High Court
Case Details
WP(C) 4331/2002 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE MR JUSTICE P.K. MUSAHARY While the petitioner Nos.1 and 3 happened to be the elected office bearers of Go hpur 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 bec ome almost defunct. 2. 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, visite d 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-D ivisional Officer (Civil), Biswanath Chariali, who, in turn, vide his letter, da ted 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 (herei nafter 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 sa id Sri P.K. Baruah was also directed to hand over to the respondent No.1 the sai d documents, which Shri Baruah had collected, as indicated above, on 20.02.94, f rom 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 en quiry 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 t his 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 Corporat ion of India’s orders of allotment of rice, sugar, etc, to the said Society. Res pondent 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 PD S, lying in the Society’s godown. After scrutiny of the relevant documents, resp ondent No.1 found that the said Society had illegally sold out the following PDS commodities in the market: (cid:28)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, an d 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/9 3 vide No.BFS/10/93/11 dt 22/12/93 during the month of Jan/94 meant for Green Ca rd holder of Gohpur area. (cid:29) (ii). Respondent No.1 also seized 42 numbers of quota lifting book from the a gents of the said Society, which showed that the said agents had not received fr om the said Society any quota of allocation of rice, which were to be sold by th e 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, J anuary, 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, an d October, 1993. As per the statement, made in writing, by the Secretary and Sal esman of the said Society, there was illegal disposal of 113 quintals of rice me ant for being sold under the scheme of the PDS. (iii) The petitioner No.4 herein, Branch Manager, STATEFED, Tezpur, was also a lleged to have directed their Godown-in-Charge to show delivery of 113 quintals of rice, which were to be sold @ Rs.2/- per k.g., from Statefed’s Godwon, Biswan ath Chariali. On scrutiny of the said Society’s stock register, no entry of ri ce, which were to be sold @ Rs.2/- per k.g., in the month of January, 1994, and 100 quintals of atta in the month of October, 1993, were found indicating thereb y that the Secretary of the said Society, in collaboration with the Branch Manag er, STATEFED, had sold away 113 quintals of rice priced at Rs.2/- per k.g. in bl ack 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.
Legal Reasoning
Based on the offence report, processes were issued to the accused-petiti 3. oners. On their appearance, and, upon hearing the learned counsel for the accuse d-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 Sta te of Tamil Nadu Vs. Paramsiva Pandian (AIR 2001 SC 2972), and observed that sin ce the Supreme Court, in Paramsiva Pandian (supra), has already held that the E ssential Commodities (Special Provisions) Act, which provided for Special Courts under Section 12-A, came into force with effect from 01.09.1982 and remained in force till 31.08.1997, and, thereafter, the Essential Commodities (Special Prov isions) Ordinance, 1997 (Central Ordinance 21 of 1997) was promulgated, but ther e being no specific legislation on the subject of the said Ordinance, Essential Commodities (Amendment) Ordinance, 1998 (Central Ordinance 13 of 1998) was promu lgated, but both these Ordinances had lapsed, because they were not replaced by necessary enactments and, as a result thereof, the Special Courts, established f or trial of cases under the EC Act, ceased to function and the consequence was t hat the cases, registered under the EC Act, were to be tried by Magistrates havi ng jurisdiction as the same was done prior to the enactment of the Essential Com modities (Special Provisions) Act, 1981. 4. Having taken note of the decision, in Paramsiva Pandian (supra), as ind icated above, and having come to the conclusion that the Special Courts have cea sed to have any force under the law and that the cases need to be tried by Magis trate having jurisdiction, the learned Sessions Judge, Sonitpur, sent the case r ecord to the learned Chief Judicial Magistrate, Tezpur, for disposal of the case in accordance with law. Thereafter, the accused-petitioners appeared in the Court of learned Chi 5. ef Judicial Magistrate, Tezpur. 6. While the case was so pending against them, the accused-petitioners have filed this writ petition, under Article 226 of the Constitution of India, seeki ng issuance of appropriate writ(s) setting aside and quashing the 1982 Order mad e by the respondent No.2, (i.e., the State of Assam), the prosecution of the acc used-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 be en made without ’prior concurrence’ of the Central Government, though ’prior con currence’ was required and since there was no valid law, which could be claimed to have been contravened by the accused-petitioners, the accused-petitioners cou ld not have been put to trial, under Section 7 of the EC Act, for the alleged co ntravention of the 1982 Order. This apart, the further case of the accused-petit ioners before this Court is that the learned Additional Chief Judicial Magistrat e, who is trying the accused, is not authorized in law to hold trial for offence s under the EC Act inasmuch as he has not been specially empowered, in this beha lf, by the State Government as is required by Section 12A of the Essential Commo dities Act, 1955. In short, the accused-petitioners contend that the 1982 Order is withou 7. t 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, under Section 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 emp owered, in this behalf, by the State Government as is required by Section 12A of the EC Act. 8. In other words, according to the accused-petitioners, their trial is who We have heard Mr. T.C. Khetri, learned Senior counsel, for the petitione lly without jurisdiction and, hence, cognizance of the offences taken, the proce sses issued against them and their present trial deserves to be quashed. 