Sabhahit, J.-This appeal is directed against the judgment and order of acquittal passed on 29th August, 1977, by the II Additional Chief Judicial Magistrate, Mangalore, in C.C. No. 733 of 1975, on his file acquitting the accused-respondent for an offence punishable under section 7(1)(a)(ii) of the Essential Commodities Act, 1955, read with paragraph 15 of the Drugs (Price Control) Order, 1970.

2. The appeal arises this ways. Accused-1 is the firm running under the name and style, M/s. Lobo Medicals, Door No. 102, Ward No. 14, Hampankatta, Mangalore. It trades in drugs holding a valid licence. A-2 is the proprietor of the firm being a qualified person. On 3rd October, 1972 one of the Drug Inspectors, namely S. Shantarama Shetty (P.W. 1), inspected the sales premises of Accused-1-firm and discovered that under cash bill No. 03279, dated 29th September, 1972, the accused sold 6 x 3 M.L. ampoules of Neurobion Merck of batch No. 30271 and 27371 for Rs. 15 plus the taxes and further that he had sold 3 x 20 tablets of Sclerobion under cash bill No. 03325, dated 30th September, 1972 for a sum of Rs. 22.05 plus taxes. On verification from the price-list displayed in the said premises, he found that the accused had collected Rs. 1-69 is excess for the Neurobion Merck ampoules and a sum of Rs. 0-60 in excess in respect of Sclerobion tablets sold under the above mentioned receipts. The Drugs Inspector reported the matter to the Drugs Controller and after following the required formalities, a complaint was instituted against accused alleging that by collecting excess price in respect of the abovementioned drugs, they committed an offence punishable under section 3(2)(c) of the Essential Commodities Act, 1955, read with paragraph 15 of the Drugs (Price Control) Order, 1970, punishable under section 7(1)(a)(ii) of the Essential Commodities Act.

3. Before framing charge, the learned Magistrate examined S. Shantharama Shetty (P.W. 1), the Drugs Inspector, M.S. Kustagi (P.W. 2), another Drugs Inspector and S.H. Anegundi (P.W. 3) who was also a Drugs Inspector, The learned Magistrate being satisfied that there was prima facie case against accused, on the evidence of these three witnesses, framed charge and recorded the plea of the accused so far as the sale of Sclerobion tablets are concerned. Accused pleaded not guilty and claimed to be tried. Thereafter, the witnesses were cross-examined and the accused were examined under section 313 of the Criminal Procedure Code to enable him to explain the circumstances appearing against him. The accused submitted that he collected the excess 0-44 P. through bona fide mistake and that he had written letters to the concerned customers to take refund of the same. So, according to him, there was no mens rea on his part to commit an offence. The learned Magistrate appreciating the evidence on record found that the accused did carry out the sale as alleged and affirmed by the prosecution witnesses and that he collected about 0-60P more by way of local taxes. But in his view, there was no mens rea on the part of the accused by his judgment and order referred to above (Sic). Aggrieved by the said order of acquittal, the State has come up in appeal before this Court.

4. The learned High Court Government Pleader appearing for the State vehemently argued that the learned Magistrate clearly erred in acquitting the accused on the ground that he had no mens rea. He invited our attention to the wording in section 7 of the Essential Commodities Act which read:

“If any person contravenes, whether knowingly, intentionally or otherwise, any order made under section 3............”

Thus, he submitted that the offence under the Essential Commodities Act as it stood then did not require mens rea on the part of the accused and that it was made a strict liability offence.

5. As against that the learned Counsel appearing for the respondent-accused strenuously contended that the learned Magistrate was justified in acquitting the accused

Click Here to Read the rest of this document