressly brought into force in that area by a notification issued in that behalf by the Provincial Government. Clause (a) of Para. 2 of the Order defined carrier as a person who undertook