I.A. Ansari, J.—While the petitioner Nos. 1 and 3 happened to be the elected office bearers of Gohpur Co- operative Society during the co-operative year 1993-1994, the petitioner No. 2 was employed by the said Society as a salesman and the petitioner No. 4 is the Branch Manager of STATEFED, a Government of Assam undertaking, which has become almost defunct. An offence report was lodged against the petitioners, as accused, by the respondent No. 1 herein, who was, at the relevant point of time, Inspector, Food & Civil Supplies, Govt. of Assam, the offence report alleging, inter alia, thus: (i) On 20.02.1994, Sri P.K. Baruah, Inspector, Food & Civil Supplies/visited the premises of the said Society, collected the said Society's stock register, sale register and one cash-memo book and, then, submitted a report to the Sub-Divisional Officer (Civil), Biswanath Chariali, who, in turn, vide his letter, dated 10.03.94, directed respondent No. 1 herein to make an enquiry with regard to the lifting and distribution of commodities of Public Distribution System (hereinafter referred to as 'the PDS'), such as, rice, atta, etc. by the said Society and to submit report. By the said letter, dated 10.03.94, aforementioned, the said Sri P.K. Baruah was also directed to hand over to the respondent No. 1 the said documents, which Shri Baruah had collected, as indicated above, on 20.02.94, from the premises of the said Society. Sri P.K. Baruah, accordingly, handed over the collected documents to respondent No. 1, whereupon respondent No. 1 started enquiry with regard to the allocation, lifting and distribution of PDS commodities by the said Society since July, 1993, to February, 1994. During the course of this enquiry, respondent No. 1 herein visited the premises of the said Society on 18.03.1994 and collected one cash memo book, a number of copies of Food Corporation of India's orders of allotment of rice, sugar, etc. to the said Society. Respondent No. 1 also physically checked the stock of the allotted commodities lying in the said Society's godown and found only 2.24 quintals of rice, meant for PDS, lying in the Society's godown. After scrutiny of the relevant documents, respondent No. 1 found that the said Society had illegally sold out the following PDS commodities in the market: 1. 185 quintals of rice against allocation for the month of July, 1994 and Dec/1993. 2. After scrutiny of the relevant documents, respondent No. 1 found that the said Society had illegally sold out the following PDS commodities in the market: 1. 185 quintals of rice against allocation for the month of July, 1994 and Dec/1993. 2. 150 quintals of atta against allocation for the month of July, 93, and Aug, 93. 3. 140 quintals of sugar against allocation for the month of Sept, 93. 4. 113 quintals of Rs. 2/- rice against allocation for the month of Dec/93 vide No. BFS/10/93/11 dt 22/12/93 during the month of Jan/94 meant for Green Card holder of Gohpur area. (ii) Respondent No. 1 also seized 42 numbers of quota lifting book from the agents of the said Society, which showed that the said agents had not received from the said Society any quota of allocation of rice, which were to be sold by the agents @ Rs. 2/- per kg. during January, 1994, and October, 1993, and, similarly, the agents had not received the allotted atta during the whole year of 1993, January 1994, and February, 1994, though the said Society had lifted as much as 113 quintals of rice @ Rs. 2/- per kg. from STATEFED during January, 1994, and 150 quintals of atta from M/s. Shree Mahadeo Oil & Rice Mills during August, 93, and October, 1993. As per the statement, made in writing, by the Secretary and Salesman of the said Society, there was illegal disposal of 113 quintals of rice meant for being sold under the scheme of the PDS. (iii) The petitioner No. 4 herein, Branch Manager, STATEFED, Tezpur, was also alleged to have directed their Godown-in-Charge to show delivery of 113 quintals of rice, which were to be sold @ Rs. 2/- per kg., from Statefed's Godwon, Biswanath Chariali. On scrutiny of the said Society's stock register, no entry of rice, which were to be sold @ Rs. 2/- per kg., in the month of January, 1994, and 100 quintals of atta in the month of October, 1993, were found indicating thereby that the Secretary of the said Society, in collaboration with the Branch Manager, STATEFED, had sold away 113 quintals of rice priced at Rs. 2/- per kg. in black market. Similar was the situation in respect of sugar and atta too. 2/- per kg. in black market. Similar was the situation in respect of sugar and atta too. (iii) Thus, the PDS commodities, which were meant for distribution in terms of the scheme of the Assam Public Distribution of Articles Order, 1982, (in short, 'the 1982 Order') had not been distributed and illegally sold, in black market, by the present petitioners. 2. Based on the offence report, processes were issued to the accused-petitioners, On their appearance, and, upon hearing the learned counsel for the accused-petitioners and also the learned Public Prosecutor, the learned Sessions Judge, Sonitpur, Tezpur, passed an order, on 30.03.2002, referring to the case of State of Tamil Nadu Vs. Paramasiva Pandian, , and observed that since the Supreme Court, in Paramsiva Pandian (supra), has already held that the Essential Commodities (Special Provisions) Act, which provided for Special Courts u/s 12A, came into force with effect from 01.09.1982 and remained in force till 31.08.1997, and, thereafter, the Essential Commodities (Special Provisions) Ordinance, 1997 (Central Ordinance 21 of 1997) was promulgated, but there being no specific legislation on the subject of the said Ordinance, Essential Commodities (Amendment) Ordinance, 1998 (Central Ordinance 13 of 1998) was promulgated, but both these Ordinances had lapsed, because they were not replaced by necessary enactments and, as a result thereof, the Special Courts, established for trial of cases under the EC Act, ceased to function and the consequence was that the cases, registered under the EC Act, were to be tried by Magistrates having jurisdiction as the same was done prior to the enactment of the Essential Commodities (Special Provisions) Act, 1981. 3. Having taken note of the decision, in Paramsiva Pandian (supra), as indicated above, and having come to the conclusion that the Special Courts have ceased to have any force under the law and that the cases need to be tried by Magistrate having jurisdiction, the learned Sessions Judge, Sonitpur, sent the case record to the learned Chief Judicial Magistrate, Tezpur, for disposal of the case in accordance with law. 4. Thereafter, the accused-petitioners appeared in the Court of learned Chief Judicial Magistrate, Tezpur. 5. 4. Thereafter, the accused-petitioners appeared in the Court of learned Chief Judicial Magistrate, Tezpur. 