SWASTIK OIL INDUSTRIES Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a petition under Art. 227 of the Constitution of India by a partnership firm trading in the name and style of Swastik Oil Industries which held a licence under the Gujarat Groundnut Dealers Licensing Order 1966 to carry on business in groundnut oil. The pre- mises of the firm were inspected on 10th July 1976 by the District Supply Officer Kaira and 397 tins of ground-nut oil were seized and internecine thereof was given to the Collector of Kaira immediately. Thereafter a show cause notice was issued calling upon the petitioner firm to show cause why these tins of ground-nut oil should not be confiscated to the State. In the show cause notice 9 grounds were set out for confiscation of the ground-nut oil tins to which the petitioner sent replies on 16th September 1976 and 17th September 1976 The petitioner was then given an opportunity of personal hearing on 4th October 1976 and upon a consideration of the material placed before him the Collector of Kaira came to the conclusion that the explanations furnished by the petitioner ground-wise could not be accepted. He came to the conclusion that the petitioner firm had committed grave irregularities and breaches of the conditions of the licence as well as the provisions of the Order under which the licence was issued and therefore he directed the confiscation of 100 tins out of the total number of 397 tins seized on 10th July 1976 Against this order passed by the Collector of Kaira the petitioner-firm filed an Appeal No. 144/76 in the court of Sessions Judge Kaira at Nadiad. That appeal was heard by the learned Additional Sessions Judge Kaira at Nadiad on 15th December 1976 The learned Additional Sessions Judge came to the conclusion that except for ground No. 2 set out in the show cause notice the petitioner- firm had not been guilty of any breach in respect of the remaining grounds. He came to the conclusion that cl. (11) of the Licensing Order had been contravened but such contravention was not deliberate as it arose out of a mere bona fide misconception regarding the true content of cl. (11) of the said Licensing Order. He took into consideration the fact that in the past also the business premises of the petitioner-firm had been inspected from time to time and even though no separate register of transactions in ground-nut oil with bulk consumers showing therein the names addresses and such other particulars as the Licensing Order may specify was maintained no note thereof was taken and the petitioner-firm was not directed on those occasions to maintain such a register. The learned Additional Sessions Judge expressed himself on this point as under:

(2.) Encouraged by this definite finding recorded by the learned Additional Sessions Judge the learned Advocate for the petitioner argued that whenever a statute creates an offence the element of mens rea must be read in the statute unless a contrary intention is expressed or implied. According to him as a general rule every crime requires a mental element and unless the language of the statute in unmistakable language either ex- pressly or by necessary implication excludes it proof of the existence of such mental element is a sine-qua-non to a conviction. In support he relies on the decision of the Supreme Court in Nathulal v. State of Madhya Pradesh A.I.R. 1966 S.C. 43 a case in which while interpreting sec. 7 of the Essential Commodities Act 1955 hereinafter called the Act the Supreme Court held that considering the scope of the Act it would be legitimate to hold that an offence under sec. 7 of the Act is committed by a person if he intentionally contravenes any order made under sec. 3 of the Act. In other words the Supreme Court in terms read mens rea as an essential ingredient of the criminal offence referred to in sec. 7 of the Act. Seek- ing support from this pronouncement of the Supreme Court it was submitted on behalf of the petitioner that both sec. 6A and 7 of the Act cover the same field inasmuch as both the aforesaid provisions speak of contravention of an order made under sec. 3 of the Act with the difference in punishment only in that the former speaks of confiscation of the essential commodity while the latter provides for imprisonment and fine. The submission therefore is that since both the provisions are in pari materia if according to the view of the Supreme Court the element of a guilty mind is required in case of an offence under sec. 7 of the Act the same requirement must he read in sec. 6A of the Act also. Ex facie the argument appears to be weighty but it does not stand close scrutiny as it totally overlooks the legislative changes intro- duced after the Supreme Court decision in Nathulals case (supra).

(3.) The material part of sec. 7 of the Act initially provided that it shall be an offence if any person contravenes any order made under sec. 3 of the Act. However soon after the decision of the Supreme Court in the above-mentioned case with a view to making the provisions more stringent and their implementation effective and in order to prevent persons committing offences under the Act from escaping punishment on the plea that the offences were not committed deliberately sub-sec. (1) of sec. 7 was amended by Ordinance 6 of 1967 with effect from September 16 1967 which was later replaced by Act 36 of 1967 whereby the words whether knowingly intentionally or otherwise were added between the word ;contravenes and the words and figure any order made under sec. 3. The plain reading of the section after its amendment made it clear that by the amendment the legislature intended to impose strict liability for contravention of any order made under sec. 3 of the Act. In other words by the use of express words the element of mens rea as an essential condition of the offence was excluded so that every contravention whether intentional or otherwise was made an offence under sec. 7 of the Act. Thus by introducing these words in sec. 7 by the aforesaid statutory amendment the legislature made its intention explicit and nullified the effect of the Supreme Court dicta in Nathulals case. But again in the year 1974 pursuant to the recommend- ation of the Law Commission in their 47th Report and the experience gained in the working of the Act by an ordinance sec. 7 of the Act was amended whereby the words whether knowingly intentionally or others wise which were introduced by Amending Act 36 of 1967 were deleted and the material part of sec. 7(1) restored to its original frame and a new provision in sec. 10 of the Act was added which reads as under: