S. H. SHETH, S. L. TALATI, J. ( 1 ) THE petitioner is the owner of a Motor truck bearing registration No. GTD. 5657. The firm of Chandrakant Champaklal approached the petitioner as that firm had a desire to transport 93 bags of rice and therefore ultimately on 29-4-1975 the truck left Ahmedabad with 93 bags of rice. The case of the petitioner is that these rice bags were to be delivered to one Sahebchand Surajmal at Vapi. Such a transport from Ahmedabad to Vapi was legal according to the petitioner. The petitioner had not accompanied the truck but the driver of the petitioner drove the truck and driver did not take turn towards Vapi. The truck was intercepted near Nandigam which is a small village and it is within five miles of the border of Maharashtra. It was suspected that the rice bags were being carried across the said border and thus it was suspected that 93 bags of rice were being exported without the permit from Gujarat to the State of Maharashtra. The driver was questioned but he could not produce the permit for export. The result was that the rice bags and the truck were seized. The driver was prosecuted for the breach of Clause 3 of the Gujarat Rice (Export Control) and Paddy (Movement Control) Order 1966 He was convicted and he did not prefer any appeal against his conviction. ( 2 ) THE petitioner was served with a show cause notice under section 6 of the Essential Commodities Act. 1955 on 23 5-1975. At that time it was alleged that there was a breach of Clause 3 of the Gujarat Rice (Export control) and Paddy (Movement Control) Order 1966 After reply to that notice was received another show cause notice dated 29-71975 was served on the petitioner where it was alleged that there was also a breach of Clause 5 of the Gujarat Rice (Export Control) and Paddy (Movement Control) Order 1966 The order confiscating the truck was passed on 1-9-1975. Against that order Criminal Appeal No. 84 of 1975 was filed in the Court of Sessions Judge at Bulsar. By an order dated 28 the learned Sessions Judge Bulsar dismissed the appeal and the order confiscating the truck was confirmed. That order is now challenged by filing this petition. Against that order Criminal Appeal No. 84 of 1975 was filed in the Court of Sessions Judge at Bulsar. By an order dated 28 the learned Sessions Judge Bulsar dismissed the appeal and the order confiscating the truck was confirmed. That order is now challenged by filing this petition. ( 3 ) THE learned Advocate Shri Shah who appeared on behalf of the petitioner raised the following three contentions :- (A) Section 5 of the Essential Commodities Acts 1955 is ultra vires Article 301 of the Constitution read with Article 304 of the Constitution inasmuch as it permits the imposition of restrictions on freedom of trade in disregard to Articles 302 and 304 (b) of the Constitution; (B) The Gujarat Rice (Export Control) and Paddy (Movement Control) Order 1966 is ultra vires the section 3 (1) of the Essential Commodities Act 1955 and section 3 (6) of the Essential Commodities Act 1955 as the order was not laid before both Houses of the Parliament and (C) The notification issued by the Government of India being No. G. S. R. 906 dated 9-6-1966 under sec. 5 of the Essential Commodities Act 1955 suffers from excessive delegation and therefore it is bad. ( 4 ) TAKING the first contention it may be stated that sec. 5 of the Essential Commodities Act 1955 is the section by which the powers are delegated. That section reads as under :- ( 5 ) THE Central Government may by notified order direct that the power to make orders under sec. 3 shall in relation to such matters and subject to such conditions if any as may be specified in the direction be exercisable also by (A) such officer or authority subordinate to the Central Government or (B) Such State Government or such officer or authority subordinate to a State Government as may be specified in the direction. Art. 301 of the Constitution of India is in Part XIII of the Constitution of India and that Chapter deals with Trade Commerce and Intercourse within the territory of India. Art. 301 reads as under :- 301 Subject to the other provisions of this Part trade commerce and intercourse throughout the territory of India shall be free. 5 In order to appreciate the contention raised it would be necessary to reproduce Arts. 302 304 and 307 also. ( 6 ) ART. Art. 301 reads as under :- 301 Subject to the other provisions of this Part trade commerce and intercourse throughout the territory of India shall be free. 5 In order to appreciate the contention raised it would be necessary to reproduce Arts. 302 304 and 307 also. ( 6 ) ART. 302 reads as under :-302 Parliament may by law impose such restrictions on the freedom of trade commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest. ( 7 ) ART. 304 reads as under :-304 Notwithstanding anything in Article 301 or Article 303 the Legislature of a State may by law (a) impose on goods imported from other State or the Union territories any tax to which similar goods manufactured or produced in that State are subject so however as not to discriminate between goods so imported and goods so manufactured or produced; and (B) impose such reasonable restrictions on the freedom of trade commerce or intercourse with or within that State as may be required in the public interest. ( 8 ) ART. 307 reads as under :-307 Parliament may be law appoint such authority as it considers appropriate for carrying out the purposes of Articles 301 302 303 and 304 and confer on the authority so appointed such powers and such duties as it things necessary. Now it clearly appears that the Essential Commodities Act 1955 is an Act of Parliament. Art. 304 (b) will not apply in this particular case. The Gujarat Rice (Export Control) and Paddy (Movement Control) Order 1966 is not a legislation by the State. In view of the fact that it is not a legislation the question of applying Art. 304 would not arise at all. In this view of the situation we have to go by Art. 302 of the Constitution. Art. 302 clearly empowers the Parliament to pass an enactment by which it can impose such restrictions on the freedom of trade commerce or intercourse between one state and another or within any part of the territory of India and may be required in the public interest. The Parliament in view of that power under Art. 302 passed an enactment known as the Essential Commodities Act 1955 which is Act No. 10 of 1955. The Parliament in view of that power under Art. 302 passed an enactment known as the Essential Commodities Act 1955 which is Act No. 10 of 1955. In this view of the situation it cannot be suggested that sec. 5 of the Act is ultra vires Art. 301 read with Art. 304 We make it clear that in this particular case Art. 304 is not required to be read at all. It may also be stated here that in Art. 304 of the Constitution of India Art. 302 is not mentioned at all. It only says Notwithstanding anything in Art. 301 or Art. 303 the Legislature of a State may by law. . . . We may repeat that the Gujarat Rice (Export Control) and Paddy (Movement Control) Order 1966 is not a legislation made by the State. ( 9 ) ART. 301 does not hit sec. 5 because that Article is subject to the other provisions of this part. Art. 302 permits Parliament to enact such a legislation in the public interest imposing such restrictions on the freedom to trade commerce and intercourse between one State and another. . . . Therefore sec. 5 is intra vires Art. 302 and can for that reason not be ultra vires Art. 301. Art. 304 (b) does not come into picture in this case because Art. 302 is not subject to Art. 304 (b ). If Parliament has validily exercised power under Art. 302 Art. 304 (b) cannot be invoked to invalidate it. Art. 302 and Art. 304 (b) confer two distinct powers upon two distinct legislation authorities. As long as one acts within the ambit of its own constitutional power it cannot be hit by the constitutional power conferred upon other body eventhough it may be concurrent. The first contention of Mr. Shah therefore fails and rejected. ( 10 ) SO far as second contention concerned two points are urged. Firstly it is submitted that the Gujarat Rice (Export Control) and Paddy (Movement Control) Order 1966 is ultra vires sec. The first contention of Mr. Shah therefore fails and rejected. ( 10 ) SO far as second contention concerned two points are urged. Firstly it is submitted that the Gujarat Rice (Export Control) and Paddy (Movement Control) Order 1966 is ultra vires sec. 3 (1) of the Essential Commodities Act 1955 Sec. 3 (1) of the Essential Commodities Act 1955 runs as under :-3 (1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices or for securing any essential commodity for the defence of India or the efficient conduct of military operations it may by order provide for regulating or prohibiting the production supply and distribution thereof and trade and commerce therein. The learned advocate Shri Shah contends that nowhere it is stated that it was necessary or expedient to maintain or increase the supplies of paddy or to secure their equitable distribution and availability at fair price and therefore this particular order was passed. A mention is also required to be made to sec. 3 (2) (d) of the Essential Commodities Act 1955 which runs as under :- 3 (2) Without prejudice to the generality of the powers conferred by sub-sec. (1) an order made thereunder may provide xxx xxx xxx xxx xxx xxx xxx (D) for regulating by licences permits or otherwise the