5. While the case was so pending against them, the accused- petitioners have filed this writ petition, under Article 226 of the Constitution of India, seeking issuance of appropriate writ(s) setting aside and quashing the 1982 Order made by the respondent No. 2, (i.e., the State of Assam), the prosecution of the accused-petitioner as well as the said offence report, which has been lodged on the ground that the 1982 Order was bad in law inasmuch as the 1982 Order, having been made without 'prior concurrence' of the Central Government, though 'prior concurrence' was required and since there was no valid law, which could be claimed to have been contravened by the accused-petitioners, the accused-petitioners could not have been put to trial, u/s 7 of the EC Act, for the alleged contravention of the 1982 Order. This apart, the further case of the accused-petitioners before this Court is that the learned Additional Chief Judicial Magistrate, who is trying the accused, is not authorized in law to hold trial for offences under the EC Act inasmuch as he has not been specially empowered, in this behalf, by the State Government as is required by Section 12A of the Essential Commodities Act, 1955. 6. In short, the accused-petitioners contend that the 1982 Order is without jurisdiction inasmuch as the 1982 Order has been made without obtaining 'prior concurrence' of the Central Government, though 'prior concurrence' was required for making such an Order and, hence, taking of cognizance and holding of trial against the accused-petitioners, u/s 7 of the EC Act, for the alleged contravention of the various provisions of the 1982 Order, was bad in law; more so, when even the Additional Chief Judicial Magistrate, who is holding the trial, is not competent, in law, to hold such a trial inasmuch as he has not been empowered, in this behalf, by the State Government as is required by Section 12A of the EC Act. 7. In other words, according to the accused-petitioners, their trial is wholly without jurisdiction and, hence, cognizance of the offences taken, the processes issued against them and their present trial deserves to be quashed. 8. We have heard Mr. T.C. Khetri, learned senior counsel, for the petitioners, and Mr. A.K. Phukan, learned Advocate General, Assam. 9. It has been pointed out by Mr. 8. We have heard Mr. T.C. Khetri, learned senior counsel, for the petitioners, and Mr. A.K. Phukan, learned Advocate General, Assam. 9. It has been pointed out by Mr. Khetri, learned senior counsel, that it is the Central Government, which makes, under the provisions of Section 3, orders or issue notifications for controlling production, supply and distribution of essential commodities. 10. Though Section 3, points out Mr. Khetri, empowers the Central Government to issue an order, Section 5 of the EC Act provides for delegation of powers to States by the Central Government in as much as the Central Government may, u/s 5 of the EC Act, direct, by notified order, that the power to make orders or issue notifications, vested in the Central Government u/s 3, be exercised by not only an officer or authority subordinate to the Central Government, but also by a State Government or such officer or authority subordinate to the State Government as may be specified in the direction. 11. Mr. Khetri further points out that in relation to maintenance and/or increase of supplies and also for securing equitable distribution of foodstuffs at fair prices, the Central Government made the notified order as contained in Notification No. GSR 800, dated 09.06.1978, authorizing State Governments to exercise powers as are exercisable by the Central Government subject to certain conditions specified in the Notification, dated 09.06.78, itself. 12. Mr. Khetri has submitted that the Notification, dated 09.06.78, aforementioned, imposes a condition on the State Government's power to make any order or issue any notification in terms of sub-section (2) of Section 5. According to Mr. Khetri, the condition, so imposed by the Notification, dated 09.06.78, aforementioned, shows that before making an order 'relating to any matter specified in Clauses (a), (c) or (f) or in regard to distribution or disposal of foodstuffs to places outside the State or in regard to regulation of transport of any foodstuff, under clause (d) of sub-section (2) of Section 3, the State Government shall obtain 'prior concurrence' of the Central Government. 13. Laying emphasis on the expression, 'prior concurrence', which appears in the Notification, dated 09.06.1978, aforementioned, Mr. 13. Laying emphasis on the expression, 'prior concurrence', which appears in the Notification, dated 09.06.1978, aforementioned, Mr. Khetri contends that a public distribution system involves controlling of price(s) of essential commodities and equitable distribution thereof at fair price and such a system can only be provided by making orders relating to any matters specified in clauses (c) and (d), which provide for controlling of price at which a commodity may be bought or sold and for regulating, by licenses, permits or otherwise, the storage, transport, distribution, disposal, acquisition, use or consumption of an essential commodity. However, under the provisions of Clauses (a), (c), (d) or (f) of sub-section (2) of Section 3 of the EC Act, points out Mr. Khetri, the condition precedent is that the State Government shall, for the purpose of making an order, obtain 'prior concurrence' of the Central Government, especially, for the purpose of controlling prices at which an essential commodity can be sold or bought and/or for transportation, storage and disposal of essential commodities. 14. Mr. Khetri also submits that in the purported exercise of powers conferred by Section 3 of the EC Act, read with the Notification, dated 09.06.78, aforementioned, issued by the Government of India, Ministry of Agriculture and Irrigation (Department of Food), the Governor of Assam made the 1982 Order' and notified foodstuffs for the purpose of applicability of the 1982 Order, the foodstuffs being rice, sugar, salt, imported edible oil and wheat products, such as, atta, maida, suji and bran. 15. Coupled with the above, according to Mr. Khetri, Section 12A(2) of the EC Act, as amended by the Amendment Act of 1974, provides that contravention of an order, made u/s 3 of the EC Act, shall be tried in a summary way by a Judicial Magistrate of the First Class specifically empowered, in this behalf, by the State Government or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 shall, as far as may be, applied to such trials. 16. In other words, according to Mr. 16. In other words, according to Mr. Khetri, prosecution for breach of the provisions of 1982 Order is permissible only by resorting to summary procedure and, that too, by a Judicial Magistrate of First Class, who is specially empowered, in this behalf, by the State Government; whereas the learned Additional Chief Judicial Magistrate, who issued processes, in the present case, was not so empowered by the State Government inasmuch as he exercises the summary power of trial by virtue of the provisions of Section 260, Cr PC, which enables a Magistrate to hold summary trial if he is so empowered by the State Government. 17. It is contended by Mr. Khetri, learned senior counsel, that the notification, dated 09.06.78, whereunder the 1982 Order was made, does not disclose that the 1982 Order was made upon taking 'prior concurrence' of the Central Government and the petitioners have not been able to trace out any such order or notification disclosing that 'prior concurrence' was taken by the State Government for making the 1982 Order. Further contends Mr. Khetri that 'prior concurrence' of the Central Government having not been obtained, none of the petitioners can be tried for breach of any of the provisions of the 1982 Order if the breach relates to exercise of powers, as contained in Clauses (a), (c), (d) or (f) of sub-section (2) of Section 3. 