JUDGMENT--The applicant in this case was prosecuted for an offence punishable under clause 5 of the Maharashtra Indigenous Rice (Control on Prices) Order, 1964, read with section 7 of the Essential Commodities Act, 1955. 2 The accused-applicant has been convicted of that offence by the trial Magistrate and has been sentenced to pay a fine of Rs. 500 and, in default, to undergo rigorous imprisonment for three months. The said order has been confirmed in appeal by the Extra Additional Sessions Judge, Nagpur. 3. Hiralal Chandomal Da.swani, who is the brother of the accused, runs a retail kirana shop in Jaripatka area of Nagpur. He also sells rise in his shop. The accused is a college student and, on 29th December 1964 which was a holiday, the accused was sitting in the shop of his brother Hiralal and was effecting sales of the articles in the shop. It is alleged by the prosecution that one Madhukar, who is a resident of the same locality, complained that the accused was selling rice to customers at the rate of Rs. 1-25 nP. per kilo as against the maximum price fixed by the Maharashtra Indigenous Rice (Control on Prices) Order, 1964. The maximum retail sale price for the. coarse variety of rice in this district was fixed at 72 nP. per kilo, for the medium quality the maximum rate was 77 nP. per kilo and for the fine variety the price was fixed at 81 nP. per kilo. Madhukar, accompanied by one Ramchandra and Gulab, went to the Pachpaoli Police Station and made a report. On this, the Sub-Inspector Gupta arranged for a trap and, accordingly, he gave lone-rupee currency note, 1 four. ann a coin, 1 ten-nP. coin and 1 two-nP. coin to the complainant Madhukar after putting marks on them. A Panchanama was accordingly made and the complainant Madhukar was instructed by him to go to the shop of the accused for purchasing rice. The two persons, Ram. chandra and Gulab, were to act as panchas and were to accompany the complainant Madhukar and witness the transaction. The complainant and the two panchas Ramchandra and Gulab then went to the shop of the accused and the Sub. Inspector Gupta also followed them and took up the position near about the shop of the accused. The Sub-Inspector had asked the complainant to give a signal after the transaction was effected. 4. The complainant and the two panchas Ramchandra and Gulab then went to the shop of the accused and the Sub. Inspector Gupta also followed them and took up the position near about the shop of the accused. The Sub-Inspector had asked the complainant to give a signal after the transaction was effected. 4. After this, the complainant, on reaching the shop of the accused, asked the accused to sell to him 1 kilo of rice. The accused sold 1 kilo of rice to the complainant and the complainant gave all the marked money to the accused. On this, the accused is said to have retained the marked one-rupee note and also the marked four-anna coin and returned the other two coins of 10 nP and 2 nP to the complainant, thus charging Rs. 1. 25 nP for the 1 kilo of rice sold by the accused to the complainant. After this, the complainant gave a pre-arranged signal on which the Sub-Inspector Gupta immediately rushed to the shop and searched the cash box of the accused. According to the prosecution, the marked one-rupee note and the marked four-anna coin were found in the cash-box, though the case of the accused is somewhat different. It was thus alleged by the prosecution that the accused sold the rice at a rate higher than the Controlled rate and indulged in profiteering. The rice which was purchased by the complainant Madhukar was also seized by the Sub-Inspector and the rice from the shop of the accused was also seized by the police. 5. The accused admitted that he sold 1 kilo of rice to the complainant. He, however, denied that he sold the rice to the complainant at the rate of Rs. 1.25 nP. His defence was that he sold the rice to the complainant at the rate of Rs. 1 per kilo and he was handing over the amount of 25 nP. coin to the complainant but in the meanwhile the police raided and the coin was seized from his hand. It is also alleged by the accused that he was not a regular dealer and he was only sitting at the shop of his brother because his college was closed on account of the Xmas vacation. coin to the complainant but in the meanwhile the police raided and the coin was seized from his hand. It is also alleged by the accused that he was not a regular dealer and he was only sitting at the shop of his brother because his college was closed on account of the Xmas vacation. It is also urged here on of the accused that the rice which had been sold to the complainant Madhukar is not the rice produced in the State of Maharashtra. The accused therefore completely denied the charge and prayed for acquittal. 6. The State Government has issued an Order called "The Maharashtra Indigenous Rice (Control on Prices) Order, 1964," in exercise of the powers conferred by sub-section (1) read with clauses (c), (e), (i) and (j) by sub-section (2) of section 3 of the Essential Commodities Act, 1955 (X of 1955). This Order has been published in the Maharashtra Government Gazette of October 29, 1964, and it came into force on the date of the publication of the Order. 