Hari Sam Gupta v. State Of U. P. — 1979 DIGILAW 137 (ALL)

JUDGMENT D. N. Jha, J. 1. THIS criminal revision has been preferred against the order dated May 31, 1977 passed by Sessions Judge, Gonda in Criminal Appeal No. 147 of 1976. Through that order the learned Judge upheld the order dated May 17, 1976 passed by the Collector, Gonda under Section 6-A of the Essential Commodities Act, 1955. The Collector had, through that order confiscated 111 quintals of Gur seized from the possession of the two revisionists by the Senior Marketing Inspector, Balrampur on August 4, 1975. 2. The undisputed facts of the case under revision are that the two revisionists Hari Ram Gupta and Balram Gupta are real brothers. They are sons of one Ram Milan. They reside in Mohalla Bhagwatiganj of the town of Balrampur in the district of Gonda. They and their father are undisputedly dealers in Gur. An order known as U. P. Sugar and Gur Dealers Licensing Order, 1962 was passed by the State Government under Section 3 of the Essential Commodities Act, 1955. Under Section 3 of this Order no person could carry on business as a Gur dealer except under and in accordance with the terms and conditions of a licence issued in that behalf by the Licensing Authority. It is also not disputed that the Licensing Authority contemplated by that order was the Collector of Gonda and the revisionists were carrying on business as Gur dealers within the jurisdiction of the Collector Gonda without obtaining a licence contemplated by the aforesaid provision of the Order of 1962. At about 4 p. m. on August 4, 1975 the Senior Marketing Inspector, Balrampur raided the premises of the revisionists and found 60 quintals of Gur stocked in their godown and 51 quintals stocked at their residence. The Inspector seized that 111 quintals of Gur and reported that seizure to the Collector, Gonda. A notice was issued by the Collector to revisionists' father Ram Milan to show cause why the seized Gur be not confiscated in favour of the Government. Ram Milan filed no objection but the two revisionists filed objections before the Collector wherein Hari Ram revisionist claimed himself to be the owner of the Gur recovered from the godown and Balram Gupta revisionist claimed himself to be the owner of the Gur recovered from the residence of the revisionists. Ram Milan filed no objection but the two revisionists filed objections before the Collector wherein Hari Ram revisionist claimed himself to be the owner of the Gur recovered from the godown and Balram Gupta revisionist claimed himself to be the owner of the Gur recovered from the residence of the revisionists. They, however, maintained that they did not know that they had to obtain any licence from the Collector. They further pleaded that they had obtained a licence for carrying on Gur business from the Mandi Samiti concerned. They thus maintained that they had ho mens rea in not obtaining a licence from the Collector. After giving the revisionists full opportunity of being heard the Collector ordered confiscation of the entire seized quantity of 111 quintals of Gur. We have been informed by the counsel for the parties that the confiscated Gur has already been auctioned and its sale proceeds are in deposit with the Collector of Gonda. 3. The appeal filed by the revisionist before the Sessions Judge against the aforesaid confiscation order passed by the Collector was dismissed. The revisionists then came to this Court with the present revision. It was earlier heard by brother Mahavir Singh, J. It was argued before him that mens rea was an essential condition of the contravention contemplated by Section 6-A of the Essential Commodities Act, 1955 and because there was no mens rea on the part of the revisionists in not obtaining a licence from the Collector, Gonda for carrying on Gur business, the order passed by the Collector confiscating the seized Gur was bad in law. The decision of Honourable Satish Chandra, J., of this Court (as he then was) in Kishori Lal Bihani v. Addl. Collector and District Magistrate, Kanpur, AIR 1969 Alld. 159 was cited before brother Mahavir Singh, J., wherein it was observed :- " The consideration of mens rea or bona fides of a dealer is relevant while passing an order of forfeiture of food- drains from him under Section 6-A. The view that the question of bona fides or mens rea of a dealer may have (bearing in criminal proceedings and may be considered there if any prosecution is launched against the dealer and that those considerations are out of place at the stage of the confiscation, is not correct. The contravention attracting the provisions of Section 6-A has the same legal incidence and consequences and has the same nature and character as the contravention made punishable by Section 7. The two provisions, i.e. Sections 6-A and 7 are in pari materia." 4. While making the above observations Satish Chandra, J., had placed reliance upon the decision of the Supreme Court in Nathu Lal v. State of Madhya Pradesh, AIR 1966 SC 43 . Honourable Mahavir Singh, J., was of the view that though mens rea was an ingredient of a criminal offence yet, it was not as such for confiscation proceedings-contemplated by Section 6-A of the Essential Commodities Act. He was further of the view that the opinion expressed by Satish Chandra, J., in Kishori Lal Bihani's case (supra) required reconsideration by a larger Bench. Upon the recommendation of Mahavir Singh, J. the Honourable Chief Justice has referred the entire revision case to us for disposal. 5. WE have already referred to the facts of the case and have observed that the revisionists were admittedly carrying on business of Gur dealers at the lime of occurrence. They had not obtained a licence from the Prescribed Authority as required by Section 3 of U. P. Sugar and Gur Dealers Licencing Order, 1962 and 111 quintals of Gur was recovered from their possession. The Senior Marketing Officer, who seized that Gur, reported the matter to the Collector under Section 6-A of the Essential Commodities Act, who after issuing the required notice and giving opportunity of being heard to the revisionists ordered confiscation of the seized Gur. The contention of the revisionists about having no knowledge of the requirement of obtaining a licence under Section 3 of U. P. Sugar and Gur Dealers Licensing Order, 1962 can obviously not be accepted because ignorance of law is no excuse for its contravention. The aforesaid Order of 1962 was duly promulgated through publication in the official Gazette. 