Govt. Appeal No.51 of 1985

17th June, 1991.

Petitioner Counsel: Mr. Debasis Das, Addl. Standing Counsel,
Respondent Counsel: M/s A. S. Naidu, P. Mohanty, P. Satpathy and P. K. Misra, .

Cases Cited:
1989 Cri LJ 129,(1987) 63 Cut LT 691 [Para 9]
1988 Cri LJ NOC 76 (Orissa),(1988) 66 Cut LT 560 [Para 10]
AIR 1980 NOC 63 (Orissa),1979 Cut LR 249 [Para 7]
1978 Cri LJ NOC 50 (Orissa),(1977) 44 Cut LT 588 [Para 7]
ILR (1978) 1 Cuttack 291 [Para 9]
ILR (1975) Cuttack 86 [Para 7]
1974 Cri LJ 305,AIR 1974 SC 216 [Para 11]
(1974) 40 Cut LT 478,1974 Cut LR (Cri) 129 [Para 9]
Cri R No.202 of 1967,D/ - 29-9-1967 [Para 9]
1966 Cri LJ 71,AIR 1966 SC 43 [Para 9]
1962 (1) Cri LJ 512,AIR 1962 SC 579 [Para 11]
1961 (1) Cri LJ 170,AIR 1961 SC 1,1960 All LJ 946 [Para 11]

JUDGMENT

JUDGMENT :-Acquittal of respondents is assailed by the State in this appeal u/S.378, Cr. P.C.

2. Both the respondents were prosecuted for offence u/S.7 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act') for contravention of cl. 3 of the Orissa Baby Food Licencing Order, 1966 (hereinafter referred to as 'the Order') made by State Government in exercise of power u/S.3 of the Act. Respondent No. 2 is the Proprietor of M /s. Bharat General Store, Jharsuguda and respondent No. 1 is manager of respondent No. 2.

3. Prosecution case is that respondent No. 2 had licence under the Order for the year 1980 as wholesale dealer as well as retail dealer in name of his business concern M/s. Bharat General Store. For the year 1981 although licence as whole-sale dealer was renewed, such licence of retail dealership had not been renewed. Without renewal of retail licence he was selling Amul Spray to consumers. On 25-7-1981 on being deputed by P.W. 2, P.W.4 purchased Amul Spray of 1 kilogram weight from M/s Bharat General Store which is in contravention of Cl. 3 of the order.

4. Sale of Amul Spray on 25-7-1981 and absence of renewal of licence for 1981 on that day is not disputed. Short defence is that Amul Spray is not baby food and application for renewal which was pending had not been rejected for which respondents anticipated that it would be renewed and in fact it was renewed subsequently.

5. Clause 3 of the order which is alleged to have been contravened reads as follow :

"3. Baby food not to be sold without license -with effect from the date of expiry of thirty days from the date on which this order come into force, any person shall carry on business as a dealer except under and in accordance with the terms and conditions of a valid license granted in that behalf by the licensing authority under Cl. 5 of this order."

6. Sale as envisaged in this clause has same meaning as is given under the Sale of' Goods Act. When baby food is sold by an employee on behalf of the employer it is a sale by the employer. Accordingly, an employee selling on behalf of the owner of baby good does not normally become liable for the contravention since an employee is not required to have a licence under the order. To make individuals liable, S. 10 of the Act provides that where a company is prosecuted for contravention, every person who at the time of' contravention was committed was responsible to the Company for conduct of the business can be prosecuted. U/S.10 (2), where offence has been committed by a company and it is proved that such offence has been committed with consent or connivance of or attributable to any neglect on the part of any director, manager, Secretary or any other officer of the Company, such person shall also be deemed to be guilty. Company has been explained to include a firm, a body corporate or other association of individuals, Manager of an individual does not come within scope of S.10. Accordingly, prosecution against respondent No. 1 on the facts of this case is misconceived. His acquittal is justified.

7. Coming to the question whether Amul Spray is baby food, all food articles meant for babies are not 'baby food' under the order. Only those article which are specified in Schedule I therefore, are baby food as defined in Clause 2(i). Originally Amul Spray was not specified in Schedule I. In February, 1972 the same was intended to be specified in the schedule and a notification was also issued. However, clause 14 of the order requiring notification to be published in official gazette

not having been complied with, it was held in ILR 1975 Cut 86, Shantikumar Agarwala v. State, 1979 CLR 249: (AIR 1980 NOC 63) (Orissa), Silla Narayan Murty v. State of Orissa and (1988) 66 CLT 560: (1988 Cri LJ NOC 76) (Orissa), (Bhagaban Sabu v. State) that Amul Spray is not baby food. Before trial court prosecution not having produced the official gazette where the notification was purported to be published, it has been held that Amul Spray is not baby food although Notification has been printed at page 14 of the Orders and notification section of (1980) 50 CLT which was relied upon by the learned Public Prosecutor for the said purpose.

