P L D 1952 Baluchistan 49 (PLP)

R. K. M. SAKER, J. C.‑This is a revision petition under the provisions of sections 435/439 of the Criminal P. C. against the order of the Sessions Judge in Baluchistan, dated 3rd November 1951,who dismissed the appeal against the order of conviction and sentence passed against the petitioner by the City Magistrate, Quetta, under section 3 of the Hoarding and Blackmarket Act, 1948. In this order it is unnecessary for me to go into the facts of the case because the reasons which I propose to give below will show that the entire case has been misconceived. It is contended that the convict‑petitioner, sold sugar above the controlled rate and thereby committed an offence under the Hoarding and Blackmarket Act. In accordance with the provisions of section 12 of the Hoarding and Blackmarket Act a complaint was lodged by the District Magistrate, Quetta‑Pishin in the Court of the City Magistrate Quetta. Paragraph 2 of the complaint is relevant and reads as follows :‑ "That the accused charged Rs. 6‑12‑0 for three seers of sugar which is in excess of the controlled retailed price Rs. 1‑1‑0 per seer vide Notification No. 47‑FS/51 (1), dated 20th February 1951, issued under clause 6‑21 of the Sugar and Sugar Products Order, 1948". It is clear that in accordance with the prosecution evidence, the petitioner is alleged to have committed the offence on 12th February 1951 i.e. several days before the issue of the notifica tion which is alleged to be the notification controlling .the prices of sugar. From this fact alone it will be apparent that the petitioner committed no offence. The learned Public Prosecutor has argued that the date of the notification, both in the complaint and in the judgment of the lower Courts, is merely a clerical error and should have read as January 15th, 1951. However that may be, it is abundantly clear to me that the whole case for the accused (petitioner) has been prejudiced by virtue of the fact that he was charged with contravening the provisions of a certain notification which was published after he was alleged to have committed the offence. It is now no argument to claim that in fact some other notification controlling sugar prices was in force prior to the commission of the offence. There are, however, more serious aspects of the case which make it clear to me that the entire proceedings are ultra vices. A Notification No. PY‑18/48, dated the 26th Feb ruary 1952 was published under the provisions of the Essential Supplies (Temporary Powers) Act, 1946, which was known as the Sugar and Sugar Products Control Order, 1948. This order, inter alia, gives powers to the Controller to fix prices of sugar. Under clause 2 (a) the definition of Controller is described as "the person appointed as the Sugar Controller for Pakistan by the Government of Pakistan and includes any person authorised by the Controller to exercise all or any of the powers of Controller under this order except those under clause 6 hereunder". From this definition it is clear that the Controller was authorised to delegate powers to some other person but that he could not delegate his powers under clause

6. The Notifications Nos. 47‑FS/51 (1), dated 16th /20th February 1951 and No. 47‑FS/51, dated the 15th January 1951, which were issued by the A. R. C. (Food), read as follows :‑ "(1) Under the provisions of clause 6 (2) (a) of the Sugar and Sugar Products Control Order, 1948, the Assistant to the Revenue Commissioner (Food) in Baluchistan in pleased to fix until further orders the price at which the sugar imported from Karachi and Mardan shall be sold in whole sale and retail quantities in the Quetta‑Pishin District. (2) Under the provisions of clause 6 (2) (a) of the Sugar and Sugar Products Control Order, 1948, the Assistant to the Revenue Commissioner (Food) in Baluchistan is pleased to fix until further orders the price at which the sugar imported from Karachi and that of Mardan shall be sold in 'wholesale and retail quantities in the Quetta‑Pishin District, as under . . ." In my view, therefore, both these notifications are ultra wires as being beyond the powers of the A. R. C. (Food) to whom the Controller was not competent to delegate powers under this particular clause of the Sugar Control Order. This, however, does not end the matter because there is a further Notification of the Sugar Controller himself delegating powers to the A. R. C. (Food) to exercise such powers under clause