9. rs, and Mr. A.K. Phukan, learned Advocate General, Assam. 10. It has been pointed out by Mr. Khetri, learned Senior counsel, that it i s the Central Government, which makes, under the provisions of Section 3, orders or issue notifications for controlling production, supply and distribution of e ssential commodities. 11. 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 inasmuch as the Central Government may, under Section 5 of the EC Act, direct, by notified order, that the power to make order s or issue notifications, vested in the Central Government under Section 3, be e xercised by not only an officer or authority subordinate to the Central Governme nt, but also by a State Government or such officer or authority subordinate to t he State Government as may be specified in the direction. Mr. Khetri further points out that in relation to maintenance and/or inc 12. rease of supplies and also for securing equitable distribution of foodstuffs at fair prices, the Central Government made the notified order as contained in Noti fication No.GSR 800, dated 09.06.1978, authorizing State Governments to exercis e powers as are exercisable by the Central Government subject to certain conditi ons specified in the Notification, dated 09.06.78, itself. 13. Mr. Khetri has submitted that the Notification, dated 09.06.78, aforemen tioned, 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 M r. Khetri, the condition, so imposed by the Notification, dated 09.06.78, aforem entioned, 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 foods tuff, under clause (d) of Sub-Section (2) of Section 3’, the State Government s hall obtain ’prior concurrence’ of the Central Government. 14. 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 commodi ties 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) a nd (d), which provide for controlling of price at which a commodity may be bough t or sold and for regulating, by licenses, permits or otherwise, the storage, tr ansport, 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 pr ecedent is that the State Government shall, for the purpose of making an order, obtain ’prior concurrence’ of the Central Government, especially, for the purpos e of controlling prices at which an essential commodity can be sold or bought an d/or for transportation, storage and disposal of essential commodities. Mr. Khetri also submits that in the purported exercise of powers conferr 15. ed by Section 3 of the EC Act, read with the Notification, dated 09.06.78, afore mentioned, issued by the Government of India, Ministry of Agriculture and Irriga tion (Department of Food), the Governor of Assam made the ’1982 Order’ and notif ied foodstuffs for the purpose of applicability of the 1982 Order, the foodstuff s being rice, sugar, salt, imported edible oil and wheat products, such as, atta , maida, suji and bran. 16. 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 under Section 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. 17. In other words, according to Mr. Khetri, prosecution for breach of the p rovisions of 1982 Order is permissible only by resorting to summary procedure an d, 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 empow ered 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. 18. It is contended by Mr. Khetri, learned Senior counsel, that the notifica tion, 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 Governme nt and the petitioners have not been able to trace out any such order or notific ation disclosing that ’prior concurrence’ was taken by the State Government for making the 1982 Order. Further contends Mr. Khetri that ’prior concurrence’ of t he Central Government having not been obtained, none of the petitioners can be t ried 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-Sect ion (2) of Section 3. It is also contended by Mr. Khetri that even if such a breach is committ 19. ed, offences, relating to such a breach, can be tried by a Judicial Magistrate o f the First Class specially empowered, in this behalf, by the State Government a nd not by a Magistrate of the First Class, who has the power to hold summary tri al on being empowered, in this behalf, by the High Court by virtue of Section 26 0 Cr.PC. 20. The petitioners are made to face a trial, according to Mr. Khetri, for a llegedly 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 under Section 7 of the EC Act, and since the 1982 Order is itsel f not validly made, the contravention thereof cannot legally constitute an offen ce punishable under Section 7 of the EC Act and that no legally sustainable purp ose 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. 