Ramaiah vs State

Ratnavel Pandian, J.—This revision is preferred by the first accused in the trial Court against the judgment made in Crl. App. No. 167/83 on the file of the First Additional Sessions Judge of Madurai dismissing the appeal so far as it related to him.

The revision-petitioner, along with the second accused (since acquitted), viz., Seethalakshmi Stores, was tried for an offence under Cl. 13(1)(a) of the Fertilizer (Control) Order, 1957 read with S. 7(1)(a)(ii) of the Essential Commodities Act, 1955, as substituted by the amending Act, Central Act 30 of 1974, with effect from 22nd June, 1974. The facts of the case were as follows: A1 is the proprietor of the second accused, viz., Seethalakshmi Stores. On 24th February, 1979, the District Agricultural Officer, Compost Development Scheme, in charge of Madurai, and the Deputy Agricultural Officer (Fertilizer Control), Madurai, visited and inspected Seethalakshmi Stores situate at T. Vadipatti, Madurai District, and took a sample of Muriate of potash available in the shop by observing the procedure and the sample, on analysis, was found to be substandard. Thereupon, the stock of 3,550 kgs., of muriate of potash was seized from the said shop on 1st July, 1980 by the Deputy Agricultural Officer, Usilampatti. On verification of the records, it was found that 5 metric tons of muriate of potash were purchased by the accused from M/s. Indian Stores, Madurai, as per credit bill No. 92 dated 22nd December, 1979, marked as Ex. P3. A show cause notice was issued, to which a reply was sent stating that the said potash was purchased from Indian Stores which alone should be held responsible for the sub-standard quality of potash. Not being satisfied with the explanation given by both the accused, they were prosecuted for the said offence. The trial Magistrate found both the accused guilty and sentenced A1 to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 200, in default to suffer R.I. for three months, and sentenced A2 to pay a fine of Rs. 150. On appeal, the lower appellate Court acquitted A2, but confirmed the conviction and the sentence recorded against AI by the trial Court. Hence this revision by A1.

Mr. S. Chidambaranathan, Learned Counsel appearing on behalf of the revision petitioner, relying on the judgment of the Supreme Court in Nathulal Vs. State of Madhya Pradesh, , would contend that the conviction recorded as against A1, in the absence of proof of mens rea on his part, is not sustain-able in view of the amendment to S. 7(1) of the Essential Commodities Act, made by the amending Act, viz, Act 30 of 1974. In support of this submission, he would also cite some more decisions rendered by various High Courts, which I shall refer to in the latter part of this judgment.

It is not in dispute that the fertilizers seized from the possession of the accused were those purchased from M/s. Indian Stores, Madurai, and that the dealer of Indian Stores who supplied potash to those accused persons also has been prosecuted under the provisions of the Fertilizer (Control) Order, 1957 and the Essential Commodities Act, 1955 vide the complaint filed before the Court. The question is whether the prosecution has proved the mens rea on the part of the revision-petitioner, which is an essential ingredient of a criminal offence.

Now, I shall examine whether the proof of mens rea on the part of the accused is necessary or not for the successful prosecution of an offence under S. 7 of the Essential Commodities Act. For this purpose, I shall reproduce the provisions of S. 7(1)(a) of the Essential Commodities Act as it originally stood in 1955, as it stood after its amendment by the amending Act 36 of 1967 and as it stands now after its amendment by the amending Act 30 of 1974, in the following table:

Section 7(1)(a) of the Essential Commodities Act, 1955 (Act No. X of 1955)

As it originally stood As it stood after the amendment by the amending Act No. 36 of 1967 As it stands now after the amendment by the amending Act No. 30 of 1974

(1) if any person contravenes any order made u/s 3, - 7. (1) If any person contravenes, whether knowingly, intentionally or otherwise, any order made u/s 3,- 7. (1) If any person contravenes any order made u/s 3,

(a) he shall be punishable- (i) in the case of an order made with reference to Cl.(h) or Cl.(i) of sub-S.(2)of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and (a) he shall be punishable- (i) in the case of an order made with reference to Cl.(h) or Cl.(i) of sub-S.(2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and (a) he shall be punishable- (i) in the case of an order made with reference to Cl.(h) or Cl.(i) of sub-S.(2) of that section with imprisonment for a term which may extend to one year and shall also be liable to fine, and

