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2012 DIGILAW 554 (ORI)

State of Orissa v. Bansidhar Lenka

2012-12-18

B.K.NAYAK

body2012
JUDGMENT B.K.NAYAK, J. 1. This Government Appeal has been filed challenging the judgment dated 28.02.1989 passed by the learned S.D.J.M., Jagatsinghpur in Vigilance G.R. Case No.8 of 1982 (Trial Case No. 67 of 1985) acquitting the accused-respondent of the charge under Section 7 of the Essential Commodities Act. 2. The respondent was charged under Section 7 of the Essential Commodities Act for non-compliance of conditions 3 (c), 4, 6 and 7 of the licence granted to the respondent under Clause 4(4) of the Cement Control Order, 1973 which is said to be in violation of Clause 17(C) of the said control order. Prosecution case as per the FIR lodged by the Inspector (Vigilance), Jagatsinghpur is that on 19.02.1982 at 2.30 P.M. One Ushamani Dei of Harisinghpur, P.S. Tirtol appeared at the Squad Office and reported that though she was permitted by the S.D.O., Jagatsinghpur to purchase 10 bags of cement, when she approached the respondent, who was the stockiest of the cement, demanded Rs. 7/- in excess of the actual price for each bag of cement. On such information, the informant visited the cement godown of the respondent at Jagannathpur being accompanied by Sri Chhayakanta Rout, Supervisor on 20.02.1982 at 12.30 P.M., but the respondent was then present in his adjacent cloth store. The stockiest was reluctant to allow the informant to inspect the god own for physical verification of the cement stock. It was only at 3.30 P.M. on 20.02.1982 the informant was allowed to inspect when he found that the respondent had not displayed the stock of cement in his possession and the sale price of cement at any place either outside or inside his business premises as required under the Orissa Cement Control Order, 1973. Physical verification of the stock revealed that there were 80 bags of cement in the possession of the respondent but his book of accounts revealed that he had a book balance of 248 bags and prior to the inspection he had sold 10 bags of cement to two persons of Katara village on 04.02.1982 and 22 bags to some persons of Jagannathpur but mistakenly he had mentioned to have sold 17 bags. Accordingly, there was shortage of 153 bags of cement. The informant seized the available 80 bags of cement along with book of accounts, sale register and cash memo in presence of witnesses. Accordingly, there was shortage of 153 bags of cement. The informant seized the available 80 bags of cement along with book of accounts, sale register and cash memo in presence of witnesses. These deficiencies amounted to violation of clause 17(C) of the Cement Control Order, which is punishable under Section 7 of the Essential Commodities Act. 3. The accused-respondent denied the charge and pleaded innocence. His further plea is that on 20.02.1982 his shop was closed and, therefore, he could not display price board and the stock board and that the cash memo and permits were with his salesman, as a result of which, he could not reflect the same in the sale register. 4. The Trial Court formulated two questions, viz : (i) Whether the accused failed to display the stock 'in his price board? (ii) Whether he failed to maintain the sale register? In proof of the prosecution case, seven witnesses were examined whereas the accused examined one witness in his defence. P.W.1 is the woman, who reported the matter to the informant about charging of excess price by the accused. P.Ws. 2, 4, 5 and 6 are seizure witnesses. P.W.3 is the son of P.W.1 and P.W.7 is the I.O.. On consideration of the evidence on record, the Trial Court came to the conclusion that though there is evidence of seizure of some documents and cement bags from the accused, but the evidence of prosecution witnesses is not clear whether at the time of inspection of the shop of the accused was open and the transaction was going on. During the evidence by D.W.1 the salesman of the accused, 32 number of permits covering sale of a total of 154 bags of cement were produced for which the Trial Court came to the conclusion that there was no shortage of cement bags in the godown as alleged by the prosecution. It was further found that for the very same reason the confiscation proceeding initiated under Section 6 of the Essential Commodities Act before the Collector, Cuttack was dropped. It was further found that for the very same reason the confiscation proceeding initiated under Section 6 of the Essential Commodities Act before the Collector, Cuttack was dropped. Though the Court below accepted the evidence with regard to non-maintenance of sale/stock register, but came to the conclusion that in view of the finding that there was no shortage of stock, the violation or omission to maintain the stock/sale register was not with any guilty intention or mens rea on the part of the accused and accordingly it passed the order of acquittal. 5. Learned Additional Standing Counsel does not assail the factual findings recorded by the learned Trial Court. His only submission is that the Trial Court having found that the respondent had failed to maintain the stock register, he should have convicted the respondent as because mens rea is not a necessary ingredient of the offence in question. His further submission is that assuming that mens rea is an ingredient of the offence, the Trial Court should have presumed mens rea of the accused-respondent as provided under Section 10-C of the E.C. Act, and that the respondent has failed to discharge the burden that he did not have the mens rea. Learned counsel appearing for the respondent, on the other hand, submits that mens rea is' a necessary ingredient of the offence under Section 7 of the E.C. Act and that even if mens rea of the accused is presumed, in view of the evidence on record and factual finding given by the Trial Court that there was no shortage of cement bags at all, the defence must be held to have successfully proved that the respondent did not have the mens rea and, therefore, the impugned judgment warrants no interference. 