SWASTIK OIL INDUSTRIES v. STATE — 1977 DIGILAW 85 (GUJ)

A. M. AHMADI, J. ( 1 ) THIS is a petition under Art. 227 of the Constitution of India by a partnership firm trading in the name and style of Swastik Oil Industries which held a licence under the Gujarat Groundnut Dealers Licensing Order 1966 to carry on business in groundnut oil. The pre- mises of the firm were inspected on 10th July 1976 by the District Supply Officer Kaira and 397 tins of ground-nut oil were seized and internecine thereof was given to the Collector of Kaira immediately. Thereafter a show cause notice was issued calling upon the petitioner firm to show cause why these tins of ground-nut oil should not be confiscated to the State. In the show cause notice 9 grounds were set out for confiscation of the ground-nut oil tins to which the petitioner sent replies on 16th September 1976 and 17th September 1976 The petitioner was then given an opportunity of personal hearing on 4th October 1976 and upon a consideration of the material placed before him the Collector of Kaira came to the conclusion that the explanations furnished by the petitioner ground-wise could not be accepted. He came to the conclusion that the petitioner firm had committed grave irregularities and breaches of the conditions of the licence as well as the provisions of the Order under which the licence was issued and therefore he directed the confiscation of 100 tins out of the total number of 397 tins seized on 10th July 1976 Against this order passed by the Collector of Kaira the petitioner-firm filed an Appeal No. 144/76 in the court of Sessions Judge Kaira at Nadiad. That appeal was heard by the learned Additional Sessions Judge Kaira at Nadiad on 15th December 1976 The learned Additional Sessions Judge came to the conclusion that except for ground No. 2 set out in the show cause notice the petitioner- firm had not been guilty of any breach in respect of the remaining grounds. He came to the conclusion that cl. (11) of the Licensing Order had been contravened but such contravention was not deliberate as it arose out of a mere bona fide misconception regarding the true content of cl. (11) of the said Licensing Order. He came to the conclusion that cl. (11) of the Licensing Order had been contravened but such contravention was not deliberate as it arose out of a mere bona fide misconception regarding the true content of cl. (11) of the said Licensing Order. He took into consideration the fact that in the past also the business premises of the petitioner-firm had been inspected from time to time and even though no separate register of transactions in ground-nut oil with bulk consumers showing therein the names addresses and such other particulars as the Licensing Order may specify was maintained no note thereof was taken and the petitioner-firm was not directed on those occasions to maintain such a register. The learned Additional Sessions Judge expressed himself on this point as under:it is pertinent to note that the business carried on by the appellant was inspected from time to time in the past by the authorities concerned. At that time the appellant was not told about the imperative need to maintain separate registers as required by cl. 11. It appears that the appellant was belabouring under a bona fide impression that as it has maintained a stock register and as such and every transaction entered into by it has been supported by separate bills showing therein the names address etc. it has not to maintain any separate list. It appears that this erroneous but bona fide belief became strong in view of the fact that it was never told at the time of inspections which were made in the past before 10-7-76 that it has committed a breach by not maintaining the registers as required by cl. 11. It is therefore not possible to attribute any criminal intention to the appellant so far as this particular breach is concerned. THE learned Additional Sessions Judge therefore came to the conclusion that clause 11 of the Licensing Order was contravened but such contravention was merely a technical bona fide contravention and not a contravention wilfully and deliberately made with a view to earning profit. Taking cue from the case of M. Sannappa v. State of Mysore 1970 Cri. Law Journal 929 the learned Additional Sessions Judge came to the conclusion that in the circumstances the order confiscating 100 tins of ground-nut oil was clearly harsh and the ends of justice would be met if 25 tins were confiscated. Taking cue from the case of M. Sannappa v. State of Mysore 1970 Cri. Law Journal 929 the learned Additional Sessions Judge came to the conclusion that in the circumstances the order confiscating 100 tins of ground-nut oil was clearly harsh and the ends of justice would be met if 25 tins were confiscated. It is this order made by the learned Additional Sessions Judge in appeal which is sought