1. The applicants Mushtaq Ahmad Shahidey and Mursalin were convicted by a Magistrate, 1st class Gonda, in a summary trial under Section 7, Essential Supplies (Temporary Powers) Act of 1946 and sentenced each to rigorous imprisonment for three months and a fine of Rs. 500. They went up in appeal, but their appeal was also dismissed.
2. The allegation against the applicants was that on 25th January 1947, in the morning they were seen carrying on carts two bales of chhint cloth towards Koela Basa in Nepal on the Jarwa-Koela Basa Road in the district of Gonda. It is said that the scene of occurrence is 11/2 miles from Koela Basa but within the district of Gonda. The applicants denied that the cloth was being taken to Nepal territory for sale. They said that it was being taken to Jarws Bazar about 41/2 miles away for sale. The defence was not believed.
3. It has been contended in this revision that it has been impossible to find out which order has been contravened by the applicants carrying two bales of chhint cloth within the district of Gonda. The learned Assistant Government Advocate was directed to ascertain which order had been contravened. His instructions received after great difficulty are that there has been a breach of Clause 3, United Provinces (Supplementary) Cloth (Control of Movement) Order, 1947. Under Clause 3 of this Order it is provided that:
No person or dealer shall carry or cause to be carried or offer for carriage by rail, road or river any cloth from any place in the United Provinces outside the Sector to any place in the Sector or from any place in the Sector to any other place in it except under or in accordance with the terms of a permit issued by the District Magistrate concerned.
'Sector' is defined in the same order as meaning, 'the portion of the United Provinces situated to the north and the East of a line running from East to West and North to South respectively parallel to and at a distance of five miles from the Northern and Eastern boundary of the Province.' It is clear that under the provisions of this order the applicants must be held to be guilty, but the point is that this order does not apply to this case. This order was published in the U.P. Gazette, Extraordinary, on 22nd February 1947, whereas the applicants were found carrying cloth on 26th January 1947, that is, nearly one month before this order came into force. There is nothing to show that the order was given a retrospective effect.
4. From the judgment of the learned Sessions Judge it would appear that according to him the applicants had contravened the provisions of the Cotton Textiles (Control of Movement) Order, 1948. We have not been able to discover any such order, but presumably the learned Judge meant the Cotton Textiles (Control of Movement) Order, 1946. Under Clause 6 of this order;
The Textile Commissioner may, by notification published in the Gazette of India, prohibit the transport of cloth, apparel, hosiery or yarn or any class or description thereof from any place within such area as is specified in the notification to any place outside that area by rail, road, sea or inland navigation except under such conditions, limitations and restrictions as may be so specified.
In exercise of the powers the Textile Commissioner by Government of India Notification No. 191-TA/46 (ii), dated 16th February 1946, directed
that no person shall transport or cause to be transported by road, sea or inland navigation any cloth or apparel from any place within any province or Indian State to any place in India outside such Province or State except with the permission in writing of the Textile Commissioner or the principal officer appointed for the administration of the textile control by the Government of the Province or State exercising jurisdiction over the place of despatch.
Thus it will be seen that by this notification the transport of cloth from one place in a Province to another in the province was not prohibited. There was thus no contravention of any provisions of the Cotton Textiles (Control of Movement) Order 1946. No offence under the circumstances can therefore be said to have been committed. Under Section 5 of Ordinance No. XVIII  of 1946 (the Essential Supplies (Temporary Powers) Act of 1946) this Textiles (Control of Movement) Order of 1946 shall be deemed to have been made under the Ordinance and under Section 17 of Act XXIV  of 1946 (Essential Supplies Temporary Powers Act, 1946) the same order shall continue to be deemed to have been made under Section 3 of Act No. XXIV  of 1946. As there was no breach of the Textiles (Control of Movement) Order of 1946 there cannot be said to be any breach of any order under Section 3 of Act XXIV  of 1946 and so Section 7 of Act XXIV  of 1946 has no application. Clearly the applicants have, therefore, committed no offence whatever which could be punished.
5. In these circumstances this application is allowed. The conviction and sentences of the applicants are set aside and the fine, if paid, shall be refunded. The applicants, if in jail, shall be released forthwith and the cloth ordered to be forfeited shall also be returned to the applicants. One of the applicants, Mushtaq Ahmad, is alleged to be on bail and he need not surrender.