JUDGMENT P. Govindan Nair, J. 1. The question is whether the petitioner is guilty of the offence under clause (d) of section 10 of the Central Salestax Act, 1956, for short the Act, and this question has been referred to a Division Bench by a single Judge of this Court because it involves some important issues. The relevant part of section 10 is in these terms: "10. Penalties. If any person (a) * * * (b) * * * (c) * * * (d) after purchasing any goods for any of the purposes specified In clause (b) of sub-section (3) of section 8 fails, without reasonable excuse, to make use of the goods for any such purpose; (e) * * * (f) * * * he shall be punishable with simple imprisonment which may extend to six months, or with fine, or with both; and when the offence is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues." 2. Section 10-A of the Act enables the imposition of penalty in lieu of prosecution in the case of an offence under any of the clauses (b) or (c) of section 10, and the section provides that the authority who granted to the offender the certificate of registration under the Act may impose by way of penalty a sum not exceeding one-and-a-half times the tax which would have been levied under the Act, in respect of the sale to him of the goods, if the offence had not been committed. 3. The petitioner is a registered dealer. The goods purchased were motor vehicles and they were purchased for the purpose of resale, one of the purposes mentioned in section 8 (3) (b) of the Act. The years with which we are concerned in this case are 1960-61 and 1962-63 to 1965-66. The amounts of the turnover of the vehicles purchased for resale, and which according to the department had not been resold for the five years, are respectively Rs. 10,900, Rs. 16,096.40, Rs. 1,06,474.27, Rs. 9,072.20 and Rs. 53,027.98. By order Ext. P-5, dated 18th April 1969, the Salestax Officer, Special Circle, Trivandrum, the respondent, imposed a total penalty of Rs. 2,835 for the years 1960-61 and 1962-63, and a total of Rs. 25,285 by way of penalty for the years 1963-64 to 1965-66. 10,900, Rs. 16,096.40, Rs. 1,06,474.27, Rs. 9,072.20 and Rs. 53,027.98. By order Ext. P-5, dated 18th April 1969, the Salestax Officer, Special Circle, Trivandrum, the respondent, imposed a total penalty of Rs. 2,835 for the years 1960-61 and 1962-63, and a total of Rs. 25,285 by way of penalty for the years 1963-64 to 1965-66. It is not disputed before us that this is the maximum penalty that could have been imposed under section 10-A of the Act. This has been done on the basis that the petitioner had purchased the goods for one of the purposes, namely, resale, specified in clause (b) of sub-section (3) of section 8 of the Act, and had failed to make use of the goods for such purpose, and further that such failure was without reasonable excuse. 4. The arguments before us turned on very many aspects; whether mens rea is a necessary ingredient of the offence defined in section 10 (d) of the Act; whether 'without reasonable excuse' is a necessary ingredient of the offence under that sub-section; and whether the burden of establishing reasonable excuse is on the assessee, or that the authority empowered to act under section 10-A of the Act should prove lack of reasonableness. Apart from these, the question as to whether there was reasonable excuse for the failure to make use of the goods for the purpose for which they were purchased necessarily also arose. 5. We shall at the outset deal with the question as to whether mens rea is a necessary element of the offence under section 10 (d) of the Act. It is unnecessary to refer to many decisions on this aspect, for, we think the matter is concluded by the pronouncement of the Supreme Court. We shall refer to only one decision of the Supreme Court, the one in Nathulal v. State of Madhya Pradesh A.I.R 1966 S.C.43 and shall extract paragraph 4 of the judgment: "The law on the subject is fairly well settled. It has come under judicial scrutiny of this court on many occasions. It does not call for a detailed discussion. It is enough to restate the principles. Mens rea is an essential ingredient of a criminal offence. It has come under judicial scrutiny of this court on many occasions. It does not call for a detailed discussion. It is enough to restate the principles. Mens rea is an essential ingredient of a criminal offence. Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India 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. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute 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: See Srinivas Mail v. King Emperor (I.L.R. 26 Pat. 460: A.I.R. 1947 P.C. 135), Hariprasada Rao v. State (1951 S.C.R. 322: A.I.R. 1951 S.C. 204) and Sarjoo Prasad v. State of Uttar Pradesh [(1963) 3 S.C.R. 324: A.I.R. 1961 S.C. 631]. Most of the relevant English decisions on the subject were referred to in the judgment of this court in State of Maharashtra v. Mayer Hans George, (Crl. Appeal No. 218 of 1963, dated 24th August 1964: A.I.R. 1965 S.C. 722). How to disprove mens rea has been succinctly stated in Halsbury's Laws of England, 3rd Edition, Vol.10,at page 283, thus: 'When the existence of a particular intent or state of mind is a necessary ingredient of the offence, and prima facie proof of the existence of the intent or state of mind has been given by the prosecution, the defendant may excuse himself by disproving the existence in him of any guilty intent or state of mind, for example, by showing that he was justified in doing the Act with which he is charged, or that he had an honest belief in the existence of facts which, if they had really existed, would have made the Act an innocent one. The existence of reasonable grounds for a belief is evidence of the honesty of that belief" 6. It is thus clear that mens rea is an essential