6. In State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722 it has been laid down that publication in the official Gazette is the ordinary method of bringing a rule or subordinate legislation to the notice of the persons concerned. It was further laid down in that authority that absence of knowledge of a notification published in the Gazette is not a valid defence. It was further laid down in that authority that absence of knowledge of a notification published in the Gazette is not a valid defence. The plea of the revisioninst that they had no knowledge of the fact that they had to acquire a licence for carrying on Gur business from the Collector, Gonda in pursuance of Section 3 of the U. P. Sugar and Gur Dealers Licensing Order, 1962 is thus liable to be rejected. Coming to the question of mens rea, the scheme envisaged by Sections 6-A to 6-D and Section 7 of the Essential Commodities Act is that Section 6-A empowers the Collector to confiscate the essential commodity which may have been seized for contravening an order made under Sec. 3 in relation thereto, if he is satisfied that there has been contravention of the said order. Section 6-D lays down that this power is without prejudice to any other action, which may be taken under the other provisions of the Act. 7. Section 6-B prescribes a machinery for holding an inquiry in the matter by the Collector before he passes a final order of confiscation under Section 6-A of the Act. Section 6-C provides a right of appeal to any person affected by an order of confiscation passed under Section 6-A. 8. Section 7 of the Act makes the same contravention punishable through a prosecution which contravention empowers the Collector to pass confiscation order. Prior to the amendment of Section 7 in the year 1974 it was not absolutely obligatory on the Court, where prosecution was launched, to forfeit the property in respect of which the relevant order had been contravened. It was left to the discretion of the Court to direct forfeiture of the whole or part of the commodity brought before it in respect of which an offence appeared to have been committed. Since the amendment of 1974 the discretion of the Court in respect of seized goods is taken away and it is made obligatory upon the court to forfeit the property in respect of which an offence appears to have been committed under Section 7. The aforesaid provisions of the Essential Commodities Act recently came up for consideration before the Supreme Court in Thakur Das v. State of Madhya Pradesh, 1978 Cr.LJ. 1. The aforesaid provisions of the Essential Commodities Act recently came up for consideration before the Supreme Court in Thakur Das v. State of Madhya Pradesh, 1978 Cr.LJ. 1. After considering the aforesaid provisions their Lordships observed that:- That Act envisages two independent proceedings against a person charged with contravention or violation of an order made u/Sec. 3 in relation to an essential commodity. Under Section 6-A the Collector can confiscate the seized commodity. Under Section 7 such contravention is made punishable. Under Section 7 even where a prosecution is launched it is not absolutely obligatory upon the Court to forfeit the property in respect of which the relevant order has been contravened. It is left to the discretion of the Court to direct forfeiture of the whole or part of the commodity brought before the Court in respect of which an offence appears to have been committed........Since the amendment the discretion of the Court in respect of seized goods is taken away and it is made obligatory upon the court to forfeit the property in respect of which an offence appears to have been committed under Section 7. Therefore, either the Collector can order the confiscation and yet Section 6-D permits infliction of any punishment to which the person convicted thereby is liable under the Act irrespective of the fact that the Collector has ordered confiscation under Section 6-A. The dichotomy is that the Collector can proceed to seize the essential commodity and cancel the licence and forfeit the security deposit. A prosecution can be launched and the Court will have to deal with the question of punishment and forfeiture of the property in respect of which an offence appears to the competent authority to launch prosecution and the court would have to deal with the person who is charged with the offence but in such a situation the question of forfeiture of the property would not arise because the Collector has already confiscated the same." 9. Thus confiscation of property by the Collector and prosecution of the person concerned and his punishment by the competent court are the two consequences of one and the same contravention contemplated by Section 6-A of the Essential Commodities Act. Confiscation is deprivation of property rights of a person and is thus a penal action. Thus confiscation of property by the Collector and prosecution of the person concerned and his punishment by the competent court are the two consequences of one and the same contravention contemplated by Section 6-A of the Essential Commodities Act. Confiscation is deprivation of property rights of a person and is thus a penal action. In Thakur Das v. State of M. P. (supra) their Lordships of the Supreme Court characterised confiscation of seized essential commodity as a penalty. 