The court emphasized the continuity of the existing law under the Defence of India Act and the powers vested in the Provincial Govt. to issue orders for regulating or prohibiting the storage, distribution, and disposal of foodgrains.

BALAKRISHNAIYA, J.

( 1 ) THIS is an appeal by the State of Mysore under Section 417, Criminal P. C. against the judgment in C. C. no. 749 of 49. 50 of the Special First Class Mag. of nanjangud. The reap, was prosecuted for an offence under Rule 81 4), Defence of India Rules read with Clause (19) of the Articles of Food Acquisition (Harvest) order, 1949, for having un-authorteedly sold foodgrains.

( 2 ) THE possession and sale of 'save' is the food-grain concerned in the offence. The Mag on evidence, found that the accused sold 'save' and in addition, bad in his possession 600 seers of the commodity in two gunny bags kept for sale in the shop and 10 bags of 'save' were found to have been stored inside the house attached to the shop which was seized by the Police. The accused pleaded that he has not committed any offence either by possession or by sale of 'save'. 'save' is not one of the food-grains mentioned in the Harvest Order of 1949 as it stood on 26-1-1950; but it was introduced therein by an order made by the provincial Govt. in the exercise of their powers under Rules 75 and 81, Defence of india Rules by a notfn. dated 31-1-1950. The learned Mag. held that this notfn. was invalid in-asmuch as it imposes a fresh restriction on the freedom of trade offending Article 301 of Part XIII of the Constitution of India and consequently found that the accused is not guilty and acquitted him.

( 3 ) SRI V. Krishnamurthy, the learned counsel for the accused, supported the judgment of the Mag. and contended that after the commencement of the constitution of India, the Provincial Govt. is precluded from passing an order which will affect the provisions of the Constitution. It is argued that under the amendment in question, rights conferred in Part XIII of the Constitution regarding the freedom of trade, commerce and intercourse are affected and that it is only the Parliament that could impose restrictions on the freedom of trade and commerce and if the Legislature of any State peeks to make a law in that respect it must obtain the previous sanction of the President.

( 4 ) THE question for consideration is whether the amendment issued on 31-11950 under the notfn. by the Provincial Govt. subsequent to the commencement of the Constitution of India is ultra vires. The term 'existing law' under Clause (10) of Article 366 means:

"any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any legislature, authority or person having power to make such a law, ordinance, order, bye-law, rule or regulation. " it is undisputed that the rules made under the Defence of India Act and continued by the Miscellaneous Provisions Act XX [20] of 1947 form the existing law on 26-1-1950 and such law : "shall continue to be in force therein until altered or repealed or amended by a competent Legislature or other competent authority"

as provided by Article 372 (1) of the Constitution. It is contended that though the rules tinder the Defence of India Act are continued as the existing law, no power is reserved in the Provincial Govt. under the said rules to pass orders for regulating or prohibiting the storage, distribution and disposal of the foodgrains. We are unable to agree with this contention. So long as the Defence of India rules continue unabrogated, the powers vested therein in the Provincial Govt. under those rules could be exercised to issue orders for the purpose of maintaining supplies and pervices essential to the life of the community. The amendment to the Harvest order does not constittute a new law requiring previous permission of the President. The Constitution of India has not the effect of putting an end to the Defence of India Rules, or divesting the powers vested in the Provincial Govt. to make orders thereunder. It is not denied that the notice of amendment was duly published as required by Rule 119, Defence of India Rules and the procedure followed is not in any way defective. T

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