Mathuralal vs State of M. P.

K.L. Shrivastaya, J.

This revision petition is directed against the appellate judgment and order dated 16-7-1984 passed by the Additional Sessions Judge, Rajgarh (Biora) in Criminal Appeal "No. 31 of 1984 whereby the petitioner''s conviction u/s 3/7 of the Essential Commodities Act, 1955 (for short ''the Act'') and the sentence thereunder of imprisonment till the rising of the Court and a fine of Rs. 1000/- have been maintained.

According to prosecution story the petitioner was a licensed dealer under the M. P. Pulses, Edible Oilseeds and Edible Oils Dealers Licensing Order, 1977 (for short ''the Order''). On 24-7-1978 it was found that he had not maintained stock of soyabean seeds, and had thereby contravened Clause 3(2) of the Order,

A complaint for the offence in question was filed against the petitioner which has resulted in his conviction and sentence as already detailed.

The contention of the petitioner''s learned counsel is that the amended definition of ''Edible Oil'' as contained in sub-clause (4) of Clause 2 of the Order does not refer to Soyabean Oil and Soyabean seeds cannot be termed as edible oilseeds. Further relying on the decision in Nathulal''s case (1965 MPLJ 832) it is contended that, at any rate, in the circumstances of the case no mens rea for the offence can be ascribed to the petitioner. Relying on the decision in K.L. Subbayya Vs. State of Karnataka, it is next contended that as the seizure was in contravention of Clause 19 of the Order the prosecution was incompetent.

The contention of the learned counsel for the State is that the expression any oil used for cooking for human consumption was added with effect from 13-2-1978 in the definition of ''Edible Oil'' by amendment and as soyabean oil is admittedly used for cooking for human consumption, the soyabean seeds from which the oil is extracted are necessarily included in the oil seeds and, therefore, it was necessary for the petitioner to maintain account of its stock with him.

The definition of ''edible oil'' was amended on 13-2-1978. The amended definition runs thus :-

Edible oil means oil of seed of Groundnut, Til, Mustard, Linseed, Coconut, Rapeseed, Cotton Seed, Taramira, Palm and Gingilly, whether refined or unrefined and includes any oil used for cooking for human consumption and also includes Hydrogenated Vegetable Oil, i.e. Vanaspati.

On a careful consideration I am of the view that though there is no definition of ''oilseeds'' in the Order, the expression any oil used for cooking for human consumption, die definition of edible oils reproduced above has a wider sweep and includes oils of other seeds though not expressly named therein. Thus as soyabean oil which is used for cooking is included in the amended definition of edible oils, it follows that the seeds from which it is extracted are necessarily covered in the oil seeds referred to in the Order, and as a licensee the petitioner was required to enter the stock of Soyabean in the stock register in form ''C'' as required by condition No. 3 of the license issued to him in form''B"

This brings us to the contention based on contravention of Clause 19 of the Order.

In the decision in Subhayya''s case (supra) which is by two Judges, it has been held that Section 54 of Mysore Excise Act which is a provision which arises in urgent cases where it may not be possible for the officer concerned to get warrant from the Magistrate as provided u/s 53 ibid, contains valuable safeguards for the liberty of the citizens in order to protect them from ill founded or frivolous prosecution or harassment and as the Inspector who had searched the car of the accused had not made any record of any ground on the basis of which he had reasonable belief that an offence under the Act was being committed before proceeding to search the car, the entire search was rendered without jurisdiction and as a logical corollary vitiated the conviction. The provision in Clause 19 of the Order embodies provision similar to Section 54 of the Mysore Excise Act.

In the decision in Bai Radha Vs. The State of Gujarat, which is by three Judges, with reference to Section 50 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, it has been pointed out that power to search is conferred by statute and is not derived from recording of reasons and due to omission to record reasons before or after search, trial is not vitiated unless it is shown that prejudice is caused and that non-compliance with sub-section (1) of the said section is a mere irregularity curable u/s 537 of the repealed Criminal Procedure Code, 1898. In view of this decision, the contention based on breach of Clause 19 of the Order cannot be countenanced.

This brings us to the question of mens rea.

In the decision in Nathulal''s case (supra) it has been pointed out that a statute may expressly or impliedly exclude mens rea but the mere fact that the object of the statute is to promote welfare activities or to eradicate social evil is not decisive whether the element of guilty mind is excluded. Therein, with reference to Clause 3 of the M. P. Food Grains Dealers Licensing Order, 1958 and Section 7 of the Act it has been pointed out that ''mens rea'' is necessary for conviction in prosecution for breach of those provisions.

The contention of the learned counsel for the petitioner is that the petitioner had been earlier told by the Food Inspector who effected the seizure that under the Order it was not necessary to maintain stock of Soyabean seeds in the register in form C. In this connection he has also invited my attention to Form ''E'' which is the form for the fortnightly return of stock receipt and sales of edible oil seeds and edible oils in pursuance of condition No. 9 of the licence issued in Form ''B''. I find that in this form several seeds have been referred to but there is no mention of Soyabean seeds. He goes on to contend that the said Food Inspector has not been examined and on a consideration of the totality of the facts and circumstances of the case ''mens rea'' cannot be ascribed to the petitioner. I find that there is force in the contention sought to be canvassed. What is more the solitary witness examined by the prosecution in this case is Shyamsunder Gupta (P.W.I) the Munimof the petitioner. His evidence supports this stand. He has also stated that the stock of Soyabean was maintained in another register which the Food Inspector had declined to verify. The Food Inspector has not been examined and there Ls no rebuttal.

From what has been discussed in the preceding paragraph, the irresistible conclusion is that the prosecution has failed to establish mens rea on the part of the petitioner for the offence in question, and, therefore, as the essential ingredient of the offence has not been proved it cannot be held that the charge has been brought home to him. His conviction is thus clearly ill-founded and deserves to be set aside.

In the result, the revision petition succeeds and is allowed. The petitioner''s conviction u/s 3/7 of the Act and the sentence imposed on him thereunder are set aside. Fine, if paid, shall be refunded to him. He is acquitted of the said offence. His bail bonds shall stand discharged.