18. It is also contended by Mr. Khetri that even if such a breach is committed, offences, relating to such a breach, can be tried by a Judicial Magistrate of the First Class specially empowered, in this behalf, by the State Government and not by a Magistrate of the First Class, who has the power to hold summary trial on being empowered, in this behalf, by the High Court by virtue of Section 260, Cr PC. 19. The petitioners are made to face a trial, according to Mr. 19. The petitioners are made to face a trial, according to Mr. Khetri, for allegedly committing an offence, which cannot be regarded to have been committed by them inasmuch as it is the alleged contravention of the 1982 Order, which is made an offence u/s 7 of the EC Act, and since the 1982 Order is itself not validly made, the contravention thereof cannot legally constitute an offence punishable u/s 7 of the EC Act and that no legally sustainable purpose would be served by putting the accused-petitioners to trial on the basis of a complaint, which involves contravention of the provisions covered by Clauses (c) and (d) of sub-section (2) of Section 3 of the EC Act. 20. In short, the contention of the accused-petitioners is that since the 1982 Order has been made without 'prior concurrence' of the Central Government, as contemplated by the Central Government's Notification, dated 09.06.78, aforementioned, prosecution of the accused-petitioners is void ab initio inasmuch as their prosecution is based on the provisions of the 1982 Order, which falls beyond the ambit of the Notification, dated 09.06.78, aforementioned, and is, therefore, void and may be treated as non est in law. It is also the contention of the accused-petitioners that in the face of the fundamental right, guaranteed under Article 21, to every person in India, prosecution is permissible if and only if the law, which is alleged to have been violated or contravened, is valid law. In these circumstances, according to the accused-petitioners, the 1982 Order is ultra vires. To put it a little differently, according to the accused-petitioners, their prosecution, in a case of present nature, is wholly void inasmuch as they are alleged to have contravened the provisions of the 1982 Order; whereas the relevant contravened provisions of the 1982 Order are beyond the scope of the power conferred, on the State Government by the Central Government by the latter's Notification, dated 09.06.78, aforementioned. 21. The petitioners have further contended that their trial, by the learned Additional Chief Judicial Magistrate, is, otherwise, also, without jurisdiction inasmuch as the learned Additional Chief Judicial Magistrate has not been specially empowered by the State Government as is required u/s 12A(2) of the EC Act. 22. 21. The petitioners have further contended that their trial, by the learned Additional Chief Judicial Magistrate, is, otherwise, also, without jurisdiction inasmuch as the learned Additional Chief Judicial Magistrate has not been specially empowered by the State Government as is required u/s 12A(2) of the EC Act. 22. Repelling the above submissions, made on behalf of the petitioners, the learned Advocate General has contended that the contravention of the 1982 Order, which the accused-petitioners have allegedly committed, is not covered by Clauses (a), (c), (d) or (f) of sub-section (2) of Section 5 and, hence, their prosecution cannot be treated to be bad in law. 23. The alternative argument of the learned Advocate General is that since the State Government has been sending reports on the operation of the 1982 Order, to the Central Government, it may be deemed that the Central Government has its consent to the enforcement of the provisions embodied in the 1982 Order. 24. As regards the contention of the accused-petitioners that their trial by the learned Additional Chief Judicial Magistrate is bad in law, because the learned Additional Chief Judicial Magistrate has not been empowered by the State Government in terms of the provisions of Section 12A(2) of the EC Act, the learned Advocate General points out that Section 12A(2) is not applicable to the case at hand inasmuch as this condition precedent will apply only when the Magistrate decides to try a case summarily. In the case at hand, the trial is not by adopting summary procedure and, hence, the question of the trial being without jurisdiction does not arise. 25. This apart, according to the learned Advocate General, Section 12A(2) of the EC Act would come into play, when the Central Government promulgates, by notification in the official Gazette, a special order for the purpose of summary trial. As no special order, contends the learned Advocate General, has been notified by the Central Government in exercise of its power under sub-section (1) of Section 12A, the question of invoking sub-section (2) of Section 12 does not arise and no special empowerment by the State Government is necessary for a Magistrate to hold summary trial. 26. Coupled with the above, the learned Advocate General also submits that it is the Central Government, which fixes the prices for the PDS commodities and what the State Government gives is only commission. 26. Coupled with the above, the learned Advocate General also submits that it is the Central Government, which fixes the prices for the PDS commodities and what the State Government gives is only commission. Thus, points out the learned Advocate General, the PDS commodities are sold at the prices fixed by the Central Government over and above the sum, which is required to be paid as commission for distribution of the PDS items. 27. Referring to the case of State of Andhra Pradesh and Another Vs. Potta Sanyasi Rao and Others, , the learned Advocate General has pointed out that in Potta Sanyasi Rao (supra), the Supreme Court has made it clear that when the authority to make an order or issue notification was already delegated by the Central Government to the State Government u/s 5, it is not necessary that every time the Central Government declares a commodity to be an essential commodity, the Central Government has to pass an order of delegation u/s 5 with regard to such a commodity. The learned Advocate General also contends that delegation of power to the State Government by the Central Government enabling the State Government to act u/s 3 is not restricted to any specific essential commodity and it will be sufficient, in law, if, the State Government, duly empowered u/s 5, makes a notification u/s 3 with regard to an essential commodity. 