Judgment

Bose J.- This is a criminal appeal against a conviction under S. 16, Punjab Trade Employees Act, 1940 as amended in 1943 read with S. 7 (1)

2. The appellant is a shopkeeper who owns & runs a shop in the Cantonment Area of Ferozepore. He has no "employees" within the meaning of the Act but is assisted by his son in running the shop. The shop is divided into two sections. In one, artiCles of haberdashery are sold: in the other, artiCles of stationery.

3. S. 7 (1) of the Act as amended requires that -"Save is otherwise provided by this Act, every shop. . . . shall remain Closed on a Close day." Sub--s. 2 (i) states that- "The choice of a Close day shall rest with the owner or occupier of a shop.. . . . & shall be intimated to the prescribed authority within etc."

4. The Appellant made the following choice. He elected to Close the haberdashery section on Mondays & the stationery section on Saturdays & gave the necessary intimation to the prescribed authority to that effect.

5. On Monday, the 17-5-1948, the appellant s son sold a tin of boot polish to a customer from the haberdashery section of the shop. The appellant was present in person it the time of the sale. Monday was a Close day for the haberdashery section & so the appellant was prosecuted under S. 16 read with S. 7. The trying Magistrate held that in selling the article of haberdashery on a Close day & in not observing Monday as a Close day the appellant had infringed the provisions of S. 7 (1) of the Act. He accordingly convicted him, & imposed a fine of Rs. 20. A revision application to the High Court failed. The High Court held that as the appellant had failed to keep his shop closed one day in the week, his conviction was proper. A certificate for leave to appeal to this Court, on the ground that a sub-stantial question of law relating to the Govt. of India Act, 1935 was involved, was granted & that is how we come to be seized of the matter.

6. The learned counsel for the appellant contended that S. 7 of the Act is ultra vires in that it does not fall under any of the items in either the Provincial or the Concurrent Legislative Lists in the Govt. of India Act, 1935. In our opinion the matter can come either under item No. 27 in List II or Item No. 27 in List III.

7. Item No. 27 in List it covers "trade & commerce within the Province." In our opinion, a Provincial Govt. could, under that entry, regulate the hours, place, date & manner of sale of any particular commodity or commodities. It could, for example, state that the sale of explosives or other dangerous Sub-stances should only be in selected areas, it specified times or on specified days when extra precautions for the general safety of the public & those directly concerned could be arranged for. That would appear to be obvious. In the same way, it could, if it so pleased, say that there shall be no sales on a particular day, say a Sunday or a Friday, or on days of religious festivals & so forth. Instead of doing that, it has chosen to regulate the internal trade of the Province 316 in this manner which is only one of the various ways in which it could have acted.

8. The matter can also be brought under Item 27 in List III: "Welfare of labour; conditions of labour." The impugned section is a general one & applies to all kinds of shops; that is to say, to those in which labour is employed as well as to those which are run by the owners & their families. The Act in which the section occurs is directed at regulating the hours of employment of persons who are employed in the business of shops or commercial establishments. Therefore, in so far as S. 7 covers establishments where labour is employed, it is undoubtedly intra vires. But it was argued that the section can have no application to shops which an owner runs with or without the assistance of his family. Reliance for this was placed on S. 2 (A) (i) & (j) which is as follows: "2A. Nothing in this Act shall apply to - * * * * * (i)persons employed in mana