1. The applicant Radhakisan Laxminarayan of Akola was convicted and sentenced to pay a fine of Rs. 500 by the Additional District Magistrate, Akola, under Section 7 of the Essential Supplies (Temporary Powers) Act, 1946 for contravention of Clause 3 of the Central Provinces and Berar Sugar (Control) Order, 1949; and his appeal was dismissed by the Sessions Judge, Akola. He has now come up in revision to this Court.
2. The admitted facts are as follows. The applicant who is a big merchant and proprietor of the firm Raghunathdas Rampratap at Akola, held a licence to deal in sugar under the Central Provinces and Berar Sugar Dealers' Licensing Order in 1943. The firms of Rajaram Ramawatar and Bansidhar Nandlal of Bareli, Uttar Pradesh, sent a consignment of 185 bags of sugar to Akola. The consignment was to self. The invoices were received on the 15th January 1950 and the consignment arrived at Akola five days later.
The railway receipts Exhibits P-16 and P-17 in respect of the consignment had been endorsed by the consignors in favour of the firm Raghunathdas Rampratap. That firm endorsed them in favour of D.N. Gosawi (P.W. 6), station dalal, who took delivery of them on the 23rd January 1950 and sent them to the applicant's godown. On the same day, S.V. Garde (P.W. 2) station-officer, Akola kotvali, having received information concerning the consignment, went to the applicant's godown where he found the 185 bags of sugar arranged in 3 stacks. As the applicant's servant Ramdhan was unable to produce a licence for dealing in sugar under the Central Provinces and Berar Sugar (Control) Order, 1949, S.V. Garde seized the bags.
3. The applicant in examination denied that he had on the 23rd January 1950 given Prabhakar (P.W. 7), Gosawi's servant the railway receipts Exhibits P-16 and P-17 for transmission to Gosawi to enable him to take delivery of the bags of sugar or that he (the applicant) was aware that Gosawi had taken delivery of them in the name of his firm. He further expressed ignorance of the fact of the seizure of the bags from his godown on that date, but he admitted that he had applied on the 16th January 1950 for a licence under the Order of 1949. He added that he had not ordered the sugar, that Jagannath, munim looked after the management of the business and that the sugar had been sent to his shop 'as adtia'. The case of the applicant's servants, Ramdhan and Pannalal was to the effect that they had no knowledge whether their employer had a licence or not; and this defence was accepted by the trial Court which acquitted them. The applicant's defence was as follows:
I have not committed any offence. I was only to act as commission agent, on receipt of orders from the consignor. I was a former licencee and was dealing in sugar during the previous 3 years. I had applied for a fresh licence by way of renewal. I was led to believe that I would get the licence. The delivery was given to firm servants by railway authorities on the advice of the Deputy Commissioner. My action is altogether bona fide. I am not the owner of the goods.
No evidence was adduced in defence.
4. In the course of' his arguments the applicant's learned Counsel raised the following interesting point. In the original Central Provinces and Berar Sugar (Control) Order, 1949, which came into force on the 13th September 1949, 'Sugar' was defined in Clause 2(a) as any sugar of crystalline structure; but that sub-clause was amended by Food Department Notification No. 25640-1446-XXV-FZ, dated the 18th October 1949, and 'Sugar' was denned as follows:
(i) any sugar of crystalline structure;
(ii) any form of sugar containing more than 90 per cent sucrose;
(iii) sugar manufactured by any process including sugar made in vacuum pan factories from cane or gur or palmyra jaggery as well as khandsari sugar, sugar-candy (misri) and bura.
A 'dealer in sugar' was defined in the original Order as a person dealing in the purchase, sale or distribution of sugar in the units of not less than a bag approximately equal to 2 maunds 30 seers in any one transaction, and the term 'dealer in sugar' was to be construed accordingly; but the amending notification substituted for the words 'dealing in the purchase, sale or distribution of sugar', the words 'engaged in the business of purchase, sale or distribution of sugar, or storage, for use in the manufacture of any article of his trade or for sale, of sugar'. This amendment appreciably amplified the extent of the earlier definition and so also did the amendment of the word 'Sugar'.
5. The original Order was made with the concurrence of the Government of India, Ministry of Agriculture, but the amending notification was made without such concurrence; and the applicant's learned Counsel contended that it was ultra vires on this account. The Order was made under Section 3 of the Essential Supplies (Temporary Powers) Act, 1946 and under Section 4 of that enactment it was open to the Central Government to direct by notified order that the power to make orders under Section 3 shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by:
(a) such officer or authority subordinate to the Central Government, or
(b) such Provincial Government or such officer or authority subordinate to a Provincial Government.
as may be specified in the direction.
6. In exercise of the powers conferred by Section 4 of the Essential Supplies (Temporary Powers) Ordinance, 1946, the Central Government by notified order No. FY603(2)-I, dated the 21st October 1946, directed that the powers conferred on it by Sub-section (1) of Section 3 of the Ordinance to provide for the matters specified in Sub-section (2) thereof shall, in relation to foodstuffs, be exercisable also by any Provincial Government, subject to the condition that before making any order relating to any, matter specified in Clauses (a), (b), (c), (d), (f) and (g) of the said Sub-section (2), the Provincial Government shall obtain the concurrence of the Central Government.
7. It was, therefore, clear that the Provincial Government were empowered to make the original Order with the concurrence of the Central Government; and in fact that Order was as its prefatory words indicate, made in exercise of the powers conferred by Section 3 of the Essential Supplies (Temporary Powers) Act 1946 read with the above-mentioned notification, viz., No. PY-603(2)-I, after the concurrence o* the Government of India had been obtained. No such concurrence was obtained for the amending notification although, as demonstrated, the changes effected by it were of substance; and the learned Counsel who represented the State was unable to cite any authority for the proposition that when a power, which was subject to a condition or conditions, to make orders was delegated, the authority to whom the power was delegated could vary the orders without observance of the condition or conditions.
8. In fact, Section 21 of the General Clauses Act makes it clear that where a Central Act confers a power to issue inter alia notification and orders, that power includes a power, 'exercisable in the like manner and subject to the like sanction and conditions (if any)', to add to amend, vary or rescind any notifications or orders so issued. The condition in the present case was the obtaining of the concurrence of the Central Government; and the power to amend the original Order was subject to that condition. As that condition was not fulfilled, the amending notification was 'ultra vires' of the Provincial Government; and the applicant was not liable for contravention of its provisions. He was also not liable for contravention of the provisions of the original Order, as the sugar in question was khandsari sugar and storage for sale was not hit by that Order.
9. The conviction and sentence are accordingly set aside and the applicant is acquitted. The fine, if paid. shall be refunded to him.