JUDGMENT Beg, J. - The applicant Girja Nath has been convicted u/s 7(2)(a) of the Essential Supplies Act for contravention of the terms of license "B" issued under the U.P. Foodgrains Control Order 1948. u/s 7(2)(a) of the Essential Supplies Act, he has been ordered by the lower court to pay a fine of Rs. 500/- and u/s 7(2)(b) of the same Act the entire grain, in respect of which he is alleged to have contravened the provisions of the U.P. Foodgrains Control Order, 1948, has been ordered to be forfeited to the Government, 2. The applicant is a proprietor of a firm styled as Messrs Kalika Prasad Girja Nath at Auraiya. It appears that the firm was carrying on business in grains. On the 8th of November, 1950, there was a raid of this firm by Shri Sukbir Singh S.O. Auraiya under the orders of Shri J.N. Gupta, S.D.M. Auraiya- During this raid, it was discovered that 19 bags of bajra weighing 48 Mds. 22 Srs. and 12 Chhs. were found in the store. It was also found that there was no entry of the bajra in the Stock Register Ex. P-4. Shri Sukhbir Singh (P.W.2) prepared the recovery list Ex. P-5 and made a report Ex. P-1 to Shri J.N. Gupta (P.W.1) who examined Girja Nath accused u/s 164, Cr. P.C., immediately and recorded his statement which is Ex. P-2. The statement of Girja Nath given at the time would show that his defence was that the bajra in question was purchased on the 5th of November 1950 and that he left for Kanpur on the same day, and, therefore, the entity could not be made on that. He was out of station and did not return till the 8th of November, 1950 when the raid was made. 3. In support of his defence, the accused Girja Nath examined a number of witnesses to prove that he had left for Kanpur on the 5th of November, 1950, that he returned from Kanpur on the 8th November, 1950, and that the bajra in question was purchased by him on the 5th of November, 1950. 4. 3. In support of his defence, the accused Girja Nath examined a number of witnesses to prove that he had left for Kanpur on the 5th of November, 1950, that he returned from Kanpur on the 8th November, 1950, and that the bajra in question was purchased by him on the 5th of November, 1950. 4. Both the lower courts have believed the defence evidence and have held in favour of the accused that the bajra in question was purchased on the 5th of November, 1950, that as alleged by the accused, he had left for Kanpur on the 5th of November, 1950, and that he did not return from there till the 8th of November, 1950. 5. The trial court had convicted the accused u/s 7(a) of the Essential Supplies Act and sentenced him to six months R.I. and to a fine of Rs. 2000/- or in default, to undergo further six months R.I. It had further ordered the forfeiture of the bajra or its sale proceeds. 6. The appellate court maintained the conviction of the applicant but reduced the sentence as mentioned above, as it was of opinion that there were extenuating circumstances in the case. These extenuating circumstances were summarised by the appellate court in the following words: I have already noted above that it is proved that the Appellant left for Kanpur the very day of the disputed purchase and returned on the very date of the raid. These facts clearly. provide an extenuating circumstance. There is also a fair possibility of there being accidental omission, or in other words, of the absence of any criminal intention. Taking into consideration these facts I think the sentence imposed on him by the trial Court is rather barbarous 7. In view of the aforesaid finding, which was treated by him as an extenuating feature in the case, the lower court reduced the sentence. 8. Girja Nath has filed this revision in the High Court against the said judgment and the learned Counsel appearing on behalf of the applicant has not contested any of the findings arrived at by both the courts below. On the other hand, he has placed full reliance on the findings of fact arrived at by both the courts. 8. Girja Nath has filed this revision in the High Court against the said judgment and the learned Counsel appearing on behalf of the applicant has not contested any of the findings arrived at by both the courts below. On the other hand, he has placed full reliance on the findings of fact arrived at by both the courts. He has strongly relied on the finding given by the lower appellate court to the effect that there is a fair possibility that the non-compliance with the requirements in the present case was the result of an accidental mistake or omission, or in other words, of the absence of criminal intention. He has argued that this is not merely an extenuating circumstance, but a factor that would absolve the applicant from criminal liability altogether. The finding of the lower appellate court in this regard is supported by the circumstances of the case. It is in evidence that prior to the raid, the applicant brought cut his bahi and himself pointed out the mistake in the register. He showed the entry in his private bahi recording the receipt of the bajra in question and stated that the omission to enter it in the Stock Register was due to his going away to Kanpur on that day. It appears that the entry in the bahi used to be made as and when the grain was received, but entry in the Stock Register used to be made at the close of the day. As, according to the applicant, he left for Kanpur on that very day, the entry could not be made on the 5th of November, 1950. The applicant returned on the 8th of November, 1950, and the register does contain an entry in the remarks column of that day to the effect that 48 Mds. and some seers of grain were by inadvertence omitted from being entered on the 5th of November, 1950, and hence the entry respecting it was being made on the 8th of November, 1950. Further the applicant produced evidence to prove that the bajra was received by the firm on the 5th of November, 1950, and that on that very day he left for Kanpur. He produced a number of witnesses to prove this fact and this evidence has been considered to be quite reliable by both the courts. Further the applicant produced evidence to prove that the bajra was received by the firm on the 5th of November, 1950, and that on that very day he left for Kanpur. He produced a number of witnesses to prove this fact and this evidence has been considered to be quite reliable by both the courts. Thus there is ample material to support the finding of the lower court and the finding cannot, therefore, be characterised as unreasonable or perverse. 