1. This petition is by the first accused in C. C. No. 187 of 1951 on the file of the Sub-Divisional Magistrate, Mayuram. He and two others were charged by the Textile Control Officer for contravention of the provisions of the Cotton Textile (Control) Order, 1948, Clause 24(1) read with Clause 10 of the Madras Cloth (Dealers) Control Order, 1948, which are punishable under Sections 3 and 7 of the Essential Supplies (Temporary Powers) Act, 1946. They were charged on two counts (1) for selling cloths at a higher price, and (2) for not issuing a bill in accordance with Clause 9 of the conditions of the licence. They were acquitted on the first count but on the second count, the first and third accused were convicted; the second accused being a partner and not a licensee was acquitted. The first accused is a licensee and proprietor of a shop called 'Ram-kesh', Silk Emporium, Mayuram. The third accused is a clerk employed by the first accused and a salesman in the shop.
P. W. 3 came and purchased 2 1/2 yards of mill shirting cloth at Rs. 1-4-0 per yard. The third accused, the salesman, sold the same and the purchaser went away without taking a bill in the first instance. She came back about an hour later and asked for a bill. After some bargaining, the third accused gave a bill on a plain paper. The bill has been produced; and it is in respect of this bill that was only on plain paper that both the first accused and the third accused were finally convicted. The final sentence on the third accused was Rs. 50 and the first accused also was fined Rs. 60 but the third accused had an additional sentence of Rs. 25 as he was charged on both counts and convicted.
2. In revision on behalf of the first accused the main point that is urged is that the first accused was not present at the time of the purchase by P. W. 3 and that for any misconduct or omission on the part of the third accused to issue a proper bill the first accused cannot be made liable.
3. Under Clause 10 of the Madras Cloth (Dealers) Control Order, 1948 'The holder or a licence granted under this Order shall be bound by the provisions of this Order and the conditions of his licence.' Condition 9 of the licence is as follows:
'The licensee shall issue to every customer a correct cash receipt or credit note, as the case may be, and shall keep a duplicate of the same and shall present it for inspection on demand by any Inspecting Officer.
Every such receipt or credit note shall be signed by the salesman and shall give the name and address of the buyer, the description and quantity of the cloth sold and the prices charged therefor.'
4. Mr. Kasturi appearing for the petitioner relies on the decision of the Privy Council in --'Srinivas Mall v. Emperor', AIR 1947 PO 135 (A), wherein their Lordships of the Privy Council have laid down the law as to 'mens rea' as follows:
'With due respect to the High Court, their Lordships think it necessary to express their dissent from this view. They see no ground for saying that offences against those of the Defence of India Rules here in question are within the limited and exceptional class of offences which can be held to be committed without a guilty mind. See the judgment of Wright J. in --'Sherras V. De Rutzen', 1895 1 QB 918 (B). 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 a 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: -- 'Brend v. Wood', (1946) 110 JP 317 (C).'
This was approved by our Supreme Court in --'Hariprasada Rao v. State' : 1951CriLJ768 . They said:
'In our opinion, the view of the law as propounded by the Privy Council is the correctview..........'
The law which Is referred to and which has been approved by the Supreme Court in my opinion refers to the statement by the Privy Council that
'a 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 fact, in the very case in question their Lordships of the Supreme Court confirmed the conviction of the master for the act of the servant. They referred to a number of English decisions where the statute absolutely prohibits the doing of a certain thing and even if the servant does the prohibited thing the master was still held liable. Mr. Kasturi lays stress on the statement:
'with due respect to the High Court, their Lordships think it necessary to express their dissent from this view. They see no ground for saying that offences against those of the Defence of India Rules here in Question are within the limited and exceptional class of offences which can be held to be committed without a guilty mind. See the Judgment of Wright J. in -- 1895 1 QB 918 (B)'. 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.'
Normally in criminal law, It is true that the culpable mental element known as 'mens rea' is required. But though the administration of Criminal Justice has been well founded on this well established principle, there has been a tendency of late at any rate during the last 50 or 60 years to whittle down this doctrine in certain cases. That class of cases wherein the offence consists solely in the doing of an act, whatever the state of the mind of the actor may be is only an exception to the general rule that a person cannot be convicted of a crime unless he has been forbidden to commit the act or unless a wrongful intention could be imputed to him by the act. Such cases are often created by the statute when a state of emergency in the State arises. The reason for such an enactment is that the legislature thinks it important and necessary to prevent the particular act from being committed that It absolutely forbids it to be done; and if it is done, the offender is liable to penalty whether there is 'mens rea' or not and whether or not he intended to commit a breach of the law.
As pointed out byB. M. Jackson in 'Absolute prohibition in Statutory Offences' (page 262) in 'The Modern Approach to Criminal law':
'the statutory offences of absolute liability depend on the particular wording of the statutes by which they are created; the elements of each offence must be ascertained by construing the statute.'
The learned author cites several instances in that article where the master has been made liable in spite of the servant acting contrary to the definite instructions given by the master. In one case he points out how a licensee has been made liable if gaming takes place on licensed premises to the knowledge of the person in charge although the licensee was not present. In another case the accused was made liable under the Sale of Food and Drugs Act for selling adulterated milk when the adulteration was made by the servant acting against his orders. In yet a third case the accused was convicted for selling adulterated milk although the adulteration was made by a stranger during the transit of the milk by railway.
Referring to one of such cases Lord Russel C. J. said:
'This is one of the class of cases in which the Legislature has, in effect, determined that 'mens rea' is not necessary to constitute the offence.'
The question in all these cases as rightly pointed out by the Privy Council is whether the statute clearly or by necessary implication rules out 'mens rea' as a constituent part of a crime.
The observations of Atkin J. in -- 'Mousell Bros, v. London and North Western Rly.', 1927 2 KB 836 (E) are cited with approval in : 1951CriLJ768 . The observations are:
'I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible- for the acts of his servants, yet the Legislature may prohibit an act or 'enforce a duty' -- (underlining (here in'') is mine) in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the Statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed.'
This shows that the object of the Statute, the words used and the nature of the duty laid down must be looked into in ascertaining whether the master is liable or not.
5. Applying the above principles to the case under the Control Orders, it seems to me that an absolute liability is imposed upon the licensee to observe the conditions of the license, the object being to prevent black-marketing. Any other interpretation would frustrate the object of the Legislature. It is clear from clause 10 of the Order that the holder of the license should be bound by the provisions of this order and the conditions of his license. Clause 9 of the conditions clearly lays down that it is the licensee who shall issue to every customer a correct cash receipt or a credit note. This may be done either by him or by setting up a proper machinery, that is, by means of a clerk. But if the receipt is not given in accordance with condition 9 it is the licensee on whom the responsibility is cast who will be primarily liable. The salesman can only be an abettor.
The circumstances of this case show that the clerk was bargaining with the purchaser to give a receipt in the presence of P. W. 1, the Inspector. This conduct on the part of the clerk clearly shows that proper machinery has not been set up to comply with the conditions of the license. In my opinion, the petitioner in this case has been rightly convicted of the offence with which he has been charged. I therefore see no reason to interfere with his conviction. The sentence cannot be said to be excessive.
6. The petition is dismissed.