BHARGAVA - (1.) ALL these criminal revisions raise common questions of law and are hence being disposed of together.
(2.) THE petitioners in all the revision applications are being prosecuted in the court of the Additional District Magistrate, Bharatpur for offences under sec. 3/7 and 9 of the Essential Commodities Act (hereinafter referred to as the Act of 1955) read with the Rajasthan Coarse Grains (Regulation of Distribution) Order, 1964 (hereinafter called the Order of 1964) and the Rajasthan Food Grains Dealers Licensing Order, 1964. Of the several grounds urged in the trial court and the following two were urged before this Court. (1) that the Order of 1964 is invalid being repugnant to the Coarse Grains (Removal of Control) Order, 1954 (hereinafter called the Order of 1954) made by the Central Government under sec. 3 of the Essential Supplies (Temporary Powers) Act, 1946 (hereinafter called the Act of 1946) and as such the petitioners cannot be tried for alleged contravention of the provisions of the former Order. (2) that on the facts alleged by the prosecution, no case under sec. 9 of the Act of 1955 is made out against the petitioners. On these two grounds the petitioners have prayed that the criminal proceedings pending against them in the trial court be quashed. The order of 1954 consists of five paragraphs which are reproduced below: 1. (1) This order may be called the Coarse regulated or controlled in any manner whatsoever. Grains (Removal of Control) Order, 1954 (2) (It extends to the whole of India except the State of Jammu and Kashmir). (3) It shall come into force on the 1st January, 1954. 2. Definition-In this Order 'Coarse Grains' means maize, barley jowar, bajra, ragi, and other minor millets and includes their products. 3. Save as otherwise provided in any notified order made by under the authority of the Central Government under sec. 3 of the Essential Supplies (Temporary Powers) Act, 1946 (XXIV of 1946) there shall be no prohibition or restriction on the movement of coarse grains and their products from any place in a State to any other place within or outside that State and the price, production, movement or distribution of coarse grains and their products shall not be 4. This Order shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the said Act. (5) Subject to the provisions of paragraph 3 of this Order, no order- (a) made or deemed to be made under the said Act by the Government of a State or any officer or other authority, or (b) made by the Government of a State or by any other authority under any other law for the time being in force in the State. shall have effect so as to prohibit or restrict the movement of coarse grains and their products from any place in the State to any other place within or outside the State or so as to regulate or control the price, production, movement or distribution thereof in any manner whatsoever." This order directs that there shall be no prohibition or restriction in the movement of coarse grains and their products from any place in the State to any other place within or outside that State except as otherwise provided in any notified Order made by or under the authority of the Central Government under sec. 3 of the Act of 1946. it also provides that this Order shall have effect notwithstanding anything inconsistent therewith contained in any other enactment and further no Order made or deemed to have been made by the State Government or its any Officer or other authority whether under the Act of 1964 or any other law prohibiting or restricting the movement of coarse grains and their products from any place in the State to any other place within or outside that State shall have effect. This Order was made by the Central Government under sec. 3 of the Act of 1946 which expired on 26th of January, 1955, but the said Order was kept alive by the Essential Commodities Ordinance 1955 and the Act of 1955. (See the State of Bihar vs. Hiralal Kejriwal (1). The learned Deputy Government Advocate has not disputed that the Order of 1954 was in force till 20th October, 1964 when the Order of 1964 came into force This is also clear from the fact that the Order of 1964 was rescinded by the Central Government on 7th December, 1964 by G. S. R. 1741 published in the Gazette of India Extra Ordinary Part II sec. 3 sub-sec. (1) dated 7th December, 1964. Paragraph 3 of the Order of 1964 provides: "Regulation of DistributionNo person shall, except under and in accordance with the written permission of the State Government (the Collector or an Officer authorised by the Collector) in this behalf, sell or cause to be sold (for the purpose of export, or export or attempt to export of abet the export of any of the coarse grains) any quantity exceeding (a) 25% of the quantity held in stock by him at the commencement of this Order; and (b) 25% of the quantity purchased or acquired by him every day thereafter and until such time as the State