(ii) in the case of any other order, with imprisonment for a term which may extend to three years and shall also be liable to fine: (ii) in the case of any order, with imprisonment for a term which may extend to five years and shall also be liable to fine: (ii) in the case of any order, with a imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine:

Provided that if the Court is of opinion that a sentence of fine only will meet the ends of justice, it may, for reasons to be recorded, refrain from imposing a sentence of imprisonment. Provided that in the case of a first offence, if the court is of opinion that a sentence of fine only will meet the ends of justice, it may, for reasons to be recorded, refrain from imposing a sentence of imprisonment and in the case of a second or subsequent offence, the Court shall impose a sentence of imprisonment and such imprisonment shall not be less than one month. (The underlining is mine,). Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months.

From the above table, it is seen that as per the amendment made to S.7(1) by the Amendment Act No. 36 of 1967, the words "whether knowingly, intentionally or otherwise" were aided and these words have now been completely omitted by the Amendment Act No. 30 of 1974 with effect from 22.6.1974 and the section has been restored to its original position as it was before the 1967 amendment.

Prior to the 1967 amendment of S.7 of the Essential Commodities Act, the question arose before the various High Courts as to whether the contravention referred to in S.7(1) of the said Act covered cases of only intentional contravention with the requisite mens rea or would also cover cases where contraventions were made unintentionally.

A single Judge of the Patna High Court in Sawal Ram Poddar Vs. The State, while dealing with the question of the conviction of the accused therein under S.7 of the Essential Supplies Act for violating Cl.(3) of the Bihar Foodgrains (Control) Order of 1948, referring to the decision in Srinivas Mall v. The Emperor AIR 1947 P.C. 135 pointed out:

Unless the statute either clearly or by necessary implication rules out ''mens rea'' as a constituent part of a crime, an accused should not be found guilty of an offence against the criminal law unless he has got a guilty mind. It is impossible to construe in the present case that S.7 of the Essential Supplies Act or Cl.(3) of the Bihar Foodgrains (Control) Order, 1948, creates an absolute liability and that the servant could be held liable although he had no guilty knowledge at all. Reference should also be made to Harding v. Price 1948-I-All. E.R. 283, in which it was held by the Court of Criminal Appeal that the absence of the word "knowingly" in a statute merely shifted the burden of proof and that the accused may still plead absence of ''mens rea'' on his part.

In The State Vs. Munni Lal and Another, there was a difference of opinion between two learned Judges of the Punjab High Court as to whether the presence of mens rea on the part of the accused was an essential ingredient in proof of an offence under S.7 of the Essential Supplies (Temporary Powers) Act, 1946, and Cl.23(d) of the Cotton Textile Control Order of 1948. Then the matter was referred to a third Judge who ultimately, agreeing with one of the learned Judges, held that in the case of a crime which is defined to ''contain in words'' a provision as to the state of mind of the accused, it was for the prosecution to prove ''mens rea'', while in a case where the words describing ''mens rea'' do not appear in the definition of the crime, it was for the accused to show that he acted without ''mens rea''. In that case the learned Judge with whom the third Judge agreed, in his separate judgment, held that in every offence the prosecution must prove the criminal intention on the part of the accused unless from the language used in the statute creating the offence it is clear that an offence is committed irrespective of the intention.

this Court in In re Manu Iyer 66 L.W. 1057 : AIR 1954 Mad 485, while dealing with the validity of a conviction passed under S.7 of the Essential Supplies (Temporary Powers) Act, 1940, for contravening Cl.4(1) of the Madras Cloth Dealers (Control) Order of 1948, made the following observation:

Mens rea or guilty mind has from the earliest times been held to be an essential requisite for the proof of a crime. An act does not make a man guilty without a guilty intention. But there is generally no room for the application of this familiar concept in English Common law even in the Indian Penal Code as it is one of the most exhaustive Codes and devotes a full chapter towards its interpretation clause while an equally large part of it is devoted for the general exceptions which withdraw acts which would otherwise be offences from that category. It contains elaborate definitions and explanations which render this maxim out of place. In fact its elaborate paraphernalia has been designed, it is said, to prevent captious Judges from wilfully misunderstanding the Code and cunning criminals from escaping its provisions. Therefore, the doctrine of ''mens rea'' which is the second essential ingredient of crime in English Common Law is wholly out of place in construing the sections of the Penal Code which itself uses words like ''knowingly'', ''willingly'', ''fraudulently'', ''negligently'' and so on.

