State by Public Prosecutor vs K.P. Kandasamy

David Annoussamy, J.—This Revision Petition by the State is directed against an order of the Sessions Court modifying the order of confiscation passed by the Deputy Commissioner of Civil Supplies, Madras.

The Respondent was found in possession of 14 bags of Toor Dhall, 38 bags of black gram, 4 bags of green gram without any licence as prescribed in Cl. 3 of the Tamil Nadu Pulses (ROT) Order. 1978, hereinafter referred to as the Order. For that reason the entire stock was seized, and since the commodities were perishable they were disposed of in public auction for a sum of Rs. 20,700. Thereafter proceedings were started by the Deputy Commissioner (Civil Supplies), Madras, under the provisions of the Essential Commodities Act for the purpose of confiscation of the commodities seized.

The dealer stated that he was issued a registration certificate in July 1980, that he did not know that licence was also required and that therefore he pleaded ignorance of the provisions of the Order. The Deputy Commissioner (Civil Supplies) did not accept that ignorance of Rules and Orders was a sufficient ground for exonerating the dealer and accordingly passed an order on 29th May, 1981 confiscating the entire quantity of the commodities seized.

Against the order appeal was preferred before the Sessions Court. From the reading of the judgment of the appellate court, it appears that the only point which was pressed before the appellate court was that the confiscation of the entire quantity as too harsh a punishment and accordingly the appellate court set aside that order of confiscation and imposed instead a fine of Rs. 100. It is against that order of the appellate court that the present revision petition is filed.

In the first place, the order of the appellate court is wrong in as much as it has imposed a fine which is a punishment in the strict sense, in a proceeding of confiscation. The Essential Commodities Act contemplates two kinds of action, one, u/s 6A which is confiscation, and another, u/s 7, which is a criminal proceeding at the end of which the guilty person may be punished with imprisonment or fine. It is open to the authorities to resort to both kinds of action or they may satisfy with one of them. This is clear from the provisions found in Ss. 6A (1), 6D and 11 of the Essential Commodities Act, hereinafter referred to as the Act. Therefore, when, as in the present case, the authority concerned have initiated a proceeding for confiscation u/s 6A of the Act, and when the appeal filed before the Sessions Court was u/s 6C of the Act, the appellate Court had the only possibility as provided u/s 6C(1)(sic) of the Act of confirming, modifying or annulling the order appealed against. In other words, it can confirm or annul the order of confiscation or modify the quantum of the commodity to be confiscated. It cannot, while dealing with an appeal u/s 6C, impose any punishment provided u/s 7 of the Act which could be imposed only in a criminal proceeding upon conviction.

Learned Counsel appearing for the Public Prosecutor contended that the circumstances of the case warranted the confiscation of the entire quantity of the stock and that the plea of ignorance was not acceptable at all.

Learned Counsel for the Respondent dealer contended on the contrary that certain element of mens rea was necessary even while dealing with a proceeding u/s 6 A of the Act. Reliance was placed firstly on a decision of the Supreme Court in Nathulal Vs. State of Madhya Pradesh, where it was held that mens rea was an essential ingredient of criminal offence except where the Statute expressly or by necessary implication excludes mens rea and that for an offence u/s 7 of the Act mens rea was necessary. But the above decision has lost most of its effect after S. 10C of the Act was passed by the Parliament providing that when in any prosecution for any offence under the Act a culpable mental state of the accused is also required the court shall presume the existence of such mental state. The Section of course provides it shall be that defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Reliance was secondly placed on a decision of a learned Single Judge of the High Court of Allahabad in Kishorilal v. Additional Collector, Kanpur. AIR 1969 All. 169. The essential propositions laid down in that decision are as follows:�

The consideration of mens rea or bona fides of a dealer is relevant while passing an order of forfeiture of food grains from him u/s 6A. The view that questions of bona fides or mens rea of a dealer may have bearing in criminal proceedings and may be considered there if any prosecution is launched against the dealer and that these considerations are out of place at the stage of the confiscation, is not correct. The contravention attracting the provision of S. 6A has the same legal incidence and consequences and has the same nature and character as the contraventions i.e., Ss. 6A and 7 are in pari materia.

This decision is based upon the decision of the Supreme Court referred to above in paragraph 7 of this judgment and has lost its value along with it.

After the insertion of Section 10C , it is found that even for proceeding u/s 7 , mens rea is presumed. Secondly, it is difficult to accept that the objects of Ss. 6A and 7 are the same. As pointed out at the outset, the proceedings under Ss. 6A and 7 are independent and can exist one without the other. It is true that if in respect of the same transaction there has been an order of confiscation and a criminal proceeding and if in the criminal proceeding the accused person is ultimately acquitted, the order of confiscation would automatically get set aside, as provided in Section 10 C. Devamani and Others Vs. The State and Others, of the Act. But apart from this contingency, there is nothing connecting one proceeding with the other. This is the view taken by a Division Bench of this Court in C. Devamani v. State where it was held as follows; "Two provisions can be stated to be in pari materia only if they relate to the same person or thing or to the same class of persons or things". It cannot be said that Section 6A is in pari, materia with Section 7 and mens rea is required to be proved. Section 7 deals with prosecution and provides for the offender being sent to prison and also subjected to fine. Section 6A is an independent provision and it only provides for confiscation of the essential commodity or its package or animal. It is therefore clear that for confiscating an article mens rea need not be proved.

But an order u/s 6A is a discretionary order and therefore the discretion has to be exercised judiciously and the mens rea, if any, may also be taken into account by the authority along with the other circumstances in order to determine whether the commodities seized should be confiscated and if so upto what extent.

As far as the present case is concerned, on one side, it is found that the dealer was in possession of huge quantity of a different type of gram. On the other side, it is found than he has obtained a registration certificate. Though his plea of ignorance regarding the requirement of a licence cannot be accepted, there is nothing in this case warranting the confiscation of the totality of the commodities seized. I, therefore, think that in the present circumstances, confiscation of half of the quantity seized would meet the ends of justice.

In the result, the revision petition is allowed and the order of the appellate, court is set aside in its entirety. The confiscation ordered by the Deputy Commissioner is limited to half of the amount realised by way of sale of the commodities seized and the remaining sale proceeds shall be refunded to the Respondent dealer.