R. Ramasamy vs The Revenue Divisional Officer, Vridhachalam and others

Suryamurthy, J.—This is a Criminal Revision Petition against the judgment of the learned Sessions Judge of South Arcot Division at Cuddalore, dismissing Criminal Appeal No. 323 of 1976 on the file of his Court and confirming the order of confiscation of the lorry, M.D.A. 4429, passed by the Collector of South Arcot at Cuddalore.

From about 2nd July 1975, the Revenue Divisional Officer, Vridhachalam assisted by the Inspector, Food Cell, was going round on raid in the border area of South Arcot district checking the movement of lorries which were transporting paddy through the check-post, when the lorry M.D.A. 4429 was checked at about 4 P.M. on 4th July 1975 near the Tholudur Check-Post and found to carry 120 bags of paddy. The driver of the lorry produced some documents for the transport of paddy. The delivery note showed that the paddy was transported from Nagari in Andhra Pradesh and was intended to be taken to N.S.S.S.C. Sankaralinga Nadar and Sons, Arappukottai. The Commissioner of Civil Supplies had issued a no objection certificate in his reference No. B4-31020/CS/75, dated 7th June 1975 to import 500 tonnes of paddy and 500 tonnes of rice from Andhra Pradesh to Aruppukottai. The Revenue Divisional Officer claims to have made a thorough verification and enquiry, which revealed that the paddy was not loaded in Andhra Pradesh. In his opinion, the paddy loaded in the lorry contained a high percentage of moisture. The driver of the lorry, Thiru Ameer Sulthan, son of Ibrahimsa Rowther, is alleged to have stated before the Revenue Divisional Officer that the 120 bags of paddy were lifted from Pidagam, a village near Villupuram and that the paddy was not loaded at Madras as per the entries found in the G.V.R. Because of the high percentage of moisture in the paddy, the Revenue Divisional Officer came to the conclusion that the paddy was not imported from Andhra Pradesh as per the no objection certificate and other records. It was clear to him that the paddy was loaded in South Arcot district and sought to be transported to another district without a valid permit. He has expressed his opinion that ''the transaction is a bogus one'', whatever may be the meaning of the word ''bogus'' used by him in this connection. He came to the conclusion that this is a clear case of illicit transport of paddy and there has been a contravention of clause 4(19) of the Tamil Nadu Paddy and Rice (Movement Control) Order, 1970, read with Ss.3 and 7 of the Essential Commodities Act, 1955 (to be referred to hereafter as the Act) which is an offence punishable under S.7(1)(a)(ii) of the Act. He, therefore, seized the entire quantity of paddy and the lorry under mahazar. The paddy seized was handed over to the South Arcot District Co-operative Supply and Marketing Society Branch at Vridhachalam on proper acknowledgment and after weighment. The lorry was impounded in the Taluk Office compound. Thereafter, the Revenue Divisional Officer addressed the Collector in his reference A-1/13565/75, dated 7th July 1975 to order confiscation of the lorry to the Government. Proceedings were initiated under S.6-B of the Act by the issue of a notice, dated 21st July 1975 to the petitioner about the proposed confiscation of the lorry to the Government and directing the petitioner, who is the owner of the lorry as well as the driver of the lorry, to appear and make their written representations, if any. They were also directed to appear before the Collector on 28th July 1975 at 10 A.M. at the Collector''s office, Cuddalore, for being heard in person by the Collector. These proceedings were initiated, not by the Collector, but by some other revenue official purporting to act on behalf of the Collector. Representations in writing as well as by counsel engaged by the petitioner were made to the Collector. In the meantime, the lorry was released on bond. It was contended before the Collector that the transport was made under a no objection certificate issued by the Commissioner of Civil Supplies, Madras and that the no objection certificate had the seals of all the Check-posts and Border Check-post.

The Collector observed that among the defences put forward was the defence that "the petitioner engaged brokers in Andhra Pradesh and purchased paddy, and therefore, the names in the delivery note, etc., may not be correct." The petitioner, in the instant case, is not the owner of the paddy but the owner of the lorry and, therefore, no representation could have been made either by the petitioner or his counsel before the Collector that the paddy was purchased by the petitioner in Andhra Pradesh. This statement has been made by the Collector obviously because he had drafted a common order in the case of the owners of lorries and owners of paddy in this case and similar cases, leaving gaps for filling up the dates, the number of the lorry and the number of paddy bags, etc., and has mechanically signed the orders in all the cases, after filling up the gaps. Neither the Collector nor the learned Sessions Judge who heard the appeal from the orders of the Collector in this case and similar cases would appear to have applied their minds to the facts of each particular case and passed the orders which can be justified on the the facts of each case. The learned Sessions Judge also has drafted a common order and had the order copied by cyclostyle, leaving gaps in appropriate places and has filled up the gaps in each case. Summary procedure does not mean callous procedure. Summary procedure does not justify mechanical orders being passed.