A Division Bench of the Allahabad High Court in State Vs. Sheo Prasad Jaiswal, , while dispossing of the appeals preferred by the State of Uttar Pradesh against an order of acquittal of the accused of the charge under S.7 read with S.10 of the Essen hi Supplies (Temporary Powers) Act of 1946 for the contravention of CI. 13 of the Uttar Pradesh Oil Seeds and Oil Seeds Products (Control) Order, 1945, made the following observation:

It is a general principle of criminal law that guilty intention is a necessary ingredient of a crime. The Legislature may, by using express language or by implication, excluding an clement of mens rea in any particular crime, but unless such exclusion is deducible from the express language of the statute, or by implication, mens rea forms a necessary ingredient of an offence.

and hell that section on its plain language did not exclude the element of mens rea from an offence punishable under the said section and there were no words in the section including the guilty intention as a requirement of the crime, but that mens rea is a normal ingredient of every crime, and it was for the Legislature to use such language which might be said to exclude such an intention.

This question was ultimately set at rest by the decision of the Supreme Court in Nathulal Vs. State of Madhya Pradesh, wherein the Supreme Court had to deal with the case of a dealer who had been convicted for an offence under S.7 of the Act as he had been found to have been carrying on business in foodgrains without the requisite prior licence although it had been found that he had made an application for the licence under the Madhya Pradesh Foodgrains Dealers Licensing Order of 1958 and had also deposited the requisite licence fee; no Intimation to the dealer was sent that his application was rejected. Therefore, under the impression that the licence had been granted to him, the dealer in that case purchased foodgrains from time to time and submitted returns to the licensing authority. The Inspector checked the godowns of the dealer, the accused in that case, and found that the accused bad stored foodgrains without holding any licence in excess of the quantity permitted by S.3 of the Madhya Pradesh Foodgrains Dealers Licensing Order. 1958. The accused was prosecuted under S.7 of the Essential Commodities Act, 1955. The accused pleaded that he did not intentionally contravene the provisions of the said section on the ground that he had stored foodgrains after applying for a licence and was in the bona fide belief that it would be issued to him. The trial Court found that the accused had not the guilty mind and on that finding, acquitted him. On appeal by the State, a Division Bench of the Madhya Pradesh High Court (Indore Bench) set aside the order of acquittal and convicted him on the basis that in that case arising under the Act, the "idea of guilty mind" was different from that in a case like theft, and found that the accused contravened the provisions of the Act and the Order made thereunder and consequently convicted and sentenced him. On being aggrieved by the judgment of the High Court, the convicted accused preferred an appeal before the Supreme Court, before which it was mainly contended that mens rea was a necessary ingredient for an offence under S.7 of the Essential Commodities Act and that on the finding given by the learned Magistrate, the accused had no intention to contravene the provisions of the Act and the Order made thereunder and as such the High Court went wrong in setting aside the order of acquittal. The Supreme Court, after examining this contention, laid down a the following dictum: --

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. Mens rea by necessary implication may be excluded from a 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 the provisions thereof.

Ultimately the Supreme Court allowed the appeal and set aside the order of the High Court convicting the accused.

See also Murarilal Garg Vs. State of Orissa, in which also the High Court, following the decision in Nathulal Vs. State of Madhya Pradesh, held that mens rea constitutes an integral part of S.7 of the Essential Commodities Act.

Thereafter, at a conference of the Chief Ministers held in Delhi in July, 1967, it was suggested that the penal provisions under the Essential Commodities Act, 1955 should be made more stringent and their implementation more effective. The Government thereafter, after examining the suggestion, considered it necessary to amend the Act by the Essential Commodities (Amendment) Ordinance, 1967, in certain respects, one of them being "persons committing offences under the Act sometimes escaped punishment for contravention of orders made thereunder on the plea that the offences were not committed by them deliberately. It was felt necessary to amend the Act so as to make contravention of an order made thereunder punishable whether the order was contravened knowingly, intentionally or otherwise". It was only after the decision in Nathulal Vs. State of Madhya Pradesh, , and accepting the suggestions made in the above conference, the words "whether knowingly, intentionally or otherwise" were inserted in S.7 of the Act, by the amendment Act 36 of 1967. The Parliament, by the said amendment, made it clear that mens rea was not an essential ingredient for a prosecution being launched or confiscation being ordered under S.7 of the Act, for contravention of any order. In other words, the Amendment Act 36 of 1967 expressly ruled out the element of mens rea under S.7 in respect of offences punishable under the relevant provisions of the Act.

