1. This order will govern the decisions of criminal Revisions Nos. 292 of 1948 and 295 of 1948 also. All the three revisions arise out of three separate prosecutions launched against the applicants in respect of Reven different contraventions of Clause 8 (1), C. P. and Berar Foodgraina Control Order, 1946. The applicants have been sentenced to pay different amount of fine in respect of these contraventions.
2. The applicants are partners of the firm 'Mahadeo Onkarlal' of Khandwa, whose business apparently is to deal in foodgrains. They held a licence for doing this business but it was can-celled on 13th February 1946. In spite of this the firm 'Mahadeo Onkarlal' purchased varying quantities of foodgrains from other dealerB between 10th April 1946 and 17th May 1946. It is now admitted that the applicant Onkarlal acted for the firm in respect of four transactions and that the applicant Mahadeo acted in respect of one transaction. As regards the two transactions which were respectively of 11th April 1946 and 12th April 1946 the evidence is said to be indefinite.
3. Two points are argued before me. The first is that one partner cannot be held criminally liable for the act of another, and the second is that where the evidence does not definitely indicate which of the partners entered into a particular transaction neither of them can be held criminally liable.
4. The ground on which the first point rests is that no person can be Convicted of an offence unless it is shown that be had the necessary criminal intent for committing the offence. Where, therefore, a partner of a firm was not present when the other partner committed an offence, it is argued that the former cannot be made liable as, civically, he could not have the necessary criminal intent. In support of this point, reliance is placed upon the following observations of their Lordships of the Privy Council in Srinivas Mall v. King-Emperor 61 C.W.N. 900 : A.I.R. 1947 PO 186:
The High Court took the view that even if appellant 1 had not been proved to have known of the unlawful acts of appellant 2, he would frill be liable, on the ground that 'where there is an absolute prohibition and no question of menses arises, the master is criminally liable for the oats of his servant.' With due respect to the High Court, their Lordships think it neoessflry to express their dissent from this view. They see no ground for saying that offences against those of the Defence of India Rule here in question are within the limited and exceptional class of offence which can be held to be committed without a guilty mind. See the judgment of Wright J., in Sherras v. De Rutzen (1895) 1 Q. B. 918 : 61 L. J. M. C. 218 Offences which are; within that class are usually of a comparatively minor character, and it would be a surprising result of this delegated legislation if a person who was morally innocent of blame Could be held vicariously liable for a servant's crime and so punishable 'with Imprisonment for a term which may extend to three years.' Their Lordships agree with the view which was recently expressed by the Lord Chief Justice of England, when he said: 'It is in my opinion of the utmost importance for the protection of the liberty of the subject that the Court should always bear in mind that, unless the statute, either clearly or by necessary implication, rules out menses 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.' Brend v. Wood (1946) 110 J.P. 317
5. This case was recently considered by the Calcutta High Court in Md. Azam Khan v. The Etng, 62 C. W. K. 617 : A.I.R. 1948 Cal 287 which was also a case arising ant of the contravention of a foodgrains control order. The learned Judges have observed as follows at page 618 ;
The view was at one time held in Courts in this country that liability for offences under the Defence of India Rules and the Food Control Orders made under powers granted by those rules was absolute and that the prosecution were not bound to show menu rea or a guilty mind. The matter, however, came before their Lordships of the Privy Council in the case of Srinivasmall Batroliyn v. The King Emperor, 61 C. W. N. 900 : A. I. R 1947 P. C 135 In that case it was Bought to make a dealer liable for the act of his servant, and it was argued that the liability under Profiteering Ordinances was absolute and therefore the dealer could be made liable though he had no mens rea at all. Their Lordships, however, held that unless the statute, either clearly or by necessary implication, ruled out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence under the Criminal law, unless be had a guilty mind. They further held that offences which could be held to be committed without a guilty mind were usually of a comparatively minor character and the selling of articles fit more than their controlled price under the Deflection India Rules, punishable with imprisonment for three years, dues not come within that limited and exceptional class. It is to be observed that 'offences against Foodgrama Control Order' were punishable with Bubstantial periods of imprisonment up to three years' rigorous imprisonment. That being so metis rea must be established.