28. The relevant observations, made in this regard, in Potta Sanyasi Rao (supra), which the learned Advocate General relies upon, road as under: 9. There is nothing in Section 5 to limit the power of delegation in favour of the State Government only to the commodities, specified in Section 2(a) or to those commodities declared essential u/s 2(a)(xi) upto the date of delegation. Delegation u/s 5 is a general delegation and will enure in favour of exercise of power by the State Government with respect to commodities declared essential by the Central Government from time to time u/s 2(a)(xi) even subsequent to the order of delegation. It is not necessary that every time the Central Government declares an essential commodity it has also to pass an order of delegation u/s 5 with regard to that commodity. It is not necessary that every time the Central Government declares an essential commodity it has also to pass an order of delegation u/s 5 with regard to that commodity. Reading Section 5 and Section 3 together there is no warrant for the view that the power of delegation is confined to essential commodities specified under the Act and such others as may be declared by the Central Government upto the order of delegation, Delegation of power to the State Government to act u/s 3 is not restricted to any specified essential commodity as such. It will be sufficient in law if on the date the State Government, duly empowered u/s 5, makes a notification u/s 3 with regard to an essential commodity within the meaning of Section 2(a) including the residuary clause (xi) thereof. All that is required is that the commodity, on the date of the order of the State Government, answers the description of the clauses in Section 2(a) of the Act. The fact that a commodity is declared essential after the order of delegation does not affect the exercise of power by the State Government u/s 3 of the Act. The High Court is, therefore, not right in narrowly construing the order of delegation u/s 5 of the Act. The Licensing Order is, therefore, not invalid on the ground that the tyres and tubes were declared to be essential commodities by the Central Government after the order of delegation u/s 5 of the Act. 29. In the light of the above submission made on behalf of the writ petitioners and the State, we proceed to decide the issues, which have been raised in the present writ petition. 30. Broadly speaking, there are two issues, which have fallen for determination in the present case. 31. 29. In the light of the above submission made on behalf of the writ petitioners and the State, we proceed to decide the issues, which have been raised in the present writ petition. 30. Broadly speaking, there are two issues, which have fallen for determination in the present case. 31. One of the two issues is : whether the 1982 Order is in consonance with the scheme of the EC Act, as embodied in Section 3 read with Section 5 thereof, inasmuch as it is contended/on behalf of the petitioners, that the 1982 Order is in contravention of the provisions of Clauses (a), (c), (d) and (f) of sub-section (2) of Section 3 read with Section 5 of the EC Act, for, no Licensing Order, in the light of the provisions of Section 3 read with Section 5 and the Notification, dated 09.06.1978, aforementioned, can be made by a State Government in respect of the subject-matters, covered by Clauses (a), (c), (d) and (f), without 'prior concurrence' having been obtained, in this regard, from the Central Government. 32. The second issue is : whether the petitioners can be tried at all for contravention of the provisions of the 1982 Order except in accordance with the provisions of Section 12A of the EC Act, which, according to the petitioners, requires that the procedure, to be followed for contravention of the provisions of the EC Act, shall be summary procedure and the power to exercise summary procedure, under the EC Act, has to be specially conferred on a Judicial Magistrate, 1st Class, by the State Government; whereas, no such special power has been conferred, in the State of Assam, on the Judicial Magistrates, 1st Class, and the power of summary trial is being exercised by Magistrates by virtue of their empowerment by the High Court u/s 260 of the Code of Criminal Procedure. 33. While considering the issues, raised in the present writ petition, it is imperative to note that the EC Act is a Central legislation, which provides for control of the production, supply and distribution of, and trade and commerce in, certain specified commodities, which are called essential commodities. u/s 2A of the EC Act, an essential commodity means a commodity specified in the Schedule to the EC Act. u/s 2A of the EC Act, an essential commodity means a commodity specified in the Schedule to the EC Act. Sub-section (1) of Section 3 confers, on the Central Government, the power to make provisions for regulating or prohibiting the production, supply and distribution of essential commodities and also trade and commerce in essential commodities if the Central Government is of the opinion that it is necessary or expedient so to do for, inter alia, maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices. 34. Notwithstanding the generality of the powers, so conferred by sub-section (1) of Section 3, the Central Government, in the light of the provisions of sub-section (1) of Section 3 of the EC Act, has the power to issue orders, known as Licensing Orders, for securing the aforesaid objectives, which may, amongst others, include controlling of price at which an essential commodity may be bought or sold and also regulating, by licence, permits, or otherwise, the storage, transportation, distribution, disposal, acquisition, use or consumption, of any essential commodity. 35. Section 5 of the EC Act empowers the Central Government to delegate its powers, conferred on it by Section 3, to, amongst others, State Government or such officers or authorities, subordinate to the State Government, as may be specified in the order in relation to such matters and subject to such conditions as the Central Government may specify in the order. 36. Thus, the Central Government is competent to delegate its powers to the State Government or its officers and it may further specify restrictions and conditions for the exercise of the delegated power. Every order issued, u/s 3 of the EC Act, is legislative in nature and is required to be notified in the Official Gazette u/s 3(5) of the Act. 37. The Central Government, in the Ministry of Agriculture and Irrigation (Department of Food), issued the Notification No. GSR 800, dated 9th June, 1978, delegating its powers u/s 3(1) of the EC Act to the State Governments to make order in respect of the matters specified in various sub-clauses of Sub-section (2) of Section 3 in relation to food-stuffs subject to certain conditions specified therein. The said Notification is reproduced below: PUBLISHED IN THE GAZETTE OF INDIA (PART) II SECTION 3 SUBSECTION (i) DATED 17TH JUNE, 1978/27 JYAISTHA, 1900 (SAKA). The said Notification is reproduced below: PUBLISHED IN THE GAZETTE OF INDIA (PART) II SECTION 3 SUBSECTION (i) DATED 17TH JUNE, 1978/27 JYAISTHA, 1900 (SAKA). MINISTRY OF AGRICULTURE & IRRIGATION(DEPARTMENT OF FOOD)ORDER New Delhi, the 9th June, 1978. G.S.R. 800.