Order. - Accused 1 to 6 in C.C.No. 3721 of 1974 on the file of the Ninth Metropolitan Magistrate, Saidapet, Madras, are the revision-petitioners.

2. They stood charged by the Inspector of Police, Food Cell, C.I.D. Investigation Wing V Madras, for an offence under clause 17 of the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973, read with section 7 of the Essential Commodities Act, 1955 and sections 3 and 23 (1) of the Petroleum Act, 1934, on the allegation that on 16th July, 1973 at about 4-30 p.m., at No. 188, Rathinasabhapathi Street, Puliyurpuram, Kodambakkam, the accused were in possession of 3,500 litres of kerosone, 170 litres of diesel and 800 litres of dangerous petrol valued at Rs. 4,000 contained in barrels and tins for sale and that the said quantity of petroleum products, empty barrels, measuring vessels funnels and connected records, were seized from the possession of the accused and that the accused were not having any valid licence for the possession of the said petroleum products.

3. When examined, the accused admitted the above said offence and pleaded guilty to the charge. Accordingly, the lower Court found them guilty of the above said offence and sentenced accused 1 to 4 to pay a. fine of Rs. 25 each, in default to suffer rigorous imprisonment for two months each and accused 5 and 6 to pay a fine of Rs. 50 each, in default to suffer rigorous imprisonment for three months each and also to suffer imprisonment till the rising of the Court.

4. Now, the accused have preferred this revision petition, and the learned Counsel Mr. E.H.B. David, appearing for them. advanced arguments: (1) Challenging the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 (hereinafter referred to as the Order) and clause 17 of the said Order as ultra vires and unconstitutional as it is beyond the jurisdiction of the legislative competence of the State Legislature, because the matter comes within item No. 53 of List I of Schedule 7 of the Constitution of India and only the Union Parliament can legislate, and contending;(2)that the learned Magistrate has committed an irregularity by questioning the petitioners on the same day when the copies of the document relied upon by the prosecution were given to them and that the learned Magistrate has failed to take the accused’s answers to the charges in their language: (3) that there is misjoinder of charges and of persons; (4) that the learned Magistrate ought not to have given separate sentences in view of section 71 of the Indian Penal Code; and (5) that the confiscation and sale of the properties is illegal and no offence has been made out under the Order and the Petroleum Act.

5. Coming to the first point, the learned Public Prosecutor would bring to my notice that this Order was made in the exercise of powers conferred by section 5 of the Essential Commodities Act, 1955 (Central Act X of 1955) read with the Government of India notification in S.O. No. 2314 dated 30th July, 1966 and contend that the State Legislature is competent to make the said Order, and the State Government has given reasons for the enactment of the Order in the preamble of the Order itself, viz., “Whereas the State Government are of opinion that for maintaining supplies of kerosene and for securing its equitable distribution and availability at fair prices it is necessary and expedient to provide for the licensing of Kerosene”, and therfore the Order and the impugned clause are within the competence of the State Legislature, and it is not ultra aires. I accept the argument of the learned Public Prosecutor and hold that the impugned Order is quite valid.

6. Coming to the next point, Mr. David would contend, relying or the decision in S. Chinnaswamy, In re1, wherein K.N. Mudaliar, J., while dealing with sections 241 and 173 (4), Criminal Procedure Code, has, by way of obiter dictum, observed that in such cases the Magistrates would do well, in the interests of justice, to exercise their judicial discretion and take

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