Raghubar Dayal, J.
1. Nathu Ram and Ram Charan were convicted under Section 7, U.P. Control of Supplies (Temporary Powers) Act (Act II [2] of 1947), read with U.P. Notification No. 65/C.S.-534-1942, dated 11th February 1943 and sentenced to different amounts of fine. Their appeal was dismissed by the Sessions Judge. They have come up in revision.
2. The facts leading to their conviction are, that Ram Charan sold a quantity of match boxes at Chirgaon, district Jhansi, on 3rd June 1947, to Nathu Ram, who has a shop at Bhander in Gwalior State. After these match-boxes had been loaded in a motor-lorry the police arrested Nathu Ram and lodged a report about the incident.
3. The notification above referred to is:
In exercise of the powers conferred by Clause (b) of Sub-rule (2) of Rule 81, Defence of India-Rules, the Governor-is pleased to order that no person shall export, carry or cause to be carried by rail, road or river any matches from any place within the limits of the United Provinces to any place outside such limits, except with the permission of the Provincial Government.
It made an exception for exports made by certain companies and to persons carrying boxes not exceeding one dozen at a time for bona fide use.
4. The Defence of India Act, the rules framed thereunder and orders passed under them ceased to have any effect after 30th September 1946, except such rules and orders as were ordered to continue under the provisions of the Emergency Provisions Continuance Ordinance (Ordinance 20 of 1946), promulgated by the Governor. General of India. The aforesaid Notification, however, could not have continued in force after 30th September 1946 by virtue of the aforesaid Ordinance.
5. The Governor of the United Provinces promulgated the U.P. Control of Supplies Temporary Powers) Ordinance, 1946 (ordinance 2 of 1946), on 80th September 1946. Section 3 of this Ordinance authorised the Provincial Government to make order for regulating or prohibiting the production, supply and distribution of essential commodities and trade and commerce therein. Section 5 of the Ordinance provided:
Until other provisions are made under this Ordinance, any order, whether notified or not, made by whatever authority, under Sub-rule (2) of Rule 81, Defence of India Rules, in respect of any matter specified in Section 3 which was in force immediately before the commencement of this Ordinance shall, notwithstanding the expiration of the said rules, continue in force so far as is consistent with this Ordinance and be deemed to be an order made under Section 3.
6. This Ordinance was replaced by U.P. Act (11 [2] of 1947), the U.P. Control of Supplies (Temporary Powers) Act, 1947. Section 8 of this again empowered the Provincial Government to make orders for regulating or prohibiting any class of commercial or financial transactions relating to any essential commodity. Section 16 (1) repealed the aforesaid Ordinance and Sub-section (2) of the same section is:
Any order made or deemed to be made under the Said Ordinance and in force immediately before the commencement of this Act shall continue in force and be deemed to be an order made under this Act.
7. Both the aforesaid U.P. Ordinance and the Act mention matches as an essential commodity.
8. The main contention for the applicants is that in view of Section 297, Government of India Act of 1935, the U. P, Government could not have validly made any order prohibiting the export of matches from these Provinces, that any provision in the U.P. Control of Supplies (Temporary Powers) Act and any order made thereunder for prohibiting the export of any commodity is ultra vires of the Provincial Government and that therefore, the U.P. Notification No. 65/C.S. -634-1942, dated 11th February 1943, had no legal effect. The contention is correct. The U.P. Government derives its power of legislation under Section 100, Government of India Act of 1935. It alone can legislate with respect to matters enumerated in List 2, Schedule 7, Government of India Act. Items 27 and 29 of this list relate to trade and commerce within the province and to production, supply and distribution of goods. The Provincial Government can also legislate along with the Central Government with respect to the matters enumerated in List 3 of the same schedule. Those matters, however, do not deal with trade. Section 297(1)(a), Government of India Act, provides that no Provincial Legislature or Government shall by virtue of the entry in the Provincial legislative list relating to trade and commerce within the province or the entry in that list relating to the production, supply and distribution of commodities, have power to pass any law or take any executive action prohibiting or restricting the entry into or export from the province of goods of any class or description. It is, therefore, clear that the Provincial Legislature or Government could not have enacted a provision authorising the Government to pass any orders prohibiting the export of any commodity from these provinces to other places and that any such provision in the U.P. Control of Supplies (Temporary Powers) Act (Act 2 of 1947) and the orders in the U.P. Notification no. 65/ C.S.-534-1942, dated 11th February 1943, are ultra vires of the Provincial Government.
9. It follows, therefore, that the applicants could not have committed any offence even if the matches were sold for export and were to, be exported outside the United Provinces, as that conduct could not have contravened any lawful and valid order of the Government. Their conviction is, therefore, bad.
10. We, therefore, allow the revision, set aside the conviction and sentences passed against the applicants and acquit them. The fines, if paid, will be refunded.