to be assailed in this petition under Art. 227 of the Constitution. ( 2 ) ENCOURAGED by this definite finding recorded by the learned Additional Sessions Judge the learned Advocate for the petitioner argued that whenever a statute creates an offence the element of mens rea must be read in the statute unless a contrary intention is expressed or implied. According to him as a general rule every crime requires a mental element and unless the language of the statute in unmistakable language either ex- pressly or by necessary implication excludes it proof of the existence of such mental element is a sine-qua-non to a conviction. In support he relies on the decision of the Supreme Court in Nathulal v. State of Madhya Pradesh A. I. R. 1966 S. C. 43 a case in which while interpreting sec. 7 of the Essential Commodities Act 1955 hereinafter called the Act the Supreme Court held that considering the scope of the Act it would be legitimate to hold that an offence under sec. 7 of the Act is committed by a person if he intentionally contravenes any order made under sec. 3 of the Act. In other words the Supreme Court in terms read mens rea as an essential ingredient of the criminal offence referred to in sec. 7 of the Act. Seek- ing support from this pronouncement of the Supreme Court it was submitted on behalf of the petitioner that both sec. 6a and 7 of the Act cover the same field inasmuch as both the aforesaid provisions speak of contravention of an order made under sec. 3 of the Act with the difference in punishment only in that the former speaks of confiscation of the essential commodity while the latter provides for imprisonment and fine. 6a and 7 of the Act cover the same field inasmuch as both the aforesaid provisions speak of contravention of an order made under sec. 3 of the Act with the difference in punishment only in that the former speaks of confiscation of the essential commodity while the latter provides for imprisonment and fine. The submission therefore is that since both the provisions are in pari materia if according to the view of the Supreme Court the element of a guilty mind is required in case of an offence under sec. 7 of the Act the same requirement must he read in sec. 6a of the Act also. Ex facie the argument appears to be weighty but it does not stand close scrutiny as it totally overlooks the legislative changes intro- duced after the Supreme Court decision in Nathulals case (supra ). ( 3 ) THE material part of sec. 7 of the Act initially provided that it shall be an offence if any person contravenes any order made under sec. 3 of the Act. However soon after the decision of the Supreme Court in the above-mentioned case with a view to making the provisions more stringent and their implementation effective and in order to prevent persons committing offences under the Act from escaping punishment on the plea that the offences were not committed deliberately sub-sec. (1) of sec. 7 was amended by Ordinance 6 of 1967 with effect from September 16 1967 which was later replaced by Act 36 of 1967 whereby the words whether knowingly intentionally or otherwise were added between the word ;contravenes and the words and figure any order made under sec. 3. The plain reading of the section after its amendment made it clear that by the amendment the legislature intended to impose strict liability for contravention of any order made under sec. 3 of the Act. In other words by the use of express words the element of mens rea as an essential condition of the offence was excluded so that every contravention whether intentional or otherwise was made an offence under sec. 7 of the Act. Thus by introducing these words in sec. 7 by the aforesaid statutory amendment the legislature made its intention explicit and nullified the effect of the Supreme Court dicta in Nathulals case. 7 of the Act. Thus by introducing these words in sec. 7 by the aforesaid statutory amendment the legislature made its intention explicit and nullified the effect of the Supreme Court dicta in Nathulals case. But again in the year 1974 pursuant to the recommend- ation of the Law Commission in their 47th Report and the experience gained in the working of the Act by an ordinance sec. 7 of the Act was amended whereby the words whether knowingly intentionally or others wise which were introduced by Amending Act 36 of 1967 were deleted and the material part of sec. 7 (1) restored to its original frame and a new provision in sec. 10 of the Act was added which reads as under:10 In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused the court shall presume the exi- stence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. EXPLANATION: In this section culpable mental state includes intention motive knowledge of a fact and the belief in or reason to believe a fact. (2) For the purposes of this section a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. THIS