- (1.) THIS is an appeal by the State against the order of acquittal of the respondents Bhura, Jotram and Chetram by the learned Sessions Judge of Ganganagar, dated 31st May, 1952, in respect of offence under sec. 7 of the Essential Supplies (Temporary Powers) Act, 1949.
(2.) THE case for the prosecution is that on receipt of information from one Girdhari that the three accused were taking gram from Nokera in District Ganganagar to East Punjab. Mr. Chatrulal, Customs Officer at Nokera made arrangements to guard the way leading from Nokera to Wazirpur, Dist. Ferozpur in East Punjab across the border of Rajasthan. At about 11 A. M. on the 25th January, 1952, the three accused were seen carrying earthen pitchers on camels from Nokera side to Wazirpur ostensibly for purposes of bringing sweet water as was usually done by villagers of Nokera. On search, however, the earthen pots were found to contain gram and underneath the water pots were also found small gunny bags containing gram. Bhura had 3-1/2 maunds of gram. Jotram had 3-1/4 maunds of gram and Chetram had 1-1/2 maunds of gram. In view of the fact that the taking of gram from a district in Rajasthan to a place outside the district had been prohibited by the Rajasthan Government by Notification No. F. 3 (9)IV/cs (F)/51, dated 9th June, 1951, the accused were arrested and challaned to the Sub-Divisional Magistrate, Surat-garh. THE plea of the accused was that they had borrowed some gram from the residents of Malarampura, a place in Rajasthan which according to the accused fell between Nokera and Wazirpur, and that they had been taking the grain not in order to export it to Wazirpur, but to return the grain to the creditors at Malarampura. The trial court accepted the prosecution story, disbelieved the defence and convicted each of the accused under sec. 8 of the Essential Supplies (Temporary Powers) Act, (1946) and sentenced each of them to three months' rigorous imprisonment and a fine of Rs. 100/-, and in default of payment of fine to undergo further rigorous imprisonment for three months. The earthen pitchers, the bags, the chhantis and the gram recovered were ordered to be forfeited. On appeal, the learned Sessions Judge a Ganganagar relied on Government of India Notification No. SRO 388 (1) (Note - Reference to S. R. O. 388 is inaccurate. It should be S. R. O. 393. vide para 7. lines 7 and 8.) of 17th August, 1950, by which restrictions in respect of the movement of gram were said to have been removed throughout India and he was not satisfied that the notification of 9th June, 1951 issued by the Rajasthan Government imposing restrictions on movement of gram, had been issued under proper authority. He accordingly set aside the conviction and sentences of the accused and acquitted them. It may be pointed out that the Rajasthan Essential Supplies (Temporary Powers) Ordinance, 1949, was promulgated by the Rajasthan Govt. on 20th July, 1949, as Ordinance No. XIII of 1949, and in exercise of the powers conferred by sec. 3 of that Ordinance, the Rajasthan Government issued an order known as the Rajasthan Foodgrains (Movement) Control Order, 1949, of 12th August, 1949. This order among other matter prohibited the movement of gram from any place within the State of Rajasthan to any place outside it except under and in accordance with the written orders of the Government or the Commissioner. The Rajasthan Ordinance No. XIII of 1949 was however superseded by the Essential Supplies (Temporary Powers) Act 1946 (Central Act XXIV of 1946) which was made applicable in part B States by the Essential Supplies (Temporary Powers) Amendment Act, 1950 (Central Act No. LII of 1950 ). The Government of India Notification of 17th August, 1950, extending Act XXIV of 1946 to Rajasthan was published in the Government of India Gazette of 31st August, 1950. Section 10 of the Central Act No. LII of 1950 provided for repeal of the corresponding law in Part B States with a proviso that any order issued under the law of the said State and in force immediately before the repeal of the law shall continue in force and be deemed to have been made under Central Act, No. XXIV of 1946. This provision operated so as to keep in force the Rajasthan Food-Grains (Movement) Control Order, 1949. Section 4 of the Essential Supplies (Temporary Powers) Act, 1946, authorised the Central Government to dele-gate its powers under sec. 3 to any State Government as may be specified in the notified order, and it was under such delegated authority that the Rajasthan Government issued Notification dated 9th June, 1951, and which is as follow : - "in pursuance of clause 14 of the Rajasthan Foodgrains (Movement) Control Order, 1949, and with the previous concurrence of the Central Government, the Government of Rajasthan is pleased to direct with immediate effect: - No person shall carry or move or cause to be carried or moved or offer for carriage or movement gram and its products from any place within a District to any place beyond that District except under and in accordance with the permit issued by the Collector. " The learned Sessions Judge was not satisfied as to the delegation of authority as the notified order purporting to have been issued by the Central Government was not produced before him. The learned Assistant Government Advocate was however able to lay his hands on the Government of India Notification in this behalf, and it is S. R. O. 659 of 9th May, 1951, published in the Government of India Gazette of 10th May, 1951. This Notification is as