M.C. Chagla, C.J.
1. This is an appeal by accused No. 1 against an order of the Presidency Magistrate, Second Court, convicting him under Sections 7 and 8 of Act XXIV of 1946 read with Clauses 5 and 22 of the Motor Spirit Rationing Order, 1941, and sentencing him to rigorous imprisonment for six months and a fine of Rs. 50,000, in default further rigorous imprisonment for six months.
2. The prosecution case was that a11 the three accused on July 18, 1947, supplied four gallons of petrol for Rs. 25 to a bogus customer without coupons as required by law; that the petrol was supplied by accused No. 3; accused No. 2 was the cashier and accused No. 1 was the owner and the holder of the licence of the petrol pump from which the petrol was supplied. The learned Presidency Magistrate convicted accused No. 1 and accused No. 3 and acquitted and discharged accused No. 2. From that order of conviction and sentence only accused No. 1 has preferred this appeal.
3. Now, it was not the case of the prosecution that accused No. 1 was present when petrol was supplied by accused No. 3 to the bogus customer or that he had any knowledge of the supply of petrol by accused No. 3 to the bogus customer. The prosecution want to fasten a vicarious liability upon accused No. 1. Their case is that as he was the master of accused No. 3 and as he was the supplier, although he had no knowledge and although mens rea was not present, in law he was still liable and the conviction by the Presidency Magistrate is justified.
4. Now, turning to the Motor Spirit Rationing Order, 1941, 'supplier' is defined as a person carrying on the business of supplying motor spirit, and the definition seems to be wider than the definition of 'dealer' which restricts it to a person carrying on business in retail. Clause 5 of this Order provides that the motor spirit required for any vehicle not covered by Clause 3 or Clause 4 shall be furnished or acquired only against the surrender to a supplier at the time of supply of valid ordinary coupons or of valid supplementary coupons and only in accordance with any conditions or instructions appearing on or attached to such coupons. And Clause 22 provides:
No person shall furnish or acquire a supply of motor spirit otherwise than in accordance with the provisions contained in this Order.
In our opinion these provisions constitute an absolute prohibition against the supply of motor spirit otherwise than by the methods laid down in this Order, In our opinion also an obligation is cast upon the supplier to supply petrol in the manner indicated in this Order. It is, therefore, urged on behalf of the Crown that inasmuch as there is an absolute prohibition against the supply of petrol otherwise than as is laid down in this Order, accused No. 1 is guilty of the offence although no mens rea has been proved against him. Now, in order to determine that we must first turn to the section which lays down the punishment, and that is Section 7 of Act XXIV of 1946. This Act took the place of Ordinance No. 18 of 1946, and that in its turn replaced the rules framed under the Defence of India Act including the rule with which we are concerned, namely, Rule 81(4), which was the penal rule. By Section 7 of Act XXIV of 1946 it is provided that if any person contravenes any order made under Section 3, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. By virtue of Section 17 of Act XXIV of 1946 the Motor Spirit Rationing Order, 1941, is deemed to have been made under Section 3 of that Act. Now, the question that has got to be considered is whether there can be any contravention of any order made under Section 3. without the offender having a mens rea, or, in other words, whether a person who is morally innocent can contravene an order made under Section 3 and thereby commit an offence and make himself liable to punishment which may extend to three years' rigorous imprisonment.
5. The Government Pleader, relying on a decision of a divisional bench of this Court in Emperor v. Mahomed Bashir (1945) 48 Bom. L.R. 46, contends that where there is an absolute prohibition and no question of mens rea arises, the master is criminally liable for the acts of his servant. In this case Mr. Justice Divatia and Mr. Justice Bavdekar were considering a case where the proprietor of a hotel was charged for keeping it open during hours beyond those permitted to him under his licence. The hotel was being run by the manager, and the question was whether the master was vicariously liable for the acts of his servant, and the bench consisting of these two learned Judges held that the proprietor was liable for having committed the offence under Section 81(4) of the Defence of India Rules read with the relevant notification. In coming to that conclusion the Court accepted the principle that where there is an absolute prohibition of an act then the person committing the act is liable for the penalty provided in the statute whether he had mens rea or not.