9. The question as to how far accidental mistake or absence of mens rea can exempt an accused from liability in a case like this has been the subject-matter of serious contest at this stage. After hearing the parties at length, I have, however, come to the conclusion that in view of the circumstances brought out in the present case and, above all, in view of the finding given by the lower appellate court, the applicant should be acquitted. Generally mens rea is considered as an essential ingredient of a criminal offence. In some cases the statute expressly mentions the particular kind of mens rea by using words like "intention" "knowledge" or "belief" in the definition of the offence itself. In other cases, it is not mentioned in the statute at all. The fact that the statute is silent on the point does not, however, mean that it intended to eliminate the ingredient of mens rea from the definition of the offence. Mens rea is implied in every offence except where it is expressly excluded by the statute itself or where the offences themselves belong to that limited group of offences which do not call for consideration of mens rea. The idea underlying the doctrine of mens rea is embodied in the maxim "actus non facit reum, nisi mens sit rea" according to which the intent and the act must both concur to constitute a crime. 10. In law crime consists of two elements -actus reus and mens rea. Actus reus represents the physical aspect of crime and mens rea represents its mental aspect. If the former can be called its body, then the latter may be termed as its spirit. Actus reus has been defined as "such result of human conduct as the law seeks to prevent". Actus reus represents the physical aspect of crime and mens rea represents its mental aspect. If the former can be called its body, then the latter may be termed as its spirit. Actus reus has been defined as "such result of human conduct as the law seeks to prevent". Mens rea is a loose term of elastic signification and covers a wide range of mental states and conditions, the existence of which would give a criminal due to actus reus. Sometimes it is used to refer to a foresight of the consequences of the act and at other times to the act per se irrespective of its consequences. In some cases it stands for a criminal intention of the deepest dye such as is visible in a designed and premeditated murder committed with a full foresight of its fatal consequences. In other cases it connotes mental conditions of a weaker shade such as are indicated by words like knowledge, belief, criminal negligence or even rashness in disregard of consequences. At other time it is used to indicate a colourless consciousness of the act itself irrespective of the consequences of the act, or, in other words, a bare capacity to know what one is doing as contrasted for example with a condition of insanity or intoxication in which a man is unable to know the nature of the act. 11. There might be actus reus without mens rea. Thus for example if an infant of two years while playing with a loaded pistol lets it go and kills another person, there is actus reus without mens rea. There might also be mens rea without actus reus. As an illustration of it, kenny in his book on outlines of Criminal Law, cites the story of Garrick on whose declaring that whenever he acted like Richard III, he felt like a murderer, Dr. Johnson retorted. "Then he ought to be hanged every time he acts it". In ethics or religion an evil deed may be committed in mind and might constitute a wrong, even though it has not manifested itself in physical conduct. In primitive societies the emphasis on the physical aspect is so great that even inanimate things and animals sometimes become objects of criminal punishment for setting into motion a chain of events that result in an injury. In primitive societies the emphasis on the physical aspect is so great that even inanimate things and animals sometimes become objects of criminal punishment for setting into motion a chain of events that result in an injury. In such a state mere actus reus might be enough to create criminal liability. As society advances the mental element is imported into actus reus, and the conception of crime is interwoven with morality. Mere actus reus ceases to be criminal because in so for as it lacks mens rea, it ceases to be the act of the individual and is put more or less on a par with accident or an act of nature. In this manner law has effected a harmony between the physical and the moral aspect of wrong by combining both with in the Juristic concept of crime. 