7. The prosecution has examined the complainant Madhukar as P. W. 1, the panch witness Ramchandra as P. W. 2 and the Sub-Inspector Gupta has been, examined as P. W. 3. The trial Magistrate has held that for selling 1 kilo of rice to the complainant the accused has charged Rs. 1-4- to the complainant. He also held that the accused has committed a prohibited act and the conduct of the accused was voluntary and that the accused committed breach of the provisions of the Order. Accordingly, he convicted the accused for contravention of clause 3 read with clause 5 of the Maharashtra Indigenous Rice (Control on Prices) Order, 1964, read with section 3 of the Essential Commodities Act, punishable under section 7 of the said Act. He was sentenced to pay a fine of Rs. 500 and in default, to undergo rigorous impris6mnent for three months. No jail sentence was given to him in consideration of the fact that he was a college going boy. 8. The accused filed an appeal against his conviction and the finding of the Magistrate, that the accused sold rice to the complainant at a rate higher than the controlled rate, has been confirmed. No jail sentence was given to him in consideration of the fact that he was a college going boy. 8. The accused filed an appeal against his conviction and the finding of the Magistrate, that the accused sold rice to the complainant at a rate higher than the controlled rate, has been confirmed. According to the learned appellate Court, the rice was of three qualities, coarse, medium and fine and the maximum rates of these qualities were 72 nP, 77 nP and 81 nP per kilo, respectively. The learned appellate Court has observed that the prosecution has not established as to what variety of rice was sold by the accused to the complainant and from what district it was imported. But since the maximum price of even the fine variety of rice was only 81 nP per kilo, the sale of the rice at more than that price was a contravention of the said Order. Even assuming that the rice was sold at one rupee per kilo; even according to the contention of the accused, even then he sold it at a price higher than the controlled price. On this view, the learned appellate Court held that the applicant-accused was guilty of the contravention of the said Order. As regards the other plea of the accused, viz. that he was not a dealer but was accidentally in the shop on the particular day and that he had no intention to sell the rice at a higher rate in contravention of the Order, he observed that there was no question of mens rea arising in this case and the very criminal act itself was sufficient proof of mens rea. On this view, the learned Appellate Court confirmed the findings given by the trial Magistrate and upheld the conviction of the accused. The sentence passed on the accused was also maintained. Besides the one kilo of rice which was seized from the complainant Madhukar, three bags of rice from the shop were also seized and the learned Magistrate ordered these three bags of rice to be forfeited to the State under section 7 (b) of the Essential Commodities Act. This order of the trial Magistrate directing the forfeiture of the three bags of rice was also upheld by the learned appellate Court. 9. Mr. This order of the trial Magistrate directing the forfeiture of the three bags of rice was also upheld by the learned appellate Court. 9. Mr. Bhangde, the learned counsel for the applicant, contends in this revision that the prosecution has failed to establish the guilt of the accused and that the conviction of the accused was bad. He contends that the accused was not a dealer within the meaning of sub-clause (b) of clause 2 of the Maharashtra Indigenous Rice (Control on Prices) Order, 1964. The dealer has been defined in the Order as follows : "Dealer" means a person engaged in the business of the purchase, sale or storage for sale, of rice, whether or not such business is carried on in addition to any other business. According to Mr. Bhangde, the accused was neither the owner of the shop nor was he running it as a business. It was his brother Hiralal who was running the shop and the applicant, being only a college student, was sitting on that day in the shop as his college was closed for Xmas vacation. He was not doing any business regularly in the course of business and it could not be said that he was the person engaged in the business of sale of rice. A mere solitary or casual transaction, such as was done by him with Madhukar, could not make him a dealer as provided in clause 2. According to him, only a retail dealer is prohibited from selling any rice at a price in excess of the maximum price fixed for the respective varieties under clause 3. "Retail dealer" has also been defined in the order as follows : "Retail Dealer" means a dealer, other than a wholesale dealer; And a "wholesale Dealer" means a dealer, who holds a valid licence under the Maharashtra Foodgrains Dealers Licensing Order, 1963, and includes any dealer who sells or agrees to sell or offers to sell rice to another dealer. It is, therefore, contended that unless the person selling is a retail dealer which in turn means that he must be engaged in the business of selling but who is not a wholesale dealer, he does not contravene the provisions of clause 5 of the said Order, even though he sells at a rate higher than that fixed for the said commodity. It may be true that the accused was sitting in the shop only on that day, i. e. 29th December, 1964. It cannot be disputed that in the premises where the accused dealt with the complainant Madhukar a business was being run admittedly, by the accuseds brother Hiralal and one of the commodities that was sold through the shop was rice. Madhukar the complainant say that the accused was selling rice to the customers at a higher rate and, therefore, he reported the matter to the police. The rice was also sold by the accused to the complainant Madhukar which is not disputed by the accused. The accused can, therefore, be said to be engaged in the business of selling rice to the customers, particularly when he was selling these goods from the shop which was doing this business. If the interpretation sought to be put on behalf of the applicant is accepted, then the person who is dealing in this commodity can escape prosecution by putting somebody in the shop and so also the person actually selling on the ground that he was not a dealer but only temporarily sitting at the shop in the absence of the actual dealer. If the accused was just sitting in the shop and was not doing any business as urged by him, the accused had no business to sell the commodities from the shop and if he does that, he must be taken to be doing it as a dealer, though his dealing may be temporary. I am, therefore, of the view that the accused, when he sold the rice to the complainant Madhukar, was selling it as a dealer. 