- (1.) The facts giving rise to this appeal are these: The appellant Harishankar Bagla and his wife Smt. Gomti Bagla were arrested at Itarsi by the Railway Police on the 29th of November 1948 for contravention of Section 7 of the Essential Supplies (Temporary Powers) Act, 1946, read with clause (3) of the Cotton Textiles (Control of Movement) Order, 1948, having been found in possession of "new cotton cloth" weighing over six maunds which cloth, it was alleged, was being taken by them from Bombay to Kanpur without any permit. After various vicissitudes through which the challan passed the case was eventually withdrawn by the High Court to itself on 3rd of September 1951 as it involved decision of constitutional issues. By its order dates the 15th September 1952 the High Court upheld the provisions of Sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946, as constitutional. It also upheld the constitutionality of the impugned Order. Section 6 of the act was held to be inconsistent with the provisions of the Railways Act but it was held that its unconstitutionality did not affect the prosecution in this case. The High Court directed that the prosecution should proceed and the records sent back to the trial court for being dealt with in accordance with law. Leave to appeal was given both to the appellants and the respondent and requisite certificates under Articles 132 and 134 of the Constitution were granted. This appeal along with the connected appeal No. 6 of 1953 is before us on the basis of the said certificates.
(2.) Mr. Umrigar, who appeared in this and the connected appeal, urged the following points for our consideration and decision: (1) That the Sections 3 and 4 of the Essential supplies (Temporary Powers) Act, 1946 and the provisions of the Cotton Cloth Control Order contravened the Fundamental Right of the appellants guaranteed by Article 19 (1) (f) and (g) of the Constitution. (2) That Section 3 of the Essential Supplies (Temporary Powers) Act, 1946 and in particular Section 4 were 'ultra vires' the Legislature on the ground of excessive delegation of legislative power; (3) That Section 6 having been found 'ultra vires' Section 3 was inextricably connected with it and that both the sections should have been declared 'ultra vires' on that ground; and (4) That the impugned Control Order contravened existing laws, viz., the provisions of Sections 27, 28 and 41 of the Indian Railways Act, and was thus void in its entirety.
(3.) That respondent challenged the judgment of the High Court that Section 6 of the Act was unconstitutional.;