21. In short, the contention of the accused-petitioners is that since the 19 82 Order has been made without ’prior concurrence’ of the Central Government, as contemplated by the Central Government’s Notification, dated 09.06.78, aforemen tioned, prosecution of the accused-petitioners is void ab initio inasmuch as the ir 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 ac cused-petitioners that in the face of the fundamental right, guaranteed under Ar ticle 21, to every person in India, prosecution is permissible if and only if th e law, which is alleged to have been violated or contravened, is valid law. In t hese circumstances, according to the accused-petitioners, the 1982 Order is ultr a vires. To put it a little differently, according to the accused-petitioners, t heir prosecution, in a case of present nature, is wholly void inasmuch as they a re alleged to have contravened the provisions of the 1982 Order; whereas the rel evant 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 No tification, dated 09.06.78, aforementioned. 22. 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 specia lly empowered by the State Government as is required under Section 12A(2) of the EC Act. Repelling the above submissions, made on behalf of the petitioners, the 23. learned Advocate General has contended that the contravention of the 1982 Order, which the accused-petitioners have allegedly committed, is not covered by Claus es (a), (c), (d) or (f) of Sub-Section (2) of Section 5 and, hence, their prosec ution cannot be treated to be bad in law. 24. The alternative argument of the learned Advocate General is that since t he 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. 25. As regards the contention of the accused-petitioners that their trial by the learned Additional Chief Judicial Magistrate is bad in law, because the lea rned Additional Chief Judicial Magistrate has not been empowered by the State Go vernment 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 a t 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 adopti ng summary procedure and, hence, the question of the trial being without jurisdi ction does not arise. 26. This apart, according to the learned Advocate Ge neral, Section 12A-2 of the EC Act would come into play, when the Central Govern ment 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 u nder 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. 27. Coupled with the above, the learned Advocate General also submits that i t 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 learne d Advocate General, the PDS commodities are sold at the prices fixed by the Cent ral Government over and above the sum, which is required to be paid as commissio n for distribution of the PDS items. 28. Referring to the case of State of Andhra Pradesh and another Vs. Potta S anyasi Rao and others, reported in (1975) 2 SCC 480, the learned Advocate Genera l 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 alre ady delegated by the Central Government to the State Government under Section 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 de legation under Section 5 with regard to such a commodity. The learned Advocate G eneral also contends that delegation of power to the State Government by the Cen tral Government enabling the State Government to act under Section 3 is not rest ricted to any specific essential commodity and it will be sufficient, in law, if , the State Government, duly empowered under Section 5, makes a notification und er Section 3 with regard to an essential commodity. 29. pra), which the learned Advocate General relies upon, read as under: (cid:28)9. There is nothing in Section 5 to limit the power of delegation in favour The relevant observations, made in this regard, in Potta Sanyasi Rao (su of the State Government only to the commodities specified in section 2(a) or to those commodities declared essential under section 2(a) (xi) upto the date of d elegation. Delegation under section 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 under section 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 under section 5 with regard to that commodity. Reading s ection 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 s uch others as may be declared by the Central Government upto the order of delega tion. Delegation of power to the State Government to act under section 3 is not restricted to any specified essential commodity as such. It will be sufficient i n law if on the date the State Government, duly empowered under section 5, makes a notification under section 3 with regard to an essential commodity within the meaning of section 2(a) including the residuary clause (xi) thereof. All that i s required is that the commodity, on the date of the order of the State Governme nt, 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 af fect the exercise of power by the State Government under section 3 of the Act. T he High Court is, therefore, not right in narrowly construing the order of deleg ation under section 5 of the Act. The Licensing Order is, therefore, not invalid on the ground that the tyres and tubes were declared to be essential commoditie s by the Central Government after the order of delegation under section 5 of the Act. (cid:29) Broadly speaking, there are two issues, which have fallen for determinat 30. In the light of the above submissions, made on behalf of the writ petiti oners and the State, we proceed to decide the issues, which have been raised in the present writ petition. 31. ion in the present case. 32. One of the two issues is: whether the 1982 Order is in consonance with t he scheme of the EC Act, as embodied in Section 3 read with Section 5 thereof, i nasmuch 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-Sect ion (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 Notific ation, dated 09.06.1978, aforementioned, can be made by a State Government in re spect of the subject-matters, covered by Clauses (a), (c), (d) and (f), without ’prior concurrence’ having been obtained, in this regard, from the Central Gove rnment. The second issue is: whether the petitioners can be tried at all for con 33. travention of the provisions of the 1982 Order except in accordance with the pro visions of Section 12A of the EC Act, which, according to the petitioners, requ ires that the procedure, to be followed for contravention of the provisions of t he EC Act, shall be summary procedure and the power to exercise summary procedur e, 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 conferr ed, 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 empowerm ent by the High Court under Section 260 of the Code of Criminal Procedure. 