1. The applicant has been convicted and sentenced for transporting sugar out of Vindhya Pradesh in contravention of Section 8 of the Vindhya Pradesh Sugar (Control) Order, 1950. The appeal having been dismissed, he has come up in revision.
2. The proved facts of this case are the following: On the evening of 1.6.1950 the applicant was found in the Saugor District of the Madhya Pradesh just outside the boundary of the Vindhya Pradesh, in a lorry with two bags of sugar. The evidence was that they had been brought from the applicant's shop at Pawai within the Vindhya Pradesh. Admittedly the applicant did not have the proper permit for this.
3. In this Court the applicant has taken three grounds. Firstly, that he was not 'transporting' the sugar but was 'dealing' in it without license. This was an offence only after the 1st June 1951, and the prosecution has not proved that the act was completed before that date. The second ground is that the Chief Commissioner made the order under the Vindhya Pradesh Essential Supplies (Temporary Powers) Ordinance of 1048, on the 1st May 1950, when the Ordinance had been repealed. The third ground taken is this that an order under the Essential Supplies (Temporary Powers) Act 1946, which was the law in force on this subject, on the 1st May, 1950, has to be made by the Central Government or any other authority to whom the powers are delegated under Section 4 of that Act. The Chief Commissioner having got the delegated powers only, on 5.9.1950 by virtue of the Central Government's order No. 115 J, the order was void and inoperative at all events on the 1st June 1950.
4. Taking up the first ground, even on the assumption that the applicant's taking the sugar from Pawai in the Vindhya Pradesh into the adjoining province was dealing in sugar, the offence was committed on the 1st June 1950 and not earlier. In such a case the prosecution can only prove that the article came from place 'A' and was actually found in place 'B', It is unnecessary and very often impossible to get evidence that the article was seized or was actually seen passing across the boundary. Again, the time of the actual movement across the line, and at any rate the limits on either side, are proved if, considering the natural course of events and the usual speed of the means of locomotion actually employed, the line must have been crossed at or about such and such time. An article found in a moving lorry about one hour's run from the border, can be safely presumed to have crossed it just as long before the detection. Any party challenging this presumption under Section 114 Evidence Act should adduce evidence to rebut, it. In this case, the sugar being detected in the lorry just outside the Vindhya Pradesh in the evening of the first June, the act of taking it across was done on the 1st. June and not on any earlier date.
5. Really the act of the applicant comes under the definition of transporting and not dealing. Dealing means engaging in a business of purchase, sale, storage or distribution; distribution in this context means distribution to purchasers. Transport is the taking away from place to place by the owner of the property. It may be that the person transporting is a dealer and really transports the article with a View to distributing it. But the two acts are different. Dealing without licence and transporting without permit are two different offences, though they might be committed by the same person. In this particular case, we are concerned with the latter and not the former. There is therefore, no force in the first ground taken by the applicant.
6. Coming to the second ground, I note that there has been a mistake in the making of the Order. The Vindhya Pradesh Essential Supplies (Temporary Powers) Ordinance 1948 had been promulgated by the Raj Pramukh. It continued to be in force after the Raj Pramukh retired on the 31st December 1949 and the Chief Commissioner took his place. On the 15th of April 1950 the President gave his assent to the Part 'C' States Laws Act, 1950, which brought into force in this State a number of Central Acts including the Essential Supplies (Temporary Powers) Act, 1946 and repealed the pre-existent corresponding laws on the same subjects, including the Vindhya Pradesh Essential Supplies (Temporary Powers) Ordinance 1948. Published in the Government of India Gazette on the 17th April 1950, this Act was also re-published for general information in the Vindhya Pradesh Gazette on 30th May 1950; but from the 15th April 1950 onward, the law on this subject was the Central Act, and not the Vindhya Pradesh Ordinance. Had the Sugar Control Order been made before the 15th April under the Ordinance, it would continue to be operative even after the 15th April; assuming, that it is such as could have been made under a corresponding provision in the Central Act. But if the Order is made under the old law after its repeal, it cannot be deemed to have been made under the new law. Thus I find that the Vindhya Pradesh Sugar. (Control) Order 1950 was not properly made, as it purports to have been made under a law which had already been repealed.
7. The third ground is that even on the assumption that this Order was made under the Essential Supplies (Temporary Powers) Act, 1946 the Chief Commissioner was incompetent to make it on 1.5.1950. The learned Assistant Advocate General has argued that the Central Government had passed a general Order under Section 4 of the Essential Supplies (Temporary Powers) Act 1946 delegating powers to all Provincial Governments. But this cannot be delegation of powers to the Chief Commissioner, as the Chief Commissioner ipso facto is not a Provincial Government or competent to exercise the powers of the Government of a Part 'A' State. When the Chief Commissioner, Vindhya Pradesh took over from the Raj Pramukh, he was invested with all the powers of the Rai Pramukh; but the Raj Pramukh himself did not have all the powers of a Provincial Government under the Government of India Act. He derived his powers from a separate Constitution as well as from certain Instruments of Accession. The net result is that there was no delegation of powers to the Chief Commissioner under Section 4 of the Essential Supplies (Temporary Powers) Act till the 5th September 1950. The Chief Commissioner also did not derive any such powers from the Raj Pramukh. As long as the Ordinance was in force, i.e., till 15.4.50, the Chief Commissioner could make Orders under it, because the Raj Pramukh himself could make them, but with the repeal of the Ordinance, these powers were gone. Thus between the 16th April 1950 and 5.9.1950 the Chief Commissioner was not competent to make the Order even under the Act.
8. The result is that the application succeeds and it is allowed. The conviction and the sentence of the applicant are set aside. The fine, if paid, must be refunded. If the sugar has already been forfeited, it should be returned, or the sale-proceeds, if any, in deposit, should be made over to the applicant.
9. Since important points of law are involved, a certificate is given under Article 134 of the Constitution. A copy of this judgment should be sent to the Government.