The Collector has further observed that "the testimony of the lorry driver Thiru Ameer Sultan before the Revenue Divisional Officer, Vridhachalam, on 4th July 1975 does not leave any doubt as to the fact that the said paddy consignment was procured in Villupuram taluk". This observation by the Collector is misleading. Thiru Ameer Sultan was not examined on oath by the Revenue Divisional Officer. A statement is alleged to have been obtained from him by the Revenue Divisional Officer. This is referred to by the Collector as the testimony of the lorry driver. I must straightway say that the Collector was not entitled to rely on a statement made by the driver to the Revenue Divisional Officer even in a summary enquiry. If the statement had been made before the Collector and reduced into writing by the Collector, the Collector could have observed the demeanour of the driver and could have come to a conclusion as to whether or not he was speaking the truth and whether his statement could be relied on. Similarly, the Collector, as the authority holding the enquiry, could have satisfied himself that the statement was not made by the driver under any duress, undue influence, threat or misrepresentation. Only after satisfying himself that the statement was made voluntarily, the Collector could have relied on the statement. He was not, therefore, entitled to rely on statement alleged to have been recorded by the Revenue Divisional Officer.

The Collector has, again, observed that "an independent enquiry by the police also has shown that the owner alleging to be transporting paddy from Andhra Pradesh is not at all a dealer in paddy and rice and that such transport by him his not likely in the circumstances of the case." Among the records of this case there is not a scrap of paper to show that any enquiry was made by the police and therefore, it is not possible to ascertain who were the police officers who made the enquiry and who were the persons whom they examined. As observed already, since the order of the Collector now impugned before this Court is a copy of an order passed in some other ease with appropriate modifications in respect of the date of seizure and the number of the lorry, etc., the observation of the Collector that enquires were made by the police is incorrect. Similarly, the opinion of the Collector that "the owner alleged to be transporting the paddy from Andhra Pradesh is not at all a dealer in paddy and rice" is thoroughly preposterous in view of the fact that a no objection certificate had been issued in favour of the person transporting the paddy and the certificate was in the possession of the driver when the lorry was intercepted by the Revenue Divisional Officer. The further observation of the Collector that "such transport by him is not likely in the circumstances of the case" is, again, without any meaning, because legally or illegally there was an attempt to transport the paddy to Aruppukottai when the lorry was intercepted near the check-post at Tholudur.

The Collector has, again, observed that "it might be that the paddy bags were purchased in Andhra Pradesh as per letters and transported in an Andhra lorry and they might have been disposed of in Madras, and paddy purchased in South Arcot District are sought to be transported under the guise of the no objection certificate." For coming to this conclusion there was not a scrap of evidence before the Collector. This conclusion is purely speculative and not warranted by the facts appearing from the records of this case. The learned counsel appearing for the owner of the lorry before the collector had contended that the paddy seized had passed through the Ponpadi Check-post of the State border. This contention was not accepted by the Collector in view of the following circumstances:

(i) the alleged seal of the no objection certificate is not clearly decipherable.

(ii) No date or time is found in the alleged seal.

(iii) No seal has been obtained on the no objection certificate.

(iv) It is not difficult in these days to get a seal of the check-post on the no objection certificate without the lorry passing through the check-post.

(v) There is clear evidence that the paddy has been procured in Pidagam village in Villupuram taluk, South Arcot district, which is a notified area. This is amply proved by the voluntary statement of the driver recorded immediately at the time of the seizure.

None of these reasons of the Collector would stand a moment''s scrutiny. It was not the fault of the owner of the paddy that the seal of the no objection certificate was not affixed clearly. It is a matter of common knowledge that seals even in Courts of law are not always affixed legibly and clearly. The owner of the paddy is certainly not to blame if the man at the check-post did not affix the seal clearly. However, this observation of the Collector and his further observation that "no date or time is found in the alleged seal" are incorrect and appear to have been made in the order passed in some other case and copied verbatim in this case. I have scrutinised the no objection certificate which is found among the records of this case and I find several seals including a seal, dated 2nd July, 1975 of the Sales tax Department and there are several entries noting the time at which the lorry carrying bags of paddy was checked at various check-posts. Therefore, the aforesaid observations of the Collector are also inaccurate.