6. This notification reads as follows :‑ "Karachi the 24th/25th January 1952. No. SCP‑3 (2).‑In exercise of the powers conferred upon me by tub‑clause (a) of clause 2 of the Sugar and Sugar Products Control Order, 1948, I hereby authorise the A. R. C. (Food), Baluchistan, to exercise within the pro vince of Baluchistan and subject to such directions and limitations as may, from time to time, be issued by me, the powers of a Controller under paragraph (a) of sub‑clause (2) of clause 6 of the said Order." Even if I am to assume the Sugar Controller had authority to delegate his powers under clause 6, the A. R. C. (Food) issued the two notification in January and February 1951 before these powers were delegated to him. In the light of the above observations further opportunity was given to the learned Prosecuting D. S. P. to satisfy me that in effect the prices of sugar had been legally controlled and that the convict‑petitioner had contravened the legal orders on the subject. The learned Prosecuting D. S. P. endeavoured to argue that in the first instance sugar was con trolled by an order issued under the Defence of India Rules in 1943 and that under clause (2) of that Order the Controller could delegate powers without restrictions. The Order of 1943 was replaced by another Order in 1946 and ultimately by the Sugar Control Order of 1948 which came into force under the Essential Supplies Act of 1946. The learned Prosecuting D. S. P. contends that by virtue of clause 10 of the Sugar Control Order of 1948 any notification delegating powers under clause 6 (2) though inconsistent with clause 2 (a) is kept alive since the wording of clause 10 reads as follows :‑ "Notwithstanding the supersession of the Sugar and Sugar Products Control Order, 1947, dated the 4th August 1947, all notifications rules, orders, authorisations, quotas, require ments and directions issued or deemed to have been made thereunder or previously shall so far as they are inconsistent with this order, be deemed to have been made hereunder and they shall continue in force until rescinded or modified hereunder'. It has been further argued that the A. R. C. (Food) is the successor in office and that he could, therefore, exercise powers which had previously been delegated to the Director of Food Supplies in Baluchistan under the notification of 1943. In dealing with the first point, it appears to me that the wording of clause 10 as published in the official gazette and which has been reproduced above is a misprint, for the word "not" has in my view, been inadvertently omitted before the word "inconsistent". I have taken judicial notice of the fact that a notification published in the Gazette by the same Ministry on the same date which is the Gur Control Order, 1948 has an identically similar saving clause in it in which the word 'fact' does appear. It would be impossible to interpret the present clause 10 as it stands, for in effect the present wording of this clause would mean that all inconsistent acts were valid while those that were consistent with the Order itself were invalid. This cannot, by any stretch of imagination, have been the intention when the notification was issued. It follows, therefore, that if I am to assume that the word not has been inadvertently omitted, the intention of clause 10 is that anything done which is not inconsistent with the Order itself will be a valid act. For reasons already stated it will be abundantly clear that the various notifications issued by the A. R. C. (Food), and the notification by which Sugar Con troller delegated powers to him on a much later date, are all inconsistent with the authority vested in the Sugar Controller by virtue of the Sugar. Control Order of 1948 and that they must be considered as having been issued without authority. As for the point that the A. R. C. (Food) is successor in office to the Director of Food Supplies I cannot subscribe to this view. Not only is the present designation of this officer different but he is in fact a different officer. The delegation of powers to one officer cannot be construed as continuing in favour of another officer with a different designation. However, there is little need to stress this point because even though in 1943 the Sugar Controller then had powers to delegate his authority to the Director of Food Supplies it is clear from the Sugar Control Order, 1948, that he no longer has powers to delegate authority to control prices of sugar. Finally, to sum up, the position is that the convict‑peti tioner has been found guilty of contravening a notification issued by the A. R. C. (Food) controlling prices of sugar though the offence was alleged to have been committed on a date prior to the issue of this notification, Secondly, I hold that the Sugar Controller had no authority to delegate his powers to control prices. Thirdly, even if the Sugar Controller had authority to delegate his powers‑though no proof of this facts is forthcoming‑the powers were delegated in January 1952. i.e., after a considerable lapse of time after the two notifica tions controlling prices of sugar had been issued by the A. R. C. (Food) and long after the convict‑petitioner himself is alleged to have committed the offence. In all these circumstances I consider that notification controlling prices of sugar are ultra vires of the Sugar Con trol Order, 1948 and that in effect price control on sugar has not been legally exercised. It follows, therefore, that the convict‑petitioner is guilty of no offence and in exercise of my revisional powers I consider that the proceedings against him, should be quashed. The fine, if paid, will be refunded. A. H. Petition accepted.