P. S. NARAYANA, J. ( 1 ) THE Criminal Appeal No. 607 of 1997 is filed by A-1 and A-2 and Criminal Appeal no. 597 of 1997 is filed by A-3, as against the judgment in STC No. 1 of 1996, dated 09-06-1997, on the file of Sessions Judge, prakasam Division, Ongole. ( 2 ) THE Assistant Director of Agriculture (Regular), Parchur filed complaint against three accused under Sections 7 and 8 of the essential Commodities Act, 1955, (hereinafter referred to as act for short, for the purpose of convenience) for the contravention of clause 19 (1) (a) (c) (ii) (iii) of Fertilizers Control orders, 1985, [hereinafter referred to as orders for short, for the purpose of convenience,] making allegations as specified infra. ( 3 ) THE first accused is the Dealer in fertilizer business under the name and style of m/s. Maruthi Agencies , Inkollu; A-2 is the manufacturer and A-3 is the Distributor of Zinc Sulphate 21%. It is the case of the prosecution that the Agricultural Officer, inkollu, visited the shop of A-l on 10-11-1988 and had drawn zinc sulphate 21% sample duly following the procedure laid down in schedule II of the orders . The stock position at the time of drawal of sample was 350 Kgs. packed in 14 bags of 25 Kgs each of batch no. 83. A representative sample of about 1. 5 kgs. of zinc Sulphate collected from 2 bags i. e. , 7th bag and 14th bag of the existing 14 bags, using sampling probe, divided into three parts of 500 grams each and filled in three polythine bags and tied air tight and packed in three metallic tins along with form k and the tins were sealed with the seal of the Inspector. The first portion of the sample was dispatched to the Assistant director of Agriculture, F. C. O. Laboratory, rajendranagar, Hyderabad on 15-11-1988 for analysis. The second portion of the sample was handed over to the Dealer along with form j under aknowledgment. The third portion of the sample constitute reference sample retained with the Agricultural Officer, inkollu for submitting to the higher authorities i. e. , the Assistant Director of agriculture, Ongole for keeping safe custody. The second portion of the sample was handed over to the Dealer along with form j under aknowledgment. The third portion of the sample constitute reference sample retained with the Agricultural Officer, inkollu for submitting to the higher authorities i. e. , the Assistant Director of agriculture, Ongole for keeping safe custody. After chemical analysis, the Assistant director of Agriculture, F. C. O. Laboratory, rajendra Nagar, Hyderabad communicated the analytical results in form l informing that the sample of Zinc Sulphate contains only 12. 93% of Zinc asagainst21%and hence, the sample has not in accordance with the specifications. Hence, the Agricultural Officer issued show cause notice with report to the accused. A-1 replied to the said show cause on 10-02-1989 stating that they have disposed of the stock supplied by A-2 and they have taken proper care for its storage and sold to the farmers in original packing and hence, they are not responsible for the chemical not to be in accordance with the specifications. A-3 by way of letter dated 13-02-1989 stated that M/s. Ferti Chemicals (India) Hyderabad, dispatched the material directly to the dealer and they are only the distributors and they are not involved in the manufacturing process. A-2, M/s. Ferti Chemicals (India), hyderabad by way of letter dt 11-02-1989 stated that the result of the sample is not according to specifications, which may be due to long storage of the material, climatic conditions and analytical error. The commissioner and Director of Agriculture, hyderabad, accorded permission to prosecute the accused in his proceedings dated 18-02-1992 and hence, the complaint was filed. ( 4 ) THE prosecution had examined P. Ws. 1 to 4 and Exs. P-1 to P-14 were marked. After recording the evidence, the learned Judge on appreciation of oral and documentary evidence available on record, arrived at a conclusion that A-1 to A-3 guilty for the offence under Section 7 of the Act for the contravention of Clause 19 (1) (a) (c) (ii) (iii) of the Orders and convicted and sentenced them to suffer simple imprisonment for three months each and also to pay a fine of rs. 500/- each, in default to suffer simple imprisonment for one month each. Aggrieved by the same, the present appeals are preferred. 