What is most startling is the opinion of the Collector that "it is not difficult in these days to get a seal of the check-post on the no objection certificate without the lorry passing through the check-post." As the head of the district, if it came to the knowledge of the Collector that a seal can be obtained from the check-post on the no objection certificate without the lorry passing through the check-post, he ought to have immediately taken steps against the members of the staff responsible for such affixtures of seals, to prevent the misuse of the seals. This observation of the Collector is a sad confession of incompetency and inability to prevent misuse of seals.

The fifth ground given by the Collector for rejecting the contention, viz., that "there is clear evidence that the paddy has been procured in Pidagam village in Villupuram taluk," is unsustainable because, what the Collector calls evidence is merely a statement of the driver alleged to have been recorded by the Revenue Officer immediately after the seizure. This statement is characterised by the Collector as voluntary. The Collector himself did not record the statement and therefore it would not have been possible, for him to say whether the statement was made voluntarily or whether it was made under duress.

If there is any truth in the statement of the lorry driver and if the Revenue Divisional Officer was satisfied that the statement of the lorry driver was true, he should have taken the lorry driver to Pidagam village and asked him to point out the place from which the paddy was lifted and the person from whom it was purchased. No attempt was made to do so.

It has been observed by the Collector, again, that "it was also conceded by the learned counsel during the argument that the persons from whom the paddy was purchased in Andhra Pradesh are only fictitious and as the bills are not genuine and so from this also it is clear that the paddy seized was not paddy purchased in Andhra." This observation of the Collector is, again, semitically and logically inaccurate. If paddy was purchased from persons in Andhra, those persons cannot be fictitious. It may be that some other paddy was purchased and not this paddy, as the Collector has speculated at one stage in his order. If the speculative conclusion come to earlier by the Collector is correct, then that paddy which was purchased in Andhra Pradesh was sold at Madras. Therefore, the fact that paddy was purchased in Andhra Pradesh is indisputable. If so much is granted, the opinion of the Collector that the persons from whom the paddy was purchased in Andhra Pradesh are fictitious persons, is meaningless. The further opinion of the Collector that the bills are not genuine is based on the conclusion that the persons from whom the paddy was purchased were fictitious persons. The only thing that the Collector has failed to say is that the paddy itself is fictitious and not paddy at all.

The Collector has again observed that "the paddy seized in this case is moist paddy, full of moisture, showing that it was freshly harvested paddy. If really, as contended by the defence, it was Andhra Paddy, it could not be so lull of moisture. The Collector has passed this order on 2nd, June, 1976. The paddy was handed over by the Revenue Divisional Officer to the South Arcot District Co-operative Supply and Marketing Society Branch at Vridhachalam before the sent the report, dt. 7th July, 1975 to the Collector of South Arcot. It is obvious from this that the Collector never saw the paddy and could not have seen the paddy. Therefore, his statement that the paddy seized in this case "is moist paddy, full of moisture" is not based on his own observation. Nor does the observation of the Collector read as if it is based on the report of the Revenue Divisional Officer. I am not able to find out, and the learned Public Prosecutor is not also able to tell me, what is the percentage of moisture that would be found in the paddy harvested from lands in Andhra Pradesh, and what is the percentage of moisture that would be found in the paddy harvested in Pidagam village. No test would appear to have been carried out to ascertain the percentage of moisture in the paddy that was seized. In order to buttress up this fallacious premise, the Collector has, once again, relied on the version of the driver of the lorry. That version, as already observed, ought not to have been relied on. The Collector has again observed that "also it was submitted by the Inspector, Food Cell, that the enquiry made by him also disclosed that the paddy bags were purchased in South Arcot limits only, on the information furnished by the driver and cleaner, the persons who actually sold the paddy or from whom the paddy bags were got were traced." I am unable to understand the meaning of this sentence in the order of the Collector. It does not appear from the records of this case that the Inspector, Food Cell, was heard in person in the presence of the owner of the lorry or that the Inspector, Food Cell, has submitted any statement in writing regarding the result of the investigation conducted by him. I do not find among the records of this case any ease diary and any statement recorded by the Inspector of Food Cell. No statement recorded by the Inspector of police under S. 161, Crl. P.C. in the course of an investigation is found among the records of the case and no such statement can be relied on by the Collector to pass an order which is penal in nature. No attempt has been made by the Revenue Divisional Officer or by the Inspector of Food Cell to trace the person or persons in Pidagam from whom the paddy is said to have been purchased. Therefore, none of the grounds given by the Collector for ordering confiscation of the lorry stands a moment''s scrutiny.

The Collector appears to have misunderstood the representations made by the counsel before him and has therefore stated that "it was conceded by the learned counsel that the persons from whom the paddy was purchased in Andhra Pradesh were fictitious." This statement has been made by the Collector in every one of the orders passed by him in the connected cases, thereby indicating that he did not apply him mind to the facts of each case and did not rely on the statement made by the counsel in each case. Thirumathi T.N. Ananthanayaki, Advocate, who appeared for the owner of the lorry be ore the Collector and who is now present in Court, denies having made any such concession. I accept her statement that she did not make any such concession because, instead of making such a concession she might as well have given in writing a statement that the lorry may be confiscated. It is impossible to believe that either Thirumathi Ananthanayaki, Advocate, or any other member of the Bar would have made or could have made any such suicidal concession. The entire case of the revision petitioner depended on his proving that the bags of paddy were imported from Andhra Pradesh and were not purchased or procured from anyone in Pidagam. Therefore, such a concession could not have been made. The most charitable construction which I can place on this statement of the Collector is that he either misunderstood or did not properly hear the arguments of the learned counsel on this aspect. Therefore, this reason given by the Collector is also unsustainable. The Collector might not have come to the conclusion that he did and might not have passed the order of confiscation but for the fallacies committed by him. By relying on the statement made by the police officers of the Food Cell, the Collector has abdicated his duties. He has allowed the opinion of the police officer to colour his own opinion in this matter. In fact, he has merely adopted the opinion of the Inspector of Food Cell in certain matters without trying to assess whether that opinion is based on any evidence or any statement made to the police officer concerned.

The proceedings of the Collector directing confiscation of the lorry suffer from a more serious infirmity in that the notice under S.6-B of the Act has not been issued by the Collector himself, but by some other officer of the Revenue Department on his behalf. By reason of S.6-B of the Act, no order confiscating any vehicle, vessel or other conveyance shall be made under S.6-A unless the owner of such vehicle, vessel or other conveyance...... or the person from whom it is seized is given a notice in writing informing him of the grounds on which it is proposed to confiscate the vehicle, vessel or other conveyance and is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation and is given a reasonable opportunity of being heard in the matter. The authority who could issue the notice, on the relevant date, was the authority who passed the order of confiscation under S.6-A of the Act.

S.6-A of the Act lays down that:

Where any essential commodity is seized in pursuance of an order made under S.3 in relation thereto, it may be produced without any unreasonable delay before the Collector of the District or the Presidency-town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the Collector, if satisfied that there has been a contravention of the order, may order confiscation of-

(a) the essential commodity so seized;

(b) any package, covering or receptacle in which such essential commodity is found, and

(c) any animal, vehicle, vessel or other conveyance used in carrying such essential commodity.

This power vested in the Collector could not be delegated by him to any officer or authority subordinate to him prior to the amendment by S.2 of Act 92 of 1976 by which clause (ia) has been inserted defining the term ''Collector'', for the purposes of the Act as including an Additional Collector and such other officer not below the rank of Sub divisional Officer, as may be authorised by the Collector to perform the functions and exercise the powers of the Collector under the Act. Prior to the amendment, the Collector was not empowered to delegate the powers or authorise any of his officers to perform the functions and exercise the powers of the Collector under the Act.