follows: - "in exercise of the powers conferred by sec. 4 of the Essential Supplies (Temporary Powers) Act, 1946 (XXIV of 1946) the Central Government is pleased to direct that with immediate effect the powers conferred on it by sub-sec. (1) of sec. 3 of the said Act to provide for the matters specified in sub-sec. (2) thereof shall, in relation to gram and gram products be exercisable also by the Government of Uttar Pradesh and Rajasthan, subject to the conditions that - (a) before making any order relating to any matter specified in clauses (a), (b), (c) (d), (f) land (g) of the said sub-sec. (2) the State Government shall obtain the concurrence of the Central Government ; (b) no order made in the exercise of the aforesaid powers shall have effect so as to prohibit or restrict the export, from any place in the State to any place outside India, of any articles or things. " It is mentioned in the Rajasthan Notification dated 9th June, 1951, that the condition of obtaining previous concurrence of the Central Government had been satisfied and the point is not disputed. It also does not transgress clause (b) of S. R. O. 659. The validity of the Rajasthan Order of 9th June is therefore unquestionable. It was urged that the Central Government had removed the restriction on the movement of gram by S. R. O. 388 on 17th August, 1950. The reference to S. R. O. 388 is inaccurate. The restriction on the movement of gram was removed by the Central Government S. R. O. 393 of 17th August, 1950. But the powers to issue orders under sec. 3 of the Essential Supplies (Temporary Powers) Act were not exhausted by issuing any one particular order, and while the restriction may have been removed by the Central Government of 17th August, 1950, it had delegated its powers to the Rajasthan Government to issue further orders as may be necessary by Notification S. R. O. 659 in respect of gram and gram products. The subsequent order of the Rajasthan Government, dated 9th June, 1951, was, therefore, a valid order and superseded the Government of India Order No. S. R. O. 393 in this behalf. There was thus no flaw in the Rajasthan Government order of 9th June, 1951, and it was a valid order passed by the Government. Learned counsel next argued that the lower court erred in not accepting the defence version that Malarampura was close to the place where the accused had been found with the gram on their camels. There is overwhelming evidence on record that Wazirpur is in East Punjab and was about 200 paces from the place where the accused were arrested and there was no way leading from the place of arrest to Malarampur and in fact that way which goes from Nokera to Malarampur had been left far behind. There is no doubt, therefore, on the evidence on record that the accused were attempting to export gram contrary to the restrictions issued by the Government under the authority delegated to it by the Central Government under Act No. XXIV of 1946, and were guilty under sec. 8 of the Act. It was faintly argued that the Rajasthan Government Notification does not refer to the delegation of powers made by S. R. O. 659. There is no force in this contention for as a matter of fact the Central Government had delegated the power to issue orders in relation to gram by S. R. O. 659 of 9th May, 1951, and the Rajasthan Government had complied with the conditions under which the delegated power was to be exercised, and the omission to refer to S. R. O. 659 would not invalidate the order of the Rajasthan Government, dated 9th June, 1951. Learned counsel next urged that the accused had been in jail for about two weeks before they had been released on bail by the learned Sessions Judge, and therefore the sentence may be reduced to the period of imprisonment already undergone.
(3.) AN attempt to contravene an order issued under sec. 3 has been placed on the same footing as a contravention of that order, and the maximum penalty provided is imprisonment for three years besides a sentence of fine and forfeiture of the property. In the circumstances, the punishment awarded by the trial court is not excessive. The order of acquittal passed by the learned Sessions Judge on 31st May, 1952, in this case is set aside, and the accused are convicted under sec. 8 of the Essential Supplies (Temporary Powers) Act 1946 (Act No. XXIV of 1946) for contravening the order of the Rajasthan Government dated 9th June, 1951, issued under the authority delegated by the Central Government by Notification under sec. 4 of the Act. The sentence passed by the trial court is re-imposed. Each of the accused will undergo three months' rigorous imprisonment and pay a fine of Rs. 100/- and in default will undergo further three weeks' rigorous imprisonment. The order as to forfeiting of the gram, the pitchers, the bags and Chhanti will also stand. Learned counsel on "instructions from the accused who are present made a statement that the gram and other articles had been handed back to them after the order of acquittal passed by the learned Sessions Judge. A reference to the record, however, does not make it clear whether the articles had been returned. But in case they have been so returned, it is further ordered that the order of forfeiture will not operate in that case, since it is now not possible to lay hold on the identical articles which were connected with the offence. Such articles, if already handed over to the accused will not be demanded back from them. The period of imprisonment already suffered will count towards the sentence. .;