6. After this decision was given the Privy Council had to consider the effect of this rule in a very recent case, Srinivas Mall Bairoliya v. Emperor : (1947)49BOMLR688 . In that case accused No. 1 and his employee accused No. 2 were charged under Rule 81(4) of the Defence of India Rules with having sold salt at a price exceeding the maximum price fixed by the District Magistrate. The Privy Council came to the conclusion that the evidence proved beyond doubt that accused No. 1 knew of accused No. 2's illegal exactions and connived at them, and, therefore, they affirmed the conviction against accused No. 1 and agreed with the view taken by the High Court of Patna that accused No. 1 had knowledge of the illegal exactions on the part of accused No. 2. Having come to that conclusion, the Privy Council, although strictly not called upon to do so, went on to observe that the view taken by the High Court that 'where there is an absolute prohibition and no question of mens rea arises, the master is criminally liable for the acts of his servant' was not a correct view, and the Privy Council dissented from that view. It is clear that what the Privy Council were dissenting from was the unqualified manner in which the High Court had enunciated the principle. According to the Privy Council it is not in every case of an absolute prohibition that no question of mens rea arises. According to them it is only, a limited and exceptional class of offences which can be held to 'be committed without a guilty mind. Further, according to them, these offences are of a comparatively minor character, and they expressed surprise-and it is almost a note of horror-that it could possibly be contended that offences under the Defence of India Act and, the Defence of India Rules which are punishable with imprisonment for a period of three years could possibly fall within this limited and exceptional category of offences, and they based this view on the necessity and importance of the protection of the liberty of the subject and they cited an observation of the Lord Chief Justice of England that 'the Court should always bear in mind that, unless the statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind.' In our opinion although it is merely an obiter dictum of their Lordships of the Privy Council, it is a well considered obiter and not only have we to respect it, but we are bound by the view taken by their Lordships of the law.
7. The Government Pleader has sought to argue that the particular offence with which the accused has been charged falls in the limited and exceptional class of offences to which the Privy Council was referring. It is impossible to hold that, because the Privy Council in terms says that the offences constituted under the Defence of India Rules cannot possibly fall within that class because they are not minor offences considering the punishment, which is imprisonment for a term, which may extend to three years. There is no doubt that the obiter of the Privy Council is well considered because we have considered the line of authorities both in England and of this Court which are clearly in conformity with the principle enunciated by their Lordships of the Privy Council.
8. In Halsbury's Laws of England, Vol. IX, at p. 10 in para 3 is first stated the ordinary law, namely, that it is generally necessary that there should be a wrongful intention or some other blameworthy condition of the mind (mens rea) which can be imputed to the accused before he can be held guilty of an offence. Then at p. 11 the exception is set out and that is:
In a limited class of offences, mens rea is not an essential element. This class consists, for the most part, of statutory offences of a minor and only quasi-criminal character and, in order to determine whether mens rea is an essential clement of an offence, it is necessary to look at the object and terms of the statute which creates it.
And in foot-note (n) at that page the kind of offences where it has been held that mens rea is not an essential element are enumerated, and these are Nuisance Cases, Food and Drug Cases, Licensing Cases and Miscellaneous Cases.
9. Turning now to the English cases on which Mr. Justice Divatia and Mr. Justice Bavdekar relied in Emperor v. Mahomed Bashir, we find that all those cases are cases where the offences were of a minor and only quasi-criminal character. In Mullins v. Collins (1874) L.R. 9 Q.B. 292 it was a case of supplying liquor and the offence was constituted by 35 & 36 Vic. c. 94, and the penalty was for the first offence ten pounds and for the second or any subsequent offence twenty pounds. In Coppen v. Moore (No.2) (1898) 2 Q.B. 306 the offence was under the Merchandise Marks Act, and the penalty was twenty pounds or four months. In Parker v. Alder (1899) 1 Q.B. 20 the prosecution was under the Adulteration of Food Act, and the penalty was twenty pounds. And finally in Allen v. Whitehead (1930) 1 K.B. 211 the accused was charged for harbouring prostitutes under the Metropolitan Police Act, and the punishment there was five pounds, and in Mousell Brothers v. London and North Western Railway (1917) 2 K.B. 836 the accused was charged for furnishing a false statement re : charging of tolls, and the sentence there was ten pounds. Therefore it will be seen that in all these cases the offences were of a minor and only quasi-criminal character, and from the language, scope and object of the statute the Courts inferred that mens rea was not a necessary or essential ingredient of the offence and a person could be convicted in the absence of mens rea because the statute had imposed a total prohibition of the act for committing which the accused was charged. But, with great respect, the case before Mr. Justice Divatia and Mr. Justice Bavdekar was not a case of an offence of a minor and quasi-criminal character. It was an offence that was constituted by the Defence of India Rules, where the sentence imposed was of a severe character, and in view of what the Privy Council have now observed it was certainly not an offence, falling within that limited category. Therefore, with very great respect we feel that in view of the recent Privy Council decision the case of Emperor v. Mahomed Bashir cannot be considered to have been rightly decided and that was not a case where the principle of vicarious liability could have been invoked.