In the instant case, there is on evidence as to who is the officer who issued the notice. Even his identity either by designation or by his name is not known. The said officer of the Revenue Department, who initiated proceedings under S.6-B of the Act, has not purported to act in pursuance of any authority vested in him by reason of the delegation of his powers by the Collector. There is no evidence to the effect that such authority was given by the Collector to the Officer who initiated the proceedings by issuing the aforesaid notice under S.6-B of Act, The amendment by inclusion of Clause (ia) by S.2 of Act 92 of 1976 came into force with effect from 2nd September, 1976. The impugned notice under S.6-B of the Act was issued and proceedings were initiated on behalf of the Collector by the aforesaid unknown Revenue Official on 21st July, 1975. On that date, the Collector had no power to authorise any other officer to initiate proceedings under S.6-B of the Act and issue the notice. Therefore, the notice under S.6-B of the Act issued in this case is not valid. Before issuing a notice under S. 6-B of the Act, the authority issuing the notice should come to the conclusion that there is a case for initiating proceedings under the Act. After the authority comes to such a conclusion and issues the notice, the owner of the vehicle has to prove to the satisfaction of the said authority that the vehicle was used in carrying the essential commodity without his knowledge or connivance and without the knowledge or connivance of the persons in charge of the vehicle. Hence the authority who issues the notice under S.6-B cannot be different from the authority who passes the order of confiscation under S.6-A of the Act. The opinion of the Officer who issued the notice, dated 21st July, 1975 that the petitioner has contravened clause 4(1) of the Tamil Nadu Paddy and Rice (Movement Control) Order, 1970 read with Ss.3 and 7 of the Essential Commodities Act, 1955 which is an offence punishable under S.7(1)(a)(ii) of the said Act cannot be adopted by the Collector as he has done in the instant case. The Collector, should bring to bear upon the facts of the case his own judgment and should come to his own independent conclusion. In the instant case, the Collector has mechanically adopted the opinion of the Officer who issued the notice dated 21st July, 1975, and has based his order of confiscation thereon. This is a violation of the provisions of S.6-B and S.6-A of the Act, and, therefore, the order of confiscation passed by the Collector cannot be sustained.

The facts of the case also do not justify the order of confiscation of the lorry passed by the Collector. The owner of the lorry is a resident of Periakulam in Madurai District. He was nowhere near the lorry when it was intercepted by the Revenue Divisional Officer. He had nothing to do with the transport of paddy. No mens rea can be attributed to the owner of the lorry. No mens rea can be attributed even to the driver of the lorry, because a copy of the no-objection certificate was handed over to him and he might have thought, and he would have been justified in thinking, that he was entitled to transport the paddy in his lorry to Aruppukottai under the no objection certificate which was given to him. He could not have known that the paddy could be taken only from Andhra Pradesh. If he had been told that the paddy which was loaded in his lorry at Pidagam had in fact originated from Andhra Pradesh, he might well have believed it. He did not have the aid of an Inspector of Police, Food Cell, to make even the cursory enquiry that is supposed to have been made in this case, to ascertain whether the paddy was from Andhra Pradesh or from any place in Villupuram taluk. Drivers of lorries are not literate enough to interpret and understand the implications of documents like a no objection certificate. All that the driver could understand was that paddy could be taken from Andhra Pradesh to Aruppukottai. It is not improbable that the driver had thought that paddy could be taken from any place between Andhra Pradesh and Aruppukottai by perusing the no objection certificate, which is in English, he could not be understood anything better. He might not have perused the no objection certificate. The no objection certificate being in English, he could not have read it and would not have understood the import of the certificate. Therefore, on being handed over the no objection certificate which he could not (sic), the driver appears to have thought that he could safely transport the bags of paddy.

The lorry was intercepted at 4 p.m. If there was an attempt to transport paddy in a clandestine manner, that would not be the time chosen for transporting the paddy.

Mens rea is a necessary ingredient of a criminal offence or for enforcing a penal provision like the one incorporated in S 6-A of the Act which empowers the Collector to order confiscation of the lorry.

In Nathulal Vs. State of Madhya Pradesh, Subba Rao, J. (as he then was) has laid down the law as follows:-

The law on the subject is fairly well settled. It has come under judicial scrutiny of this court on many occasions. It does not call for a detailed discussion. It is enough to restate the principles. Mens rea is an essential ingredient of a criminal offence. Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is, by itself, not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mem rea by necessary implication may be excluded from the statute only where it is absolutely, clear that the implementation of the object of the statute would otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an offence depends on the object of the Act and provisions thereof: See Sreenivas Mall Bairoliva v. King Emperor ILR 26 Pat 460 (P.C.) Ravula Hariprasada Rao Vs. The State, and Sarjoo Prasad Vs. The State of Uttar Pradesh, . Most of the relevant English decisions an the subject were referred to in the judgment of this court in State of Maharashtra Vs. Hans George, . How to disprove mens rea has been succinctly stated in Halsbury''s Laws of England, 3rd Edition, Volume, 10, at page 283, thus:

When the existence of a particular intent or state of mind is a necessary ingredient of the offence, and prima facie proof of the existence of the intent or state of mind has been given by the prosecution, the defendant may excuse himself by disproving the existence in him of any guilty intent or state of mind, for example, by showing that he was justified in doing the act with which he is charged, or that he did it accidentally, or in ignorance, or that he had an honest belief in the existence of facts which, if they had really existed, would have made the act an innocent one. The existence of reasonable grounds for a belief is evidence of the honesty of that belief.

