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1976 DIGILAW 6 (KER)

STATE v. K. C. ANDRU

1976-01-05

S.K.KADER

body1976
Judgment :- 1. The Chief Judicial Magistrate, Kozhikode, on the basis of a report received from the Sub Divisional Judicial Magistrate, Badagara, has made this reference under S.395 of the Code of Criminal Procedure, 1973. The question referred for decision is whether Clause.4 of the Kerala Dry Cells for Torches (Declaration of Stock and Maintenance of Accounts) Order, 1966, which will hereinafter be referred to as the Order, is invalid on the ground that its enactment is in excess of the power of legislation delegated to the State Government. 2. The Sub Inspector of Police, Kuttiady, on May 28,1974 at about 1.15 p.m. conducted a surprise visit and search of the shop of the accused situated at Kuttiady Bazaar in the presence of two witnesses and seized 109 different kinds of dry battery cells for torches, found in the possession of the accused. The accused failed to exhibit a price list of the said dry battery cells in the shop as required under Clause.4 of the Order. The accused has neither maintained a register of daily accounts of the dry cells for torches as required under Clause.5 of the Order nor issued receipts or invoices in compliance of Clause.6 of the Order. After due investigation, a charge-sheet was laid against the accused for offences punishable under S.3 and 7 of the Essential Commodities Act read with Clause.4, 5 and 6 of the Order. 3. In denying the guilt, the accused contended, relying on the decisions of this Court in Udayasi Metro Cycle Importing Co. v. State of Kerala (1969 KLT. 69) and Chacko Mathew v. State (1969 KLT. 222), that on the reasoning in these two decisions Clause.4 of the Order is beyond the competence of the delegated powers of the State Government and therefore invalid. 4. In Udayasi Metro Cycle Importing Co.'s case (1969 KLT. 69), this Court considered the validity of Clause.4 of the Kerala Cycle Tyres and Tubes (Declaration of Stock and Maintenance of Accounts) Order, 1966, while in Chacko Mathew's case (1966 KLT. 222) what was considered was the validity of Clause.4 of the Baby Food (Declaration of Stock and Maintenance of Accounts) Order, 1966. 69), this Court considered the validity of Clause.4 of the Kerala Cycle Tyres and Tubes (Declaration of Stock and Maintenance of Accounts) Order, 1966, while in Chacko Mathew's case (1966 KLT. 222) what was considered was the validity of Clause.4 of the Baby Food (Declaration of Stock and Maintenance of Accounts) Order, 1966. In both these cases, this Court held that the impugned clause was beyond the competence of the delegated powers of the State Government and therefore invalid These two decisions have been relied on by a Division Bench of this Court in Abdulla . State of Kerala (1973 KLT. 261). 5. It was in exercise of the powers conferred under S.3 of the Essential Commodities Act, 1955 (Act 10 of 1955) read with the notified order of the Central Government dated 18 61966 that the Order was passed by the Government of Kerala by Notification dated 24101966. The State Government can pass orders in this regard only by virtue of the powers conferred on it by the Central Government by notified order as contemplated under S.5 of the Act. The Central Government by notified order No. 26(11)-Com. Genl/66 dated 18-6-1966 directed that the powers conferred on it by sub-section (1) of S.3 of the Act to make orders to provide for the matters specified in clauses (d), (e), (f), (g), (h), (i) (ii) and 0) of sub-section (2) of the said section in relation to commodities other than food stuffs and fertilizers are exercisable also by the State Government subject to the conditions specified in that order. Powers delegated to the State Government under the notified order referred to above are only in regard to matters specified in clauses (d) to (h) (i) (ii) and 0) of sub-section (2) of S.3 of the Act. Therefore the powers of the State Government are confined only to the matters covered by the due clauses. Under Clause.4 of the Order, every dealer shall exhibit a price list of the dry cells for torches held by him at his business premises in the principal language of the locality. The exhibition of price list enjoined by this clause is a matter coming only under clause (c). Under Clause.4 of the Order, every dealer shall exhibit a price list of the dry cells for torches held by him at his business premises in the principal language of the locality. The exhibition of price list enjoined by this clause is a matter coming only under clause (c). It can be seen from the notified order of the Central Government that power under clause (c) of sub-section (2) of S.3 is not one of the powers delegated to the State Government, and Clause.4 of the Order is therefore beyond the competence of the delegated powers of the State Government. It follows that Clause.4 is invalid and the reference is answered accordingly.