Government otherwise directs. (2) Every person, who sells or causes to be sold for the purpose of export (or exports or attempts to export or abets the export of) any quantity of coarse grains, shall also sell or offer for sale an equal quantity of such coarse grains to the Collector or any other officer authorised by the Collector in this behalf. (3) The quantity permitted to be exported under sub-clause (1) shall not be exported or caused to be exported without first selling the quantity prescribed in sub-clause (2) and without obtaining a certificate to that effect from the Collector or any other officer authorised by the Collector in this behalf. (4) No person, who had purchased or acquired any stock of coarse grains from any person out of the balance of stock remaining with such other person after the sale as referred to above in sub-clause (1) and (2), shall sell or cause to be sold any quantity of coarse grains so purchased or acquired for export outside the State of Rajasthan. (5) No person, who purchases or acquires coarse grains, otherwise than for the purpose of export outside the State of Rajasthan, shall be deemed to have purchased or acquired coarse grains for the purpose of sub-clause (l)." This Order clearly makes restrictions on the movement of coarse grains and to that extent it is conceded that there is repugnancy between this Order and the Order of 1954. It is contended on behalf of the petitioners that the only saving provided in paragraph 3 is in regard to the orders made by or under the authority of the Central Government under sec. 3 of the Act of 1946 and since the Order of 1964 is not made under the Act of 1946, it cannot fall within that saving. In this connection reliance is placed on M/s. Suraj Roopchand & Co., Kota vs. State of Rajasthan (2). In my opinion there is no substance in this contention. Sec. 16(2) of the Act of 1935 lays down that: "Notwithstanding such repeal, any order made or deemed to be made by any authority whatsoever, under any law repealed hereby and in force immediately before the commencement of this Act, shall, in so far as such order may be made under this Act, be deemed to be made under this under this Act and continue in force, and accordingly any appointment made, licence or permit granted or direction issued under any such order and in force immediately before such commencement shall continue in force until and unless it is superseded by any appointment made, licence or permit granted or direction issued Act." By virtue of this provision Order of 1954 which was kept alive by the Ordinance of 1955 was further kept alive by the Act of 1955 and all Orders in so far as such Orders can be made under the Act of 1955 were deemed to be made under this Act, and were to continue in force until and unless superseded under this Act. The expression 'deemed' is only used for the purpose of creating a statutory fiction that is when a thing 'is deemed to be' something the only meaning possible is that whereas it is not in reality that something, the Act directs that it should be treated as if it were that thing. Therefore, when it was provided in sub-sec. 2 of section 16 of the Act of 1955 that any order made or deemed to be made under any law repealed by that Act shall be deemed to be made under this Act, it meant that the Order of 54 shall be deemed to have been made under this Act. When the Order of 1954 was deemed to be made under the Act of 1955, it will be meaningless to say that reference in that Order to the expired enactment would continue to be construed as such. On the other hand all references in the Order to the Act of 1946 would be read as references to the Act of 1955. Therefore, after the coming into force of the Act of 1955 when the Order of 1954 was kept alive by sec. 16(2) all references in that Order to the Act of 1946 shall be construed to be references to the Act of 1955 and the saving made in paragraph 3 will apply to Orders made by the Central Government or under its authority under sec. 3 of the Act of 1955. Thus any Order made by the Central Government or under its authority made under sec. 3 of the Act of 1955 prohibiting or restricting the movement of coarse grains would be valid being saved under paragraph 3 Sec. 5 of the Act of 1955 authorises the Central Government to delegate any or all its powers to make Orders under sec. 3 of this Act, upon any State Government or any officer of the State or Central Government in exercise of its powers conferred by sec. 5 of the Act of 1955. The Central Government issued G.S.R. 888 dated 28th June, 1961. The relevant portions of the G.S.R. are reproduced below: "(a) that the powers conferred on it by subsection (1) of sec. 3 of the said Act to make orders to provide for the matters specified in clauses (a), (b), (d), (e), (f), (h), (i), (ii) and (j) or sub-sec. (2) thereof shall, in relation to foodstuffs, be exercisable also by a State Government subject to the condition