P.M. Chauhan, J.
1. Petitioners, the accused in Special Criminal Case No. 13 of 1988, in the Court of the Special Judge, Court No. 5, Ahmedabad, having failed to get the discharge order on the ground that the Cement (Quality Control) Order, 1962 was issued prior to the cement being declared as essential commodity and, therefore, the said order is imoperative, null and void and the charge for the offence punishable under Section 7, read with Section 3 of the Essential Commodities Act, 1955, should not be framed against them, have challenged the order by the Special Judge, Court No. 5, Ahmedabad, asserting the same contentions and also that the Cement (Quality Control) Order is beyond the competence of the Central Government as no such order could be issued under the provisions of the Essential Commodities Act. To appreciate the contentions the factual background leading to the prosecution may be narrated in short.
2. Chunilal B. Mistry, a building contractor, complained to the Controller, Food & Civil Supplies Department, that the 100 bags of non-levy cement purchased by him on December 29, 1986 from Pravinbhai Mangubhai Doshi, Proprietor of Ambika Trading Company manufactured by the petitioner No. 2, Joitaram K. Patel proprietor of Bharat Cement Industries, was not of the prescribed standard. The inquiry was held and the qualify was got verified by the competent authority and the cement being not of the prescribed standard, complaint was filed for the offences punishable under Section 7 read with Section 3 of the Essential Commodities Act, 1955 against the petitioners. When the case came up for framing the charges the petitioners raised only one contention that the Cement (Quality Control) Order is inoperative, null and void as the cement was not declared as Essential commodity. The learned Special Judge, considering the provision of Sub-section (5) of Section 3, Essential Commodities Act, for the reasons recorded by him, turned down the prayer of the petitioners and directed to frame the charge against the petitioners. Even though no contention was raised before the learned Special Judge, it is contended in this petition that the Central Government has no authority under the provisions of Section 3, Essential Commodities Act, to issue the Cement (Quality Control) Order and to decide the quality as the purpose and scope of the provisions of the Essential Commodities Act are only for controlling the production, supply and distribution and do not provide for the qualify control of the commodity.
3. The essential commodities are specifically enumerated in Sub-clauses (i) to (x) of Clause (a) of Section 2 of the Essential Commodities Act, but Cement is not included as essential commodity in those clauses. Sub-clause (xi) of Clause (a) of Section 2, Essential Commodities Act, authorised the Central Government to declare any other commodity as essential commodity. It provides --
'(xi) Any other class of commodity which the Central Government may, by notified order, declare to be an essential commodity for the purposes of this Act, being a commodity with respect to which Parliament has power to make laws by virtue of entry 33 in List III in the Seventh Schedule to the Constitution.'
In exercise of the powers conferred by Sub-clause (xi) of Clause (a) of Section 2, Essential Commodities Act, the Central Government, Ministry of Steel and Heavy Industries, by order No. S.O. 3594/ECA/1/62, dated November 24, 1962 declared Cement to be an essential commodity for the purpose of Essential Commodities Act and published that Order in the Government of India Gazette dated December 1, 1962. The Central Government in the same Ministry, by order No. S.O. 3595/ECA/2/62, dated November 24, 1962 in exercise of the powers conferred by. Section 3 of the Essential Commodities Act, made the Cement (Quality Control) Order, 1962, which is notified in the Government of India Gazette dated December 1, 1962. Clause 2 of the said Order defines 'cement' and also specifies the 'prescribed standard'. Subsequently the definition of 'cement' was substituted by Order No. S.O. 178(E) dated February 18, 1977 and the 'prescribed standard' is also substituted by the same Order. The offence is alleged to have taken place after the substitution of the definition of 'cement' and the 'prescribed standard' and it is alleged that 'cement' which is essential commodity does not conform to the prescribed standard and therefore, the petitioners violated the provisions of Clause 3 of the Cement (Quality Control) Order which provides that no person shall himself or by any person on his behalf manufacture or store for sale, sell or distribute any cement which is not of the prescribed standard. When the alleged offence was committed cement was the essential commodity.