34. 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 i n, certain specified commodities, which are called essential commodities. Under Section 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 Centra l Government, the power to make provisions for regulating or prohibiting the pro duction, supply and distribution of essential commodities and also trade and com merce 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 distributio n and availability at fair prices. 35. Notwithstanding the generality of the powers, so conferred by Sub-Sectio n (1) of Section 3, the Central Government, in the light of the provisions of su b-Section (1) of Section 3 of the EC Act, has the power to issue orders, known a s Licensing Orders, for securing the aforesaid objectives, which may, amongst ot hers, include controlling of price at which an essential commodity may be bought or sold and also regulating, by licence, permits, or otherwise, the storage, tr ansportation, distribution, disposal, acquisition, use or consumption, of any es sential commodity. 36. 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 su ch officers or authorities, subordinate to the State Government, as may be speci fied in the order in relation to such matters and subject to such conditions as the Central Government may specify in the order. 37. Thus, the Central Government is competent to delegate its powers to the State Government or its officers and it may further specify restrictions and con ditions for the exercise of the delegated power. Every order issued, under Sect ion 3 of the EC Act, is legislative in nature and is required to be notified in the official gazette under Section 3(5) of the Act. 38. The Central Government, in the Ministry of Agriculture and Irrigation (D epartment of Food), issued the Notification No. GSR 800, dated 9th June, 1978, d elegating its powers under Section 3(1) of the EC Act to the State Governments t o make order in respect of the matters specified in various sub-clauses of Sub-S ection (2) of Section 3 in relation to food-stuffs subject to certain conditions specified therein. The said Notification is reproduced below:
Decision
(cid:28)PUBLISHED IN THE GAZETTE OF INDIA (PART) II SECTION 3 SUB-SECTION (i) DATED 17T H 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 Co mmodi- ties Act, 1955 (10 of 1955), and in supersession of the Order of the Gove rnment of India in the late Ministry of Agriculture, (Department of Food) No. GS R, 315(E) dated the 20th June 1972, the Central Government hereby directs that t he powers conferred on it by sub-section (1) of Section 3 of the said Act to mak e 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 food- st uffs 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 di rections, 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 cla uses (a), (c) or (f) or in regard to distribution of disposal of foodstuffs to p laces 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 co ncurrence 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 autho rise only an officer of the Govern ment. sd/- (K. Balakrishnan) Deputy Secretary to the Government of India. No. 3 (Genl)(1)-D & R(1)-59\ (Emphasis is added) 39. From a bare reading of clause (2) of the Notification, dated 9th June, 1 978, aforementioned, it becomes crystal clear that the Central Government, while delegating its powers, under Section 3 of the EC Act, to the State Government, expressly placed restrictions on the powers of the State Government to make orde rs relating to any matters specified in Clauses (a), (c), (d) and (f) of Sub-Sec tion (2) of Section 3 of the EC Act. The Notification, dated 09.06.1978, aforeme ntioned, also made it explicitly clear that while making an order, pertaining to any matters specified in the aforesaid clauses, the State Government shall obta in prior concurrence of the Central Government. 40. The Notification, dated 9th June, 1978, aforementioned makes it manifest ly clear that the State Government was not delegated by the Central Government i ts (i.e., the Central Government’s) general power to make any order under Sectio n 3 of the EC Act; rather, the State Government was delegated with limited power s to make orders as indicated above. The resultant effect is that an order, made by a State Government, regul 41. ating 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 contrav ention 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 St ate 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. [Se e District Collector, Chittoor and Ors. vs. Chittoor District Groundnut Traders Association and Ors., reported in (1989) 2 SCC 58]. 42. 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 s uggest that no prior concurrence had been obtained by the State Government for m aking the 1982 Order. However, the respondents could not produce any letter, do cument, order or notification, issued by the Central Government, giving its conc urrence to the making of the 1982 Order by the State Government. 43. 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 t he EC Act inasmuch as the 1982 Order seeks to control not only the ’prices’ at w hich essential commodities can be bought or sold in Assam, but it (the 1982 Orde r) seeks to regulate also the storage, transport, distribution and disposal of e ssential commodities. 