1. This is an appeal by the State from an order of the Additional City Magistrate, Lashkar acquitting the respondent Brij Lal Dhodi of the charge of having committed an offence under Section 8 of the Madhya Bharat Essential Supplies (Temporary Powers) Act Samvat 2005 (Act No. 3 of 1948) by contravening the provisions of Sections 15 and 13 of the Madhya Bharat Cotton Textile Control Order 1948 made under Section 4 of the Act No. 3 of 1948. It was alleged by the prosecution that on 18.7.50, the respondent Brij Lal Dhodi sold 82 yards of cloth to Messrs Sharma brothers at a price in excess of the maximum price fixed by the Textile Commissioner under Section 13 of the Cotton Textile Control Order. The ex-mill price of this cloth was Rs. 130-7-9. The respondent was entitled to charge for the cloth sold in addition to the above price an amount of Rs. 1-0-6 in respect of sale-tax and a further amount of Rs. 8-3-6 in respect of the customs duty.
Under notification No. 44 of 1949 dated the 6.12.49 (published in the Gazette of 17.12.49) title respondent was also entitled to make a surcharge of 14 per cent, on the ex-mill price of the cloth, namely Rs. 130-7-9. It was alleged by the prosecution that the respondent Brlj Lal Dhodi illegally realised from Messrs Sharma Brothers 14 per cent, surcharge on Rs. 139-11-9 being the total of the ex-mill price, sales tax and the customs duty,-whereas he could have charged the 14 per cent surcharge only on the amount of ex-mill price, namely, 130-7-9. The prosecution stated that the respondent thus made an overcharge of Rs. 1-9-10. The respondent did not dispute these facts. In his defence, he stated that at the time he sold the cloth to Messrs Sharma Brothers and prepared a cash memo in respect of the transaction, there were several customers in his shop and that through some mistake he calculated the 14 per cent, surcharge on Rs. 139-11-9 instead of on Rs. 130-7-9 The learned City Magistrate accepted this plea and held that the accused committed a bona fide mistake in calculating the 14 per cent. Surcharge.
2. In this appeal, Mr. Shiv Dayal Deputy Govt. Advocate, firstly contends, that Section 15 of the Cotton Textile Control Order 1948 and Section 11 of the Madhya Bharat Essential Supplies (Temporary Powers) Act, 1948 by necessary implication rule out mens via, as a constituent part of the offence of a contravention of the Textile Control Order, 1948 and that, therefore, the Additional City Magistrate was not justified in taking into consideration the plea of the accused that he had committed a mistake in charging the 14 per cent, surcharge on Rs. 139-11-9. Mr. Shiv Dayal secondly argues that even if it is held that there can be no conviction under Section 8 of the Essential Supplies (Temporary Powers) Act, 1948 in the absence of mens reti, the evidence on the record amply shows the criminal, mind of the accused in calculating the 14 per cent, surcharge in the manner he did.
3. In my opinion, both these contentions advanced by the learned Government Advocate must be rejected. In support of his contention, that mens rea is not a constituent part of a crime under the Act No. 3 of 1948 and the Cotton Textile Control Order 1948, Mr. Shiv Dayal places reliance on a decision of a Division Bench of this Court in-State v. Genda Lal AIR 1950 Madh. B. 89. In that case the question was whether all the partners of a firm could be said to have contravened the provisions of Clause 12A of Indore Cotton Cloth and Yarn Control Order when on a search of the partnership shop time-barred cloth was found therein. One of the contentions advanced on behalf of the accused persons in that case was that the partners of the firm were not liable as they did not know that time-barred cloth was kept in the shop and that they had no guilty knowledge. The Division Bench did not accept the contention holding that Clause 11 of the Indore Essential Supplies Order under which the Indore Cotton Cloth And Yarn Control Order was made clearly recognised the principle of vicarious responsibility in offences arising out of the breach of the provisions of that order and that therefore, mens rea as an essential constituent of the crime was excluded.
Clause 11 of the Indore Essential Supplies Order was to this effect:
Offences of corporations. If the person contravening an order made or deemed to be 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 place without his knowledge or that he exercised all due diligence to prevent such contravention, be deemed to be guilty of such contravention.
