1. The question for decision in these two cases is whether the convictions of the petitioners for contravention of Art. 17, Food Acquisition (Harvest) Order of 1948 by removing certain quantities of paddy on the night of 11th December 1948 without permits are correct. In ore case 10 bags of paddy were found in a double bullock cart belonging to accused 1 on the way from his village Gutte to another village Dandinadibba, at a river bed. In the other case, there were 51 bags of paddy loaded or about to be loaded in a lorry at or near the same place for the purpose of being taken to a village in another Taluk viz, Koratagere. The prosecution evidence about this and the seizure of the paddy in the course of transit outside the village is not challenged and admittedly the petitioner had no permits with them for removal of the paddy. They contended, there was no need for a permit as the paddy was intended to be taken the Government depot for disposal and even otherwise they are not culpable as the order said to have been contravened is itself ultra vires. The learned Magistrate, taking into account the place and time at which the paddy was found for being conveyed and the suspicion attaching to it, disbelieve the plea of accused that it was about to be taken to the Government depot, and held that even if it were so, the absence of a permit rendered it wrongful. The objection to the prosecution on the ground of the order not being in force at the time was rejected at and the petitioners in both cases were convicted for breach of the Food Acquisition (Harvest) Order, 1948, The sentence in each case being that of fine and not being appealable, the petitioners seek revision of the convictions. The petitions were referred to a Bench as the point involved was a of some importance and consideration of the view expressed in another case about the same.
2. Sri Krishnamurthy on behalf of the petitioners did not dispute the finding of fact in the two cases but attacked the convictions as illegal firstly by urging that the Food Acquisition Order was not in force on the date of the alleged offence and secondly by arguing that the acts of petitioners do not amount to a contravention of the order. In support of these contentions, the unreported decisions in criminal Reve. Petn. No. 152 of 1944-45 and criminal Revn. Petn. No. 54 of 1949-50 wherein convictions for similar acts under orders issued under Defence of India Rules were set aside, were relied upon.
3. The Articles of Food Acquisition Order 1948, came into force in November 1948 by virtue of a notification of Government dated 4th November 1948. It purports to have been made in exercise of the powers conferred by Rules 75A 75B and 81, Defence of India Rules as applied to Mysore and contained by the Supplies, Services and Miscellaneous Provisions (Temporary Powers) Act, XX  of 1947. Rule 75A provides for requisitioning of property, Rule 75B for maintenance of food supplies and under Rule 81(2). Government so far as appears to it to be necessary or expedient for maintaining supplies and services essential to the life of the community may, by order provide (2) for regulating or prohibiting the production, treatment, keeping storage movement, transport, distribution, disposal acquisition use or consumption for articles or things of any description whatsoever. Clause (iv) of Rule. 81 says that if any person contravenes any order made under this rule he shall be punishable with imprisonment for a tem which may extend to three years or with fine or wit h both and if the order so provides the Court trying such contravention may direct the property regarding which there is contravention to be forfeited. According to Section 2(1), defence of India Act , Government may by notification in the Gazette make such rules as appear to it to be necessary or expedient.. for maintaining supplies and services essential to the life of the community. Sub-section (3) of Section states that the rules made under Sub-section (i) may further provide that. any contravention of , or any attempt to contravene and any attempt or attempt to abet the contravention of any of the provisions of the rules or any order issued under any such provision shall be punishable.
4. In view of these provisions, it cannot be said that the Food Acquisition Order is ultra vires to Rules or the Act. The authority to make the order is conferred by the rules and the section referred to. The validity of these being clear and not doubted, these petitioners were not entitled to remove the bags of paddy outside the village without permits therefor as Article 17 of the order prohibits movement or transport of food grains form the place to another except when it is for the purpose of Government of when it is authorised by a permit or when the quantity of the grain is less than 10 seers in certain circumstances or the removal is from the land of the holder to his residence in the same village. None of the conditions necessary for the permit being dispensed with exists in these cases as the quantity is more than 10 seers, the removal is beyond the village and not for Government purposes. The acts of the petitioners must be considered to be prima facie unlawful as offending Article 17. As summing that there was no movement or transport for the reason that the paddy had not reached the destination at the time of seizure, but was in the course of transit, the case is clearly one of attempting to transport or committing an act preparatory for such transport and as such comes under the purview of Rule 121. That Rules states:
'Any person who attempt to contravene or abets or attempts to abet or does any act preparatory to, and contravention of any of the provisions of these Rules or any order made thereunder shall be deemed to have contravened that provision or as the case may be that order.
