( 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 inoperative null and void and the charge for the offence punishable under Sec. 7 read with Sec. 3 of the Essential Commodities Act 2 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 and Civil Supplies Department that the 100 bags of non-levy Cement purchased by him on December 29 1986 from Pravinbhai Mangubhai Desai 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 quality was got verified by the competent authority and the cement being not of the prescribed standard complaint was filed for the offences punishable under Sec. 7 read with Sec. 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-sec. (S) of Sec. 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 Sec 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 quality control of the commodity.

( 3 ) THE essential commodities are specifically enumerated in sub-clauses (i) to (X) of clause (a) of Sec. 2 of the Essential Commodities Act but Cement is not included as essential commodity in those clauses. Sub-clause (xi) of clause (a) of Sec. 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 lass by virtue or entry 33 in List 111 in the Seventh Schedule to the Constitution;"in exercise of the powers conferred by sub-clause (xi) of clause (a) of Sec. 2 Essential Commodities Act the Central Government Ministry of Steel and Heavy Industries by Order No. S. O. 3594/eca/1/62 dated 24/11/1962 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 1/12/1962 The Central Government in the same Ministry by Order No. S. O. 3595 dated 24/11/1962 in exercise of the powers conferred by Sec. 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 1 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.