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SUPREME COURT OF INDIA
K. SUBBA RAO, J.C. SHAH AND R.S. BACHAWAT, JJ.
Nathulal, Appellant
Versus
State of M.P., Respondent.
Criminal Appeal No. 77 of 1963.
Advocates appeared
Mr. G. S. Pathak, Senior Advocate (M/s. S. N. Andley and Rameshwar Nath, Advocates of M/s. Rajinder Narain and Co., with him), for Appellant; Mr. B. Sen, Senior Advocate, Mr. I. N. Shroff, Advocate, with him), for Respondent.
Per Suhba Rao & Bachawat JJ. - 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 elements 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. 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 3 years and to impose heavy fines on an innocent who carries on business in an honest belief that he 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. [Para 4]
Where the accused stored the goods under a bonafide impression that the licence in regard to which he had made an application was issued to him though not actually sent to him. The fact that the licensing authority did not communicate to his the rejection of his application confirmed the accused's belief. On that belief he proceeded to store the foodgrains by sending the relevant returns to the authority concerned. It was, therefore, a storage of foodgrains within the prescribed Emits under a bona fide belief that he could legally do so. He did not, therefore, intentionally contravence the provisions of S. 7 of the Act or those of the Order made under S. 3 of the Act. Cr. A. No. 321 of 1962; Decided on 3.5.1963 REVERSED Also see 1965 JLJ 38.
Judgement
SUBBA RAO, J. (On behalf of himself and Bachawat, J.): The appellant is a dealer in foodgrains at Dhar in Madhya Pradesh. He was prosecuted in the Court of the Additional District Magistrate, Dhar, for having in stock 885 maunds and 2 1/4 seers of wheat for the purpose of sale without a licence and for having thereby committed an offence under S. 7 of the Essential Commodities Act, 1955 (Act X of 1955), hereinafter called the Act. The appellant pleaded that he did not intentionally contravene the provisions of the said section on the ground that he stored the said grains after applying for a licence and was in the belief that it would be issued to him. The learned Additional District Magistrate, Dhar, found on evidence that the appellant had not the guilty mind and on that finding acquitted him. On appeal 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 case arising under the Act "the idea of guilty mind" was different from that in a case like theft and that he contravened the provisions of the Act and the order made thereunder. It sentenced the appellant to rigorous imprisonment for one year and to a fine of Rs. 2,000 and in default of payment of the fine he was to undergo rigorous imprisonment for six months. Hence the appeal.
2. Mr. Pathak, learned counsel for the appellant, mainly contended that mens rea was a necessary ingredient of the offence under s. 7 of the Act, that as on the finding given by the learned Magistrate the appellant had no intention to contravene the provisions of the Act and the Order made thereunder, the High Court went wrong in setting aside the order of acquittal.
3. The material provisions of the Act and the Order made thereunder may be read at this stage:
Section 7 of the Act.
(1) If any person contravenes any order made under S. 3 -
(a) he shall be punishable -
(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:
The Madhya Pradesh Foodgrains Dealers Licensing Order, 1958;
Section 2 - In this order, unless the context otherwise requires,-
(a) "dealer" means a person engaged in the business of purchase, sale or storage for sale, of any one or more of the foodgrains in quantity of one hundred maunds or more at any one time whether on one s own account or in partnership or in association with any other person or as a commission agent or arhatiya, and whether or not in conjunction with any other business.
Section 3 - (1) No person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority.
(2) For the purpose of this clause, any person who stores any foodgrains in quantity of one hundred maunds or more at any one time shall, unless the contrary is proved, be deemed to store the foodgrains for the purposes of sale.
A combined reading of these provisions shows that if a dealer in foodgrains as defined in the Order carries on business as a dealer without a licence, he commits an offence under S.7 of the Act and is liable to imprisonment and fine thereunder. Sub-section (2) of S. 3 of the Order raises a rebuttable presumption that if a dealer stores foodgrains in quantity of 100 maunds or more he shall be deemed to have stored the said foodgrains for the purpose of sale. The question is whether under S. 7 of the Act a factual non-compliance of the Order by a dealer will amount to an offence thereunder even if there is no mens rea on his part. Learned counsel for the appellant contends that mens rea is an integral part of the offence whereas learned counsel for the respondent argues that the Act being one made in the interests of the general public for the control of the production, supply and distribution of, and trade and commerce in, certain commodities, mens rea is not one of the ingredients of the offence.
4. The law on the subject is fairly
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