44. While the provisions, embodied in the 1982 Order, controlling the ’price ’ at which an essential commodity may be bought or sold, in Assam, squarely fall s 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, distributi on and disposal of essential commodities, in Assam, falls within the ambit of Cl ause (d) of sub-Section (2) of Section 3. Necessarily, therefore, when the 1982 Order embodies, inter alia, the p 45. rovisions 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, afo rementioned, ought to have been obtained for making the 1982 Order,. 46. To meet the situation, the learned Advocate General contends, as alread y indicated above, that even if no prior concurrence had been obtained by the St ate 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 t o exist, in the present case, when the State Government regularly furnishes to t he Central Government the returns in respect of its functioning with regard to e ssential commodities. 47. The learned Advocate General’s argument, admittedly, leaves wide open Cl ause (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 provision s regulating storage, transportation, distribution and disposal of essential com modities. In other words, as the ’prior concurrence’ of the Central Government h as 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, tra nsport, distribution, disposal, acquisition, use or consumption of any essential commodity, under the 1982 Order, have to be treated ultra vires and void. 48. 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 Gov ernment 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. 49. 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 m eaning thereby that the commodity can neither be sold at a rate lower than the p rice fixed nor at a rate higher than the price fixed; whereas ’controlling the p rice’ will mean limiting, restricting or managing the ’price’. The consequentia l 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 i nvariably, 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’. C ontrolling the price is a genus and fixing the price is a species. This apart, the 1982 Order, admittedly, makes provisions regulating storage, transport, dist ribution, disposal, acquisition, use or consumption of any essential commodity a nd in respect of these provisions, no prior concurrence was obtained from the Ce ntral Government. 50. Though the learned Advocate General has referred to the case of State of Andhra Pradesh vs. Potta Sanyasi Rao and others, reported in (1975) 2 SCC 480, for the purpose of showing that when power has been delegated by the Central Gov ernment to the State Government by the Notification, dated 09.06.1978, aforement ioned, 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, whic h Section 2 of the EC Act underwent by the Act 54 of 2006, w.e.f., 12.02.2007. 51. 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 Cla use (xi) of Section 2(a) provided that the Central Government may, by notified o rder, declare a commodity to be an essential commodity. In this background, whe n we consider the decision in Potta Sanyasi Rao (supra), it becomes clearly noti ceable that tyres and tubes were not included within the said ten specified esse ntial commodities. However, the Central Government, at a later stage, included, amongst others, tyres and tubes as essential commodities by deriving strength f rom 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 tub es. The licensing order was called Andhra Pradesh Tyres and Tubes Dealers’ Lice ncing 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 a nd tubes, which were declared by the Central Government to be essential commodit ies subsequent to the delegation of power to the State Government, under Section 5, on 18.06.1966. 52. In Potta Sanyasi Rao (supra), dealing with the challenge put to the Andh ra Pradesh Tyres and Tubes Dealers’ Licencing Order, 1973, the Supreme Court poi nted out that when the State Government had been delegated the power to make ord ers 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 deriv ing 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 th e Supreme Court, in paragraph 9 of Potta Sanyasi Rao (supra), read thus: (cid:28)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 under section 2(a) (xi) upto the date of d elegation. Delegation under section 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 under section 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 under section 5 with regard to that commodity. Reading s ection 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 s uch others as may be declared by the Central Government upto the order of delega tion. Delegation of power to the State Government to act under section 3 is not restricted to any specified essential commodity as such. It will be sufficient i n law if on the date the State Government, duly empowered under section 5, makes a notification under section 3 with regard to an essential commodity within the meaning of section 2(a) including the residuary clause (xi) thereof. All that i s required is that the commodity, on the date of the order of the State Governme nt, 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 af fect the exercise of power by the State Government under section 3 of the Act. T he High Court is, therefore, not right in narrowly construing the order of deleg ation under section 5 of the Act. The Licensing Order is, therefore, not invalid on the ground that the tyres and tubes were declared to be essential commoditie s by the Central Government after the order of delegation under section 5 of the Act. (cid:29) (Emphasis is added) 53. Having considered the factual background of Potta Sanyasi