Having regard to the object of the Act, namely to control, in general public interest, among others, trade in certain commodities, it cannot be said that the object of the Act would be defeated if mens rea is read as an ingredient of the offence. The provisions of the Act do not lead to any such exclusion. Indeed, it could not have been the intention of the Legislature to impose heavy penalties like imprisonment for a period upto three years and to impose heavy fines on an innocent person who carries on business in an honest belief that be is doing the business in terms of the law. Having regard to the scope of the Act it would be legitimate to hold that a person commits an offence under S.7 of the Act if he intentionally contravenes any order made under S.3 of the Act. So construed, the object of the Act will be best served and innocent persons will also be protected from harassment.

After this decision, the words, "knowingly, intentionally or otherwise", were inserted in S.7 of the Act by Amendment Act 36 of 1967. However, by another Amendment Act, viz., Act 30 of 1974 these words have been deleted.

In Mewalal Kapildeo Prasad Vs. The State of Bihar and Others, the effect of the subsequent Amendment Act, viz., Act 30 of 1974, has been considered by a Bench of the Patna High Court and it has been observed as follows:-

To appreciate the reasons given by the two authorities, some legislative history of S.7 of the Act has to be mentioned. Prior to the amendment of S.7 of the Act by the Essential Commodities (Second Amendment) Act, 1967 (Act 36 of 1967) sub-sec. (1) of S.7 was as follows: "if any person contravenes any order made under S.3, then he shall be punishable for different periods mentioned in that section." Questions arose before different courts as to whether the contravention referred to in this sub-section (1) of S.7 of the Act covers cases of only intentional contravention with the requisite mens rea or will also cover cases where contravention are made unintentionally. However, the case of Jagir Singh Vs. State of Punjab, the Supreme Court had to deal with the case of dealer who had been convicted for an offence under S.7 of the Act, as he had been found to be carrying on business in foodgrains without a proper licence, although it has been found that he had made an application for licence under the Madya Pradesh Foodgrains Dealers'' Licensing Order, 1958, and had also deposited the requisite licence fee; no intimation to him was sent that his application was rejected. Under the impression that licence had been granted to him, he purchased foodgrains from time to time and submitted returns to the licensing authority. His godowns were also checked. In that situation, it was held by the Supreme Court that although no licence had been granted to the accused concerned, mens rea, which is an essential ingredient, had not been proved and on that finding, the accused was acquitted holding that he was not guilty. By the aforesaid amending Act, the Act was amended. The words, "if any person contravenes any order made under S 3" were substituted by the words and figures, "if any person contravenes, whether knowingly, intentionally, or otherwise, any order made under S.3" Perhaps the object of introducing this amendment was to cover even the cases where the mens rea was not established, i.e., if the contravention was unintentional. The respondent-District Magistrate and the respondent-Commissioner have held that even if the assertion made on behalf of the petitioner is accepted, still it will deem to have contravened the provisions of the Licensing Order because of this amendment in sub-S (1), of S 7 saying that even if the contravention was unintentional the petitioner will be liable to punishment because of the change in law. I must, however, point out that in the relevant date, i.e., on 30th October, 1974, when the said was made, the amendment, which had been introduced in sub-S. (1) of S.7 by Act 36 of 1967, itself was deleted by the Essential Commodities (Amendment) Ordinance, 1974 which was published in the Central Gazette dated 22nd June, 1974. This Ordinance was replaced by the Essential Commodities (Amendment) Act, 1974, (Act 30 of 1974) which received the assent of the President on 29th August, 1974. The relevant portion of sub-S. (1) was restored as it was prior to its amendment by Act 36 of 1967. The words, ''whether knowingly, intentionally or otherwise,'' were deleted. In my opinion, the effect of this amendment will be that since that date the position was restored as it was when the said sub-section was considered by the Supreme Court in the aforesaid Jagir Singh Vs. State of Punjab, . In view of this amendment, before an accused person can be held to be guilty for having contravened any provision of the licensing order, it must be established that he had the necessary mens rea. If, on the other hand. It is found that the contravention was unknowingly and unintentionally he cannot be held guilty for contravention of any such provision.