storage transport distribution disposal acquisition use or consumption of any essential commodity. ( 11 ) NOW so far as the Gujarat Rice (Export Control) and Paddy (Movement Control) Order 1966 is concerned it is an order dated 29 It starts as under :-NO. GTH 74-ECA-1466-5866- (ii) B In exercise of the powers conferred by sec. 3 of the Essential Commodities Act 1955 (10 of 1955) read with notification of the Government of India Ministry of Food Agriculture Community Development and Co operation (Department of Food) No. GSR. 906 dated the 9th June 1966 and with the prior concurrence of the Central Government the Government of Gujarat hereby makes the following order namely :- therefore on the face of the order it appears that the order is passed in exercise of the powers conferred by sec. 906 dated the 9th June 1966 and with the prior concurrence of the Central Government the Government of Gujarat hereby makes the following order namely :- therefore on the face of the order it appears that the order is passed in exercise of the powers conferred by sec. 3 of the Essential Commodities Act 1955 Again it has been passed by the Civil Supplies Department of the State of Gujarat because of the notification issued by the Government of India. Now what has been urged is that on the face of the order it does not appear that the Civil Supplies Department of the State of Gujarat formed the requisite opinion as required by sec. 3 (1) of the Essential Commodities Act 1955 and therefore this order was passed. The contention was taken in the petition in paragraph 19 and in that paragraph it was stated as under :- from the original notification of the Government of Gujarat issuing the said Order it is abundantly clear that the State Government has also not recorded or reached the satisfaction required under sec. 3. In absence of the condition precedent for the exercise of power being satisfied the Government of Gujarat cannot issue any Order. Prima facie on the face of the order or in any part of the order there is nothing to say or suggest that the Government of Gujarat was satisfied that it is necessary or expedient to issue the order for maintaining or increasing supplies of rice or for securing its equitable distribution and availability at fair prices. Such satisfaction having not been recorded the Gujarat Rice (Export Control) and Paddy (Movement Control) Order 1966 is ultra viress sec. 3 of the Essential Commodities Act 1955now it may be stated that this petition was filed in the year 1976. In the affidavit which is filed by the Government of Gujarat a vague denial is found in paragraph 10 of that affidavit. In that paragraph it is only stated that the contention of the petitioner is not tenable. It is also stated that the order has been issued by the Government of Gujarat under sec. 3 of the Essential Commodities Act and that the Essential Commodities Act has received the assent of the President of India on 1st April 1955 and was published in the Gazette. It is also stated that the order has been issued by the Government of Gujarat under sec. 3 of the Essential Commodities Act and that the Essential Commodities Act has received the assent of the President of India on 1st April 1955 and was published in the Gazette. Thus though there was ample opportunity for the Civil Supplies Department of the State of Gujarat to put on record the material which could show satisfactorily that the requisite opinion was in fact formed and that in view thereof it was necessary and expedient for the purpose of maintaining the supplies of paddy that this particular order was required to be passed. ( 12 ) IT may be stated that it cannot be denied that for the purpose of regulating transport and distribution of any essential commodity sec. 3 (2) (d) of the Essential Commodities Act indisputably gave ample power to the Parliament. That power is delegated to the State Government. The State Government therefore had authority to issue the Gujarat Rice (Export Control) and Paddy (Movement Control) Order 1966 The only challenge is that on the face of that order it is not mentioned that the State Government who issued the order was satisfied in regard to the requisite conditions which are mentioned in sec. 3 (1) of the Essential Commodities Act 1955 Before deciding this question we may refer to the two decisions of the Supreme Court. ( 13 ) THE first case is a case of The Hamdard Dawakhana (Wakf) Delhi and Another v. The Union of India and Others reported in A. I. R. 1965 Supreme Court at page 1167. The argument in that case was similar to the argument which is advanced in this case. The learned advocate Shri Pathak in that case contended that the condition prescribed by the first part of sec. 3 (1) of the Act is a condition