8. Cuttack Law Times is a Law Journal where statutory orders and notifications are also published in one of its sections. However, the same is not official gazette which is published by Director of Government Press on behalf of the State Government. If that would have been the position in this case, I would have affirmed finding of the trial court. On perusal of the aforesaid publication in Cuttack Law Times, I find that details of the Official Gazette where the notification was published has been given. I cannot even imagine that learned Magistrate and learned Public Prosecutor do not know this. If learned Magistrate doubted authenticity of publication in Cuttack Law Times, he ought to have called upon learned Public Prosecutor to produce the official gazette. When learned Magistrate doubted correctness of the details given in Cuttack Law Times, learned Public Prosecutor ought to have sought for an adjournment to produce the copy of the official gazette. Jharsuguda is a Sub-Division. Official Gazette must have been supplied to that officer regularly. There are clear instructions how official gazette are to be maintained. If these instructions are not followed, rule of law shall recede to background and arbitrariness or in the minimum casualness shall dominate. No economic development would help if rule of law fails. I find both learned Magistrate and learned Public Prosecutor failed in their duty to further proper adjudication of a prosecution. Learned Magistrate by his casualness has created a circumstance by which acceptability of judicial pronouncements become questionable. Learned Public Prosecutor by his casualness has also created a circumstance for confirmation of a school of modern thought that Law Officers are appointed on extraneous considerations without regard for merit, efficiency and suitability. In this Court however, learned Additional Standing Counsel has produced a copy of the gazette of Orissa Extraordinary No. 549 dated 30-4-1980 where by amending Schedule-I. Amul Spray has been specified to be item 6 in the Schedule. Accordingly there can be no doubt that Amul Spray comes within the definition of baby food given in clause 2 (i) of the Order with effect from 30-4-1980.

9. Trial court has acquitted respondent No. 2 on the finding that he had applied for a licence and such application was trending which was subsequently granted. Where prosecution is required to prove culpable mental state of an accused, this finding may lead to acquittal if there is no such mens rea since accused has done all he could and grant of licence in his favour is not within his control. In Criminal Revision No. 202 of 1967 decided on 29-9-1967, Atmakuri Jagannath Rao v. State application for licence was pending when the offence was detected. Shortly thereafter licence was also granted. In such circumstance, it was held that accused has not committed any offence. AIR 1966 SC 43: (1966 Cri LJ 71) Nathulal v. State of Madhya Pradesh supports such view. In that case an application with proper fee being paid was pending on the date contravention was detected. It was held by majority view that there is no mens rea. Following the said decision this Court also held in the decision reported in(l974)40 CLT 478, State of Orissa v. Ramachandra Patra that mens rea is necessary for conviction u/S. 7 of the Act. This decision has been referred to in two later decisions of this Court reported in ILR (1979) I Cut 291, State of Orissa v. Sibo Narayan Patra and (1987) 63 CLT 69 1: (1989 Cri LT 129) Rama Chandra Dora v. State. In view of the decision of the Supreme Court reported in AIR 1966 SC 43: (1966 Cri LJ 71) (supra) Parliament incorporated S.10-C to the Act by Act 30 of 1974 where it has been

provided that culpable mental state shall be presumed. This Court has observed in (1977) 44 CLT 588: (1978 Cri LJ NOC 50) (Orissa) Nabakishore Dash v. Republic of India as follows :

"After this judgment, the Essential Commodities Act, 1955 (Act 10 of 1955) specifically excluded mens rea by an amendment brought to it".

In ILR (1978) I Cut 291 (supra), considering S. 10-C of the Act, it was held that if the fact is proved the presumption will be that requisite mental state was there and the therefore, mens rea has to be presumed and it is for the accused to rebut that presumption.

10. In (1987) 63 CLT 691: (1989 Cri LJ 129) (supra) it was observed (at page 131):

"So far as mens rea is concerned, it is no doubt true that the cardinal principle of criminal jurisprudence is that there must be some blameworthy conduct or mens rea in an accused before he is found guilty of an offence. Where, however, a person has contravened the provision and in spite of the burden of proof u/ S. 14 of the Act is not able to discharge the same by explaining under what circumstances he came into possession, the presumption for rebuttal under cl. 3 (2) is attracted. The statute having clearly ruled out mens rea to be a constituent part of the crime effect has to be given to the same. In cl. 3 of the Control Order there is absolute prohibition for carrying on the business without licence. Where the petitioners are presumed to have carried on the business and have admittedly no licence, the offence is made out."

Whatever might have been the position prior to Act 30 of 1974 after S. 10-C was inserted, prosecution is not required to prove mens rea which shall be presumed. 'Shall presume' in S. 10-C shall have the same meaning as given in the Evidence Act.