--In exercise of the powers conferred by Section 5 of the Essential Commodities Act, 1955 (10 of 1955), and in supersession of the Order of the Government of India in the late Ministry of Agriculture, (Department of Food) No. GSR, 315(E) dated the 20th June 1972, the Central Government hereby directs that the powers conferred on it by sub-section (1) of Section 3 of the said Act to make orders to provide for the matters specified in clauses (a), (b), (c), (d), (e), (f), (h), (i) and (j) of Sub-section (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. (2) that before making an order relating to any matter specified in the said clauses (a), (c) or (f) or in regard to distribution of disposal of foodstuffs to places outside the State or in regard to regulation of transport of any foodstuff under the said clause (d), the State Government shall also obtain the prior concurrence of the Central Government; and (3) that in making an order relating to any of the matters specified in the said clause (j), the State Government shall authorise only an officer of the Government. Sd/-(K. Balakrishnan)Deputy Secretary to the Government of India.No. 3 (Genl)(1)-D & R(1)-59 (Emphasis is added) 38. From a bare reading of clause (2) of the Notification, dated 9th June, 1978, aforementioned, it becomes crystal clear that the Central Government, while delegating its powers, u/s 3 of the EC Act, to the State Government, expressly placed restrictions on the powers of the State Government to make orders relating to any matters specified in Clauses (a), (c), (d) and (f) of sub-section (2) of Section 3 of the EC Act. The Notification, dated 09.06.1978, aforementioned, also made it explicitly clear that while making an order, pertaining to any matters specified in the aforesaid clauses, the State Government shall obtain prior concurrence of the Central Government. 39. The Notification, dated 09.06.1978, aforementioned, also made it explicitly clear that while making an order, pertaining to any matters specified in the aforesaid clauses, the State Government shall obtain prior concurrence of the Central Government. 39. The Notification, dated 9th June, 1978, aforementioned makes it manifestly clear that the State, Government was not delegated by the Central Government its (i.e., the Central Government's) general power to make any order u/s 3 of the EC Act; rather, the State Government was delegated with limited powers to make orders as indicated above. 40. The resultant effect is that an order, made by a State Government, regulating the matters, which are specified in Clause (2) of the Notification, dated 09.06.1978, aforementioned (i.e., matters, which are covered by Clauses (a), (c), (d) and (f) of sub-section (2) of Section 3 of the EC Act) would be in contravention of the delegated power and if an order is required to be made by a State Government relating to those matters, which are covered by Clauses (a), (c), (d) and (f) then, prior concurrence of the Central Government has to be obtained, in this regard, by the State Government concerned. If any order is made by a State Government in excess of, or in contravention of, the powers, which have been delegated to it by the Central Government by the Notification, dated 09.06.1978, aforementioned, such an order would obviously be void and non est in law. [See District Collector, Chittoor and Others Vs. Chittoor District Groundnut Traders Association and Others, ]. 41. Bearing in mind what have been indicated above, it is pertinent to note that it was, initially, disputed by the respondents that it was not correct to suggest that no prior concurrence had been obtained by the State Government for making the 1982 Order. However, the respondents could not produce any letter, document, order or notification, issued by the Central Government, giving its concurrence to the making of the 1982 Order by the State Government. 42. However, the respondents could not produce any letter, document, order or notification, issued by the Central Government, giving its concurrence to the making of the 1982 Order by the State Government. 42. Coupled with the above, there is no dispute that the 1982 Order embodies provisions relating to Clauses (c) and (d) of Sub-section (2) of Section 3 of the EC Act inasmuch as the 1982 Order seeks to control not only the 'prices' at which essential commodities can be bought or sold in Assam, but it (the 1982 Order) seeks to regulate also the storage, transport, distribution and disposal of essential commodities. 43. While the provisions, embodied in the 1982 Order, controlling the 'price' at which an essential commodity may be bought or sold, in Assam, squarely falls under Clause (c) of Sub-section (2) of Section 3 of the EC Act, the provisions, embodied in the 1982 Order, regulating the storage, transportation, distribution and disposal of essential commodities, in Assam, falls within the ambit of Clause (d) of sub-section (2) of Section 3. 44. Necessarily, therefore, when the 1982 Order embodies, inter alia, the provisions covered by Clauses (c) and (d) of Sub-section (2) of Section 3, prior concurrence of the Central Government, in the light of the provisions of Section 3 and Section 5 of the EC Act read with the Notification, dated 09.06.1978, aforementioned, ought to have been obtained for making the 1982 Order,. 45. To meet the situation, the learned Advocate General contends, as already indicated above, that even if no prior concurrence had been obtained by the State Government, the fact remains that it is the Central Government, which fixes the prices for various commodities covered by the Public Distribution System and, if that be so, approval/concurrence of the Central Government may be deemed to exist, in the present case, when the State Government regularly furnishes to the Central Government the returns in respect of its functioning with regard to essential commodities. 46. The learned Advocate General's argument, admittedly, leaves wide open Clause (d) inasmuch as the 1982 Order also makes provisions regulating, inter alia, storage, transportation, distribution and disposal of essential commodities. Clearly, therefore, the 1982 Order is void to the extent that it makes provisions regulating storage, transportation, distribution and disposal of essential commodities. 46. The learned Advocate General's argument, admittedly, leaves wide open Clause (d) inasmuch as the 1982 Order also makes provisions regulating, inter alia, storage, transportation, distribution and disposal of essential commodities. Clearly, therefore, the 1982 Order is void to the extent that it makes provisions regulating storage, transportation, distribution and disposal of essential commodities. In other words, as the 'prior concurrence' of the Central Government has not been obtained for regulation storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity, which are covered by Clause (d) of sub-section (2) of Section 3, provisions, regulating storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity, under the 1982 Order, have to be treated ultra vires and void. 47. Returning to the learned Advocate General's argument that when it is the Central Government, which fixes the 'prices' of various commodities covered by the Public Distribution System, prior approval or concurrence of the Central Government may be deemed to exist, it is of utmost importance to note that Clause (c) of sub-section (2) of Section 3 speaks of controlling of the prices at which an essential commodity may be bought or Sold. 48. It is noteworthy, with regard to the above, that 'fixing the price' of a commodity will mean the price at which an essential commodity has to be sold meaning thereby that the commodity can neither be sold at a rate lower than the price fixed nor at a rate higher than the price fixed; whereas 'controlling the price' will mean limiting, restricting or managing the 'price'. The consequential impact of controlling of 'price' would be that the maximum 'price', at which a commodity can be sold, may be prescribed; but there need not, necessarily and invariably, be a minimum 'price' fixed below which 'price' no essential commodity can be sold or brought. Controlling the 'price' will, thus, include fixing the 'price', but fixing the 'price' will not include controlling of the 'price'. Controlling the price is a genus and fixing the price is a species. This apart, the 1982 Order, admittedly, makes provisions regulating storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity and in respect of these provisions, no prior concurrence was obtained from the Central Government. 