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2004 DIGILAW 119 (GAU)

Ramgopal Lohia v. State of Assam

2004-02-19

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. This is an application Under Section 482 Cr.P.C. for quashing of the complaint in the case No. E. C. Act 1 (T) 1996 pending in the Court of Sessions Judge, Tinsukia. 2. Heard Smt. Millie Hazarika learned counsel for the petitioners and the learned Public Prosecutor. 3. B.K. Doley, Superintendent of Police, Bureau of Investigation (E.O.) forwarded an offence report submitted by the Inspector, Food & Civil Supplies, wherein it was alleged inter alia, that the petitioner accused persons were carrying on the business of sale of lubricating oil Grease without obtaining licence as required under the provisions of Clause-3 of the Lubricating Oil and Grease (P.S.D.R.) Order, 1987 and on inspection large stock of lubricating oil and Grease were found in their premises and seized. The case was registered as E.G. Act 1(T) 1996 and the learned Sessions Judge took cognizance of offence punishable under Section 7(1) of Essential Commodities Act and issued process. 4. Quashing of the complaint has been sought on the ground that after the coming into force of the order 1987, the petitioners submitted an application in the year 1988 but no licence was issued. The case of the petitioner is that once they have applied for the licence, their responsibility is over and for alleged non-issuance of licence to the petitioners, they cannot be held guilty. In this case the seizure of 4270.25 ltrs of lubricating oil etc. and 989 kg of Grease is not in dispute. 5. Miss Hazarika has, however, submitted that there is no mens rea and as such no offence is made out. The learned counsel for the petitioner has relied on a decision of this Court in the case of State of Assam v. Monglunia & Co. reported in (1991) 1 GLR 444. In the above case, this Court had relied on an earlier decision of the Apex Court in the case of Nathulal v. State of Madhya Pradesh reported in. The Apex Court held : "An offence under Section 7 of the Essential Commodities Act, 10 of 1955, for breach of Section 3 of the Madhya Pradesh Foodgrains Dealers Licensing Order, 1958, necessarily involves a guilty mind as an ingredient of the offence. The Apex Court held : "An offence under Section 7 of the Essential Commodities Act, 10 of 1955, for breach of Section 3 of the Madhya Pradesh Foodgrains Dealers Licensing Order, 1958, necessarily involves a guilty mind as an ingredient of the offence. Considering the scope of the Act, it would be legitimate to hold that an offence under Section 7 of the Act is committed by a person if he intentionally contravenes any order made under Section 3 of the Act. The object of the Act will be best served and innocent persons will also be protected from harassment, if Section 7 is so construed." 6. In a later decision in the case of State of Madhya Pradesh v. Narayan Singh and Ors., reported in AIR 1989 SC 1789 the Apex Court examined the matter afresh in view of the amended provisions of Section 10(c) of Essential Commodities Act and held that the decision in Nathulal's case no longer holds the field. Although in Monglunia (supra), the case of Nathulal was referred before this Court the decision in Narayan Singh (supra) was not brought to the notice of this Court and even the provisions of 10(c) of Act were not referred to. We may recapitulate the observations of the Apex Court in Narain Singh (supra), which reads follows: "Para-9 ......But again in the year 1974, pursuant to the recommendations of the Law Commission in their 47th Report and the experience gained in the working of the Act, by an Ordinance, Section 7 of the Act was amended whereby the words "whether knowingly, intentionally or otherwise" which were introduced by Amending Act 36 of 1967 were deleted and the material part of Section 7(1) restored to its original frame and a new provisions in Section 10 of the Act was added which reads as under :- "10.C(1) 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 existence 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. 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 Section 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 Section 10(c) 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-section (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 that is required for the proof of a fact by the prosecution. There can therefore be no doubt that the aforesaid legislative change have reversed the thrust of the decision of the Supreme Court in Nathu Lal's case (supra) and the same no longer holds the field." 6. In view of the above, we find that no case for quashing of the complaint at this stage, is made out. The petitioners however will be at liberty to rebut the presumption Under Section 10(c) of the Act. 7. Revision petition stands dismissed. Send down the records. The petitioners are directed to appear before the Special/Sessions Judge, Tinsukia on 22.3.2004. Send down the Records. Petition dismissed