The judgment establishes the requirement of 'culpable mental state' as an essential ingredient of the offence under the Essential Commodities Act, emphasizing the presumption of 'culpable mental state' and the burden on the accused to rebut the presumption.

Appellant is a licensed retailer carrying on retail business in pharmaceutical drug and medicinal formulations in his medical shop "M/s. Ajaya Medicals" at Pattannakkad. The Special Court (for trial of offences under Essential Commodities Act) convicted him for the offence under S. 7(1)(a)(ii) Essential Commodities Act, (for short 'the Act') read with Cls. 21 and 22, 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 by 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 ex orbitant 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. P9 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 Medical and that Ext. P9 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 he 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 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. P9 bill was issued to him by the appellant's son. On the strength of the said evidence it was contended that the appellant had no mens rea. Learned Public Prosecutor argued that no retailer can be permitted to escape from penal liability by keeping away from 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 an act, he 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 question would arise whether the appella