10. The contravention contemplated by Section 6-A of the Act being an offence, the elements of mens rea would come into play, because a crime is not committed if the mind of the person doing the act in question is innocent. Their Lordships of the Supreme Court have laid down in State of Maharashtra v. Mayer Hans George (supra) that :- "Unless the Statute, either clearly or by necessary implication rules out mens rea as a constituent part of a crime an accused should not be found guilty of an offence against the criminal law unless he has got a guilty mind. Absolute liability is not to be lightly presumed but has to be clearly established." While considering a case under Section 7 of the Essential Commodities Act which was based upon the contravention contemplated by Section 6-A of the Act, their Lordships of the Supreme Court held in Nathu Lal v. State of Madhya Pradesh (supra) that mens rea was an essential ingredient of an offence under Section 7 of the Act, and an intentional contravention of an order made under Section 3 of the Act had to be established. There is thus no escape from the conclusion that mens rea is an essential ingredient of the contravention contemplated by Section 6-A of the Essential Commodities Act at least so far as the prosecution of the contravener under Section 2 of the Act was concerned., 11. It is a well settled rule of interpretation that a word occurring in the same Act is usually to be given the same meaning unless a different intention is expressed by the provisions of the Act. It is a well settled rule of interpretation that a word occurring in the same Act is usually to be given the same meaning unless a different intention is expressed by the provisions of the Act. If, therefore, the word 'contravention' occurring in Section 6-A of the Essential Commodities Act conveys the sense of intentional contravention for the purpose of the prosecution of the contravener under Section 7 of the Act, the same word, on a parity of reasoning, would carry the same meaning for the other penal action prescribed for the same contravention, namely, confiscation of property. A Division Bench of Patna High Court in M/s. Mewa Lal Kapildeo Prasad v. State of Bihar, 1978 Cr. L J. 873 held that :- "As such the word 'contravention' has to be interpreted in Section 6-A and Section 7 to mean that the provision of any order framed under Section 3 of the Act has been contravened intentionally. On the other hand, if it is found that the contravention was unintentional and the person concerned lead taken all reasonable care and was carrying on the business in bona fide manner, then even for Section 6-A it has to be interpreted that in the eye of law there has been no contravention so as to visit the dealer with the consequence of confiscating the articles which had been seized." While making the above observations their Lordships have relied upon the decision of Satish Chandra, J., in Kishori Lal Bihani v. Addl. Collector and District Magistrate, Kanpur (supra). 12. In State of Andhra Pradesh v. Bahhu Prakasa Rao, AIR 1976 SC 1845 , which was a case of contravention of the provisions of Southern States (Regulation of Export of Rice) Order, 1964 and wherein confiscation of seized goods was ordered by the Collector under Section 6-A of the Essential Commodities Act, question of mens rea or animus was taken into consideration by their Lordships of the Supreme Court. The relevant observations of their Lordships are as follows :- "Thus the learned Judges of the High Court have themselves expressed a view indicating that the Millers were quite conscious of the distinction which existed in accordance with the accepted practice, between what could be deemed to be 'whole rice' and what could be described as 'broken rice'. The relevant observations of their Lordships are as follows :- "Thus the learned Judges of the High Court have themselves expressed a view indicating that the Millers were quite conscious of the distinction which existed in accordance with the accepted practice, between what could be deemed to be 'whole rice' and what could be described as 'broken rice'. If they were labouring under some mistake of act and had no intention to commit an offence, which the character and circumstances of their acts suggested, the burden of proving this was certainly upon them." We are, therefore, of the opinion that the view expressed by Satish Chandra, J., in Kishori Lal Bihani v. Addl. Collector and District Magistrate Kanpur (supra) is good law and does not require any reconsideration. 13. Coming to the facts of the present case the revisionists have undisputedly contravened the provisions of Section 3 of the Order of 1962 which was promulgated under Section 3 of the Essential Commodities Act by dealing in Gur without obtaining a licence thereof from the Prescribed Authority. Where a statute forbids an act the doing of that act itself supplies mens rea. In such cases the prosecution need only prove commission of the prohibited act by the person concerned and it is for him to bring himself within a statutory defence. The defence of ignorance of law taken by the revisionists is prima facie untenable. The Collector Gonda performed all the requisite formalities of issuing notice and giving opportunity of being heard to the revisionists before passing the impugned order of confiscating the seized Gur. That order does not suffer from any illegality or impropriety. The learned Sessions Judge was perfectly justified in maintaining that order. 14. We, therefore, find no force in this revision and dismiss it. We would, however, like to make it clear that the disposal of the sale proceeds of the seized quantity of Gur, which has already been auctioned, shall be subject to the result of the prosecution of revisionists which is pending under Section 7, Essential Commodities Act. If they are ultimately acquitted in that case with a finding that they were not guilty of any contravention as contemplated by Section 6-A of the Act, the sale proceeds shall be paid to the revisionists as laid down by Section 6-A (3) (c) of Essential Commodities Act otherwise the same shall go to State Government. If they are ultimately acquitted in that case with a finding that they were not guilty of any contravention as contemplated by Section 6-A of the Act, the sale proceeds shall be paid to the revisionists as laid down by Section 6-A (3) (c) of Essential Commodities Act otherwise the same shall go to State Government. Revision dismissed.