49. Though the learned Advocate General has referred to the case of State of Andhra Pradesh and Another Vs. This apart, the 1982 Order, admittedly, makes provisions regulating storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity and in respect of these provisions, no prior concurrence was obtained from the Central Government. 49. Though the learned Advocate General has referred to the case of State of Andhra Pradesh and Another Vs. Potta Sanyasi Rao and Others, , for the purpose of showing that when power has been delegated by the Central Government to the State Government by the Notification, dated 09.06.1978, aforementioned, specific delegation of power is not required for any particular commodity in order to make an Order, it may be noted that the decision, in Potta Sanyasi Rao (supra), is a decision, which had been rendered prior to the amendment, which Section 2 of the EC Act underwent by the Act 54 of 2006, w.e.f., 12.02.2007. 50. We may pause here to point out that prior to the said amendment, it was Section 2(a) of the EC Act, which defined an essential commodity and there were altogether ten specified commodities as essential commodities. The residuary Clause (xi) of Section 2(a) provided that the Central Government may, by notified order, declare a commodity to be an essential commodity. In this background, when we consider the decision in Potta Sanyasi Rao (supra), it becomes clearly noticeable that tyres and tubes were not included within the said ten specified essential commodities. However, the Central Government, at a later stage, included, amongst others, tyres and tubes as essential commodities by deriving strength from the residuary clause (xi) of the then Section 2(a), whereupon the Government of Andhra Pradesh, too, issued licensing order, where it included tyres and tubes. The licensing order was called Andhra Pradesh Tyres and Tubes Dealers' Licencing Order, 1973. The validity of this Order was challenged on the ground that the State Government had no power to make the said Order with regard to tyres and tubes, which were declared by the Central Government to be essential commodities subsequent to the delegation of power to the State Government, u/s 5, on 18.06.1966. 51. The validity of this Order was challenged on the ground that the State Government had no power to make the said Order with regard to tyres and tubes, which were declared by the Central Government to be essential commodities subsequent to the delegation of power to the State Government, u/s 5, on 18.06.1966. 51. In Potta Sanyasi Rao (supra), dealing with the challenge put to the Andhra Pradesh Tyres and Tubes Dealers' Licencing Order, 1973, the Supreme Court pointed out that when the State Government had been delegated the power to make orders under various clauses of Section 3, it was not necessary that when tyres and tubes were included as essential commodities by the Central Government by deriving its strength from the residuary Clause (xi) of Section 2(a), States shall be specifically empowered, once again, to make orders, under various clauses of Section 3, in respect of tyres and tubes. The relevant observations, made by the Supreme Court, in paragraph 9 of Potta Sanyasi Rao (supra), read thus: 9. There is nothing in Section 5 to limit the power of delegation in favour of the State Government only to the commodities specified in Section 2(a) or to those commodities declared essential u/s 2(a)(xi) upto the date of delegation. Delegation u/s 5 is a general delegation and will enure in favour of exercise of power by the State Government with respect to commodities declared essential by the Central Government from time to time u/s 2(a)(xi) even subsequent to the order of delegation. It is not necessary that every time the Central Government declares an essential commodity it has also to pass an order of delegation u/s 5 with regard to that commodity. Reading Section 5 and Section 3 together there is no warrant for the view that the power of delegation is confined to essential commodities specified under the Act and such others as may be declared by the Central Government upto the order of delegation. Delegation of power to the State Government to act u/s 3 is not restricted to any specified essential commodity as such. It will be sufficient in law if on the date the State Government, duly empowered u/s 5, makes a notification u/s 3 with regard to an essential commodity within the meaning of Section 2(a) including the residuary clause (xi) thereof. It will be sufficient in law if on the date the State Government, duly empowered u/s 5, makes a notification u/s 3 with regard to an essential commodity within the meaning of Section 2(a) including the residuary clause (xi) thereof. All that is required is that the commodity, on the date of the order of the State Government, answers the description of the clauses in Section 2(a) of the Act. The fact that a commodity is declared essential after the order of delegation does not affect the exercise of power by the State Government u/s 3 of the Act. The High Court is, therefore, not right in narrowly construing the order of delegation u/s 5 of the Act. The Licensing Order is, therefore, not invalid on the ground that the tyres and tubes were declared to be essential commodities by the Central Government after the order of delegation u/s 5 of the Act. (Emphasis is added) 52. Having considered the factual background of Potta Sanyasi Rao's case (supra), we are of the view that the law laid down, in Potta Sanyasi Rao (supra), has no application to the case at hand inasmuch as the root of controversy, in the present case, lies not in the inclusion of a commodity as an essential commodity in an existing licensing order. What has happened, in the present case, is that the State Government has made the 1982 Order, wherein stands included the provisions, which are covered by Clause (c) and (d) of Sub-section (2) of Section 3. Because of the fact that no prior concurrence had been obtained by the State Government for making the provisions, in the 1982 Order, which are covered by Causes (c) and (d) of sub-section (2) of Section 3 of the EC Act, one cannot help but hold that the 1982 Order is void to the extent that it incorporates, in the Order, the provisions, which are covered by Clauses (c) and (d) of sub-section (2) of Section 3 of the EC Act. 53. In the present case, the petitioners are sought to be tried for allegedly disposing of essential commodity or commodities, covered by the Public Distribution System, at a 'price' higher than the 'price', which has been fixed, and also for sale and transportation of the said commodities in violation of the provisions of the 1982 Order. 54. 