In considering the question whether the principles which are applicable to a criminal case are also applicable to a proceeding for confiscation under S.6-A of the Act, the Bench of the Patna High Court has observed:-

By a reference to S.6-A, it will appear that the condition precedent to the exercise of the jurisdiction by the Collector is that there has been a contravention of the order made under S.3 of the Act and the articles in question have been seized in accordance with the provisions of any such order. Sub-sec. (1) of S.7, which is the penal provision, also says that a person shall be punishable if he has contravened any order made under S.3. Therefore, for confiscation as will as for conviction it must be established that the person concerned has contravened any order made under S 3. It is well-settled rule of interpretation that a word occurring in in the same Act is usually to be given the same meaning unless a different intention is expressed by the provisions of the Act. As such, the word ''contravention'' has to be interpreted in S. 6-A and in S. 7 to mean that the provision of any order framed under S.3 of the Act has been contravened intentionally. On the other hand, if it is found that the contravention was unintentional and the person concerned had taken all reasonable care and was carrying on the business in a bona fide manner, then, in my view, even for S.6-A of the Act, it has to be interpreted that in the eye of law there has been no contravention so as to visit the dealer with the consequences of confiscating the articles which had been seized. A similar view has been expressed by a learned single Judge of Allahabad High Court in the case of Kishori Lal Bihani Vs. The Addl. Collector and District Magistrate, Kanpur and Others, . The learned Judge has rightly pointed out, if I can say so with respect, that S 6A and S.7 are in pari materia, and as such, the same meaning is to be given to the words used in the two sections. The result is that it has to be held that the order of confiscation passed by the respondent District Magistrate, which has been affirmed by the respondent-Commissioner is illegal because the necessary ingredient of S. 6-A has not been established.

Again, this question has been considered by a Division Bench of the Bombay High Court in Madhav Keshav Mirashi v. The State of Maharashtra 1977 Cri. L.J. 1800 and it has been observed as follows:-

it is therefore clear where a person is to be prosecuted for the imposition of any of the penalties under S 7 or any proceedings are to be taken for the confiscation of the goods under S 6-A before the Collector, the requirements to be proved is that there has been a contravention of any order issued under the Act. In other words, the same set of circumstances must be established before an order of confiscation is passed or confiscation of property is directed by the Collector under S 6-A. This being so it would appear to us that mens rea would be a necessary element to be proved before confiscation could be ordered.

Again, the Bench has observed that there was no reason why the element of mens rea should not form part of the breach of the rules alleged under S 6-A if the provisions of S. 6-A are in pari materia with the provisions of S.7. I am in respectful agreement with the Division Bench of the Patna High Court and the Division Bench of the Bombay High Court in following the principles laid down by the Supreme Court and extending the same to any contravention of the provisions of S. 7 of the Act and to the proceedings resulting in the confiscation of the vehicle or other commodity on the ground that there was a contravention of an order passed under S. 3 of the Act.

The learned Public Prosecutor contends that in view of the provisions of S. 6-B(2) of the Act, it is incumbent on the petitioner to prove that the commodity wag carried without his knowledge and without the knowledge of his agent or the person in charge of the vehicle and that they had done all that they could by way of taking reasonable and necessary precautions against the use of the Vehicle for carrying any contraband commodity in violation of the provisions of the Essential Commodities Act. The circumstances of this case clearly show that the owner has absolutely no control over the vehicle after it left Aruppukottai. What is the reasonable precaution that the owner of the lorry can take to prevent misuse of the lorry by the driver? He can only appoint as driver a man who has no criminal antecedents. There is nothing on record in this case to show that the driver had any such antecedents. The driver had taken the necessary precaution before transporting the paddy by insisting on and getting the no objection certificate. It might be that the owners of paddy had played a deception on the driver. That, however, is not a reason for penal sing the owner of the vehicle. The admitted facts and circumstances of this case conclusively prove that the owner of the lorry had no mens rea. In the circumstances, the Collector should have exercised his discretion judicially in considering the question whether the lorry should be confiscated. He has not done so. In the circumstances, this Criminal revision petition is allowed and the order of the Collector confiscating the lorry MDA 4429 and the judgment of the learned Sessions Judge, which is but a mere repetition of the reasons given by the Collector and the conclusion arrived at by him, are set aside. The bonds executed by the petitioner and the sureties shall stand cancelled.