precedent and it is only when and after the said condition is satisfied that the power to issue a regulatory order can be exercised by the Central Government. The Supreme Court answered that contention in the following terms :-THIS contention again cannot be allowed to be raised for the first time in appeal because if it had been raised before the High Court the respondents would have had a chance to meet it. It is true. as Mr. The Supreme Court answered that contention in the following terms :-THIS contention again cannot be allowed to be raised for the first time in appeal because if it had been raised before the High Court the respondents would have had a chance to meet it. It is true. as Mr. Pathak contends that in the absence of any specific averment made by the Fruit Order that the Central Government had formed the necessary opinion no presumption can be drawn that such opinion had been formed at the relevant time; but it would have been open to the respondents to prove that such an opinion had been formed at the relevant time; and it cannot be suggested that the failure to mention that fact expressly in the Fruit Order itself would preclude the respondents from proving the said fact independently. That is why we think Mr. Pathak cannot be permitted to urge this contention at this stage. Now therefore so far as this ruling is concerned the contention was not allowed to be raised in the Supreme Court as it was not raised in the High Court. The ground mentioned was that if the contention would have been raised the respondents would have been able to meet with the same. But it is clear that merely because on the face of the order the necessary facts showing that the opinion was formed was not mentioned no presumption can be made one way or the other. That is where the matter stood. ( 14 ) IN another case Chinta Lingam and Others v. The Government of India and Others reported in A. I. R. 1971 S. C. at page 474 this question was directly in issue. Several contentions were raised. One of the contentions raised was as under :-THE requisite opinion of the Central Government within sec. 3 (1) of the Act was not to be found in any of the Orders. The Supreme Court answered that question as under :- we are unable to see the necessity of reciting the requisite opinion within sec. 3 (1) of the Act in the Control Orders. It is implicit in the recital in the Control Orders that they were being made under sec. 3 of the Act that the Central Government had formed the requisite opinion within sub-sec. (1) of the section. This disposes of the first four contentions. 3 (1) of the Act in the Control Orders. It is implicit in the recital in the Control Orders that they were being made under sec. 3 of the Act that the Central Government had formed the requisite opinion within sub-sec. (1) of the section. This disposes of the first four contentions. Now this order also recites that this Order is made in exercise of the powers conferred by sec. 3 of the Essential Commodities Act 1955 (10 of 1955 ). It also recites that the Government of India issued a particular notification and in view of that notification and after obtaining prior concurrence of the Central Government the Government of Gujarat made that order. In this view of the situation it is clear that reference to sec. 3 (1) of the Essential Commodities Act 1955 and further reference to the notification which the Government of India issued clearly imply that the State Government had formed a requisite opinion within the meaning of sec. 3 (1) of the Act otherwise such an order could not have been passed. The ratio of the ruling in Chinta Lingam and Others v. The Government of India and Others (Supra) we are bound to follow and therefore we hold that the Government of Gujarat by the recitals made in the Order itself made it clear that it had formed a requisite opinion and it is implicit in the Order itself. The contention therefore raised by Mr. Shah in this behalf is rejected. ( 15 ) ANOTHER contention raised was in regard to sec. 3 (6) of the Essential Commodities Act 1955 which runs as under :-3 (6) every order made under this section by the Central Government or by any officer or authority of the Central Government shall be laid before both House of Parliament as soon as may be after it is made. The order in question viz. The Gujarat Rice (Export Control) and Paddy (Movement Control) Order 1966 is not made by the Central Government or by any officer or authority of the Central Government. It is therefore not necessary that it should have been laid before both Houses of Parliament. This contention therefore fails and is rejected. ( 16 ) THE third contention raised by Mr. Shah is that the notification in question issued under sec. 5 of the Act suffers from