4. The main thrust of the contentions of Mr. R. K. Shah learned counsel for the petitioners, is that the cement was not an essential commodity on the day on which the Cement (Quality Control) Order, 1962 was issued. To support his contention Mr. Shah submitted that under Sub-clause (xi) of Clause (a) of Section 2 of the Essential Commodities Act, any commodity can be declared as essential commodity which the Central Government, by notified order declare to be the essential commodity for the purpose of the Act. Mr. Shah also submitted that the 'notified order' as defined in Clause (c) of Section 2 of the Essential Commodities Act, means an order notified in the Official Gazette and the order was notified in the official gazette only on December 1, 1962 and, therefore, upto that date cement was not the essential commodity, while Cement (Quality Control) Order 1962, issued on November 24, 1962 was published in the Government of India Gazette on December 1, 1962 came in force immediately on November 24, 1962, as it is not specifically provided that the said order will come into force on publication in the official gazette and, therefore, it preceded the date on which the cement came to be declared as essential commodity under the provisions of the Essential Commodities Act.
5. Under Sub-clause (xi) of Clause (a) of Section 2 of the Essential Commodities Act any class of commodity can be declared by the Central Government to be an essential commodity for the purpose of the Essential Commodities Act by notified order and, therefore, till such order is not notified in the official gazette, such commodity cannot be considered to be the essential commodity. As the order was notified in the official gazette on December 1, 1962, the cement can be considered to be essential commodity for the purpose of the Act from that particular day even though the order was issued by the Central Government declaring cement to be essential commodity on November 24, 1982. The Cement (Quality Control) Order, 1962 was issued by the Central Government on November 24, 1962, but it was published on December 1, 1962. The submission of Mr. Shah, learned Counsel for the petitioners that it is not obligatory under the Act to publish the Cement (Quality Control) Order and, therefore, it should be effective on the date on which it was issued irrespective of the date on which it was notified in the official Gazette and the learned Judge erred in law in holding that it should be effective from the date on which it was published in the Gazette deserves to be rejected. In the Cement (Quality Control) Order, 1962, it is not specified as to from which particular date it will be effective. However, Sub-section (5) of Section 8 of the Essential Commodities Act specifically provides that an order made under Section 3 shall (a) in the case of an order of a general nature or affecting a class of persons, be notified in the official Gazette, and (b) in the case of an order directed to a specified individual, be served on such individual. The order specifying the quality control of cement indisputedly is the order of general nature affecting the class of persons. It is, therefore, obligatory to publish the order in the official Gazette. The purpose of publishing it is to bring to the notice of the concerned persons of the issuance of such Order by the Central Government. Till such an order is published in the official Gazette, it can be effectively pleaded that the concerned persons had no knowledge about the Order. It should, therefore, be read in the provisions of Section 3 of the Essential Commodities Act that such an order effectively comes into operation on the date on which it is published in the official gazette. The order was published after the order declaring the cement as an essential commodity and, therefore, it cannot be accepted that the cement was not an essential commodity on the date on which the Cement (Quality Control) Order 1962 came into force. The learned Special Judge, therefore, rightly not accepted the contention of the petitioner.
6. Mr. R. K. Shah, learned Counsel for the petitioners tried to get support from the judgment of Andhra Pradesh High Court in the case of Sri Krishna Rice Mills v. Deputy Director (Food), Govt. of India AIR 1960 Andh Pra 431, in which the observation is that the non-publication of the order did not vitiate the same. The Division Bench of the Andhra Pradesh High Court was considering the provisions of Clause (b) of Sub-section (5) of Section 3 of the Essential Commodities Act and not Clause (a) of that sub-section. Clause (b) provides for the mode and manner of the service of the Order directed to a specified individual and not of the order of general nature or affecting a class of persons. Such an Order of the general nature or affecting a class of the persons is required to be notified and not an order which is directed to the specified individual. The Division Bench observed that the order under consideration did not come within the sweep of Clause (a) which envisages only an order of general nature affecting a class of persons. The said authority, therefore, does not lay any proposition of law, sought to be canvassed by Mr. Shah, learned Counsel for the petitioners.