6. The question whether mens rea is a necessary ingredient of the offence under Section 7 of the E.C. Act is no more res integra. While considering the question, the Hon'ble Supreme Court in AIR 1966 SC 48; Nathulal v. State of Madhya Pradesh held as follows: "(4) 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 the 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 Mall v. King Emperor, ILR 26 Pat 460; (AIR 1947 PC 135), Hariprasada Rao v. State, 1951 SCR 322 : ( AIR 1951 SC 204 ) : and Sarjoo Prasad v. State of Uttar Pradesh, (1963) 3 SCR 324: ( AIR 1961 SC 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, Cri Appeal No. 218 of 1963, dated 24.08.1964 : ( AIR 1965 SC 722 ). How to disprove mens rea has been succinctly stated in Halsbury's Laws of England, 3rd Edition, Col. 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, Cri Appeal No. 218 of 1963, dated 24.08.1964 : ( AIR 1965 SC 722 ). How to disprove mens rea has been succinctly stated in Halsbury's Laws of England, 3rd Edition, Col. 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 did it accidentally, or in ignorance, 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. Having regard to the object of the Act, namely, to control in general public interest, among others, trade in certain commodities, it cannot be said that the object of the Act would be defeated if mens rea is read as an ingredient of the offence. The provisions of the Act do not lead to any such exclusion. Indeed, it could not have been the intention of the Legislature to impose heavy penalties like imprisonment for a period upto 3 years and to impose heavy fines on an innocent person who carries on business in terms of the law. Having regard to the scope of the Act it would be legitimate to hold that a person commits an offence under Sec. 7 of the Act if he intentionally contravenes any order made under Sec. 3 of the Act. So construed the object of the Act will be best served and innocent persons will also be protected from harassment.' (8) I have no doubt that an offence under Sec. 7 of the Essential Commodities Act, 10 of 1955 for breach of Sec. 3 of the Madhya Pradesh Foodgrains Dealers Licensing Order, 1958 necessarily involves a guilty mind as an ingredient of the offence. In terms, Sec. 3 of the Order, prohibits every person from carrying on business as a dealer except under and in accordance with the terms and conditions of a licence issued in that behalf by the Licensing authority. A dealer is defined by Sec. 2 (a) of the Order as meaning a person engaged in the business of purchase, sale or storage for sale, of anyone or more of the foodgrains in quantity of one hundred maunds or more at anyone time whether on one's own account or in partnership or in association with any other person or as a commission agent or arhatiya, and whether or not in conjunction with any other business. By Sub-sec. (2) of Sec. 3 a presumption is raised that "any person who stores any foodgrains in quantity of one hundred maunds or more at anyone time snail, unless the contrary is proved, be deemed to store the foodgrains for the purposes of sale". The Order prohibits every person from carrying on business as a dealer otherwise than in accordance with the. terms and conditions of the licence, and a dealer is a person who carries on business of purchase, sale or storage for sale of foodgrains in excess of the specified quantities. For the contravention of such a prohibition to be an offence, mens rea is necessary condition," The aforesaid decision has also been taken note of by this Court in the case of M. Ramachandra Sahu v. State of Orissa; 86 (1998) CLT 68. It must be therefore held that the mens rea, i.e. criminal intention or knowledge is a necessary ingredient of the offence under Section 7 of the E.C. Act. 7. Section 10-C of the Essential Commodities Act stipulates that wherever mens rea is a necessary ingredient of the offence under the Act, the Court shall raise a presumption about such mens rea. The provision only makes a departure from the general fundamental principle of criminal law that all the ingredients of the offence including the mens rea have to be proved by the prosecution beyond all reasonable doubt. Thus, in other words, it means that where the act or omission constituting a violation of any particular control order has been proved by the prosecution, the Court shall presume existence of mens rea on the part of the accused. Such presumption is however rebuttable. Thus, in other words, it means that where the act or omission constituting a violation of any particular control order has been proved by the prosecution, the Court shall presume existence of mens rea on the part of the accused. Such presumption is however rebuttable. Once such a presumption is raised, the burden shifts to the accused to prove that he did not have the mens rea or the culpable mental state. 8. Even if in the present case non-maintenance of the sale/stock register has been proved and the presumption with regard to the culpable mental state of the respondent would arise, on evidence the Trial Court having found that there is no shortage of cement bags at all, the respondent cannot be said to have had the culpable mental state. Non-maintenance of the stock register is an omission which has been made culpable. Such omission may either be deliberate, as where it is intended to conceal the actual stock or any illegal transaction, or it may be due to want of time for other pressing pre-occupation of the accused or for sheer forgetfulness or inadvertence. Since, there is no illegal transaction by the respondent in the present case nor any deficit of stock was found on evidence, there was no ill-motive for him not to reflect the stock in the stock register. Therefore, the omission, if any, to maintain the register up-to-date cannot be said to be with any mens rea or culpable guilty mind. Therefore, both the contentions of the learned Additional Standing Counsel fail and there is no scope to interfere with the impugned judgment. The Government Appeal is accordingly dismissed. Appeal dismissed.