Ordinance was replaced by Amending Act 30 of 1974. The effect of this subsequent change in the statute is that a presumption of guilty mind on the part of the accused in respect of offences under the Act including sec. 7 would arise and it would be open to the accused to rebut the same. As the law now stands in any prosecution under the Act which requires a culpable mental state on the part of the accused the same must be presumed unless the accused proves that he had no such mental state with respect to the offence for which he is tried. Now according to the explanation to sec. 10c culpable mental state includes intention motive knowledge of a fact and belief in or reason to believe a fact. The degree of proof expected to rebut the presumption has been indicated by sub-sec. Now according to the explanation to sec. 10c culpable mental state includes intention motive knowledge of a fact and belief in or reason to believe a fact. The degree of proof expected to rebut the presumption has been indicated by sub-sec. (2) thereof which says that a fact will be said to be proved only if it exists beyond reasonable doubt and it will not be sufficient to prove its existence by preponderance of probability. Thus the burden of proof lies heavily on the accused to rebut the statutory presumption and the degree of proof expected is that required for the proof of a fact by the prosecution. There can therefore be no doubt that the aforesaid legislative changes have reversed the thrust of the decision of the Supreme Court in Nathulals case (supra) and the same no longer holds the field ( 4 ) MR. Ravani the learned advocate for the petitioner however contended that even though in view of the above discussed statutory changes mens rea may no longer be required to be proved by the prosecution in an offence under sec. 7 of the Act the need to establish a guilty mind under sec. 6a of the Act subsists as that provision has not been basic. ally altered in content and operates in the same field in which sec. 7 operated before its amendment. Mr. Ravani therefore argued that the decision of the Supreme Court in Nathulals case is still valid for determining the score of sec. 6a of the Act. This contention is as I will presently show clearly misconceived. At the outset it must be remembered that sec. 6a creates a quasi-criminal liability unlike sec. 7 which creates a truely criminal liability. Obviously therefore the degree of proof required to bring home the guilt against the accused under sec. 7 should be greater than the degree of proof required under sec. 6a of the Act. This would not be so if mens rea is read in sec. 6a of the Act. If the newly added sec. 10c of the Act has no bearing on the content of sec. 6a and it is not submitted that the said provision would be attracted to an enquiry under sec. 6a there can be no doubt that if mens rea is read as an essential ingredient of sec. 6a of the Act. If the newly added sec. 10c of the Act has no bearing on the content of sec. 6a and it is not submitted that the said provision would be attracted to an enquiry under sec. 6a there can be no doubt that if mens rea is read as an essential ingredient of sec. 6a the degree of proof required for a comparatively lesser offence would be greater than the degree of proof required in a case where the liberty of an individual is at stake. Such an intention cannot be attributed to the legislature for obvious reasons. It would therefore appear that the legislature advisedly did not amend sec. 6a of the Act as the desired result was achieved by amending sec. 7 in the first place and later adding sec. 10c to the Act. The above discussion clearly leads me to think that the impact of the amendment of sec. 7 on sec. 6a is that by necessary implication it becomes clear that the legislature did not intend that mens rea should be read as an element of sec. 6a of the Act. ( 5 ) IT is not unusual for the legislature to impose strict liability in relation to offences which are not truely criminal. In determining whether or not such liability is intended by the legislature regard shall be had to the language of the statute the nature of the mischief sought to be curbed the character of the offence and protection of public interest. The offence under sec. 6a is clearly a quasi-criminal one. There is nothing in the language of the relevant part of sec. 6a of the Act to indicate that the legislature intended that mens rea should be read as an essential ingredient of that offence. On the contrary as pointed out earlier the subsequent changes made in the statute clearly indicate that the legislature did not intend that mens rea should be read in sec. 6a of the Act. 6a of the Act to indicate that the legislature intended that mens rea should be read as an essential ingredient of that offence. On the contrary as pointed out earlier the subsequent changes made in the