7. It was not urged before the learned Special Judge that the Cement (Quality Control) Order, 1962 could not have been issued by the Central Government in exercise of the power under Section 3 of the Essential Commodities Act, as the Act provides only for the control of the production, supply and distribution of and trade and commerce in certain commodities, in the interest of the general public. Referring to the provisions of Section 3 of the Essential Commodities Act, Mr. Shah submitted that the order can be issued only if the Central Government is of the opinion that it is necessary or expedient for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices and the Central Government, by order, may provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce relating to such commodity. Mr. Shah asserted that the quality cannot be controlled by exercising the powers under Section 3 of the Act. This point is now no more res integra, as the Supreme Court in Hamdard Dawakhana v. Union of India, AIR 1965 SC 1167 has categorically observed that the power to regulate the production of an essential commodity will include the power to regulate the production of the essential commodity which may operate either qualitatively or quantitatively. The Supreme Court has observed --
'.....We would refer very briefly to the scheme and the relevant provisions of the Act and the Fruit Order. The Act was passed in 1955 for the purpose of controlling the production, supply and distribution of and trade and commerce in, certain commodities in the interest of the general public. The commodities which were intended to be brought within the purview of the Act were essential commodities as defined by Section 2(a) of the Act. Amongst them are included foodstuffs, including edible oil seeds and oils covered by Section 2(a)(v), and any other class of commodity which the Central Government may, by notified order, declared to be an essential commodity for the purpose of this Act, being a commodity with respect to which Parliament has power to make laws by virtue of entry 33 in List III in the Seventh Schedule to the Constitution : this is included in the definition by Section 2(a)(xi). Section 3(1) provides that if the Central Government is of the opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair price, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. Sub-section (2) by Clauses (a) to (h) provides for different categories of orders which may be passed by the Central Government without prejudice to the generality of the powers conferred on it by Sub-section (1). It would thus be clear that the Act confers power on the Central Government to regulate the production, supply and distribution of essential commodities. This power is conferred in a very general and wide sense by Section 3(1). There can be little doubt that the power to regulate the production of an essential commodity will include the power to regulate the production of essential commodities which may operate either qualitatively or quantitatively. In other words, in regard to essential commodities, the Central Government is given the power to direct now certain essential commodities should be produced and in what quantity. This power, of course, can be exercised only if the condition precedent prescribed by Section 3(1) is satisfied and that is that the Central Government should be of opinion that it is necessary or expedient to regulate the production of any essential commodity for one of the purposes mentioned by it. This position cannot be, and is not, disputed before us. In fact, in M/s. Amrit Banaspati Co. Ltd., Criminal Appeal No. 141 of 1959 D/-30-11-1960 (SC) : (Reported in 1960 SC (Notes) 251) (Supra) this Court whilst dealing with the provisions of the Vegetable Oil Products Control Order, 1947, issued under Section 3(1) of the Act, has definitely ruled that a qualitative regulation in respect of the production of an essential commodity is permissible under Section 3(1) of the Act.'
Mr. Shah in vain tried to distinguish the said observations and submitted that the Supreme Court was dealing with the Food Articles, but it is clear that the Central Government has the authority to control the quality of the essential commodity.
8. The Supreme Court in Municipal Corporation of Delhi v. Shiv Shanker, AIR 1971 SC 815 : (1971 Cri LJ 690), while considering the provisions of the Food Adulteration Act and the Essential Commodities Act, observed that the control of production and distribution of essential commodities may to the extent from a border point of view include control of the quality of the essential articles of food.
9. No other contentions are raised by the petitioners.
10. This petition is, therefore, rejected. Rule discharged with no order as to costs.