This question was once again examined by the Law Commission, and it gave its recommendation in its 47th Report in 1972, for recasting the penal provision in S.7(1)(a) of the Essential Commodities Act as follows:--

Even the existing provisions for mandatory imprisonment contained in the Act, S.7, Essential Commodities Act. (vide paragraph 15.48 of the. Forty-seventh Report of the Law Commission of India on The Trial and Punishment of Social and Economic Offences) may prove to be harsh where the particular contravention charged was not committed ''intentionally or knowingly'', but was committed ''otherwise''. One alternative to remedy this hardship would be to recast the penal provision in S.7(1)(a) so as to make a distinction between contraventions committed knowingly or intentionally (on the one hand) and other contraventions, (on the other hand). In the former case, as mandatory imprisonment has at present with a minimum term (to be added.) would be appropriate with a relaxing power in the court to take care of exceptional cases. In the latter case, neither mandatory nor minimum term of imprisonment would be called for.

Consequent upon this recommendation, the words "whether knowingly, intentionally or otherwise" introduced in S.7 (1) by the Amendment Act 36 of 1967, were deleted by the Essential Commodities (Amendment) Ordinance of 1974, which was published in the Central Gazette, dated 22.6.1974, which was then replaced by the Essential Commodities (Amendment) Act, 1974 (Act 30 of 1974) which received the assent of the President on 29.8.1974, (with the result that the relevant portion of sub-S.(1) of S.7, as it stood prior to the 1967--amendment has been restored and the words "whether knowingly, intentionally or otherwise" have been deleted. The effect of this amendment would be that since that date of deletion of these words, the position has been restored as it was when the said sub-section was considered by the Supreme Court in the aforesaid Nathulal Vs. State of Madhya Pradesh, . In view of this amendment it is now clear that before an accused can be held guilty for having contravened any of the provisons of any order made under S.3 of the Essential Commodities Act, it must be established that the accused had the necessary mens rea. If, on the other hand, it is found that the contravention was made unknowingly, and unintentionally, he cannot be held guilty for contravention of any such provisions of that Order and convicted under S.7 of the Essential Commodities Act.

See Mewalal Kapildeo Prasad Vs. The State of Bihar and Others, , Madhav Keshav Mirashi Vs. The State of Maharashtra, , and Devamani v. State 1982 L.W.Cri. 249.

From the comparative table given above, we see slight changes in S.7(1)(a)(ii) and the proviso with regard to the quantum of punishment to be imposed. But that change does not have any bearing on the question under examination.

Now, I shall examine the facts of the case on hand and whether the revision petitioner (first accused) had the necessary mens rea to contravene the provisions of Cl. 13(1)(a) of the Fertilizer (Control) Order, 1957.

Admittedly, the revision petitioner being the proprietor of the acquitted second accused, viz., Seethalakshmi Stores, purchased 5 metric tons of muriate of potash from M/s. Indian Stores, Madurai, as per Ex. P3, viz., credit bill No. 92, dated 22.12.1979. Within two days the District Agricultural Officer inspected the stores and took samples of the muriate of potash which, on analysis, was found to be sub-standard. To the show cause notice issued, the revision petitioner replied that he purchased the said potash only from Indian Stores which alone should be held responsible for the sub-standard quality of the article. In the complaint it is stated that the dealer of the Indian Stores who supplied potash to this revision-petitioner had also been prosecuted under the provisions of the Order and the Essential Commodities Act. Thus, the facts would clearly indicate that the revision-petitioner did not have the necessary mens rea to contravene the provisions of Cl. 13(1)(a) of the Fertilizer (Control) Order.

Both the Courts below have committed a manifest illegality by not adverting to this legal position. Therefore, for the above stated reasons, I set aside the conviction and sentence recorded by the trial Court, as confirmed by the lower appellate Court, and acquit the accused. The fine amount, if paid by the revision-petitioner, is directed to be refunded to him. The revision is allowed.