5. With a view to show that consideration of Rule 121 does not arises by reason of the Food Acquisition Order being non-existent at the time Sri Krishnamurthy referred to a notification of Government dated 24th November 1943 which states that:
'.....Notwithstanding the provisions of the Articles of Food Acquisition (Harvest) Order, 1948, issued .... the power to make order under Clause 3, Hoarding and Profiteering (Foodgrains) Prevention Order , 1948, issued under notification etc., shall continue to be in force and that the other provisions of the said Hoarding and Profiteering (Foodgrains) Prevention Order, 1948, shall apply to any such order as if the Articles of Food, Acquisition (Harvest) Order, 1948, was not in force.'
The words found in the notification do not denote that the Food Acquisition Order was superseded or suspended by the later order but that irrespective of the provisions in the former the later will be operative. If the case of the petitioners was that the Hoarding and Profiteering Prevention Order sanctions transport of paddy without a permit it would have had some force. But no such provision is pointed out. In the absence of specific words to show that the Acquisition Order was repealed or suspended from being effective, it is not reasonable to assume that it ceased to be in force. Its provisions can only be demand to be qualified by those of the Hoarding and Profiteering (Prevention) Act if there be inconsistency between the two as
'it is cardinal principle in the interpretation of a statute that if there are two inconsistent enactment it must be seen if one cannot be read as a qualification of the other.'
Ebbs v. Boulnois, (1875) 10 ch. Article 479 at p. 484; (44 L.J. Ch. 691) when there is nothing to relieve a person from the need for a permit to transport, under the Hoarding and Profiteering Act eve this rule of construction cannot help the petitioners.
6. Another important contention raised against the conviction relates to the applicability of Rule 121 as ti is found that the accused did not actually transport the paddy and were arranging to do so which can at best be deemed only preparatory to contravention of Article 17 Food Acquisition Order. It is urged that the Defence of India Act and the Rules under the Act ceased to be in force on the date of the offence and Rule 121 is not saved from being ineffective by any express legislation. The provisions of the Defence of India Act operative at the time are to be gathered from Act XX of 1947. Section 2 of this Act is as follows:
'The rules made under the Defence of India. Act, 1939, as applied to Mysore, etc., which are specified in the schedule to this Act and as in force on 30th September 1946, shall, be virtue of this Act continue in force notwithstanding the expiry of the said Act and have effect as if references (if any) therein to any of the purposes specified in Section 2 of the said Act were omitted there from.'
Sri Krishnamurthy points out that Schedule 1 to the Act does not specify Rule 121 and therefore the rule can have no application for anything done in December 1948. There is, however, Section 5 which states that:
'The provisions of Clause 1 of the Schedule to the Defence of India (Adaptation to Mysore) Act, 1939, and the provisions of Sub-sections(4) and (5) of Section 2... and Part XVII and Part XVIII, Defence of India Rules, as applied to Mysore, shall, notwithstanding their expiry for all other purposes, continue to apply (so far as applicable) to any rule continued by Section 2 and to any order, made under such rule and to any appointment made, license or permit granted or direction issued under any such order, and whether or not is necessary or expedient for the purposes (if any) specified in any of the aforesaid provisions of the said Act or the Defence of India Rules, as applied to Mysore.'