12. This transformation however, is not achieved at one stroke, but is a result of slow and gradual development. The course of evolution provides instances of conflicting rulings depending on the various degrees of resistance offered by different Judges to the importation of mens rea actus to reus and on the varying emphasis placed by them on the one or the other. The two leading English cases on the subject are those of Reg. v. Prince 1875 Law Rep. 2 C.C.R. 154 and Queen, v. Tolson 889, 23 Q.B.D., 168. In the former the emphasis was on actus reus and in the later on mens rea. In the case of Reg. v. Prince the accused was indicted under a statute making it an offence to take an unmarried girl under the age of 16 out of the possession and against the will of another person having lawful charge of such girl. It was held that the mere fact that the accused honestly believed the girl to be over 16 or that she appeared to be or represented herself to be above the age of 16 was no defence. In this case, the penal statute was strictly construed. 13. On the other hand a liberal view of the interpretation of the penal statute was taken in Quee v. Tolson in which a woman was indicted of bigamy. It was held a good defence on her part that at the time of entering into merital the she honestly believed on reasonable grounds that her husband was dead. 14. 13. On the other hand a liberal view of the interpretation of the penal statute was taken in Quee v. Tolson in which a woman was indicted of bigamy. It was held a good defence on her part that at the time of entering into merital the she honestly believed on reasonable grounds that her husband was dead. 14. Will, J. observed as follows: Prima facie, the statute was satisfied when the case was brought within its terms, and it then lay upon the Defendant to prove that the violation of the law which had taken place had been committed accidentally or innocently so far as he was concerned. (175). 15. In another part of the same Judgment, Will, J. made the following significant observations: - At common law an honest and reasonable belief in the existence of circumstances, which, if true; would make the act for which a prisoner is indicted an innocent act has always been held to be good defence. This doctrine is embodied in the somewhat uncouth maxim "actus non facit reum nisi sit rea." Honest and reasonable mistake stands in fact on the same footing as absence of the reasoning faculty as in infancy, or perversion of that faculty, as in lunacy." (181). In this judgment, he also made a reference to the leading case of Reg. v. Prince (1) often cited in support of the opposing view and observed that in that case "it was not suggested by any of the Judges that the exception of honest and reasonable mistake was not applicable to all offences whether existing at common law or created by statute. 16. In the same case, Stephen, J. laid down the principle in the following words:- The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed: In all cases whatever, competent age, sanity, and some degree of freedom from some kinds of coercion are assumed to be essential to criminality, but I do not believe they are ever introduced into any statute by which any particular crime is defined. (187) 17. (187) 17. He further went on to observe that: In every case knowledge of fact is to some extent an element of criminality as much as competent age and sanity. To take an extreme illustration, can any one doubt that a man who, though he might be perfectly same, committed what would otherwise be a crime in a state of sommambulisim, would be entitled to be acquitted? And why is this? Simply because he would not know what he was doing. (187) 18. The apparent conflict between Reg. v. Prince and Queen v. Tolson is, however, capable of being resolved if it is remembered that the act which was the gravamen of offence in Reg. v. Prince was intrinsically wrong. This would satisfy the requirement of mens rea., for the intention need not be to comit a criminal wrong. So long as the act is wrong in itself, the person committing it takes the risk and does it at its own peril. 19. The next case which may be usefully referred to in this connection is that of Sherras v. De Retzen 1 Q.B. 1895, p. 918. In this case, the word 'knowingly' which initially found a place in the statute was omitted from it and from this fact it was argued that the intention of the statute was to eliminate mens rea from consideration. Dealing with this point, Day, J. observed as follows: - An argument has been based on the appearance of the word 'knowingly' in Sub-Section 1 of S. 16, and its omission in Sub-Section 2. In my opinion the only effect of this is to shift the burden of proof. In cases under Sub-Section 1 it is for the prosecution to prove the knowledge, while in cases under Sub-Section 2 the Defendant has to prove that he did not know. That is the only inference I draw from the insertion of the word 'knowingly' in the one Sub-section and its "omission in the other. (921) 20. In cases under Sub-Section 1 it is for the prosecution to prove the knowledge, while in cases under Sub-Section 2 the Defendant has to prove that he did not know. That is the only inference I draw from the insertion of the word 'knowingly' in the one Sub-section and its "omission in the other. (921) 20. The following remarks from the judgment of Wright, J. in the same case are also relevant: - There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered Nichols v. Hall L.R. 8 C.P. 322 (921). 