11. Added to it, S. 14 of the Act provides that in a case where a person is prosecuted for contravention of an order made under the Act,prohibiting him from doing an act without a licence, burden is on him to prove that he has a licence. Pendency of an application for licence and subsequent grant of the licence for the entire period, by itself does not amount to possession of a licence. Every one is presumed to know the natural consequences of the act. Similarly, every one is presumed to know the law. These are not facts which prosecution has to establish. See AIR 1961 SC 1: (1961 (1) Cri LJ 170) State of Bombay (Now Gujarat) v. Parshottam Kanaiyalal and AIR 1974 SC 216: (1974 Cri LJ 305) Oyami Ayatu v. The State of Madhya Pradesh. Respondents, therefore, are presumed to know that without a licence granted if they sell Amul Spray as retail dealer, they are likely to be convicted for an offence u/S.7 of the Act.

In AIR 1962 SC 579: (1962 (1) Cri LJ 512) State of Bombay (now Gujarat) v. Narendas Mangilal Agarwal, prosecution under Bombay Prohibition Act was being considered. While observing that State has to prove that prohibitions contained were infringed by accused where the same is proved and accused takes a defence that importation of the article is lawful in view of licence issued, burden lies on accused to prove the same by production of the licence. If the licence is not produced such defence is not available. Whereas in this case, S. 14 statutorily provides that to discharge the burden accused is to prove that he has a licence, principle in AIR 1962 SC 579: (1962 (1) Cri LJ 512) (supra) is statutorily recognised. When there is prosecution for contravention of cl. 3 of the Order which prohibits him from selling without a licence. He can only escape by proving that he has a licence. Pendency of application for licence is not licence does not have the effect of possession of a licence.

12. In this case, factually there was no valid application for licence. Under C1. 5 of the Order application is to be made in Statutory Form-1 before thirty days of expiry of the period of licence. Apart from the fact that respondent No. 1 proved the plain paper application dated 6-12-1980 (Ext. B) to be the application, date itself indicates that it was not filed before thirty days of expiry of period of licence. Licence for the year 1981 was

renewed in 1984 since renewal for 1981 to 1984 is in one entry. There is no scope for such retrospective renewal. Clause 6 of the order vests power on State Government to exempt by general or special order in writing any class or classes of persons from operation of all or any of the provisions of the order. In case pendency of an application would be a ground for exemption from operation of clause 3 or plain paper application would exempt requirement of application in Form-I, general or special order in writing of the State Government is necessary. There is no such order. Accordingly, respondent No. 1 cannot get the exemption to treat his application as a valid one and to treat retrospective renewal as renewal for the period.

13. Before concluding, I may observe that the order requires a licence to be granted to be a person. A person is either an individual or a juristic person. Trade name given by a Proprietor to his business is not a person. Thus, M/s Bharat General Store not being a person licence could not have been granted in that name It should have been granted in name of respondent No.2. If such a licence would have been granted, there could have been no scope to initiate prosecution against respondent No. 1 who is only a Manager.

14. In conclusion -

(a) Respondent No. 1 being a Manager of a Proprietor of business concern cannot be prosecuted u/S. 10 of the Act and since a Manager does not require a licence, prohibition under clause 3 is applicable to Respondent No. 2 the Proprietor.

(b) In view of S. 10-C of the Act, mens rea or culpable mental state of respondent No. 2 shall be presumed and burden lies on respondent No.2 u/S. 14 to prove that the possesses a licence.

(c) Application for licence is not licence itself.

(d) There is no exemption under clause 6 to apply in plain paper or to escape clause 3 by applying in plain paper.

(e) Since respondent No. 2 has contravened clause 3 of the Order, he is guilty u/S. 7 of the Act.

15. Coming to the question of sentence to be imposed on respondent No. 2, it is to be kept in mind that the offence has been committed about 10 years back; Licencing Authority in granting retrospective renewal of licence and prosecutor in not properly proving the schedule-I are negligent and business is carried on by respondent No. 2 through employees like respondent No. 1 and D.W. 1. In such circumstances, I am inclined to exercise power u/ S. 7(1 ) proviso as it stood before amendment on 2-9-1981 by Act 18 of 1981. Under the said proviso, Court had power not to impose sentence of imprisonment. Offence having been committed on 25-7-1981 prior to amendment, I am satisfied that in the circumstances indicated above a sentence of fine of Rs. 2,000/- (two thousand) would meet the ends of justice. Accordingly, respondent No.2 is convicted u/S.7(1) of the Act for contravention of clause 3 of the Order and is sentenced to pay a fine of Rs. 2,000/- in default to undergo rigorous imprisonment for one month. If fine is not paid within two months, notwithstanding that respondent No. 2 shall serve the default sentence, the amount shall be realised as provided under law.

16. In the result, Government Appeal is allowed in part to the extent indicated above.

Appeal Partly Allowed