ingredient of a criminal offence. It is also clear that the nature of the mens rea that would be implied in a statute creating an offence depends on the subject of the Act and the provisions thereof. A question can then arise what is the "minimal mens rea" an expression used by Raman Nayar, J., that should be established in cases where the statute does not mention any positive element of mens rea. 7. Justice Raman Nayar, if we may say so with respect, has analysed the concept of mens rea and has answered the question in clear and simple terms in paragraph 10 of the judgment in T. Narayanan Nambiar v. E. M. Sankaran Namboodiripad 1968 K.L.T. 299. After referring to the definition of contempt of court by Lord Russel, Chief Justice, in Reg. v. Gray (1900) 2 Q.B.36 and of the definition of contempt by Oswald at page 6 of the third edition of his book on the subject of the contempt of court, the learned Judge observed: "Neither definition it will be noticed postulates any mens rea, any mental element such as intention, or knowledge, or even reason to believe, to accompany the act the word 'calculated' is used in Lord Russel's definition in the same sense as 'tend', in other words, as apt to have the result mentioned and not in the sense of there being a deliberate intention or design to achieve the result and it is generally said that the offence of contempt of court is one of absolute liability, the offence lying in the evil tendency of the act irrespective of whether or not there is subjective guilt. Regina v. Odhama Press Ltd. [(1957) 1 Q B. 73] is clear authority for this statement. But, it seems to me that, so far as the law in this country is concerned, there can be no such thing as absolute liability in a criminal offence unless that is expressly or by necessary implication, provided for by statute. Our Constitution and our laws have adopted in principle the doctrine of nulla poena sine lege, and all our criminal offences, with, so far as I know, the only exception of the offence of contempt of court, are statutorily defined. Our Constitution and our laws have adopted in principle the doctrine of nulla poena sine lege, and all our criminal offences, with, so far as I know, the only exception of the offence of contempt of court, are statutorily defined. If any positive element of mens rea such as intention, knowledge, reason to believe, or negligence, is a necessary ingredient of the offence, that is stated in the definition. But, that no positive element of mens rea is mentioned in the definition does not mean that the liability is really absolute, for, what I might call the minimal mens rea implied by the absence of the negations of mens rea embodied in Chapter IV of the Indian Penal Code, namely, the general exceptions must still be there unless the statute creating the offence otherwise provides. Only, by reason of section 105 of the Indian Evidence Act, the burden of proving the want of this minimal mens rea would be on the defence." 8. If section 10 (d) of the Act is read by omitting the words "without reasonable excuse", the question will arise whether a guilty mind must be established or postulated before an assessee can be said to have committed the offence under section 10 (b), and if such a question arose, we would answer it in the light of what the Supreme Court has said and what this court has said, which we have extracted above, by saying that mens rea is a necessary element of the offence. In such cases, it is possible for the assessee to establish that he honestly believed that the act was not an offence and therefore he did not have the necessary mental element which is essential for the offence being made an offence. Such an honest belief must be on reasonable grounds. We consider that the introduction of the words "without reasonable excuse" widens the range of defence available to an assessee and also clearly implies that a guilty mind must be established and not excluded. [Mens rea is essential for making out an offence under section 10 (d) of the Act]. Such an honest belief must be on reasonable grounds. We consider that the introduction of the words "without reasonable excuse" widens the range of defence available to an assessee and also clearly implies that a guilty mind must be established and not excluded. [Mens rea is essential for making out an offence under section 10 (d) of the Act]. With great respect we are unable to agree with the observations of Isaac, J. in (1971) Tax L.R. 1241 and with the observations of the Mysore High Court in the State of Mysore v. S. S. Umandi (1969) 24 S.T.C.11 that mens rea is not one of the ingredients of the offence under section 10 (d) of the Act. Nor are we able to accept the view taken by Isaac, J. that without reasonable excuse is not one of the ingredients of the section. Any assessee who has to be charged for an offence under section 10 (d) must be told not only that he had purchased goods for the purpose mentioned in section 8 (3) (b) and failed to make use of the goods for that purpose but also that he did so without reasonable excuse. If a charge has to be framed, the charge must also contain a statement that he did so without reasonable excuse. Without such a statement the charge is liable to be thrown out. 9. On whom then is the burden of establishing reasonable excuse. We think there can be no doubt that it must be for the assessee to establish that there has been " reasonable excuse ". The words " without reasonable excuse " in section 10 (d), though forming an ingredient of the offence, just as any of the general exceptions under Chapter IV of the Indian Penal Code form part of the offences defined under that Code, provide an exception, and, as in the case of the general exceptions under the Penal Code, will have to be pleaded and proved by the person charged. The framers of the Act