The Central Provinces and Berar Cotton Cloth Trade Regulation Order, 1948, imposes reasonable restrictions on the exercise of fundamental rights in the interest of the general public under Article 19(1) (g) of the Constitution, and a breach of its provisions, such as failing to display a license prominently at the place of business, is an offense even in the absence of mens rea.

1. This is an appeal filed by the State Government of Madhya Pradesh against the judgment of the Sessions Judge, Jabalpur, in Criminal Appeal No. 262 of 1951, acquitting the Respondent Amritlal who was prosecuted and convicted under Section 7 of the Essential Supplies (Temporary Powers) Act for contravening cl. 27 of the Central Provinces and Berar Cotton Cloth Trade Regulation. Order, 1948 (hereinafter referred to as the Order).

2. The Respondent Amritlal is a dealer in cloth. He has been given a B class licence for doing the cloth business. On 17-2-1951,. Phoolsingh (P.W.1) was sent as a test purchaser with a marked ten rupee note to purchase a 'dhoti' from the shop of the Respondent, the control price of a 'dhoti' was Rs. 6-3-0.

3. The prosecution case was that when Phoolsingh (P.W. 1) purchased the 'dhoti' he was charged by the Respondent Rs. 7-6-0 which was in excess of the control price. It was also alleged that the Respondent did not issue cash memo to the purchaser nor did he prominently display the licence at the place of his business.

4. The only charge framed against the Respondent was that he failed to display prominently in the shop his cloth licence as required by cl. 27 of the Order.

5. The Respondent had pleaded guilty admitting that the licence was not exhibited prominently in his shop. There was also convincing evidence on record to show that the licence was kept by him inside a box in his shop and was produced by him at the time of the search made by the Police. The breach of the rule contained in cl. 27 of the Order was conclusively proved. He was accordingly convicted by the trial Magistrate under Section 7 of the Essential Supplies (Temporary Powers) Act for contravening cl. 27 of the Order, and sentenced to pay a fine of Rs. 200/-. His conviction was set aside by the Sessions Judge, Jabalpur. under z, Penal Code, who was of the opinion that the breach was so trivial that no notice should have been taken of it.

6. The learned Sessions Judge was clearly in error in setting aside the conviction under Section 95, Penal Code. This section has no application unless the act in question amounts to an offence under the Indian Penal Code.

7. The learned Counsel for the Respondent contends that cls. 3, 5, 10, 24, 25 and 27 of the Order do not impose reasonable restrictions on the exercise of the fundamental rights in the interest of the general public mentioned in Article 19(1) (g) of the Constitution and as such, they are 'ultra vires'; and unless and until the Court upholds the constitutionality of the Order, the conviction of the Respondent for contravening cl. 27 is bad. It was contended that cl. 3 was not in the interest of the general public as it prohibited the cloth business without reasonable restrictions while cl. 5 controlled volume and scope of the business by the licensing authority. Clause 10, according to the learned Counsel, gave arbitrary powers to the Provincial Government, and as cls. 24 and 25 are interwoven with the above clauses, the entire Order was 'ultra vires'. A large number of cases was cited by the learned cousel for the Respondent which we will consider presently.

8. The Central Provinces and Berar Cotton Cloth Trade Regulation Order was passed on 13-9-1948. Clauses 3,5, 10, 24, 25 and 27 are in these terms:

Clause 3: Save as hereinafter provided no person shall sell or store for sale cloth except under and in accordance with the conditions of a licence granted by the licensing authority.

Clause 5(a): For the purposes of this Order there shall be four classes of dealers, namely: (i) 'A class dealer' meaning a dealer who buys cloth from a manufacturer in mill-packed bales or cases or from a person in respect of whom a direction is issued by the Provincial Textile and Yarn Commissioner, Central Provinces and Berar, or the Textile Commissioner, Bombay, in this behalf, and sells it or authorises, in pursuance of an order served upon him by the Textile Commissioner under any provision of the