IMPORTANT POINT
In prosecution for the offence under section 7U),a)(ii), Essential Commodities Act read with clauses 21 and 22 of the Drugs (Prices Control) Order, 1979, for selling a formulation at the exorbitant price, the burden on the accused does not stand discharged by showing that he was not physically present when the sale took place.

JUDGMENT

Thomas, J.-Appellant is a licensed retailer carrying on retail business in pharmaceutical drugs and medicinal formulations in his medical shop "M/s. Ajaya Medicals" at Pattanakkad. The Special Co un (for trial of offences under Essential Commodities Act) convicted him for the offence under section 7(i)(a)(ii) of the Essential Commodities Act (for short 'the Act') read with Clauses 21 and 22 of the Drugs (Prices Control) Order, 1979 (for short 'the Order') and sentenced him to imprisonment and fine.

2. The case was instituted on a complaint filed by a Drugs Inspector against the appellant and his Pharmacist for selling a formulation called "Sodium Salicylate" for a price much in excess of the maximum retail price permitted the Order. The trial court acquitted the Pharmacist but convicted the appellant and sentenced him as aforesaid.

3. A consumer (P.W. 2) purchased sixty grams of Sodium Salicylate from the shop of the appellant on 7.6.1986 for a: price of Rs. 19.20. P. W. 2 had reasons to believe that the price realised from him was much more than the maximum retail price fixed for the said formulation. Hence he sent a petition to the Drugs Inspector complaining of the exorbitant price collected from him. The Drugs Inspector inspected the appellant's shop and traced out the carbon copy of the bill issued to the consumer. The complaint was filed by the Drugs Inspector on the strength of Ext. P 9 bill which the consumer had sent along with the petition. During trial the appellant admitted that he is the licensed retail dealer of M/s. Ajaya Medicals and that Ext. P 9 was issued from his shop. He did not dispute the evidence which shows that the maximum retail price of sixty grams of Sodium Salicylate during the relevant period was Rs. 9.06. His contention was that be was absent in his shop when the formulation was sold to P.W. 2 and that he came to know later that by a mistake excess price was collected from P.W. 2. According to him the mistake was committed by his son who issued the bill, due to some inadvertence and that he returned the excess amount to P.W. 2 by money order, who refused to receive it since he had already sent a petition to the Drugs Inspector.

4. It is not necessary to discuss the details of the evidence which established that sixty grams of Sodium Salicylate was sold to P.W. 2 for a price far in excess of the maximum retail price, since there is no dispute on that point. In cross examination P. W. 2 said that the appellant was not present when he purchased the formulation and that Ext. P 9 bill was issued to him by the appellant's son. On the strength of the said evidence it was contended that the appellant bad no mens rea. Learned Public Prosecutor argued that no retailer can be permitted to escape from penal liability by keeping away from the retail shop and allowing someone else to do the business contravening the provisions of the Order.

5. Clause-21 of the Order says that no retailer shall sell any formulation specified in the Third Schedule of the Order at a price exceeding the price specified in the current price list (or the price indicated on the label of the container) whichever is less, plus the local taxes. Clause 22 contains the prohibition that no dealer shall sell loose quantity of any formulation drawn from a bottle pack of such formulation at a price which exceeds the pro rata price of the formulation plus five per cent thereof. When a dealer is prohibited from doing all act, be cannot do that act through another person. A dealer can sell an article either by himself or through another person. It is not necessary that the retailer himself should deliver the formulation to the consumer or receive the price thereof. If any agent of the retailer does the aforesaid acts, it would amount to sale effected by the retailer himself. So the first question to be considered is whether mens rea is an integral ingredient of the offence. If that question is answered in the affirmative, then the next