500/- each, in default to suffer simple imprisonment for one month each. Aggrieved by the same, the present appeals are preferred. ( 5 ) SRI Innayya Reddy, learned counsel representing A-1 and A-2 would submit that the evidence of P. W. 2 and P. W. 4 if carefully scrutinized, the very identity of the sample sent for analysis itself is doudbtful, since the sample taken is of 500 grams, whereas the sample for analysis sent approximately of 400 grams. Learned counsel also would further contend that the time taken in sending the sample for analysis also is mandatory as contemplated by Rule 30 of the Orders and from the material available on record, it is doubtful, whether the same was sent within seven days and hence, the mandatory provision had not been complied with. The learned counsel had drawn the attention of the Court to the relevant dates and would contend that the accused to be entitled to the benefit of doubt. Learned counsel while further elaborating the submissions, pointed out that the sample was not properly taken. The evidence of P. W. I is only to the effect that on the basis of some report and material, he had further proceeded with the matter. The evidence of P. W. 2 is crucial and no doubt P. W. 3 is the Analyst and P. W. 4 is the person who had conducted the analysis. The very report is doubtful and the same had not been produced. Even otherwise, there is inordinate delay, there are no mediators and in the absence of the mediators nama, the evidence of P. W. 2 is highly doubtful, whether the mandatory provisions had been complied with or not? Learned counsel has also drawn the attention of this court to the relevant portions of Exs. P-7 and P-8 and other rules and would contend that despite the stand taken again the sample was not sent may be a fresh sample or one of the samples already which had been collected and even in this view of the matter, the accused are prejudiced. Learned counsel placed reliance on certain decisions in this regard. The counsel also would contend that in view of section 10 of the Act, the prosecution as such as against partnership firm or the company cannot be sustained. Learned counsel placed reliance on certain decisions in this regard. The counsel also would contend that in view of section 10 of the Act, the prosecution as such as against partnership firm or the company cannot be sustained. ( 6 ) SRI C. Padmanabha Reddy, learned senior counsel, representing A-3 would contend that at the relevant point of time, it is a government company and for imposing imprisonment on corporate-partnership company of this nature cannot be prosecuted and such punishment cannot be inflicted. Learned counsel has drawn the attention of this court to the evidence of P. W. 1 and would contend that P. W. I was not aware whether a-3 had a branch at Nellore Region at the relevant point of time or not? This shows that without verification, the prosecution was launched. Even otherwise, the role of A-3 is only to communicate and absolutely A-3 has nothing to do with what transpires in between a-2 and A-1 and hence, at any stretch of imagination, it cannot be said that in any way A-3 is responsible for the sub standardness of the Fertilizers if any, as alleged by the prosecution. Learned counsel had also drawn the attention of this Court to section 10 of the Act and the relevant portions in Exs. P-8 and P-12 and ultimately has placed reliance on certain decisions to substantiate his contention, that such punishment cannot be imposed as against a company. ( 7 ) PER contra, Learned Public Prosecutor had drawn the attention of this Court to exs. P-5 and 6 and would contend that the serial number tallies and hence, identity of the sample, which had been sent for analysis, cannot be any doubt at all. Merely because, there is some discrepancy in the evidence of p. W. 2 taking sample of 500 grams and p. W. 4 stating that sample approximately as 400 grams what had been stated this only approximately 400 grams. Learned Public prosecutor while further elaborating the submissions would contend that the rule even specifies that the sample to be sent to analysis within the specified period of seven days, it cannot be said that it is mandatory and it is only directory, unless it is shown that the prejudice was caused to the accused. This aspect deserves no serious consideration and the prosecution cannot be thrown out on the other ground. This aspect deserves no serious consideration and the prosecution cannot be thrown out on the other ground. Learned Public Prosecutor also would further contend that the application or non-application in granting permission may not be any serious consequence, since specific requirement of sanction is not contemplated by the Order to prosecute the accused. Learned counsel further would contend that Rule 2 (f) of the order deals with the definition of the dealer and pool handling agency would come within the purview of the definition and hence A-3 cannot escape from the criminal liability