10. Coming to the decisions of our Court prior to the decision to which I have just referred, Emperor v. Mahomed Bashir, we have three decisions : Queen-Empress v. Tyab Alli I.L.R. (1900) 24 Bom. 423 Emperor v. Jeevanji I.L.R. (1907) 31 Bom. 611 and Emperor v. Mahadewappa I.L.R. (1926) 51 Bom. 352. In Queen-Empress v. Tyab Alli Mr. Justice Parsons and Mr. Justice Ranade held that the licensee under the Arms Act was liable to punishment under Section 22 of the Indian Arms Act, though the goods were not sold with his knowledge and consent. The maximum sentence under this section was six months or a fine which may extend to Rs. 500. In Emperor v. Jeevanji Mr. Justice Chandavarkar and Mr. Justice Heaton held that under Section 111 of the Indian Emigration Act, 1883, the master or the principal could be held liable for the acts of his servant or agent. There again for contravention of the section the sentence was a fine of Rs. 250, and in Emperor v. Mahadewappa Mr. Justice Fawcett and Mr. Justice Shah differed and the case was referred to Mr. Justice Crump, who agreed with Mr. Justice Fawcett that the accused who held a licence under the Indian Explosives Act, 1884, to manufacture gun-powder was liable for the act of his servant. The offence was constituted by the rules framed under the Indian Explosives Act, and under Section 5 the rules could not impose a sentence exceeding a fine prescribed by Section 5 of the Act. Therefore, in our opinion all these three cases may be said to fall in the category of those exceptional and limited cases where the offence is of a minor and only quasi-criminal character.
11. We may also refer to a decision to which the Privy Council themselves refer in the case to which we have already drawn attention, namely, Srinivas Mall Bairoliya v. Emperor : (1947)49BOMLR688 and the case to which the Privy Council refer is Sherras v. De Butzen(1895) I.Q.B. 918 and there Mr. Justice Wright points out (p. 921):
There is a presumption that mens rea,.intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.
And then he goes on to say that apart from isolated and extreme cases, the principal classes of exceptions may perhaps be reduced to three, and these three are : One is a class of acts which are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty. The second class is, all public nuisances, and the third, cases in which, although the proceeding is criminal in form, it is really a summary mode of enforcing a civil right.
12. The question we have got to determine is whether the case we are dealing with is a case, in the language of Mr. Justice Wright, which is not criminal in any real sense, but it is an act which in the public interest is prohibited under a penalty. It is difficult to say of offences under Act XXIV of 1946 that offences have been created by the act which are not criminal in any real sense. But really this is no longer open to argument or, dispute in view of what the Privy Council has observed and to which I have already referred.
13. It is not suggested that even in the class of cases where the offence is not a minor offence or not quasi-criminal that the Legislature cannot introduce the principle of vicarious liability and make the master liable for the acts of his servant although the master had no mens rea and was morally innocent. But the Courts must be reluctant to come to such a conclusion unless the clear words of the statute compel them to do so or they are driven to that conclusion by necessary implication. In this case we neither find clear words in the statute, nor can we say that by necessary implication the Legislature has introduced this principle of vicarious liability. Our attention was drawn to another war time legislation which is very much in Parimateria, namely, the Hoarding and Profiteering Prevention Ordinance, where the Legislature has in terms made the dealer liable although he might not be the person who sold the particular commodity, but it was sold by his servant (see Clause 4(3) and Clause 6(5) of the Hoarding and Profiteering Prevention Ordinance 1943).
14. The Government Pleader has attempted to impress upon us the serious consequences of the decision which we are just giving. Really that is no concern of a Court of law. The Courts are more anxious-and should be more anxious-to protect the liberty of the subject and to see that an innocent man does not suffer, rather than consider questions of policy. But we see no difficulty in the way of Government or the Legislature, because if the executive desires that the owners of petrol pumps should be held liable for unauthorised supply of petrol even without their knowledge or even contrary to their instructions, nothing is easier than to legislate to that effect and make a proper provision in this particular Order.
15. We are, therefore, of opinion that the conviction of accused No. 1 is not justified and cannot be sustained. We, therefore, allow the appeal, set aside the conviction and sentence and direct the accused to be acquitted and discharged. Bail bonds to be cancelled.