Rule 121 occurs in Part XVIII, Defence of India Rules and, therefore, according to Section applies to orders made under Rules said to be continued under Section 2. The Food Acquisition Order was made under Rule. 81. Since that is one of the Rules declared to be continued, it follows Rule 121 clearly applies. But from the words 'so far as applicable' which can only mean 'so far as circumstances permit' it is sought to be made to that the application of Rule 121 being excluded by the provisions of Section 2, cannot by Section 5 be regarded as being continued though some other rules in Chap. XVIII may be taken as contained. The words following the bracketed words as well as those preceding it do not warrant a construction in such a limited sense. Reliance is placed on the order of Puttaraj Urs J.in criminal Revn. Petn. No. 54 of 49-50 to show that Act XX  of 1947 cannot be construed as extending to operation of Rule. 121. In that case, conviction under the Cotton Textile (Control of Movement) Order, 1946, for attempt to transport mill cloth from Bangalore to Secundarabad without a permit was set aside on the view that there is no provisions in the notification of the order or the order itself to render a mere attempt to transport an offence and that Rule 121 by which it could be an offence cannot by applied. If the order declares in any of its clauses that an attempt to contravene the same is an offence there is no need to consider the applicability of Rule 121 and it this rule applies, the existence of such a provision in the order is superfluous and its absence immaterial. The learned Judge has expressed that Rule 121 creates a substantive offence, that it is expressly deleted by Section 2 of Act XX and is not saved by Section 5 of that Act. The decision is that of a single Judge and not binding on us. It is difficult to see how Rule 121 creates a substantive offence when it comes into a play only on proof of something done in relation to an act which is forbidden. Unless an act is prohibited by law an attempt to commit it cannot be wrongful. Rule 121 has to be applied with reference to other provisions and is only procedural as shown by the heading to the chapter in which it is found. The rule cannot be said to be expressly deleted by Section 2 of Act XX  of 1947 as it makes no references to it. Section 5 lays down the conditions necessary for its being applicable and these are that there should be an order under the Rules specified. When these are made out Rule. 121 is made applicable to such orders. To hold otherwise would be ignoring the scope and purpose of Section 5 of the Act. We are unable to agree that operation of Rule 121 is not continued by virtue of Section 5 Act XX  of 1947.
7. The learned Magistrate has referred in the judgment to an unreported decision of this Court, in criminal Revn. Petn. No. 152 of 44.45 in which Ghani J. apparently thinking of Section 2 (3) of the Act observed:
'It is doubtful, in my opinion whether the mention of preparation in Rule 121 is not ultra vires because the provisions of the Act under which these rules are made of not contemplate making rules which include preparation to commit an offence as an offence in addition to an attempt to commit it.'
Though the learned Judge did not determine the point and remarked; 'Anyway, I need not go into that aspect as it is not necessary to do so at present. We may point out that the doubt raised by the learned Judge is resolved in Emperor v. Sibnath Banerji by Lord Thankerton who expressed that:
'The function of Sub-section (2) is merely an illustrative one, the rule making power is conferred by Sub-section(1) and the rules which are referred to in the opening sentence of Sub-section (2) are the rules which are authorised by an made under Sub-section (1): the provisions of Sub-section (2) are not restrictive to Sub-section (1) as indeed is expressly stated by the words without prejudice to the generality of the powers conferred by Sub-section (1)'.
These words are quoted in Picha Mooppanar v. Velu Pillai : AIR1947Mad203 where the identical contention that Rule 121 is ultra vires was advanced. The learned Chief Justice rejected it saying:
'Rule 121 is a rule made under Section 2 (1) of the Act and is within the power conferred by the Central Government by that clause. The accused were preparing to contravene that Act. The fact that Sub-section (3) of Section 2 does not contain any reference to preparation does not affect the validity of Rule 121.'
These observations with which were respectfully agree, apply to these cases. The petitioners were rightly convicted and the sentences being only of small amounts of fine do not call for interference. The petitions are dismissed.
8. It is represented that the value of the paddy seized from the accused has been paid to them and they should not be made liable to refund it. The learned Advocate-General on behalf of the Government has no objection to the amounts received by the accused being retained by them. There is no need, therefore, for the lower Court to take any steps for the accused returning the amount.
9. Petitions dismissed.