53. In the present case, the petitioners are sought to be tried for allegedly disposing of essential commodity or commodities, covered by the Public Distribution System, at a 'price' higher than the 'price', which has been fixed, and also for sale and transportation of the said commodities in violation of the provisions of the 1982 Order. 54. In the light of the law, as discussed above, we are firmly of the view that while making the provisions, in the 1982 Order, dealing with the activities, which are covered by Clauses (c) and (d) of sub-section (2) of Section 3, 'prior concurrence' of the Central Government was, in the face of the Notification, dated 09.06.1978, aforementioned, mandatory and since no prior concurrence of the Central Government, though so required, had been obtained by the State Government, there can be no escape from the conclusion that the provisions, so embodied in the 1982 Order, are void and non est in law and no valid prosecution could have been launched and/or continued against the accused- petitioners on the basis of such a law, which is, otherwise, void and non est in law. 55. We may refer, at this stage, to the case of District Collector, Chittoor and Others Vs. Chittoor District Groundnut Traders Association and Others, , wherein, while dealing with the controversy over the question of obtaining of prior concurrence by the State Government before putting restrictions on the transportation and movement of edible oils and oil seeds, the Supreme Court held the action of the State Government as illegal inasmuch as the State Government had not obtained prior concurrence of the Central Government as required under the Notification, dated 09.06.1978. 56. The factual background of the case, in District Collector, Chittoor (supra), being of great relevance, is set out thus: The State Government, in exercise of its powers conferred by Section 3 of the EC Act, as delegated to it (State Government) by the Notification, dated 09.06.1978, aforementioned, made the Andhra Pradesh Scheduled Commodities Dealers (Licencing and Distribution) Order, 1982, after obtaining prior concurrence of the of the Central Government. The order, dated 09.06.1978, sought to regulate the sale and purchase of the scheduled commodities as specified in Schedule 1 to the Order. The order, dated 09.06.1978, sought to regulate the sale and purchase of the scheduled commodities as specified in Schedule 1 to the Order. Clause 3 of the Order provided that no person shall carry on business as a dealer except under, and in accordance with, the terms and conditions of a licence issued by the licensing authority. Clause 11 placed restriction on storing of scheduled commodities and it provides for the maximum quantity, which is permitted to be stored by a licensee. 57. By a Circular, dated 06.12.1983, the Stated Government directed the licensing authorities, collectors and other officers of the State to ensure that producers, millers and traders were not permitted to transport the groundnut seeds or oil outside the State. It was further directed by the State Government that the restrictions, imposed on movement of groundnut, be removed with immediate effect so far as bona fide farmers are concerned; but so far as the millers and traders were concerned, movement of oil seeds and oil was subject to their agreement to supply certain quantities of groundnut seeds and oil to the State Government at the 'price' fixed by it. 58. Though the steps, which had been taken by the State Government, were held to be bona fide to ensure availability of edible oil and oil seeds for public distribution by fair price, yet the Supreme Court pointed out, in District Collector, Chittoor (supra), that the steps, which had been so taken by the State Government, were not permissible inasmuch as the Andhra Pradesh Scheduled Commodities Dealers (Licensing and Distribution) Order, 1982, did not confer power on the State Government to place restrictions, which it had placed by its Circular, dated 06.12.1983. The Supreme Court, therefore, pointed out. ............The 1982 Order, which was framed by the State Government in exercise of the delegated powers, does not contain any provision placing any restriction in the transport or movement of the edible oil or oil seeds nor it provide for imposition of compulsory levy, further it does not fix any price. The directions issued by the Government placing restriction on the movement of oil seeds and oil and imposing compulsory levy and requiring millers and traders to sell oil seeds and oil at a price fixed by it, are outside the purview of the 1982 Order. Those directions have no sanction of law. The directions issued by the Government placing restriction on the movement of oil seeds and oil and imposing compulsory levy and requiring millers and traders to sell oil seeds and oil at a price fixed by it, are outside the purview of the 1982 Order. Those directions have no sanction of law. If the State Government was facing any problem, it could have made amendments in the 1982 Order regulating matters specified in Clauses (d) and (f) of Section 3(2) of the Act after obtaining the prior concurrence of the Central Government. No such course was followed. There is, therefore, no escape from the conclusion that the directions contained in the impugned Government Order are illegal and void as the same have been issued in exercise of and in contravention of the power delegated to the State Government under the Notification dated 09.06.1978. (Emphasis is added) 59. Same as in the present case, it had been submitted, on behalf of the State, in District Collector, Chittoor (supra), that "........the directions issued by the State Government, placing restrictions on the transport, movement and compulsory levy on the edible oils and oil seeds were placed with the prior concurrence of the Central Government." Reacting to the submission, so made on behalf of the State, the Supreme Court observed. ................We find no merit in the submission. The State Government failed to place any material before the Court to show that the prior concurrence of the Central Government, as contemplated by Clause (2) of the Notification, dated 09.06.1978, issued by the Government of India, was obtained. 'The State Government, while issuing or making orders in respect of the essential commodities u/s 3 of the Act, could make provision to the extent and subject to the conditions specified in the Notification, dated 09.06.1978, it had no power to make any order in respect of matters for which it had not been authorised to exercise powers u/s 3 of the Act. The State Government clearly transgressed the legislative authority in issuing the directions as contained in its circular letters dated 06.12.1983 and 21.06.1985. (Emphasis is added) 60. The State Government clearly transgressed the legislative authority in issuing the directions as contained in its circular letters dated 06.12.1983 and 21.06.1985. (Emphasis is added) 60. The present case is same as the case, in District Collector, Chittoor (supra), for, in the case at hand, too, nothing could be placed on record to show that there was prior concurrence obtained from the Central Government for the purpose of making provisions with regard to doing of things, which are covered by Clauses (a), (c), (d) and (f) of sub-section (2) of Section 3. 