Bind Basin Prasad, J.
1. This judgment will govern 101 references, namely, 884 to 389, 391 to 404, 441 to 457, 469 to 496, 815 to 829, 835 to 844, 990 to 999 and 1376 of 1946. Common questions of law arise in them. 100 of these references are by the learned Sessions Judge of Agra and the remaining one by that of Cawnpore.
2. In the cases from Agra the charge against the accused persons, who are all dealers in cloth, was that after 31-12-1944, they were found in possession of cloth manufactured before 1-8-1943, and thereby they contravened Clause 14 of the Government of India Cotton Cloth and Yarn (Control) Order, 1943, and were accordingly punishable under Rule 81(4), Defence of India Rules. In the. case from Cawnpore, the charge was that the accused person was on 5-1-1945, in possession of printed cloth marked in June 1944, and thus contravened the amended Clause 14.
3. The defence in all the cases was that the accused persons tried to dispose of the cloth in question, but could not succeed in making a complete clearance, and in the absence of any orders on the relevant dates by the Textile Commissioner as contemplated by Clause 16-A of the aforesaid Order, they could not help being is possession of them. The accused persons from Agra assert their bona fides by showing that they never suppressed the cloth in question and showed them in their returns to the Supply Officer. The accused from Cawnpore (Reference No. 1376 of 1946) even states that ho was prevented by the Supply Officer from selling the cloth up to 28-12-1944 and in the three days that were left it was not possible for him to Bell away the cloth in question. It appears that this accused had bought 800 pieces of cloth at Bombay and discovered that he was selling them at more than the controlled rate. He explained to the District Supply Officer that there seemed to have been a mistake and inquired what he should do. The Supply Officer asked him on 25-8-1944, not to sell any more of the cloth till he received the Government orders. It was on 28-12-1944 that this accused was informed of the Government orders to sell the cloth.
4. In all the cases, learned Magistrates held that Clause 14 of the aforesaid Order had been contravened and the accused were punishable under Rule 81(4), Defence of India Rules. Varying sentences of fine ranging from Rs. 200 to ten were imposed upon the accused in these cases. In addition, the cloth in question has been forfeited.
5. The accused went up in revision before the two Sessions Judges. Relying upon Provincial government, C.P. & Berar v. Shamsherali 32 A.I.R. 1945 Nag. 249, learned Sessions Judge of Agra, Mr. Padmanabhan, held that having regard to the conjoint effect of Clauses 14 and 15-A the accused before him were in the circumstances stated above not liable and he has recommended that their convictions be set aside, the fine be refunded and the cloth seized be returned. Learned Sessions Judge of Cawnpore, Mr. Croft reports that when the accused was prevented by the District Supply Officer up to 28-12-1944, from Selling the cloth, he should not be convicted for not having done what he was disallowed from doing.
6. The first question is whether in view of the provisions of Clause 15-A and the admitted fact that the Textile Commissioner had on the relevant dates made no notification regarding the cloth left over after sale on 31-12-1944, can the accused be held guilty for the contravention of Clause 14? It is unnecessary to discuss this point at any length. In the recent Full Bench case in Laljee v. Emperor : AIR1948All38 this Court held as follows:
Clause 15-A of the Cotton Cloth and Yarn (Control) Order, 1943, is in the nature of a, proviso and an enabling clause and it cannot, therefore, override the provisions of Clause 14 which are mandatory.
The prohibition in Clause 14 is absolute and is subject only to the condition that if the Textile Commissioner has issued a notification under Clause 15-A about the special markings etc., the dealer may retain the cloth for a further period of six months from the date of the marking in accordance with the notification. In case there is no such notification by the Textile Commissioner, the dealer has no right to retain it or to offer it for sale after 31-12-1944.
7. A similar view was taken in Chhottey v. Emeperor 34 A.I.R. 1947 All. 394.
8. After these authoritative pronouncements the accused in all these cases must be held guilty of the charge.
9. The second point urged is that the element of mens rea was absent in all these cases, and in view of the pronouncement of their Lordships of the Judicial Committee in Srinivas Mall v. Emperor 34 A.I.R. 1947 P.C. 135, they should be acquitted. Their Lordships quoted with approval the following observations of the Lord Chief Justice of England:
It is in my opinion of the utmost importance lot the protection of the liberty of her subject 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.
