1. This revision case has been filed by the two accused in a case tried summarily by the learned District Magistrate of Coimbatore for contravention of the provisions of the Madras Gur and Khandsari Sugar Dealers Licensing Order, 1963 read with Section 7(l)(a)(ii) of the Essential Commodities Act, 1955. It is alleged that accused 1 who is the proprietor of V. V. Govindan and Co., and accused 2 who is the clerk of the said company, were dealing in Khandsari Sugar over 25 quintals at a time, between 1st April 1965 and 19th March 1966, without obtaining a licence under the said Order.
2. The learned District Magistrate has found, on the evidence that accused 1 was dealing in Khandsari Sugar over 25 quintals at a time during the relevant period. That finding is not challenged before me. The defence of accused 1 was that he had applied for a licence on 2nd February 1965 itself enclosing a chalan for Rs. 5 the fee for the licence. The learned District Magistrate finds that this is also true. But he has convicted accused 1 on the ground that till the date of inspection namely 19th March 1966, the licence was not issued and that the mere fact of his having applied for a licence would not be a valid defence. On this reasoning, he convicted both the accused and sentenced them to pay a fine of Rs. 300 and Rs. 100 respectively.
3. Clause 3 of the Order states that with effect on and from such date as the Government may specify, no person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority. Hence, it is clear that a licence was required and that accused 1 who carried on business would be guilty. The learned counsel for accused I, however, relies on the decision of the Supreme Court in Nathulal v. State of M. P., : 1966CriLJ71 . In support of the contention that in view of the application of accused 1 for a licence made on 2nd February 1965, he could be considered to have been under the bona fide impression that he was entitled to deal in sugar and that he did not have the necessary mens rea to defeat the provisions of the order. In the reported case, the person concerned has applied for a licence, but before he got it. he purchased and stored wheat and he was submitting returns periodically showing his purchase. He did not, however, sell any quantity thereof. There was also evidence in the case to show that he was assured that he would be getting the licence shortly and that he need not worry. It was held by Subba Rao and Bachawat, JJ. (Shah, J. dissenting) that the necessary mens rea was lacking. The learned District Magistrate distinguished the present case on the ground that here accused 1 did not submit any returns and that he was actually selling the sugar. In my opinion, the distinction made by the learned District Magistrate is sound. The conviction of accused 1 is, therefore, correct, but I reduce the sentence of fine to Rs. 100.
4. So far as accused 2 is concerned, it cannot be said that he was carrying on business in sugar. He was only a clerk and the person who was doing business was his master, accused 1. Clause 3 of the Order in question is differently worded from Acts like the Madras Prevention of Food Adulteration Act, where, for Instance, the person who actually sells any adulterous food even if he is only a servant, is made liable. (Vide Sarioo Prasad v. State of U. P., : 1961CriLJ747 ). I accordingly set aside the conviction of accused 2 and the sentence of fine Imposed on him. The fine amount paid by accused 2 and the excess fine paid by accused 1 will be refunded to them.