could have defined the offence omitting the words "without reasonable excuse " from the definition, and by a different section, could have provided that, if the failure was " without reasonable excuse", the omission will not be an offence under section 10 (d). The method adopted is only a variation in drafting. The framers of the Act could have defined the offence omitting the words "without reasonable excuse " from the definition, and by a different section, could have provided that, if the failure was " without reasonable excuse", the omission will not be an offence under section 10 (d). The method adopted is only a variation in drafting. When we say that "without reasonable excuse " is an ingredient of the offence, we mean that it is an ingredient of the offence in the sense in which general exceptions under the Indian Penal Code are ingredients of offences defined under that Code in view of the provision in section 6 of the Indian Penal Code. 10. The last question that we have to deal with is whether there was reasonable excuse for the failure to make use of the goods for which they were admittedly purchased. 11. The order Ext. P-5 has negatived, and we think satisfactorily, the contention that there was reasonable excuse for the failure to make use of the goods which were purchased for resale. The assessee's case specifically stated in the explanations, Exts. P-2 and P-4, to the notices, Exts. P-1 and P-3, and repeated before us in the affidavit in support of the petition, seems to be that goods purchased for resale need not be sold in the year of purchase. The contention seems to indicate that there is no time limit within which the goods should be sold. It goes further and states that the goods can be utilised for the assessee's own purpose. The Salestax Officer has ventured to indicate what will be ' reasonable excuse '. He said that if a vehicle purchased for resale was found to be defective and could not be sold to a customer, the dealer may appropriate it for his own use. He has also said that if a vehicle was purchased for sale and if it was found difficult to dispose of the vehicle, the vehicle may be taken for the assessee's own use. Both types of excuses are said to arise out of compulsion, and business expediency. These may or may not be ' reasonable excuses'. We wish to express no opinion. No such excuses have been put forward before us. Both types of excuses are said to arise out of compulsion, and business expediency. These may or may not be ' reasonable excuses'. We wish to express no opinion. No such excuses have been put forward before us. The excuse is based on the supposed existence of a right to use the vehicles purchased for resale for the purpose of the business of the assessee. The only other thing stated was that there was good faith and this was sought to be spelt out by comparing the fairly large amount of tax the dealer had paid with the turnover of the sale of vehicles that had been used for the purpose of the business of the assessee. From the mere fact that only a small number of vehicles had been used for his own purpose, it cannot be postulated that there was reasonable excuse for the use of these vehicles. We agree with the Salestax Officer that ' reasonable excuse ' had not been made out. 12. Counsel raised one other point based on the fact that the maximum penalty imposable had been imposed for the years 1960-61 and 1962-63 and for the years 1963-64 to 1965-66. The only reason stated for the imposition of the maximum penalty is that the assessee continued to make use of the vehicle even after the notice Ext. P-1, dated 2nd January 1965. This cannot be a valid ground, because, if at all, the notice can apply substantially only to the last of the year 1965-66. The submission of counsel for the assessee was that there has been no application of the mind of the authority before the imposition of the necessary penalty. We think that the contention is well founded. Isaac, J., in O. Paramasivan v. The State of Kerala and another 1971 Tax L.R.1241 referred to a similar order and observed thus: " A reading of the impugned orders would show that the Salestax Officer acted mechanically on a misconception that he was bound to impose the maximum penalty under section 10 A in every case, and that he has no discretion in that matter. The quantum of punishment is a thing to be determined in exercise of the judicial discretion vested in the authority under the above section. The quantum of punishment is a thing to be determined in exercise of the judicial discretion vested in the authority under the above section. It follows that the Salestax Officer has acted in violation of the law in imposing the maximum penalty on the petitioner; and on this short ground, I quash the impugned orders Exts. P-4 and P-4 (a). The Salestax Officer will be at liberty to impose on the petitioner such penalty as he considers just and proper, on the facts and circumstances of the case, after giving the petitioner an opportunity to be heard on this limited matter. " 13 .We set aside the quantum of penalty imposed on the petitioner by Ext. P-5 order and direct that a fresh order be passed in this respect after considering the question as to what amount of penalty should be imposed for each of the years 1960-61, and 1962-63, 1963-64, and 1964-65 on the one hand, and for the year 1965-66 on the other. It is not essential, or even necessary, that in all cases when an offence under section 10 (d) had been made out the maximum penalty should be imposed. In considering the quantum of penalty, the insignificant part of the turnover involved in the offence and the fact that the vehicles had been used for the business of the assessee through a misconception are also relevant considerations. 14. This petition is ordered on the above terms. There will be no order as to costs.