on the ground that he is no way concerned with the transaction in between a-l and A-2. Learned counsel had also drawn the attention of this court to Section 10 of the act and had pointed out that in fact if it is prosecuted in individual capacity or the persons who were actually responsible at the relevant point of time, who had been in charge of the affairs of the company and in fact one of them had raised such an objection and it is for them to raise the objection and they cannot take such a ground stating that they were not in charge of the affairs of the company. Reliance was placed on certain decisions to substantiate his submissions in this regard. ( 8 ) HEARD the counsel at length and perused the material available on record. ( 9 ) THE evidence of P. W. 1 is that the report of the Agricultural Officer, Inkollu, regarding procedure of drawal of sample was available and after perusal of the file, the manufacturer and distributors had not furnished the addresses of the persons responsible for the offence and though he had taken steps to secure their addresses, there was no reply and he had deputed one of his Agricultural officer on 7-11-1985 to the office of. the director of Agriculture, Hyderabad and obtained the addresses of the persons responsible for both manufacturer and distributor and accordingly, prepared charge sheet. Ex. P-1 is the proceedingsof the Director of Agriculture, permitting the Assistant director to prosecute the accused. Ex. P-2 is the letter dated 28-03-1989. the director of Agriculture, Hyderabad and obtained the addresses of the persons responsible for both manufacturer and distributor and accordingly, prepared charge sheet. Ex. P-1 is the proceedingsof the Director of Agriculture, permitting the Assistant director to prosecute the accused. Ex. P-2 is the letter dated 28-03-1989. In the cross examination, P. W. 1 admitted that as per the information furnished by the Director, he filed the complaint and he does not know whether by the date of offence, there was no godavari Fertilizers and Chemicals at Nellore and that by 1988 there was only one Region headquarters at Vijayawada. He also admitted that he does not know whether there are two companies namely M/s. Ferti (India)and Second Messrs Ferti Chemicals and he has no idea whether A-2 was not working by the date of offence in M/s. Ferti chemicals India Ltd. ( 10 ) THE evidence of P. W. 2 is crucial. P. W. 2 deposed that he worked as agricultural Officer, Inkollu from July 1986 to July 1990. On 10-11-1988 he visited m/s. Sri Maruthi Agencies, Inkollu which is a partnership firm represented by the managing Partner/a-1 and he had verified the stock register and drawn sample of Zine sulphate 21% manufactured by M/s. Ferti chemicals (India), Hyderabad, distributed by M/s. Gadavari Fertilizers and Chemical ltd. At the time of his inspection, there were 14 bags of 25 kgs. each of batch No. 83 manufactured on 9/88 and he selected two bags i. e. , 7th and 14th bag in drawing sample zinc sulphate 21% with the help of probe. He draw 750 grams each of the two bags and the total quantity from the two bags was 1. 50 kgs and after mixing the sample thoroughly he divided the sample into three parts of 500 grams each and placed the sample in three polythin bags and tied air-tight and kept in 3 metalic tins along with form j and all the three metallic tins were properly sealed and the details of the data collecting etc. were noted on the tins. Ex. P-3 is form j of the three samples. One sample was sent to the Assistant Director of Agriculture, F. C. O. Laboratory, Rejendra Nagar, one was given to A-l and he signed on form j acknowledging the receipt of the sample. The third sample was sent to the Assistant director of Agriculture, Ongole. were noted on the tins. Ex. P-3 is form j of the three samples. One sample was sent to the Assistant Director of Agriculture, F. C. O. Laboratory, Rejendra Nagar, one was given to A-l and he signed on form j acknowledging the receipt of the sample. The third sample was sent to the Assistant director of Agriculture, Ongole. He sent form k separately to the Assistant Director of Agriculture, F. C. O. Laboratory, rajendranagar on 15-11-1988 by registered post. Ex. P-4 is the copy of form k . He received analystreportonl0-1-1989. Analyst report shows that the sample contains only 12. 