The main legal point established in the judgment is that the Orissa Essential Articles Control and Requisitioning (Temporary Powers) Act 1947 was not ultra vires as it was relatable to specific entries in the Provincial Legislative List, and that the defense based on a letter from the Government of India was not justified.

RAY, C. J.

( 1 ) THIS appeal is directed against an order of acquittal recorded by Rai bahadurcharu Chandra Coari, Ses. J. Cuttack, in Cr. App. No. 70-C of 1947, reversing the order of conviction passed by the Sub-Divisional Mag. Jaipur, in the case of Emperor v. Tustipada Mandal and 5 others, under Schedule 0, Orissa essential Articles Control and Requisitioning (Temporary Powers) Act (I [l] of 1947 ).

( 2 ) THE reaps, six in number, belong to the dist. of Burdwan in the Province of bengal. They were prosecuted for attempting to transport 21 bullocks from the province of Orissa in contravention of cl. 3, Orisaa Livestock (Control of movement and Transactions) Order 1917, made and promulgated in exercise of the powers conferred by Schedule , Orissa Essential Articles Control and requisitioning (Temporary Powers) Act 1947, in supersession of all existing orders on the subject, by the Govt. of Orissa. On 2-6-1947, the resps. were found passing through Dharmasala (in the dist. of Cuttaek) en-route Bhadrak with 21 heads of cattle (bullocks), purchased on different dates by one or other of them in different districts of Orissa. They were avowedly moving and transporting cattle to the dist. of Burdwan beyond the provincial boundaries of orissa. It is admitted that the resps. held no permit nor licence from the Govt. of Orissa as enjoined in Cl. 3 of the Order aforesaid. Under these circumstances they were prosecuted under Schedule 0 of the Orissa Act I [l] of 1947. and sentenced to pay a fine of Ks. 51 each, and the 21 bullocks Beized were forfeited to the Govt. of Orissa.

( 3 ) IN appeal, the learned Ses. J. of Cuttaek gave them b8ne6t of doubt and set aside their conviction and recalled the order of forfeiture of the bullocks seized.

( 4 ) THE points, that were canvassed before him and have been reiterated here, were: (i) if the Act of the Orissa Legislature, referred to above, and the Order, passed thereunder, were ultra vires the Provincial Legislature, (ii) that whatever the resps. did in furtherance of movement and transport of the cattle amounted in law to preparation, as distinguished from attempt, to commit the offence. Two other points were raised in this Ct. by the learned counsel for the resps. namely, (iii) the trial was vitiated by misjoinder of charges and parties, and lastly (iv) that in view of the Govt. of India's letter addressed to all Provincial Govts. , the resps. had reasons to believe bona fide that under the laws, then prevailing, there was no imposition of any ban on the movement and transport of cattle from orissa across its borders. I shall proceed to deal with the points in the order in which they have been stated above:

( 5 ) POINT (i):-If Orissa Act I [1] of 1947 is ultra vires the Provincial Legislature. The Act is impugned, as being contrary to the provisions of Schedule 97, Govt. of India Act, which reads:

"297.- (1) No Provincial Legislature of Govt. shall- (a) By virtue of the entry in the Provincial Legislature List relating to trade and commerce within the Province, or the entry In that List relating to the production, supply, anddistribute on of commodities, have power to pass any law or take any executive action prohibiting or restricting the entry into, or export from the Province of goods of any class or description or, (b) by virtue of anything in the Act, have power to impose any tax, cess, toll, or due which, as between goods manufactured or produced in the province and similar goods not so manufactured or produced, discriminates in favour of the former, or which, in the case of goods manufactured or produced outside the Province, discriminates between goods manufactured or produced in one locality and similar goods manufactured or produced in another locality. (2) Any law passed in contravention of this section shall, to the extent of the contravention, be invalid. "

( 6 ) IT is submitted that this section must operate so as to completely neutralize the Provincial Legislature's powers