10. In the present cases, the element of mens rea, is ruled out by the necessary implications of the statutory provisions. The mere possession of cloth manufactured before August 1943, after 31-12-1944, has been made an offence by Clause 14 of the Order. The facts of the case in which their Lordships made the above observations were quite different. The High Court of Judicature at Patna from which the appeal wag being heard by their Lordships had taken the view that even if a master is not proved to have known the unlawful acts of his servant, he would still be liable on the ground 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'. Their Lord-ships while expressing dissent from these re-marks made the above observations. There is no question of vicarious liability in the cases before us. For the above reasons, the accused in these cases cannot be held not guilty on account of the absence of mens rea.
11. The last point argued is one of sentence. I see force in this. An examination of the recovery lists of the cases from Agra will show that the cloth in all the cases consisted' of cut pieces. In some cases these cut pieces were of a few girah only e.g. in Ref. No. 386 of 1946 Gobardhan Das v. King Emperor the pieces ranged from 5 girah to three yards. It is true that in some cases some of the pieces were longer being about twenty yards or so. But a perusal of the lists as a whole leaves the impression on the mind that they were really cloth which had been left over on the 31st December 1944 after sale.
12. There is further the fact that there was nothing clandestine in the conduct of the accused. They had shown these cut pieces of cloth in their returns to the Supply Officer. They readily handed over the cloth to the Piece Gooda Inspector. No complaint was made to the Inspector that the dealer had refused to sell the cloth to any one or that he was charging price higher than the controlled rate.
13. The accused in the Cawnpore case was in still more difficult position. Upto 28th December 1944, he was prohibited by the Supply Officer from selling the cloth and in the three days that were left, he was expected to dispose of 206 full pieces of cloth. He was able to dispose of sixty-one pieces of cloth. The remaining 145 pieces remained behind on 31st December 1944, and for this he was prosecuted.
14. There can be no doubt that on 31st December 1944, the cloth dealers were in a difficult position. On the one hand there was the provision in Clause 14 that after that day they could not be in possession of a certain kind of cloth. On the other hand, there was no provision as to what was to be done with the cloth of that variety, if on that day any such cloth was left unsold. No orders under Clause 15-A had been made by the Textile Commissioner then. Government had made no provision for the deposit of such cloth at any place. What were they to do with such cloth?
15. The offences in all these cases are thus technical. When I consider the sentences of fine along with the orders of forfeiture, I feel that the punishment is out of all proportion. There is no suggestion of black marketing. Had there been an element of black marketing, I would not have interfered with the sentence passed. In Pramatha Nath v. Emperor ('46) 33 A.I.R. 1946 Cal. 330, where the offence under the Defence of India Rules was technical, a sentence of fine of one anna only was awarded. In Chhottey v. Emeperor 34 A.I.R. 1947 All. 394, the accused who was found guilty of the contravention of Clause 14 of the aforesaid Order was sentenced to a fine of Rs. 5 only. In the one hundred cases from Agra, learned Magistrate has, after taking into consideration the quantity of cloth recovered, awarded fines ranging from rupees ten to two hundred. Bearing in mind the fact that the cloth has been forfeited and that the offence is technical, I would reduce the fine in all these cases to Rs. 5, upholding the orders of forfeiture. The forfeiture of cloth would automatically vary the penalty in proportion to the quantity of cloth recovered in each case.
16. The case from Cawnpore stands on a different footing and for reasons given in the judgment of that case, I would set aside the order of forfeiture and uphold the fine in it.
17. The convictions in criminal References Nos. 384 to 389, 891 to 404, 441 to 457, 469 to 496, 815 to 829, 835 to 844 and 990 to 999 are upheld, but the fine is reduced to Rs. 5 each accused. In default, the accused will undergo rigorous imprisonment for one week. The order of forfeiture of the cloth is maintained.