excessive delegation. It is therefore not necessary that it should have been laid before both Houses of Parliament. This contention therefore fails and is rejected. ( 16 ) THE third contention raised by Mr. Shah is that the notification in question issued under sec. 5 of the Act suffers from excessive delegation. That notification is issued by the Government of India Ministry of Food Agriculture Community Development and Co operation (Department of Food on 9-6-1966. It is notification No. G. S. R. 906. It runs as under :-G. S. R. 906. In exercise of the powers conferred by sec. 5 of the Essential Commodities Act 1955 (10 of 1955) the Central Government hereby directs (a) that the powers conferred on it by sub-sec. (1) of sec. 3 of the said Act to make orders to provide for the matters specified in clauses (a) (b) (c ). (d) (e) (f) (h) (i) (ii) and (j) of sub-sec. (2) thereof shall in relation to foodstuffs be exercisable also by a State Government subject to the conditions. (1) that such powers shall be exercised by a State Government subject to such directions if any as may be issued by the Central Government in this behalf; and (2) that before making an order relating to any matter specified in the said clauses (a) (c) in regard to regulation of transport of any food stuffs under the said clause (d) the State Government shall also obtain the prior concurrence of the Central Government. (B) that the orders of the Government of India in the Ministry of Food and Agriculture (Department of Food) specified in the Schedule below shall stand rescinded:- provided that notwithstanding such rescission any order made by a State Government or any officer subordinate to that Government in pursuance of the orders so rescinded and in force immediately before the commencement of this Order shall be deemed to have been made in pursuance of this Order and under the relevant provisions of sec. 3 of the said Act and shall continue in force according to its tenor and accordingly any appointment made licence or permit granted or direction issued under the order aforesaid and in force immediately before such commencement shall continue in force according to its tenor until and unless it is superseded by any appointment made licence or permit granted or direction issued under any other order made in pursuance of this order and under the relevant provisions of sec. 3 of the said Act. The above notification is issued by the Central Government under sec. 5 of the Essential Commodities Act 1955 In view of that notification the State Government got all the powers which the Central Government had under sec. 3 of the Essential Commodities Act 1955 Reading sec. 5 of the Essential Commodities Act 1955 it becomes clear that the Parliament itself delegated the power to the State Government through the Central Government and therefore there is no question of excessive delegation. This question is decided in a case Harishankar Bagla and Another v. The State of Madhya Pradesh reported in A. I. R. 1954 S. C. at page 465. In that case sec. 4 of the Essential Supplies (Temporary Powers) Act 1946 was attacked. The Supreme Court observed as under :- sec. 4 enumerates the classes of persons to whom the power could be delegated or sub delegated by the Central Government and it is not correct to say that the instrumentalities have not been selected by the Legislature itself. The section therefore cannot be attacked on the ground that it empowers the delegate to further delegate its powers in respect of the exercise of its powers under sec. 3. Sec. 4 of the Essential Supplies (Temporary Powers) Act 1946 was reproduced in that ruling. That section ran as under :-4 The Central Government may be notified order direct that the power to make orders under sec. 3 shall in relation to such matters and subject to such conditions if any as may be specified in the direction be exercisable also by (a) such officer or authority subordinate to the Central Government or (b) such State Government or such officer or authority subordinate to a State Government as may be specified in the direction. It is sufficient to say that sec. 4 of that Act is pari materia with sec. It is sufficient to say that sec. 4 of that Act is pari materia with sec. 5 of the Essential Commodities Act 1955 It is clear that the Parliament itself delegated the powers to the State Government through the Central Government and therefore there is no question of excessive delegation. The notification issued under sec. 5 therefore does not suffer from excessive delegation. The third contention of Mr. Shah fails and is rejected. ( 17 ) NO other points are raised. ( 18 ) IN view of the above findings the petition fails and is dismissed Rule is discharged with costs. Petition dismissed. .