21. Dealing with the question as to how far the statute can abrogate the principles of common law in this regard Russel at p. 39 of his well-known. Treatise on Crimes (Vol. I 1950, Edition) has expounded the law in the following words: - Ancient doubts as to the power of the Legislature to abrogate the rules of the common law have long since been eliminated and the modern doctrine of the absolute and literal authority of statute is firmly and beyond all question established in the law of England. None the less it is an undoubted rule that statutes should be construed so as to accord with the accepted rules of the common law rather than to conflict with them. 22. It is a sound rule to construe a statute in conformity with the common law rather than against it, except where and so far as the statute is plainly intended to alter the course of the common law. 23. On this principle of construction there is a presumption that in any statutory crime the ordinary mental element, mens rea, is an essential ingredient. 24. In the Indian Penal Code there is a a recognition of this principle in various forms in Chapter IV which enumerates a number of general exceptions to all offences. 25. 23. On this principle of construction there is a presumption that in any statutory crime the ordinary mental element, mens rea, is an essential ingredient. 24. In the Indian Penal Code there is a a recognition of this principle in various forms in Chapter IV which enumerates a number of general exceptions to all offences. 25. According to Section 76, I.P.C:- Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact not by reason of a mistake of law in good faith believes himself to be, bound by law to do it. 26. Section 79, I.P.C. lays down:- Nothing is an offence which is done by any person who is justified by law, or who by reason of mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it. 27. Section 80, I.P.C., states that: - Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. 28. Section 81, I.P.C. recognizes the exception in favour of an act likely to cause harm but done without criminal intention and in order to prevent other harm. 29. Section 82, I.P.C. exempts a child under seven years of age from all criminal liability. 30. Section 83, I.P.C. exempts from criminal liability a child above seven years of age and under twelve who has not attained sufficient maturity of understanding to be able to realise the full implications of conduct. Section 84, I.P.C. contains a similar exception in favour of a person of unsound mind. 31. Section 85 and 86, I.P.C. lay down conditions under which an intoxicated person can be exempted from criminal liability. 32. The above sections are cited as illustrations to show that the Indian Law has recognized the principle underlying mens rea in various forms and ways and given effect to it. u/s 40, I.P.C. the exceptions enumerated in Chapter IV would apply not only to offences punishable under the Indian Penal Code but also to offences punishable under any statute or local law. u/s 41, I.P.C. a special law is defined as a law applicable to a particular subject. u/s 40, I.P.C. the exceptions enumerated in Chapter IV would apply not only to offences punishable under the Indian Penal Code but also to offences punishable under any statute or local law. u/s 41, I.P.C. a special law is defined as a law applicable to a particular subject. u/s 42, I.P.C. a 'local law' is a law applicable only to a particular part of the territories comprised in India. u/s 32, I.P.C. except where a contrary intention appears, words referring to acts cover illegal omissions. There is, therefore, no doubt that these exceptions would be applicable to an offences committed under the U.P. Essential Supplies Act read with U.P. Food-grains Control Order, 1948. 33. The above enunciation of law does not, however mean that there cannot be any offence without mens rea. There are and there can be offences even without mens rea. The statute itself might be so framed as to indicate that mens rea was not to be considered as an element of a particular offence; or the subject-matter of the statute and its aims and object might necessarily exclude the application of mens rea. Further, there are quasi criminal offences in which the question of mens rea might not arise; or there might be offences in which compelling considerations of public justice might require its exclusion, i.g. certain offences relating to adulteration of food or drugs. Again, for example, there might be petty offences punishable with fine as a contravention of some Municipal bye-laws in which mens rea might not play a part at all. The number of such exceptions, however, is a strictly limited one and the courts will not extend the ambit of such exceptions, unless it is clearly warranted either by words of the statute or by the circumstances of a constructing nature following from imperative consideration of public justice. 34. No doubt, in the present case, the statute has not Had down any mens rea. On the other hand, the provisions of the statute are mandatory. According to consideration No. 1 of Form 'B' of the license, the licensee is required to maintain a register showing correctly (a) the opening balance on each day; (b) the quantities received by him on each day; (c) the quantities disposed of by him each day; and (d) the closing balance at the end of each day. According to consideration No. 1 of Form 'B' of the license, the licensee is required to maintain a register showing correctly (a) the opening balance on each day; (b) the quantities received by him on each day; (c) the quantities disposed of by him each day; and (d) the closing balance at the end of each day. The position, therefore is that the statute has not specified any mens rea as a part of the offence. At the same time, the statute has not excluded mens rea or other kindred exceptions which constitute its satellites. Under the circumstances, the ordinary presumption of the applicability of mens rea must prevail. To my mind, the effect of the omission of any mention of mens rea is merely to lead to an initial presumption of its existence and to shift the burden of proof on the accused to prove that he comes within any of specified or well-recognized exceptions. 