JUDGMENT

NATARAJAN, J. :— In both the appeals by special leave, a common question of law is involved and hence they were heard together and are being disposed of by a common judgment. In Crl. Appeal No. 49/78, a lorry driver and two cleaners and in Crl. Appeal No. 24/78 a lorry driver and a coolie were prosecuted for exporting fertilisers without a permit therefor from Madhya Pradesh to Maharashtra in contravention of the Fertilisers (Movement Control) Order, 1973 (for short the F.M.C. Order) read with Ss. 3 and 7 of the Essential Commodities Act, 1955, (for short the E. C. Act). In both the cases, the Trial Magistrate held that the prosecution had failed to prove that the accused were attempting to export the fertilisers and he therefore acquitted them. On the State preferring appeals against acquittal under S. 378(3) Criminal Procedure Code, the High Court declined to grant leave. Hence the State has preferred these appeals by special leave.

2. The facts in the two cases are identical. In Crl. Appeal No. 49/78, a truck bearing registration No. M.P. 3668 carrying 200 bags of fertilisers and proceeding from Indore to Maharashtra was intercepted on 12-2-74 at Sendhwa Sales Tax Barrier situate at a distance of 8 miles from the. border of Maharashtra State on the Agra-Bombay Road, viz. National Highway No. 3. The lorry driver was in possession of invoices and other records but they did not include a permit issued under the F.M.C. Order. In Crl. Appeal No. 24/78, a lorry bearing registration No. MPM-4866 proceeding from Indore to Maharashtra was similarly intercepted on 30-10-1973 at Sendhwa Sales Tax Barrier. The truck was carrying 170 bags of fertilisers. The documents seized from the lorry driver contained the invoices and other records but they did not include a permit issued under the F.M.C. Order. Consequently, the lorry driver and the cleaners in the first case and the lorry driver and the coolie in the second case were prosecuted under the F.M. C. Order read with Ss. 3 and 7 of the E. C. Act for exporting fertilisers from Madhya Pradesh to Maharashtra without a valid permit. In both the cases, the accused did not deny the factum .of the transport of fertiliser bags in their respective lorries or the interception of the lorries and the seizure of the fertiliser bags or about the fertiliser bags not being covered by a permit issued under the F. M. C. Order. The defence however was that they were not aware of the contents of the documents seized from them and that they were not engaged in exporting the fertiliser bags from Madhya Pradesh to Maharashtra in concious violation of the provisions of the F.M.C. Order.

3. The Trial Magistrate as well as the High Court have taken the view that in the absence of the evidence of an employee of the transport company, there was no material in the cases to hold that the fertiliser bags were being exported to Maharashtra from Madhya Pradesh. The Trial Magistrate and the High Court refused to attach any significance or importance to the invoices recovered from the lorry drivers because the drivers had said they had no knowledge of the contents of the documents seized from, them. The Trial Magistrate and the High Court have further opined that the materials on record would, at best, make out only a case of preparation by the accused to commit the offence and the evidence fell short of establishing that the accused were attempting to export the fertiliser bags from Madhya Pradesh to Maharashtra in contravention of the F.M.C. Order.

4. As we have already stated, the respondents admit that the trucks in question were intercepted at Sendhwa Sales Tax Barrier on 12-2-74 and 30-10-73 and they were carrying 200 bags and 170 bags of fertilisers respectively and the consignments were not covered by export permits issued under the F.M.C. Order. In such circumstances what falls for consideration is whether the prosecution must prove mens rea on the part of the accused in exporting the fertiliser bags with