that before making an order relating to any matter specified in cl. (a) or in regard to regulation of transport specified in clause (d) of the said sub-sec. (2), the State Government shall obtain the prior concurrence of the Central Government: (b) that the powers conferred on it by subsec. (1) of sec. 3 of the said Act to make orders to provide for the matters specified in cl. (f). and for the matters specified in clauses (h), (i) and (j) in so far as they relate to clause (f), of sub-sec. (2) of the said sec. 3 shall be exercisable also (i) by the Regional Food Controllers in the State of Uttar Pradesh, in relation to stocks of wheat, gram, gramdal, barley and peas held in that State; (ii) by the Collector of districts in each of the States of Maharashtra and Gujrat in relation to stocks of rice and paddy held in that State, within their respective jurisdiction; and (c) that the order of the Government of India in the Ministry of Food and Agriculture Department of Food) GSR. 1088 dated the 15th November, 1958 shall stand rescinded." The above order was amended by G.S.R. 1158 dated 14th August, 1964, published in the Gazette of India Part II Extra Ordinary sec. 3 sub-sec. (1) by the Ministry of Food and Agriculture (Department of Food) and is reproduced below. "GSR 1158In exercise of the powers conferred by sec. 5 of the Essential Commodities Act 1955 (10 of 1955), the Central Government hereby makes the following amendment to the Order of the Government of India in the Ministry of Food and Agriculture (Department of Food) No. GSR 888 dated the 28th June, 1961 published in the Gazette of India, Part II sec. 3 sub-sec. (1) dated the 8th July, 1961, namely In the said order, for paragraph (a), the following paragraph shall be substituted, namely (a) that the powers conferred on it by sub-sec. (1) of sec. 3 of the said Act to make orders to provide for the matters specified in clauses (a), (b), (d), (e), (f), (h), (i), (ii) and (j) of sub-sec. (2) thereof, shall, in relation to foodstuffs, be exercisable also by a State Government subject to the conditions (i) that the power to regulate the transport of any foodstuffs under the said clause (d) shall extend only to such transport otherwise than by rail; and (ii) that before making an Order relating to any matter specified in the said clause (a) or in regard to regulation of such transport otherwise than by rail, the State Government shall obtain the prior concurrence of the Central Government." The Order of 1964 as would appear from this preamble was made for the purpose of maintaining the availability of coarse grains in the State of Rajasthan in exercise of the powers conferred by sec. 3 of the Act of 55 read with the notification of the Government of India in the Ministry of Food and Agriculture (Department of Food) published in G. S. R. 888 dated 28th June, 1961 Part II sec. 3 sub-sec.(i) dated 8.7.61 and with the prior concurrence of the Central Government It cannot therefore, be disputed that the Order of 1964 was made by the State of Rajasthan under the authority of the Central Government and would be within the purview of the saving provided in paragraph 3 of the Order of 1954 and shall have overriding effect despite any repugnancy with the Order of 1954. The decision relied upon by the learned counsel has no application in the present case because there the Order was issued by subordinate authority i. e., the District Magistrate, Kota in exercise of his powers under the Defence of India Rules and was thus not covered by the saving made in paragraph 3. The case which however, appositely applies to the facts of this case is in Bankidass Moolraj vs. State of Rajasthan (3) where the validity of the Rajasthan Gram and Barley (Regulation of Distribution), Order, 1964 was challenged. That Order was also made by the State of Rajasthan as a delegate of the Central Government. It was observed by their Lordships in that case that: "Now corning to the question whether the Control Order has been made by the State Government in exercise of the powers delegated to it; we have to consider the Order G.S.R/888 in the light of the language of sec. 3 of the Act. Sec. 3(1) confers the powers on the Central Government. By virtue of sec. 5 of the Act the Central Government is authorised to delegate its powers to State Government. When the State Government is thus acting as a delegate of the Central Government specially when such delegation has been permitted by the law made by Parliament itself we cannot predicate that the State Government has, in any manner, acted in its own legislative field or executive sphere of its own as State Government in issuing the Control Order. That being so we cannot judge the Control Order as a State made law or as an executive act of itself. Moreover the preamble of the Control Order clearly shows that it was issued with the concurrence of the Central Government. In that situation the action of the State Government