6. It is, however, argued on behalf of the Grown that cases of the present type are entirely outside the rule of mens rea, and it is said that where one partner acts on behalf of the firm and his act is within the scope of his authority, the firm is answerable for it even if that act amounts to an offence. Contravention of the Foodgrains Control Order are said to be of a quasi-criminal character and therefore outside the rule of mens rea. It is undoubtedly true as stated in para. 3 of Halabury'a Laws of England, Volume 9, Hailsham Edition, that in a certain class of offences mens rea is not an essential element. But this class of offences is very much limited and consists, for the most part, of statutory offences of a minor and only quasi-criminal character, and even then it is necessary to look at the object and terms of the statutes which create those offences to see whether mens rea is an essential element.
7. In the case before their Lordships of the Privy Council the matter related to the contra, vention of a certain Control Order which was made punishable under the Defence of India Act. Their Lordships observed that such a contravention does not fall within 'the limited and exceptional class of offences which can be held to be committed without a guilty mind.' Here the contraventions are also of a control order, This order was originally promulgated under the Defence of India Act itself but consequent on the expiry of that Act it now fall under the Essential Supplies (Temporary Powers) Act, 1946 The penalty attached to the contravention of this Order is as severe as the one which attached to the contravention of the particular order which their Lordships of the Privy Council had to deal with. In view of this, what their Lordships said about the particular order with which they were dealing would also hold good in the present case.
8. A number of licencing cases were cited before me by the learned Government Pleader in support of his contention that in offences of a quasi criminal character the existence of mens rea is not necessary and that a principal could be made criminally liable for the act of his agent. It is not necessary to refer to those capes because they are a class apart and obviously the offences with which those oases deal are of a minor character carrying a comparatively small penalty.
9. Apart from that, it Seems to me to be clear from Section 9, Essential Supplies (Temporary Powers) Act, 1946, that the proof of mens rea is an essential ingredient of an offence created by the Act. That section reads thus :
Offences by corporations. If the person contravening an order made Under Section 3 is a company or other body corporate, every director, manager, secretary or other officer or agent thereof shall, unless he proves that the contravention took plane without his knowledge or that he exercised all due deligence to prevent each contravention, be deemed to be guilty of such contravention.
This provision dearly enacts a legal presumption to the effect that every director, manager, secretary or other officer or agent of a company or of other body corporate shall be presumed to know that the contravention of any order made under this Act by the company or by any other body corporate took place within his knowledge. The provision enables him to rebut this presumption either by showing that the contravention took place without his knowledge or by showing that he exercised all due diligence to prevent the contravention. As the legislature has thought it fit to enact such a presumption, it seems to me to be clear that its intention is that no one will be made criminally liable for any aontravention under the Act, unless he had a guilty mind. This disposes of the first point.
10. As regards the next point, it seems to me to be clear from the fact that Mahadeo is admit, tedly a partner of the firm 'Mahadeo Onkarlal' taken along with the general tenor of the evidence of Hiralal and Babulal, that the transao-tions of 11th April 1916 and 12th April 1946 were entered into on behalf of the firm by Mahadeo. This conclusion is fortified by the fact that the transaction of 10th April 1946 was admittedly entered into by Mahadeo himself. I am, there, fore, not prepared to regard the evidence regard, ing the transactions of 11th April 1946 and 12th April 1946 as indefinite and my conclusion is that those transactions were also entered into by Mahadeo.
11. In view of these findings, the convictions and sentences passed on Cnkarlal in respect of the contraventions which are the subject matter of criminal Eevisiona nos. 291 and 295 of 1948 are maintained, while those on Mahadeo are set aside. Similarly, the convictions and sentences passed on Mahadeo which are the subject-matter of criminal Revision No. 292 of 1948 are maintained, while those passed on Onkarlal are Bet aside. Fines in respect of sentences which have been get aside shall if realised, be refunded.