10. The next point that has been urged by the learned counsel for the applicant is that the prosecution has failed to establish that the rice sold by the accused to Madhukar was the rice produced in the State of Maharashtra. It is contended that a contravention of the provision of this Order is made punishable only if the rice which is sold or purchased etc. is rice produced in the State of Maharashtra and in different districts specified in Schedule B to this Order. It is contended that a contravention of the provision of this Order is made punishable only if the rice which is sold or purchased etc. is rice produced in the State of Maharashtra and in different districts specified in Schedule B to this Order. This contention is based on the definition of the word "rice" in sub-clause (f) of clause 2 of the Order which defines "Rice" as: "Rice" means rice produced in the State of Maharashtra, and include s paddy and any of the varieties (fine, medium and coarse) of rice produced in different districts as specified in Schedule B: On the basis of this definition it is contended that the prosecution has to establish that the rice which has been sold at a price higher than the price fixed was the rice which was produced in the State of Maharashtra or in the specified districts. It is true that the commission of the offence is with respect to rice produced in the State of Maharashtra But it was not correct to say that the prosecution must establish this fact Section 14 of the Essential Commodities Act, 1955, throws the burden of proof in certain cases on the accused. It reads :-- “Where a person is prosecuted for contravening any order made under. section 3 which prohibits him from doing any act or being in possession of a thing without lawful authority or without a permit, licence or other document, the burden of proving that be has such authority, permit, licence or other document shall be on him." The State Government by the Maharashtra Indigenous Rice (Control on Prices) Order has fixed the prices of rice of different varieties. The maximum price for rice was 81 nP per kilo. The rice was said, according to the prosecution, at Rs. 1-25 nP per kilo, and, even according to the defence, at Re. 1 per kilo. The price, therefore, for which the rice was sold by the accused to the complainant Madhukar was more than the price fixed by the Order and the accused was prosecuted for contravening this Order which was made under section 3 of the Essential Commodities Act. The Order prohibited the dealer from selling at more than the fixed price. The price, therefore, for which the rice was sold by the accused to the complainant Madhukar was more than the price fixed by the Order and the accused was prosecuted for contravening this Order which was made under section 3 of the Essential Commodities Act. The Order prohibited the dealer from selling at more than the fixed price. Once it was established by the prosecution that rice was sold at a price more than the fixed price, which has been done in this case, the rice must be taken to have been sold without lawful authority and the dealer is taken to have contravened the Order. The burden then shifts to the accused to show that he had authority to sell the rice at the price at which he had sold, though the price may be more than the price fixed. This he could do by saying that the rice which he has sold at a. higher rate was rice other than that produced in the State of Maharashtra. The accused could by leading evidence and producing his vouchers and account books establish that the rice in question was a rice which was not produced in the State of Maharashtra. The statute has cast this burden on the accused and it is for the accused to discharge this burden. No evidence has been led in this case on behalf of the accused to show that the rice which has been sold to the complainant Madhukar was a rice produced outside the State of Maharashtra. It must, therefore, be taken that the accused has contravened the provisions of clause 5 of the Maharashtra Indigenous Rice (Control on Prices) Order, 1964. It is true that in a criminal case, the burden is on the prosecution to establish the guilt of the accused; but certain special enactments may make a provision whereby, on certain facts being established the guilt of the accused is presumed and the burden is thrown on him to discharge that burden. That has been done by section 14 of the Essential Commodities Act, 1955. 11. It has then been contended on behalf of the applicant that in a criminal matter mens rea is an essential ingredient of a criminal offence and it must be shown that there was mens rea on the part of the accused-applicant. That has been done by section 14 of the Essential Commodities Act, 1955. 