93% zinc as against 21%. Ex. P-5 is the report received by him. He sent copies of ex. P-5 analyst report to the accused 1 to 3 and the copy was served on A-l personally and obtained his acknowledgment on 11-1-1989. Ex. P-6 is his acknowledgment. Copy of the analyst report and show cause notices were sent to A-2 and A-3 by registered post. Ex. P-7 is the show cause notice issued to a-2 Ferti Chemicals. A-2 received the show cause notice and submitted his reply under ex. P-8 and Ex. P-9 is the acknowledgment. Ex. P-10 is the office copy of the show cause notice issued to A-3, Ex. P-11 is the acknowledgment and Ex. P-12 is the reply by a-2. Ex. P-13 is the office copy of the show cause notice issued to A-l and Ex. P-14 is the reply to the show cause notice sent by A-1. After receipt of the explanation from A-1 to a-3, he transmitted the entire file to the assistant Director of Agriculture, Ongole for necessary action. This witness was cross-examined at length. ( 11 ) HERE it is pertinent to note that, except the evidence of P. W. 2 relating to the drawing of the sample, there is no other independent witness available on record. No doubt, the contentions were advanced inasmuch as he is an Officer, he presumed that the acts of the officer should have been verified by him in accordance with the Law and even in the absence of drawing samples in the presence of mediators, his evidence can be believed. ( 12 ) P. W. 3 the Assistant Director of agriculture, who deposed that on 25-11-1988, he received samples sent by Agricultural officer, Inkollu. ( 12 ) P. W. 3 the Assistant Director of agriculture, who deposed that on 25-11-1988, he received samples sent by Agricultural officer, Inkollu. After receipt of the samples, he entered the same in the register and the same was analyzed and a report was submitted. Basing on his report, he issued ex. P-5 report opining that the sample is not in accordance with the specifications. Ex. P-5 is the report sent, by him to the concerned agricultural Officer. ( 13 ) P. W. 4 is another witness and his evidence is of some importance. P. W. 4 at the relevant time was working as Agriculture officer, Fertlizer Control Order Laboratory, rajendranagar and he was Analyst in fertilizer Control Laboratory from 1980 to 1990. Sample was received by the Assistant director of Agriculture on 25-11-1988 and the same was allotted to him on 1-12-1988 for analysis. By the time the sample was entrusted to him, the seals were intact and he analyzed the sample on 31-12-1988 and submitted his report to the Assistant Director of Agriculture. As per his analysis, the sample contained 12. 93% zinc as ZN and the standard specification for it is 21% and it was classified as not according to specification. Ex. P-5 was scribed by him. In the cross-examination, he had deposed that the sample received by him was approximately weighing 400 grams. On the point of jurisdiction only, the sample was sent to Rajendranagar Laboratory for analysis. No doubt he did not agree with the suggestion that after adding Formal Dehyd solution if there is delay in trietration, variation may occur in result. It is not correct to say that variation of the sample occurred due to his improper trietration. He weighed the sample by electronic balance, which was supplied to the Laboratory by the government in the year 1986. He denied to the suggestion that for testing the analysis, they have used substandard chemicals. ( 14 ) IT is pertinent to note that, P. W. 2 had specifically deposed that the sample sent for analysis is of 500 grams, whereas, P. W. 4 who had analyzed the sample would depose that approximately weighing 400 grams. No doubt submissions at length were made by the learned Public Prosecutor to State that inasmuch as serial number is tallying, identity is established. No doubt submissions at length were made by the learned Public Prosecutor to State that inasmuch as serial number is tallying, identity is established. This court is of the considered opinion that it is doubtful whether the sample, which had been sentby P. W. 2, is the self-same sample, which had been analyzed by P. W. 4. Apart from this aspect of the matter from the dates furnished, it is not clear, whether the sample was sent for analysis, within seven days as contemplated by Rule 30 (1) of the Orders. ( 15 ) RULE 30 (1) of the Fertilizers (Control) order, 1985 reads as follows: (1) "where sample of a fertilizer has been drawn, the same shall be dispatched, along with a memorandum in Form K to the laboratory for analysis within a period of seven days from the date of its drawal. "it is settled principle that penal statutes are to be construed strictly and it is needless to say that this principle is applicable to Rules as well framed under the rule making power. In Ram Narain v. Bishamber Nath, it was held that the provisions of criminal statutes meant for protection of accused to be considered mandatory because laws in India protect the innocent to the greatest degree. Where the statute uses the word "shall" prima facie it is mandatory but the court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute. This view was expressed in State of U. P. v. Babu Ram and in Slate of Punjab v. Satyapa! dang and others. In N. K. Jain and others v, c. K. . Shah and others, it was held that it is true that all the penal statutes should be cons trued strictly and the court must see that the thing charged as an offence is within the plain meaning of the words used but it must also be borne in mind that the context in which the words are used is important and the legislative purpose must be noted and the statute must be read as a whole. ( 16 ) IT is pertinent to note that P. W. 2 had deposed that he had sent form k separately to the Assistant Director of Agriculture, f. C. O. Laboratory, Rajendranagar on 15-11-1988 by registered post. ( 16 ) IT is pertinent to note that P. W. 2 had deposed that he had sent form k separately to the Assistant Director of Agriculture, f. C. O. Laboratory, Rajendranagar on 15-11-1988 by registered post. It was contended that the sample could have been sentonlothitself and received on 25-11-1988 and hence, it is highly doubtful, whether the sample was sent within the time specified. Elaborate submission were made on the aspect of prejudice, which would be caused in delay in sending the sample for analysis. Reliance was placed on a decision of the division Bench of this High Court, in a case between District and Sessions Judge, Guntur v. State of AP. 5, wherein the Division Bench had held, that the right of accused to get the sample analyzed by independent analyst, time schedule for sending the sample to the analyst and sending the report to the officer and also furnishing the same to the accused have to be scrupulously followed and the accused is entitled to get the sample in his custody tested by the independent analyst within one week of the receipt of the report and when he intends to do so, the officer has no discretion except to send the sample within 60 days there from to an independent analyst. ( 17 ) IN Purushotham Rao v. State of A,p. it was held while dealing with Cluase 30 (3) of the Order that when the analyssis report along with show cause notice was serviced on petitioner/accused after the period of 60 days prescribed under sub-clause (3), it is clearly contrary to the mandate and the proceedings against the petitioner are liable to be set aside. ( 18 ) LEARNED Additional Public Prosecutor placed strong reliance on State of Kerala v. Alasserry Mohd. and also T. V. Usman v. Food inspector, Tell icherry Municipality. These are the matters dealing with the relevant rules under the Prevention of Food Adulteration act. It is no doubt true that elaborate submissions were made that inasmuch as no prejudice had been caused in the delay in sending the sample. Even if it was sent as specified by clause 30 (1) of the Order, the same cannot be held to be mandatory and it is only directory and hence, on this ground, the well considered judgment of the learned judge cannot be interfered with. Even if it was sent as specified by clause 30 (1) of the Order, the same cannot be held to be mandatory and it is only directory and hence, on this ground, the well considered judgment of the learned judge cannot be interfered with. This Court is not inclined to accept with the same especially, in the light of the language employed in clause 30 (1) of the order as specified supra. Apart from this aspect of the matter, as can be seen from the accused arrayed are partnership firm and the company and they cannot be prosecuted unless properly represented by human agency and it is not clear whether these are the persons actually in charge of the affairs of the partnership firm and the company, at the relevant point of time. ( 19 ) "section 10 of the Essential commodities Act, 1955 reads as follows: 10. Offences by cornpanigg:- (1) If the person contravening an order made under Section 3 is a company, every person, who at the time the contravention was committed, was in charge of, and was responsible to the company, for the conduct of the business of the company as well as the company shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that, the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (1) Notwithstanding anything contained in sub-section (1) where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary, or the other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly", ( 20 ) NO doubt, learned Public Prosecutor placed strong reliance on u Seshashalam v. Govt. of A. P. and would contend that the managing Director can be presumed to be the person in charge of the affairs of the company at the relevant