61. No prior concurrence, for the purpose of making the impugned provisions in the 1982 Order, having been obtained from the Central Government, it is logical to hold, and we do hold, that the State Government has, same as in the case of District Collector, Chittoor (supra), transgressed its limited jurisdiction and encroached upon the jurisdiction and authority of the Central Government. The 1982 Order cannot, therefore, be sustained to the extent that it makes provisions with regard to matters covered by Clauses (a), (c), (d) and (f) of sub-section (2) of Section 3. 62. Though what we have observed and concluded above, in respect of the first issue, is sufficient to decide and dispose of the writ petition, by according appropriate reliefs to the accused-petitioners, we deem it apposite to deal with the second issue, too, which we have formulated above. 63. The second issue is : whether the trial of a case, under the EC Act, has to be necessarily by resorting to summary procedure and whether such summary procedure has to be held in the Court of a Judicial Magistrate, 1st Class, who has been specially empowered by the State Government in this behalf? 64. To find an answer to the question, posed above, the background, in which this question has been raised, needs to be considered. 65. The Essential Commodities (Special Provisions) Act, 1981 (in short, the 'EC Special Provisions Act'), which had provided for constitution of special Courts, u/s 12A, came into force with effect from 01.09.1982. The EC Special Provisions Act was enforced, initially, for a period of 5 (five) years and was, then, extended for a further period of 5 (five) years. 66. The Essential Commodities (Special Provisions) Act, thus, remained in force till 31.08.1997. Thereafter, Essential Commodities (Special Provisions) Ordinance, 1997, was promulgated. The EC Special Provisions Act was enforced, initially, for a period of 5 (five) years and was, then, extended for a further period of 5 (five) years. 66. The Essential Commodities (Special Provisions) Act, thus, remained in force till 31.08.1997. Thereafter, Essential Commodities (Special Provisions) Ordinance, 1997, was promulgated. As there was no enactment, the Essential Commodities (Amendment) Ordinance, 1998, too, came to be promulgated. By efflux of time, the said two Ordinances lapsed inasmuch as the Ordinances were not replaced by enactments. The consequence was that the Special Courts, established for trial of cases arising out of the EC Act, ceased to function. Obviously, therefore, the cases, which had been registered under the EC Act, could not have been tried by the Special Courts and were, therefore, to be tried by a Magistrate having jurisdiction as had been done prior to the enactment of the EC Special Provisions Act. 67. No wonder, therefore, that when the said two Ordinances lapsed, the Supreme Court held, in State of Tamil Nadu Vs. Paramasiva Pandian, , that the trials have to be held as the trials were being held prior to the enactment of the Essential Commodities (Special Provisions) Act, 1981. 68. To put it a little differently, prior to the enactment of the EC Special Provisions Act, there was no special description of the Court, which was to try such offences. Section 11 of the EC Act provided, and still provides, for taking of cognizance by a Court of any offence punishable under the EC Act on a report, in writing, of the facts constituting such offence made by a person, who is a public servant, as defined in Section 21 of the IPC. 69. Under the Essential Commodities (Special Provisions) Act, 1981, which we have referred to above, a Sessions Judge was appointed as Special Judge for trial of the cases arising out of the EC Act. From a combined reading of sub-sections (1) and (2) of Section 12A, it becomes clear that offences, relating to contravention of an order, made u/s 3, with respect to foodstuffs, including edible oil and oil seeds or drugs, have to be tried by Judicial Magistrate of the 1st Class, specially empowered, in this behalf, by the State Government or by a Metropolitan Magistrate, if any notification, as contemplated by sub-section (1) of Section 12A, in relation to a special order, exists. 70. 70. Section 12A, thus, comes into play only when there is in existence a special order within the meaning of Sub-section (1) of Section 12A. When there is no special order in force, contravention thereof is not to be tried by a Judicial Magistrate of the 1st Class specially empowered, in this behalf, by the State Government. 71. Thus, when there is no provision, in the EC Act, to the effect that the cases, arising out of the contravention of the provisions of the EC Act, have to be tried by a Sessions Court, the implication is that it has to be tried by a judicial Magistrate depending upon the punishment prescribed. 72. In a given case, even if the trial has to be held summarily, no special empowerment by the State Government, as contemplated by Section 12A, is required and the power to hold the summary trial would remain available to a Magistrate, who may have been so empowered, u/s 260, Cr PC, by the High Court. 73. In the case at hand, the contraventions, which are alleged to have been committed by the present petitioners, are with respect to their acts of storage, transportation, distribution, disposal, use and consumption of essential commodity as well as the act of allegedly selling essential commodity at a price, which was higher than the price fixed. 74. Considering the fact that the provisions, embodied in the 1982 Order, are beyond the limits of the powers of the State Government, the provisions aforementioned cannot be sustained and the 1982 Order has to be set aside and quashed to the extent that the same relates to controlling of prices for sale or purchase of essential commodities and also to the extent that the same relates to storage, transportation, distribution, disposal, use and consumption of an essential commodity. When the 1982 Order cannot, to the extent that the same relates to controlling of price at which an essential commodity may be bought or sold and to the extent that the 1982 Order relates to storage, transportation, distribution, disposal, use and consumption of an essential commodity stand the scrutiny of law, the contravention of the provisions, embodied, in this regard, in the 1982 Order, cannot be made the foundation for prosecution of the accused-petitioners. Their trial for the alleged contravention of the provisions of the 1982 Order cannot, but be treated bad in law. 75. Their trial for the alleged contravention of the provisions of the 1982 Order cannot, but be treated bad in law. 75. In the result and for the reasons discussed above, we hereby set aside and quash the Assam Public Distribution of Article Order, 1982, to the extent that the same relates to controlling of price at which an essential commodity may be bought or sold and to the extent that the 1982 Order relates to storage, transportation, distribution, disposal, use and consumption of an essential commodity. We also set aside and quash the complaint/offence report, which has been submitted by the respondent No. 2, and which became the basis for taking of cognizance of the alleged offences by the learned Court below. 76. The criminal prosecution of the accused-petitioners, therefore, stands set aside and quashed. With the above observations and directions, this writ petition stands disposed of.