11. It has then been contended on behalf of the applicant that in a criminal matter mens rea is an essential ingredient of a criminal offence and it must be shown that there was mens rea on the part of the accused-applicant. A decision of the Supreme Court in Nathulal v. Slate of Madhya Pradesh,1 has been cited in which their Lordships have observed that mens rea is an essential ingredient of a criminal offence. It has also been observed therein that the statute may exclude the element of mens rea, but it is a sound rule of construction to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence." It is then further said: "mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object would otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an offence depends on the object of the Act and the provisions thereof." That was a case under the Madhya Pradesh Foodgrains Dealers Licensing Order, 1958 read with Essential Commodities Act, 1955. The Licensing Order required that a dealer in food grains could not do business without a licence. The accused had applied for a licence in the prescribed form under the said Licensing Order and had also deposited the required fee. He was purchasing foodgrains from time to time and was also sending returns showing grains purchased. The Food Inspector had checked his godown; but the dealer was not informed that his application for licence was rejected. When the dealer was prosecuted, he pleaded that he did not intentionally contravene the provisions of the Order and he believed that a licence would be issued to him. It was held in that case that the dealer did not intentionally contravene the provisions of section 7 of the Act and was, therefore, entitled to acquittal. When the dealer was prosecuted, he pleaded that he did not intentionally contravene the provisions of the Order and he believed that a licence would be issued to him. It was held in that case that the dealer did not intentionally contravene the provisions of section 7 of the Act and was, therefore, entitled to acquittal. The present case is quite different from the case decided by their Lordships of the Supreme Court. Clause 5 of the Order prohibits a retail dealer from selling any rice at a price in excess of the maximum retail price fixed and a contravention of the said order is made punishable under section 7 of the Essential Commodities Act. The provisions of clause 5 of the Order read with section 7 of the Essential Commodities Act clearly exclude mens rea, and the very act of selling at an excess price is made punishable. Apart from that, mens rea is clearly established in this case on the facts, either admitted or proved. If a variety of rice was saleable at a particular maximum rate and was sold at a rate more than the rate fixed certainly the intention was to make a profit in contravention of the provisions of the Order and the Act. There was thus a guilty intent to make an unlawful gain in uttar disobedience of the Order issued by the State Government. It can very well be said, therefore, that there was an element of mens rea in the act of the accused in selling the rice at a higher price. This contention, therefore, of the learned counsel for the applicant cannot be accepted. 12. The next contention that was raised was on facts. It was contended that the accused had already returned the two coins each of 10 nP and 2 nP to the complainant and the four Anna coin was in his hand and he was just returning it to the complainant when raid was effected and the amount remained in his hand. This contention has been negatived by the Courts below. If the accused was charging only one rupee and not Rs. 1-4 there is no reason why this four-anna piece could not have been returned at the time the other coins were returned to the complainant. This contention has been negatived by the Courts below. If the accused was charging only one rupee and not Rs. 1-4 there is no reason why this four-anna piece could not have been returned at the time the other coins were returned to the complainant. Further, there was no reason at all to accept the whole amount, and he could have taken only one-rupee note from the complainant without taking the coins. Apart from that, the one-rupee note was, admittedly, found in the cash-box of the accused and it is not the case of the accused that he was going to return something out of this one rupee note. Even taking the best case for the accused, it must be taken as held proved that the 1 kilo of rice was sold by the accused to the complainant at not less than one rupee which also was in excess of the price fixed. There is, therefore, no reason to interfere with the finding of the Courts below that the rice was sold at a price in excess of the maximum price• fixed, i.e. in excess of 81 nP, per kilo. In view of this finding, the conviction of the accused. applicant has to be maintained. 13. The learned trial Magistrate has sentenced the accused to pay a fine of Rs. 500 and has also forfeited the three bags of rice seized, to the Government. The accused is the brother of Hiralal, who normally deals in the shop, and the accused must be helping his brother off and on when he had leizure time. On the day on which he was apprehended, the college was closed and it is likely that, in the absence of his brother, he was dealing with the goods in the shop. Taking these facts into consideration, and also taking into consideration, the fact that the three bags of rice which have been seized have been ordered to be forfeited to the State, I find that the fine imposed is rather excessive. I, therefore, reduce the fine to Rs. 200 instead of Rs. 500, in default, of which, the applicant shall undergo rigorous imprisonment for a period of one month. With this modification, the revision petition is dismissed. The order regarding forfeiture of the three bags of rice is maintained. Application dismissed.