point of time and hence, conviction and sentence imposed against the accused can be sustained. of A. P. and would contend that the managing Director can be presumed to be the person in charge of the affairs of the company at the relevant point of time and hence, conviction and sentence imposed against the accused can be sustained. ( 21 ) COUNSEL representing the appellants had placed reliance on State of Karnataka v. Pratap Chand, which is in relation to the prosecution of partnership firm under Drugs and Cosmetics Act, 1940. The Apex Court in the decision referred to supra held: "where the partnership firm was charged for the offences under Section 18 (a) (ii) and (c) the partner of the firm who was in overall control of the day to day business of the firm would alone be liable to be convicted and the partner who was not in such control could not be proceeded with merely because he had the right to participate in the business of the firm under the terms of Partnership Deed. " ( 22 ) IN thelightof the language insec. l0 (l), ". . . . . was in charge of and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the contravention" would clearly suggest that the persons eoming within the purview of the language employed in Section 10 of the Act are liable to be prosecuted and such specific allegation should be there. Learned counsel representing the appellants had drawn the attention of this Court to certain other clauses under the Order where the officers are entitled to collect information and that this lapse on the part of the prosecution, may have to be viewed to the benefit of the accused. ( 23 ) YET another submission in relation to a-3 is that, A-3 is no way responsible for the sub-standard of the fertilizers seized, inasmuch as the transaction is only between a-1 and A-2. ( 23 ) YET another submission in relation to a-3 is that, A-3 is no way responsible for the sub-standard of the fertilizers seized, inasmuch as the transaction is only between a-1 and A-2. Learned Additional Public prosecutor had drawn to the attention of this court to Control Order clause No. 2 (f) dealing with the definition of dealer which reads as follows:"fertilizer (control) order 2 definitions (f) dealer means a person carrying on thebusiness of selling fertilizers, whether wholesale or retail, and includes a manufacturer and a pool handling agency carrying on such business and the agents of such person, manufacturer of pool handling agency"; ( 24 ) LEARNED counsel placed strong reliance on "pool handling agency" and would contend that A-3 is also responsible. It is pertinent to note that whether such office was in existence or not is doubtful and in fact ex. P-12 shows that the correspondence emanate from Secunderabad office. In the light of the evidence of P. W. 2, it is highly doubtful whether this office was in existence at all at Nellore at the relevant point of time. Apart from this aspect of the matter, it is pertinent to note that in Ex. P-8 a request was made to send fresh sample for analysis. Whether the fresh sample was sent or whether the sample sample was sent again for re-analysis, this opportunity was not given. Specific stand was taken by A-3 in ex. P-12 that they have nothing to do with the transaction. There is clear explanation in this regard in Ex. P-12. ( 25 ) FURTHER submissions at length were made relating to inflicting punishment as against the company and strong reliance was placed in M/s. Kediya Vanaspati Pvt. Ltd. v. The State of A. P. wherein it was held:"under Sec. 49-A of the Electricity Act, in the case of offences by companies in relation to the Electricity Act 1910, company being juridical person cannot be sentenced to imprisonment". ( 26 ) IN asstt. Commr. v. Velliappa Textiles ltd. ( 26 ) IN asstt. Commr. v. Velliappa Textiles ltd. while dealing with this aspect on differing judgments of Srikrishna, J. and mathur, J. Rajendra Babu, J. (as he then was) expressed the following opinion at para 56: "in order to trigger corporate criminal liability for the actions of the employee (who must generally be liable himself), the actor-employee who physically committed the offence must be the ego, the center of the corporate personality, the vital organ of the body corporate, the alter ego of the employer corporation or its directing mind. Since the company/ corporation has no mind of its own, its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego land center of the personality of the corporation. To this extent there are no difficulties in our law to fix criminal liability on a company. The common law tradition of alter ego or identification approach is applicable under our existing laws. But the problem