Mens rea is not an essential element of the offence under the Essential Supplies (Temporary Powers) Act, 1946, but an honest and reasonable belief that one is acting lawfully may provide a defence.

ORDER :- This is a criminal revision case filed against the conviction and sentence of the learned Sub Divisional Magistrate of Koilpatti in C. C. No. 50 of 1952.

2. The facts are : There is no dispute that a valid licence had been issued under the Madras Cloth Dealers Control Order in the name of Ramaswami Aiyar, the undivided father of the petitioner herein. It is also clear that the father and son were carrying on business as a joint family concern. This licence was renewed upto 1951. Ramaswami Iyer died in April 1950. In these circumstances the petitioner herein, the son of Ramaswami Aiyar had been prosecuted for selling M. Os. 1 to 5 to a hawker P.W. 1, viz, under S. 7 of the Essential Supplies (Temporary Powers) Act, 1946, for contravening clause 4(1) of the Madras Cloth Dealers Control Order, 1948.

3. The case for the accused was set out in his written statement as follows :

"My deceased father and myself were carrying on the firm Messrs. Ramaswami Iyer. My father died about the month of April 1950 having already applied for the renewal of the licence for April to September 1950. Subsequent to his demise I presented a petition in person to the authorities intimating the factum of my fathers demise and producing the certificate of income-tax assessment. Again for October 1950 to March 31st, 1951, I remitted Rs. 12-8-0 on 18-9-1950 into the Tenkasi Sub Treasury and sent an application with letter along with the chalan mentioning in the application the fact of my fathers death. I got the same licence renewed in the same name from the Department. Further, for the period of April 1951 to September 1951 I did remit the licence fee in the Tiruchirapalli taluk Treasury Chalan No. 3858 and sent the same along with an application to the Department through the District Piecegoods Merchants Association, Tirunelveli. I again got the licence renewed in the firms name. So that throughout and on the alleged date 20-6-1951 I held a valid licence in the name if the firm."

The learned Sub Divisional Magistrate declined to accept the explanation of the accused, found the accused guilty as charged and sentenced him to pay a fine of Rs. 50.

4. Two points are taken in revision before me, viz, that first of all, the licence granted would enure to the benefit of a member of the joint family; and secondly, that in this case there has absolutely been or could have been no mens rea on the part of the accused.

5. Point 1 : I am unable to accept the contention of the learned advocate for the petitioner that a licence issued in the name of a father would enure for the benefit of the other members of the joint family after his death. The language of clause 4(1) of the Madras Cloth Dealers Control Order clearly shows that the licence issued is personal to the licencee. This stands to common sense also because a licencee is selected after taking into consideration various circumstances personal to himself like, his previous experience, standing in the business, character etc. If this were not to be the case, a person unfitted to be a licencee like another member of the joint family might automatically become a licencee notwithstanding the fact that if the State were to select a licencee and the rules for the selection were to be applied such a person would be ineligible. It is enough to mention that such a member might be an idiot or a lunatic or a convicted person or a black-marketeer in his own rights. So I am unable to make the term "licencee" herein include his heirs.

6. Point 2 : The learned Advocate stands in a better footing in regard to this second contention.

7. Mens rea or guilty mind has from the earliest times been held to be an essential requisite for the proof of a crime. An act does not make a man guilty without a guilty intention. But there is generally no room for the application of this familiar concept in English Common law even in the Indian Penal Code as it is one of the most exhaustive Codes and devotes a full chapter towards its