1. This is an appeal by the State of Mysore under Section 417, Criminal P. C. against the judgment in C. C. no. 749 of 49.50 of the Special First Class Mag. of Nanjangud. The reap, was prosecuted for an offence under Rule 81 4), Defence of India Rules read with Clause (19) of the Articles of Food Acquisition (Harvest) Order, 1949, for having unauthoredly sold foodgrains.
2. The possession & sale of 'Save' is the food-grain concerned in the offence. The Mag on evidence, found that the accused sold 'Save' & in addition, bad in his possession 600 seers of the commodity in two gunny bags kept for sale in the shop & 10 bags of 'Save' were found to have been stored inside the house attached to the shop which was seized by the Police. The accused pleaded that he has not committed any offence either by possession or by sale of 'Save'. 'Save' is not one of the food-grains mentioned in the Harvest Order of 1949 as it stood on 26-1-1950; but it was introduced therein by an order made by the Provincial Govt. in the exercise of their powers under Rules 75 & 81, Defence of India Rules by a notfn. dated 31-1-1950. The learned Mag. held that this notfn. was invalid in as much as it imposes a fresh restriction on the freedom of trade offending Article 301 of Part XIII of the Constitution of India & consequently found that the accused is not guilty & acquitted him.
3. Sri V. Krishnamurthy, the learned counsel for the accused, supported the judgment of the Mag. & contended that after the commencement of the Constitution of India, the Provincial Govt. is precluded from passing an order which will affect the provisions of the Constitution. It is argued that under the amendment in question, rights conferred in Part XIII of the Constitution regarding the freedom of trade, commerce & intercourse are affected & that it is only the Parliament that could impose restrictions on the freedom of trade & commerce & if the Legislature of any State peeks to make a law in that respect it must obtain the previous sanction of the President.
4. The question for consideration is whether the amendment issued on 31-1-1950 under the notfn. by the Provincial Govt. subsequent to the commencement of the Constitution of India is ultra vires. The term 'existing law' under Clause (10) of Article 366 means:
'any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye-law, rule or regulation.'
It is undisputed that the rules made under the Defence of India Act & continued by the Miscellaneous Provisions Act XX  of 1947 form the existing law on 26-1-1950 & such law :
'shall continue to be in force therein until altered or repealed or amended by a competent Legislature or other competent authority'
as provided by Article 372(1) of the Constitution. It is contended that though the rules tinder the Defence of India Act are continued as the existing law, no power is reserved in the Provincial Govt. under the said rules to pass orders for regulating or prohibiting the storage, distribution & disposal of the foodgrains. We are unable to agree with this contention. So long as the Defence of India Rules continue unabrogated, the powers vested therein in the Provincial Govt. under those rules could be exercised to issue orders for the purpose of maintaining supplies & services essential to the life of the community. The amendment to the Harvest order does not constitute a new law requiring previous permission of the President. The Constitution of India has not the effect of putting an end to the Defence of India Rules, or divesting the powers vested in the Provincial Govt. to make orders thereunder. It is not denied that the notice of amendment was duly published as required by Rule 119, Defence of India Rules & the procedure followed is not in any way defective. The notfn. dated 31-1-1950 imposing restriction on the sale, purchase etc. of the food-grain 'Save' made therein is perfectly intra vires & does not contravene the provisions of the Constitution. We are, therefore, unable to agree with the interpretation of the learned Mag. that the amendment to the order issued under the Defence of India Act, which is the existing law is opposed to Article 301 of the Constitution.
5. This leads us to the consideration as to whether the acts of the accused in having stored & sold 'Save' constitutes an offence. Clause (4) of Sub-clause (1) of the Harvest Order imposes restriction on the persons from selling or otherwise disposing of food-grains except as provided in the said order. Sub-clause (2) enacts that no person shall purchase, receive or come into possession of any foodgrains without the permission of the Govt. & Sub-clause (3) also states that even the foodgrains permitted to be retained shall be sold to Govt. & any sale otherwise shall be null & void. Either possession or sale without permission is prohibited & the contravention of the requirements is made punishable. The accused who possessed & sold 'Save' the article of food is guilty under the amended Harvest Order. Rule 19 of the Harvest Order imposes punishment by imprisonment to a term which may extend to three years in addition to fine unless for reasons to be recorded in writing the Ct is of opinion that in the circumstances of the case, the sentence required is adequate & the imprisonment is not called for, & if the Ct. is satisfied that the order has been contravened the property shall be forfeited to Govt. In this case the offence is committed in a distant village by an ignorant person on 26-2-1960 within less than a month after the notfn. We are of opinion that no imprisonment is called for in the circumstances of the case & a sentence of fine will adequately serve the ends of justice.
6. In the result we set aside the order of acquittal, find the accused guilty under Clause (19) of the Harvest Order read with Rule 81, Defence of India Rules & sentence him to pay a fine of Rs. 50 & in default to undergo imprisonment, simple for three months. The entire commodity seized shall be forfeited to Govt. as undoubtedly the order is contravened by the accused.