35. Further, there is nothing in the subject-matter of the Act or its aims or objects to warrant its exclusion by necessary implication. On the other hand, there are a number of considerations pointing in the opposite direction and inviting the importation of the cardinal principle of mens rea in the adjudication of an offence contemplated by Section 7 of the Essential Supplies Act, the most important of them being the heavy nature of the penalty provided. An offence u/s 7(2) of the Essential Supplies Act does not appear to be a petty one at all. Section 7(2) deals with offences which are not punishable with fine only. An offence u/s 7(2) of the Essential Supplies Act is punishable with imprisonment for a term which may extend to three years and the offender is also liable to fine, in addition to the forfeiture of the property to the Government. In certain cases, an offence u/s 7(2) of the Essential Supplies Act is even punishable with imprisonment which may extend to seven years with further liability to pay a fine not less than twenty times the value of foodgrains recovered as well as forfeiture of the entire amount of excess foodgrain. It is therefore, obvious that the statute provides a substantial punishment for the commission of such offences. It is therefore, obvious that the statute provides a substantial punishment for the commission of such offences. It would be revolting to human conscience to imagine that a person could be punished with such severe sentences extending to several years of rigorous imprisonment and be branded for ever as an ex-convict merely because he failed to comply with the latter of the statute even though he was morally and mentally innocent. The consequences of taking this view might be monstrous in certain cases. Supposing for example, a man, who was in charge of the firm and whose duty it was to prepare the said register, suddenly got a stroke of paralysis in the day with the result that the register was left incomplete in the evening. Supposing again that there was an earthquake and the shop had to be closed for that reason and the required entries could not be made. Or supposing by accident the register caught fire and was destroyed, or by accident ink was spilled on a particular page of the register spoiling and defacing the entries that were made on it. A multitude of instances easily present themselves to the mind. In all these cases there can be no doubt that there has been an obvious failure to comply with the letter of the law. Can it, however, be said that in such cases, the statute intended the person responsible to be the recipient of the severe penalties which the law prescribed for the delinquent. Such dire punishment seems to be reserved for those who have transgressed mentally and morally as well, and not for those who happen to be the unfortunate victim of accidents or circumstances beyond their control or who have unwittingly committed an error through an innocent mistake or misapprehension. An interpretation of the penal provision in the light of the principle of mens rea seems to be the only way of avoiding such preposterous consequences and preventing the law from becoming a hand maid to oppression and injustice. Under the circumstances, I am not prepared to eliminate a consideration of mens rea and other exceptions from the ingredient of this offence. Of course, the burden of proving them would be on the accused and he must discharge the burden to the full satisfaction of the court concerned. 36. Under the circumstances, I am not prepared to eliminate a consideration of mens rea and other exceptions from the ingredient of this offence. Of course, the burden of proving them would be on the accused and he must discharge the burden to the full satisfaction of the court concerned. 36. So far as the cases in India are concerned, the principle was recognized in the well known case of Srinivas Mall Bairoliya and other v. Emperor, (5) in which their Lordships of the Privy Council quoted with approval the following remarks of the Lord Chief Justice of England: - It is in my opinion of the utmost importance for the protection of the liberty of the subject that the Court should always bear in mind that, unless the statute, either clearly or by necessary implication, rule out mens rea as a constituent part of a crime a Defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind. (1946, 110J P. 3172 at p. 318 ; 129). 37. The same principle was applied by a Bench of the Bombay High Court to an. offence under Sections 7 and 8 of the Essential Supplies (Temporary Powers) Act (XXIV of 1946) in Isak Soloman Mac-mull v. Emperor A.I.R.1948 Bom, 364 The judgment of Chagla, C.J. on this particular point provides an illuminating commentary on this subject. 38. Applying the above principle to the present case and keeping in view the finding arrived at by the trial court, I am of opinion that the applicant would be entitled to acquittal. The finding regarding the possibility of omission being an accidental one or the absence of mens rea has already been given by the lower appellate court. This finding, as already observed is neither perverse nor unreasonable. The applicant has therefore, succeeded in discharging the burden that lay up n him. On this finding, in my opinion, the applicant would be entitled to a complete acquittal. 39. I, accordingly, set aside the conviction and sentence of the applicant and acquit him of the offence with which he was charged. The fine, if paid, shall be refunded. The bajra forfeited by the Government or its sale proceeds should be delivered to the applicant. Appeal allowed