crops up in mens rea offences. Mens rea and negligence are both fault elements, which provide a basis for the imposition of liability in criminal cases. Mens rea focuses on the mental state of the accused and requires proof of a positive state of mind such as intent, recklessness or willful blindness. Negligence, on the other hand, measures the conduct of the accused on the basis of an objective standard, irrespective of the accused s subjective mental state. Criminal liability of a company arises only where an offence is committed in the course of the company s business by a person in control of its affairs to such a degree that it may fairly be said to think and act through him so that his actions and intent are the actions and intent of the company. And it is not possible to attribute the element of mens rea to a juristic person, which requires positive act of omission or commission. Since this cannot be attributed to ajuristic person, it is difficult to accept the proposition of "punishing a company" wherein mens rea element is necessary. It is all the more difficult in the event of mandatory punishment that leads to imprisonment. Since this cannot be attributed to ajuristic person, it is difficult to accept the proposition of "punishing a company" wherein mens rea element is necessary. It is all the more difficult in the event of mandatory punishment that leads to imprisonment. However, I need not dilate on this aspect of the case and reserve that answer for consideration in a more appropriate case. 57. On the second question, there is divergence of opinion between my learned Brethren. While I respectfully and reluctantly disagree with the view of my learned Brother Mathur, J. , I respectfully agree with the view of my learned Brother Srikrishna, J. and add as follows: corporate criminal liability cannot be imposed without making corresponding legislative changes. For example, the imposition of fine in lieu of imprisonment. Such legislative changes took place in Australia, France (Penal code of 1991), Netherlands (the economic Offences Act, 1950 and article 51 of the Criminal Code), and belgium (in 1934, Cour de Cassation recognized the punishment of a corporate body by making it a subject of Belgian criminal Statute ). Germany practices a sort of administrative sanction to deviant corporations and does not recognize criminal liability of corporations. In the united States the punishment of corporate crime is based on the doctrine of "respondent superior", whereby the agent s conduct is impugned to the corporation. This was envisaged in the model Penal Code (1962) proposed by the American Law Institute and many states subsequently enacted this Model code. The Canadian Federal Criminal code was amended as far back as in 1909 whereby a fine could be substituted for a sentence of imprisonment, made corporate criminal liability possible. Section 718 of the Canadian Criminal code imposes fine on corporate offenders and Section 720 provides special enforcement procedure for fine on corporations. The European Council in 1988 made a recommendation to the member States to carry out necessary amendments in their respective criminal statutes to ensure corporate liability. Whereas, the United Kingdom follows the alter ego or identification approach to fix corporate liability in criminal cases. The European Council in 1988 made a recommendation to the member States to carry out necessary amendments in their respective criminal statutes to ensure corporate liability. Whereas, the United Kingdom follows the alter ego or identification approach to fix corporate liability in criminal cases. ( 27 ) HENCE, in the light of the clear opinion expressed by the Apex Court by majority in the aforesaid decision and also in the light of several discrepancies in drawing of the sample and also sending the sample and the prosecution failing to establish the identity of the sample sent for analysis and also in the light of the fact that except the evidence of p. W. 2, there is no other independent evidence and at least mediators were not secured at the time of taking samples which in fact involves elaborate procedure, this court is well satisfied that the conviction and sentence imposed as against A-1 to A-3 cannot be sustained and accordingly they are hereby set aside. ( 28 ) IN the result, bot the appeals are allowed settiag aside the conviction and sentence passed by the learned Judge in STC no. 1 of 1996, dated 09-06-1997, against A-1 to A-3, under Section 7 of the E. C. Act for the contraventions of Clause 19 (1) (a) (c) (ii) (iii) of F. C. 0. 1985. It is needless to say that the appellants are entitled to the refund of the fine amount.