4. In the case of State v. Genda Lal AIR 1950 Madh-B 89 the Division Bench referred to the observations of their Lordships of the Privy Council in-Sri Niwas Mal v. Emperor AIR 1947 P.C. 135 to the effect that
unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind
and then observed that the Privy Council case clearly recognised that the law either expressly or by necessary implication rules out mens rea as a constituent element of the crime. The decision of the Division Bench is not an authority for the proposition that as a general rule mens rea is not necessary to constitute a crime. That decision only lays down that Clause 11 of the Indore Essential Supplies Order, 1946 rules out mens rea as an essential constituent in offences of contravention of the Indore Cotton Cloth and Yarn Control Order.
On the basis of the Division Bench decision, it could, at the most, be argued that in offences under a statute where a provision exists similar to Clause 11 of Indore Essential Supplies Order, 1943 mens rea is excluded. But the authority of the Division Bench decision even in respect of this limited proposition is now considerably weakened by a recent decision of the Supreme Court reported in-Joy Lal grawal v. The State : 1SCR127 . In this case their Lordships of the Supreme Court considered the element of mens rea in respect of a prosecution under the Essential Supplies (Temporary Powers) Act 1946, Section 9 of which is analogous to Clause 11 of Indore Essential Supplies Order of 1946, and held that on the evidence in that case, an inference of mens rea could be drawn against the accused person. If by the wording of Section 9, the element of mens rea in an offence under the Essential Supplies (Temporary Powers) Act, 1946 had been excluded, it would have been unnecessary for the Supreme Court and the Calcutta High Court whose judgment was under appeal before the Supreme Court to consider the question of mens rea on the evidence adduced in that case.
I am therefore, inclined to think that in view of this decision of the Supreme Court, the question whether mens rea is an essential constituent of an offence under the Essential Supplies Act of 1946 or the Madhya Bharat Essential Supplies Act, 1948 (which is nothing but a reproduction of the Central Act 1946) is no longer res integra and it must be held that to make a person liable for an offence under the Act, he must have a mens rea. In this view, the effect of Section 9 of the Essential Supplies (Temporary Powers) Act 1946 (Act No. XXV of 1946) or of Section 11 of the Madhya Bharat Essential Supplies (Temporary Powers) Act, 1948 is not to exclude mens rea but to draw a presumption of mens rea and to cast on the accused the burden of proving that he did not have the necessary mens rea. It is one thing to say that in an offence under a statute mens rea is excluded. It is quite different to say that a statute makes a presumption' of mens rea and casts on the accused the burden of showing the absence of a criminal mind. The contention, therefore, of the learned Deputy Government Advocate that In the present case the question of mens rea does not arise for consideration, cannot be accepted.
5. On the question whether the respondent has succeeded in showing that when he charged the 14 per cent, surcharge on Rs. 139-11-9, he had not the necessary guilty mind, I see no reason to disagree with the finding arrived at by the learned Additional City Magistrate. The accused gave a cash memo to the purchaser Messrs Sharma Brothers immediately after the sale of the Cloth. In the cash memo, it was entered that the cloth was being sold for 'official purpose'. In the cash memo no attempt was made to hide the amount on which the 14 per cent, surcharge was calculated. When the matter of this overcharge was discovered by the Sub inspector of Enforcement Branch, the accused was questioned by the Sub Inspector Mr. Chaturvedi and at that time also the respondent stated that the overcharge was a mistake. According to the evidence given by this Sub-Inspector, he found the same amount of surcharge which was shown in the cash memo entered in the respondent's account books and that there were no erasures of any kind in his account-books and further in the other cash memos issued by the respondent there was no overcharge of the type in the present case.
Mr. Chaturvedi also admitted in his deposition the possibility of the 14 per cent, surcharge on Rs. 139-11-9 being a mistake. In these circumstances, it cannot be said that the conclusion drawn by the learned Magistrate that the overcharge was due to a bona fide mistake is unwarranted on the evidence on the record. A different view of the evidence may be possible but, as has been pointed out by the Privy Council in-Sheo Swarup v. Emperor 1934 P.C. 227 (2) and by this Court in-State v. Hira Lal Cri. Appeal No. 34 of 1950 (Madh. B.) that in appeals against acquittals the appellate Court must be slow to disturb a finding of fact arrived at by a Judge who had the advantage of seeing witnesses.
6. For the above reasons, I do not think we would be justified in interfering with the acquit tal of the respondent. The learned Additional City Magistrate has carefully considered all the facts and circumstances of this case and came to a conclusion which cannot be said to be wrong either in law or on facts.
7. In my opinion, this appeal must, therefore, be dismissed.
8. I agree.