in issuing the Control Order with the concurrence of the Central Government was to all intents and purposes the action of the Central Government, and the same could not be characterised to be the action of the State Government alone, which enjoyed only a subordinate position in the issuing of the Control Order." It is next contended that the Orders made by the State Government under the authority delegated to it by the Central Government by virtue of sec. 5 of the Act of 1955 could not be covered by the saving made in paragraph 3 of the Order of 1954 because in paragraph 5(a) it is provided that no order made.........by the Government of a State or any officer or other authority shall have effect so as to prohibit or restrict the movement of coarse grains and their products from any place in the State to any other place within or outside that State. It is contended that the reference in paragraph 5(a) to the Orders made by the Government of State only pertains to the Orders made by the State Government as a delegate of the Central Government under sec. 5 of the Act of 1955 and therefore, the intention of the framers of the Order could not have been to save, such Orders on the one hand under paragraph 3 and to make them ineffective under paragraph 5(a). It is contended that the object of the Order was to remove all barriers to the movement of coarse grains from any place in a State to another place within or outside that State and that is why a provision in paragraph 5 was made to render ineffective all Orders made by the State Government under the Act of 1946 now to be read as Act of 1955. It is suggested that in paragraph 3 the words "made by or under the authority" should be read as made by the Central Government, and this would distinguish the Orders made by the State Government with those Orders which are referred to in paragraph 5(a) i.e., the Orders made under the authority delegated to it under sec. 5 of the Act of 1955. It is further contended that the saving made in paragraph 3 refers only to the existing Orders while reference in paragraph 5 is to those Orders which were thereafter to be made. In my opinion there is no force in either contention. There is nothing in paragraph 5 to restrict the operation of the saving to the existing Orders only. It could not have been the intention of the framers of the Order to put an embargo on the powers of the Central Government to make Orders in future regarding the movement of coarse grains. Nor is there any reason to read the language in paragraph 3 as suggested by the learned counsel. Undoubtedly there were Orders made by different State Governments concerning the movement of coarse grains which were kept alive by the Act of 1946 and it was to render those Orders ineffective that a provision was made in paragraph 5(a) of the Order of 1954. Even if there is some inconsistency between paragraph 3 and 5(a) in regard to the Orders made by the Government of a State under the Act of 1946, paragraph 5(a) has to give way because it is subject to provisions of paragraph 3 of the Order. I am therefore, of the view that the Order of 1964 made by the State of Rajasthan has been made under the authority of the Central Government and falls within the saving made in paragraph 3 of the Order of 1954. Lastly, it was contended that the Order of 1964 is made beyond the ambit of power delegated to the State of Rajasthan because it relates to 'transport' falling within cl. 2(d) of sec. 3 of the Act of 1955. It is pointed out that the word 'export' in the Order of 1964 means "to take or cause to be taken by any means whatsoever out of any place within the State of Rajasthan to a place outside it" and therefore, this Order placed restriction upon the export of coarse grains by means of rail as well. But under G.S.R. 1158 dated 14th Aug., 1965 the power to regulate the transport of any foodstuffs under cl. (d) was to extend only to such transport otherwise than by rail. Now under sec. 3(2) (d) of the Act of 1955 the Central Govt. or for the matter of that the State Govt. under the authority delegated to it under sec. 5 is empowered to make an Order for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption, of any essential commodity. The preamble of the Order shows that it was made for the purpose of maintaining the available supplies of coarse grains in the State of Rajasthan. It is common knowledge that there has been scarcity of food grains in the country for the last several years. On account of this scarcity, coarse grains began to be exported in large quantities from the State of Rajasthan to other parts of the country where their prices were much higher than in the State of Rajasthan obviously for the purpose of earning high profits. By this huge out-flow of coarse grains from the State of Rajasthan to other parts of the country these coarse grains became scarce in the territory of Rajasthan itself. It was therefore, provided in paragraph 