Rao’s case (su pra), we are of the view that the law laid down, in Potta Sanyasi Rao (supra), h as no application to the case at hand inasmuch as the root of controversy, in th e present case, lies not in the inclusion of a commodity as an essential commodi ty in an existing licensing order. What has happened, in the present case, is t hat the State Government has made the 1982 Order, wherein stands included the pr ovisions, 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 C lauses (c) and (d) of Sub-Section (2) of Section 3 of the EC Act, one cannot hel p but hold that the 1982 Order is void to the extent that it incorporates, in th e Order, the provisions, which are covered by Clauses (c) and (d) of sub-Section (2) of Section 3 of the EC Act. 54. In the present case, the petitioners are sought to be tried for alleged ly disposing of essential commodity or commodities, covered by the Public Distri bution System, at a ’price’ higher than the ’price’, which has been fixed, and a lso for sale and transportation of the said commodities in violation of the prov isions of the 1982 Order. In the light of the law, as discussed above, we are firmly of the view 55. 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, ’pri or concurrence’ of the Central Government was, in the face of the Notification, dated 09.06.1978, aforementioned, mandatory and since no prior concurrence of th e Central Government, though so required, had been obtained by the State Governm ent, 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 h ave 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. 56. We may refer, at this stage, to the case of District Collector, Chittoor and ors. vs. Chittor District Groundnut Traders Association and ors., reported in (1989) 2 SCC 58, wherein, while dealing with the controversy over the questio n of obtaining of prior concurrence by the State Government before putting restr ictions on the transportation and movement of edible oils and oil seeds, the Sup reme Court held the action of the State Government as illegal inasmuch as the St ate Government had not obtained prior concurrence of the Central Government as r equired under the Notification, dated 09.06.1978. 57. The factual background of the case, in District Collector, Chittoor (su pra), being of great relevance, is set out thus: The State Government, in exerci se 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 And hra Pradesh Scheduled Commodities Dealers (Licencing and Distribution) Order, 19 82, after obtaining prior concurrence of the of the Central Government. The or der, 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 pro vided that no person shall carry on business as a dealer except under, and in ac cordance with, the terms and conditions of a licence issued by the licensing aut hority. Clause 11 placed restriction on storing of scheduled commodities and it provides for the maximum quantity, which is permitted to be stored by a licencee . 58. By a Circular, dated 06.12.1983, the Stated Government directed the lice nsing authorities, collectors and other officers of the State to ensure that pro ducers, 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 t he restrictions, imposed on movement of groundnut, be removed with immediate eff ect so far as bona fide farmers are concerned; but so far as the millers and tra ders were concerned, movement of oil seeds and oil was subject to their agreemen t to supply certain quantities of groundnut seeds and oil to the State Governmen t at the ’price’ fixed by it. 59. Though the steps, which had been taken by the State Government, were hel d 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 Colle ctor, Chittoor (supra), that the steps, which had been so taken by the State Gov ernment, were not permissible inasmuch as the Andhra Pradesh Scheduled Commoditi es Dealers (Licensing and Distribution) Order, 1982, did not confer power on the State Government to place restrictions, which it had placed by its Circular, da ted 06.12.1983. The Supreme Court, therefore, pointed out, (cid:28)....The 1982 Order, which was framed by the State Government in exercise of the delegated powers, d oes not contain any provision placing any restriction in the transport or moveme nt of the edible oil or oil seeds nor it provide for imposition of compulsory le vy, 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 fix ed by it, are outside the purview of the 1982 Order. Those directions have no s anction of law. If the State Government was facing any problem, it could have m ade 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 Cen tral Government. No such course was followed. There is, therefore, no escape f rom the conclusion that the directions contained in the impugned Government Orde r are illegal and void as the same have been issued in exercise of and in contra vention of the power delegated to the State Government under the Notification da ted 09.06.1978. (cid:29) (Emphasis is add ed) Same as in the present case, it had been submitted, on behalf of the Sta 60. te, in District Collector, Chittoor (supra), that (cid:28)........the directions issued by the State Government, placing restrictions on the transport, movement and co mpulsory levy on the edible oils and oil seeds were placed with the prior concur rence of the Central Government. (cid:29) Reacting to the submission, so made on behalf of the State, the Supreme Court observed, (cid:28) .....We find no merit in the submi ssion. The State Government failed to place any material before the Court to sho w that the prior concurrence of the Central Government, as contemplated by Claus e (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 o f the essential commodities under Section 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 h ad not been authorised to exercise powers under Section 3 of the Act. The State Government clearly transgressed the legislative authority in issuing the direct ions as contained in its circular letters dted 06.12.1983 and 21.06.1985. (cid:29) (Emphasis is added) The present case is same as the case, in District Collector, Chittoor (s 61. upra), 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 pu rpose 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. 