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1991 Supreme(Ori) 97
High Court Of Orissa
S. C. MOHAPATRA
STATE OF ORISSA - Appellant
Versus
ARJUNA DAS - Respondent
G. A. 51 Of 1985
Decided On : 06/17/1991
A.S.Naidu, DEBASHIS DAS, P.K.MISHRA, P.MOHANTY, P.Satpathy
Mens rea or culpable mental state is presumed under Section 10-C of the Essential Commodities Act, 1955, for contravention of an order made under the Act, and the burden lies on the accused to prove that they possessed a license.
Headnote:
ESSENTIAL COMMODITIES ACT, 1955 - S. 7, 10, 10-C, 14 - ORISSA BABY FOOD LICENSING ORDER, 1966 - CL. 3 - SALE OF AMUL SPRAY WITHOUT LICENSE - INTERPRETATION OF STATUTORY PROVISIONS - PRESUMPTION OF MENS REA - BURDEN OF PROOF - VALIDITY OF LICENSE APPLICATION - RETROSPECTIVE RENEWAL - CONVICTION AND SENTENCING.
Fact of the Case:
Respondent No. 2, the proprietor of M/s Bharat General Store, and Respondent No. 1, the manager, were prosecuted for contravening Clause 3 of the Orissa Baby Food Licensing Order, 1966, by selling Amul Spray without a valid license. The defense argued that Amul Spray was not baby food and that the application for renewal of the license was pending, which was subsequently granted.
Finding of the Court:
The court held that Amul Spray was indeed baby food as defined in the Order, as it was specified in Schedule I of the Order with effect from 30-4-1980. The court also held that mens rea or culpable mental state is presumed under Section 10-C of the Essential Commodities Act, 1955, and the burden lies on the accused to prove that they possessed a license. The court further held that a pending application for a license is not equivalent to a license itself and that there was no exemption under Clause 6 of the Order to apply in plain paper or to escape Clause 3 by applying in plain paper.
Issues: 1. Whether Amul Spray is baby food as defined in the Orissa Baby Food Licensing Order, 1966? 2. Whether mens rea or culpable mental state is required for conviction under Section 7 of the Essential Commodities Act, 1955? 3. Whether a pending application for a license is equivalent to a valid license? 4. Whether there is an exemption under Clause 6 of the Order to apply in plain paper or to escape Clause 3 by applying in plain paper?
Ratio Decidendi: 1. The court interpreted the definition of baby food in Clause 2(i) of the Order and held that Amul Spray was included as baby food with effect from 30-4-1980, as it was specified in Schedule I of the Order. 2. The court relied on Section 10-C of the Essential Commodities Act, 1955, which presumes mens rea or culpable mental state for contravention of the Order, and held that the burden lies on the accused to prove that they possessed a license. 3. The court held that a pending application for a license is not equivalent to a valid license, as per the requirements of Clause 5 of the Order. 4. The court found that there was no exemption under Clause 6 of the Order to apply in plain paper or to escape Clause 3 by applying in plain paper.
Final Decision: The court convicted Respondent No. 2 under Section 7(1) of the Essential Commodities Act, 1955, for contravention of Clause 3 of the Order and sentenced him to pay a fine of Rs. 2,000/- in default to undergo rigorous imprisonment for one month. The court acquitted Respondent No. 1, the manager, as he did not require a license under the Order.
S. C. MOHAPATRA, J.
( 1 ) ACQUITTAL of respondents is assailed by the State in this appeal u/s. 378, Cr. P. C.
( 2 ) BOTH the respondents were prosecuted for offence u/s. 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act') for contravention of cl. 3 of the Orissa Baby Food Licencing Order, 1966 (hereinafter referred to as 'the Order') made by State Government in exercise of power u/s. 3 of the Act. Respondent No. 2 is the Proprietor of M /s. Bharat General Store, Jharsuguda and respondent No. 1 is manager of respondent No. 2.
( 3 ) PROSECUTION case is that respondent No. 2 had licence under the Order for the year 1980 as wholesale dealer as well as retail dealer in name of his business concern M/s. Bharat General Store. For the year 1981 although licence as whole-sale dealer was renewed, such licence of retail dealership had not been renewed. Without renewal of retail licence he was selling Amul Spray to consumers. On 25-7-1981 on being deputed by P. W. 2, P. W. 4 purchased Amul Spray of 1 kilogram weight from M/s Bharat General Store which is in contravention of Cl. 3 of the order.
( 4 ) SALE of Amul Spray on 25-7-1981 and absence of renewal of licence for 1981 on that day is not disputed. Short defence is that Amul Spray is not baby food and application for renewal which was pending had not been rejected for which respondents anticipated that it would be renewed and in fact it was renewed subsequently.
( 5 ) CLAUSE 3 of the order which is alleged to have been contravened reads as follow :"3. Baby food not to be sold without license -with effect from the date of expiry of thirty days from the date on which this order come into force, any person shall carry on business as a dealer except under and in accordance with the terms and conditions of a valid license granted in that behalf by the licensing authority under Cl. 5 of this order. "
( 6 ) SALE as envisaged in this clause has same meaning as is given under the Sale of' Goods Act. When baby food is sold by an employee on behalf of the employer it is a sale by the employer. Accordingly, an employee selling on behalf of the owner of baby good does not normally become liable for the contravention since an employee is not required to have a licence under the order. To make individuals liable, S. 10 of the Act provides that where a company is prosecuted for contravention, every person who at the time of' contravention was committed was responsible to the Company for conduct of the business can be prosecuted. U/s. 10 (2), where offence has been committed by a company and it is proved that such offence has been committed with consent or connivance of or attributable to any neglect on the part of any director, manager, Secretary or any other officer of the Company, such person shall also be deemed to be guilty. Company has been explained to include a firm, a body corporate or other association of individuals, Manager of an individual does not come within scope of S. 10. Accordingly, prosecution against respondent No. 1 on the facts of this case is misconceived. His acquittal is justified.
( 7 ) COMING to the question whether Amul Spray is baby food, all food articles meant for babies are not 'baby food' under the order. Only those article which are specified in Schedule I therefore, are baby food as defined in Clause 2 (i ). Originally Amul Spray was not specified in Schedule I. In February, 1972 the same was intended to be specified in the schedule and a notification was also issued. However, clause 14 of the order requiring notification to be published in official gazette not having been complied with, it was held in ILR 1975 Cut 86, Shantikumar Agarwala v. State, 1979 CLR 249: (AIR 1980 NOC 63) (Orissa), Silla Narayan Murty v. State of Orissa and (1988) 66 CLT 560: (1988 Cri LJ NOC 76) (Orissa), (Bhagaban Sabu v. State) that Amul Spray is not baby food. Before trial court prosecution not having produced the official gazette where the notification w