3 that no person without the written permit of the State of Rajasthan, the Collector or an officer authorised by the Collector in this behalf shall sell or cause to be sold for the purpose of export, or export or attempt to export or abet the export of any of the coarse grains exceeding the quantity mentioned therein. A further safeguard was made in paragraph 3(2) that "every person who sells or causes to be sold for the purpose of export or exports or attempts to export or abets the export of any quantity of such coarse grain shall also sell or offer for sale an equal quantity of such coarse grains to the Collector or any other officer authorised by the Collector in this behalf and unless its receipt and a certificate to that effect was obtained, no coarse grain shall be allowed to be exported." This Order therefore ensures the retention of sufficient amount of coarse grains within the State of Rajasthan so that there might not be felt any scarcity of coarse grains in that State. It does not completely restrict the export of coarse grains to other parts of the country. Only some restrictions have been put upon the export of coarse grains. This Order primarily, relates to the distribution of coarse grains within the State of Rajasthan and other parts of the country and does not relate to the 'Transport' of coarse grains though transportation is also involved in the processs of export. A similar argument was raised in Banki Dass's case (3) where the Rajasthan Gram and Barley (Regulation of Distribution) Order fell within clause (d) or (g) of sec. 3(2) of the Act of 1955 and the observations made in that case are equally applicable here. It was observed that: "If looking to the subject-matter of a particular order, it can reasonably be held to be covered by a particular clause then it should be held to have been issued by virtue of powersunder that clause and the mere fact that it also falls under .some other clause should not make the Order void. There is a good deal of over lapping in such enumeration of powers and one has to look to the substance of the powers contained under a particular clause. It was held that in making the Rajasthan Gram and Barley (Regulation of Distribution) Order, 1964, the State Government acted within the ambit of authority delegated to it. The Order could appropriately fall under cl. (d) of Sec. 3 of the Essential Commodities Act and did not deal with a class of commercial or financial transactions within the meaning of cl. (g) of sec. 3." The order was obviously made with the purpose of conserving supplies of coarse grains within Rajasthan so that they could be available for distribution there. It is only incidentally that the process of export also involves the transportation of coarse grains by rail as well. The Order has been passed with the concurrence of the Central Government which itself had authority to make any Order in this behalf for regulating or prohibiting, production, supply and distribution of coarse grains even though they might have involved a restriction upon their transportation by rail as well. I am therefore, of the view that the State Government has acted within the ambit of authority delegated to it. In view of this the Order of 1964 for the contravention of the provisions of which the petitioners are being prosecuted under sec. 3/7 of the Act of 1955, cannot be held to be void as being repugnant to the Order of 1954. Now as regards the second contention: Sec. 9 of the Act of 1955 provides that: "If any persons, (i) Where required by any order made under sec. 3 to make any statement or furnish any information, makes any statement or furnisnes any information which is false in any material particular and which he knows or has reasonable cause to believe to be false, or does not believe to be true, or (ii) makes any such statement as aforesaid in any book, account, record, declaration, return or other document which he is required by any such order to maintain or furnish. He shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both." The case of the prosecution is that the petitioners have entered transactions relating to the sale of food grains to persons within the State of Rajasthan in their account books which are bogus because in reality coarse grain was not sold to the persons named therein but was exported to the adjoining "territory of Uttar Pradesh. If the prosecution succeeds in establishing these facts and further shows that the petitioners were required to make any statement or furnish any information under any Order made under sec. 3 of the Act the case undoubtedly will be covered under sec. 9 of the Act. I do not wish to probe into this matter further because the finding on this question will depend upon the evidence which is led in each case. However, at this stage ft cannot be said that the charge against the petitioners is groundless. This being so all the revision applications fail and are hereby dismissed. ;