62. No prior concurrence, for the purpose of making the impugned provisions in the 1982 Order, having been obtained from the Central Government, it is logic al to hold, and we do hold, that the State Government has, same as in the case o f District Collector, Chittoor (supra), transgressed its limited jurisdiction an d encroached upon the jurisdiction and authority of the Central Government. The 1982 Order cannot, therefore, be sustained to the extent that it makes provisio ns with regard to matters covered by Clauses (a), (c), (d) and (f) of Sub-Sectio n (2) of Section 3. 63. Though what we have observed and concluded above, in respect of the firs t issue, is sufficient to decide and dispose of the writ petition, by according appropriate reliefs to the accused-petitioners, we deem it approsite to deal wit h the second issue, too, which we have formulated above. 64. 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 pro cedure 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? 65. To find an answer to the question, posed above, the background, in which this question has been raised, needs to be considered. 66. The Essential Commodities (Special Provisions) Act, 1981 (in short, the ’EC Special Provisions Act’), which had provided for constitution of special cou rts, under Section 12A, came into force with effect from 01.09.1982. The EC Spe cial Provisions Act was enforced, initially, for a period of 5 (five) years and was, then, extended for a further period of 5 (five) years. 67. The Essential Commodities (Special Provisions) Act, thus, remained in fo rce till 31.08.1997. Thereafter, Essential Commodities (Special Provisions) Ord inance, 1997, was promulgated. As there was no enactment, the Essential Commodi ties (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 j urisdiction as had been done prior to the enactment of the EC Special Provisions Act. No wonder, therefore, that when the said two Ordinances lapsed, the Supr 68. eme Court held, in State of Tamilnadu vs. Parmasiva Pandian (AIR 2001 SC 2972), that the trials have to be held as the trials were being held prior to the enact ment of the Essential Commodities (Special Provisions) Act, 1981. 69. 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 taki ng of cognizance by a Court of any offence punishable under the EC Act on a repo rt, 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. 70. Under the Essential Commodities (Special Provisions) Act, 1981, which we have referred to above, a Sessions Judge was appointed as Special Judge for tri al of the cases arising out of the EC Act. From a combined reading of Sub-Secti ons (1) and (2) of Section 12A, it becomes clear that offences, relating to cont ravention of an order, made under Section 3, with respect to foodstuffs, includi ng 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-Sectio n (1) of Section 12A, in relation to a special order, exists. 71. Section 12A, thus, comes into play only when there is in existence a spe cial 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 Judicia l Magistrate of the 1st Class specially empowered, in this behalf, by the State Government. 72. 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 t o be tried by a Sessions Court, the implication is that it has to be tried by a judicial Magistrate depending upon the punishment prescribed. 73. 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, under Section 260 CrPC, by the High Court. 74. 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 commod ity as well as the act of allegedly selling essential commodity at a price, whic h was higher than the price fixed. 75. Considering the fact that the provisions, embodied in the 1982 Order, ar e beyond the limits of the powers of the State Government, the provisions aforem entioned 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 purcha se of essential commodities and also to the extent that the same relates to stor age, 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 t o the extent that the 1982 Order relates to storage, transportation, distributio n, disposal, use and consumption of an essential commodity stand the scrutiny o f law, the contravention of the provisions, embodied, in this regard, in the 198 2 Order, cannot be made the foundation for prosecution of the accused-petitioner s. Their trial for the alleged contravention of the provisions of the 1982 Orde r cannot, but be treated bad in law. 76. In the result and for the reasons discussed above, we hereby set aside a nd quash the Assam Public Distribution of Article Order, 1982, to the extent tha t the same relates to controlling of price at which an essential commodity may b e bought or sold and to the extent that the 1982 Order relates to storage, trans portation, distribution, disposal, use and consumption of an essential commodity . We also set aside and quash the complaint/offence report, which has been submi tted by the respondent No. 2, and which became the basis for taking of cognizanc e of the alleged offences by the learned Court below. 77. et aside and quashed. 78. sposed of. With the above observations and directions, this writ petition stands di The criminal prosecution of the accused-petitioners, therefore, stands s