statute clearly indicate that the legislature did not intend that mens rea should be read in sec. 6a of the Act. In truely criminal cases the mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil may not be decisive but the same consideration may not apply in a quasi criminal offence and it may be inferred provided other circum- stances do not point otherwise that the legislature intended to create strict liability so that the purpose of the Act is not frustrated. The Act was enacted in the interest of the general public for the control of the production supply and distribution of essential commodities. The object of the Act is to ensure production and equivitable distribution of essential commodities in larger public interest. With that end in view sec. 3 empowers the Central Government to provide (by order) for regulating or prohibiting the production supply and distribution of essential commodities whenever it considers the same necessary or expedient for maintaining or increasing supplies of any essential commodity or for securing not only equitable distribution but also availability of such commodity at fair prices. It is to achieve this objective that sec. 6a provides for confiscation of the essential commodity if the Collector is satisfied of contravention of the order made under sec. 3 of the Act. The legislature has advisedly left a wide discretion in the Collector in the matter of ordering confiscation and in fit cases he may make a nominal confiscation order. Thus having regard to the ultimate objective of the Act and the legislative intent made clear by the subsequent amendments in sec. 7 of the Act it is dispute to hold that mens rea is an essential element of the offence under sec. 6a of the Act which is only a quasi-criminal offence. As discussed earlier the legislature cannot be attributed with the intention of providing a higher degree of proof in a quasi-criminal offence as com- pared to the degree of proof expected from the prosecution in a purely criminal offence under sec. 7 of the Act. Hence the order cannot be assailed on this ground. As discussed earlier the legislature cannot be attributed with the intention of providing a higher degree of proof in a quasi-criminal offence as com- pared to the degree of proof expected from the prosecution in a purely criminal offence under sec. 7 of the Act. Hence the order cannot be assailed on this ground. ( 6 ) IT is not in dispute that the petitioner-firm contravened the requirement of clause 11 of the licensing order. Even the learned Additional Sessions Judge has come to the conclusion that there has been a technical contravention and hence the Collector was entitled to order confiscation of the oil seized under sec. 6a of the Act. Against the order passed by the Collector confiscating 100 oil tins the petitioner firm preferred an appeal by virtue of sec. 6c of the Act and the learned Addi- tional Sessions Judge who heard the appeal came to the conclusion that as the breach was merely technical the confiscation order was harsh and required to be modified. He also came to the conclusion relying on the judgment of the Mysore High Court (supra) that the ends of justice would be met if the order of the Collector is modified in that instead of the confiscation of 100 oil tins confiscation of 25 oil tins be ordered. The question then is whether this court would be entitled to interfere with the exercise of discretionary power of the learned Additional Sessions Judge in this petition under Art. 227 of the Constitution. The law in this regard is well settled and has been reiterated in Trimbak Gangadhar Talang and Another v. Ramchandra Ganesh Bhide and Ors. A. I. R. 1977 S. C. 1222 The Supreme Court has observed in para 3 of the judgment in this petition as under:it is a well-settled rule of practice of this court not to interfere with the exercise of discretionary power under Article 226 and 227 of the Constitution merely because two views are possible on the facts of a case. It is also well established that it is only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept or where the order passed results in manifest injustice that a court can justifiably intervene under Art. 227 of the Constitution. These observations clearly apply to the facts of the present case and I am of the opinion that this court would not be justified in interfering with the discretionary order passed by the learned Additional Sessions Judge Nadiad. However even if I were inclined to interfere I do not think that the order passed by the learned Additional Sessions Judge Kaira confiscating 25 ground-nut oil tins is harsh or disproportionate to the contravention. Therefore even on merits I would have been disinclined to interfere with that order. ( 7 ) NO other submission was made before me. In view of the above discussion this petition fails and is dismissed. Rule discharged. .