Jaswant Singh, J. - (1.) During the course of on spot check carried out by him on December 29, 1964 of B. P. sheets lying in appellant No. 1's factory at Sonepat, the Development Officer (LME-1) of the Directorate General of Technical Development, New Delhi, discovered from an examination of the said appellant's account books that it had, during the period intervening between January 1, 1964 and January 12, 1965, acquired black plain iron sheets of prime quality weighing 60.03 metric tons from various parties at a rate higher than the maximum statutory price fixed for such sheets by the Iron and Steel Controller (hereinafter referred to as 'the Controller') in exercise of the powers vested in him under clause 15(1) of the Iron and Steel (Control) Order, 1956 (hereinafter referred to as 'the Control Order'). On the basis of this discovery, the appellants were prosecuted in the Court of the Special Magistrate, Ambala Cantt, for an offence under section 120-B of the Indian penal Code read with section 7 of the Essential Commodities Act, 1955 (Act No. 10 of 1955) (hereinafter referred to as 'the Act') as also for an offence under Section 7 of the Act read with clause 15(3) of the Control Order. After the Special Magistrate had framed the charges and examined sixteen prosecution witnesses, the appellants made an application before him on February 12, 1970 under Sections 251A (11) and 228 (1) of the Code of Criminal Procedure 1898 praying that in view of the submissions made therein, the case against them be not proceeded with and they be acquitted. The trial Magistrate dismissed the application vide his order dated June 4, 1970, relevant portion whereof is extracted below for facility of reference:-"In the light of the above observations, I am prevented from determining the case otherwise than by making an order or acquittal or conviction which I can pass only after recording further evidenc both of prosecution and in defence. Regarding various objections raised by the learned counsel for the accused on the points that the notifications were not placed before the Parliament and within a reasonable time and also on the points of formation of opinion and delegation of powers I may submit that the prosecution cannot be prevented from evidence (sic) the formation of opinion and laying of the notifications before the Parliament which can be proved by the contemporaneous record. Regarding the non-prosecution of the sellers of the black iron sheets it does not lie in the mouth of the accused to say that such and such person has not been prosecuted. I need not to give my observations on merits on the points regarding subsequent exemption of control, means rea, formation of opinion and delegation of powers in laying notifications before the Parliament and also need not dicuss the citations as I will have to consider all these points at the time of final arguments and any order given now will not be proper. I dismiss the application of the accused on the short ground that it is not possible for this Court to hold that the cognizance was taken on an invalid report and the order of the Court ordering framing of charge is a nullity on the ground that on record no offence is committed and no cognizance could be taken."
(2.) Aggrieved by the aforesaid order of the special Magistrate, the appellants moved the High Court of Punjab and Haryana under Articles 226 and 227 of the Constitution and section 516-A of the Code of Criminal Procedure, 1898 challenging their prosecution inter alia on the grounds that the Control Order and the notification which formed the basis of their prosecution did not have the force of law as they had not been laid before the Houses of Parliament within a reasonable time as required under section 3(6) of the Act; that the Control Order and the Notification fixing the maximum selling price of the commodity in question for the contravention of which the appellants had been hauled up were invalid as the same did not appear to be preceded by the formation of the requisite opinion under section 3(1) of the Act which was a sine qua non for issue of any order by the Central Government or by the Controller; that none of the 18 concerns which according tothe presecution, sold the aforesaid B.P. sheets to the appellants and who were equally guilty of the offence under section 7 of the Act having been proceeded against in the Court of the competent jurisdiction, the prosecution of the appellants was violative of Article 14 of the Constitution and that the purchases of the aforesaid B.P. sheets having been openly made and entered in the account books of appellant No. 1, the mens rea which was a necessary ingredient of the offence under section 7 of the Act was totally lacking in the case.
(3.) In the return filed by it in opposition to the writ petition, the respondent while denying that the Control Order had not been placed before both Houses of Parliament as required by sub-section (6) of section 3 of the Act or that the issue of the Control Order or the Notification fixing maximum selling prices of various categories of iron and steel including the commodity in question was not based on the formation of the opinion envisaged by sub-section (1) of section 3 of the Act conceded that the notification fixing the maximum selling price of the categories of iron and steel including the commodity in question had not been placed before both Houses of Parliament but contended that the provisions of sub-section (6) of Section 3 of the Act requiring the placing of the order contained in the aforesaid notification before both Houses of parliament were directory and not mandatory and the omission to comply with that requirement did not have the effect of invalidating the notification. The respondent further contended that the notification fixing the maximum selling prices of various categories of iron and steel including the black plain iron sheets being a part of the Control Order and a piece of delegated legislation, it was not necessary to lay it before the House of Parliament. It was also pleaded by the respondent that the mens rea of the accused was manifest from various manipulation resorted to by them as also from the fact that they wanted to increase their production and earn more profits. The respondent also averred that launching of prosecution against any person depended on the availability of sufficient evidence and that non-prosecution of the sellers of the iron sheets in question did not involve any discrimination as envisaged by Article 14 of the Constitution but was due to non-availability of adequate and reliable evidence against them.;