Skip to content


In Re: P. Kasi Mudaliyar - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Reported in(1970)2MLJ499
AppellantIn Re: P. Kasi Mudaliyar
Cases Referred and Hariprasada Rao v. State
Excerpt:
.....section 13 would furnish a proper understanding whether section 13 (1) does or does not create an offence of absolute liability. 378 ,have often been quoted :the rule of law, i take it, upon the construction of all statutes, and therefore applicable to the construction of this, is, whether they be penal or remedial, to construe them according to the plain literal and grammatical meaning of the words in which they are expressed unless that construction leads to a plain and clear contradiction of the apparent purpose of the act or to some palpable and evident absurdity'.that is perfectly right as a general rule and where there is no legal presumption but what about the multitude of criminal enactments where the words of the act simply make it an offence to do certain things but where..........seeks to revise his conviction for an offence under section 8(3)(b) read with section 13(1) of the rice milling industry (regulation) act, 1958.2. the petitioner is the owner of a rice mill at no. 131, gandhi road, cheyyar. he was licensed to carry on rice milling business under a licence. but the said licence was suspended by the district revenue officer by his order, dated 15th february, 1968 for a period of six months from the date of service of the order. the said order was served on the petitioner on 24th february, 1968. on 19th march, 1968 the taluk supply officer, cheyyar, along with his subordinates inspected the rice mill and found it to have carried on rice milling business during the period of suspension of the licence.3. the plea of the accused is one of denial.4. p.w. 1.....
Judgment:
ORDER

K.N. Mudaliyar, J.

1. The accused-petitioner seeks to revise his conviction for an offence under Section 8(3)(b) read with Section 13(1) of the Rice Milling Industry (Regulation) Act, 1958.

2. The petitioner is the owner of a rice mill at No. 131, Gandhi Road, Cheyyar. He was licensed to carry on rice milling business under a licence. But the said licence was suspended by the District Revenue Officer by his order, dated 15th February, 1968 for a period of six months from the date of service of the order. The said order was served on the petitioner on 24th February, 1968. On 19th March, 1968 the Taluk Supply Officer, Cheyyar, along with his subordinates inspected the rice mill and found it to have carried on rice milling business during the period of suspension of the licence.

3. The plea of the accused is one of denial.

4. P.W. 1 speaks to the fact of the accused being the owner of the rice mill at No. 131, Gandhi Road, Cheyyar. According to the evidence of P.W. 1, the licence for the rice mill was suspended for six months. P.W. 1 inspected the rice mill on 19th March, 1968 at 10-45 A.M. and found the accountant one Srinivasachari and the driver one Perumal present at the premises. He also found the huller with rice and husk. P.W. 1 also found a heap of rice by the side of the huller with husk. The accused had no valid licence to run the rice mill on 19th March, 1968. P.W. 1 took the sample of rice from the huller. He divided the same into three parts and sealed them. He put the same in three packets. He also took sample from the rice on the ground. He divided the same into three parts and put them in three covers and sealed them. He prepared a mahazar, Exhibit P-3 attested by his subordinates. He sent Exhibit P-4, a report, to the District Revenue Officer.

5. The Sub-Divisional Magistrate, Cheyyar accepted the evidence of P.W. 1 corroborated by the documents, Exhibits P-3 and P-4 and rejected the evidence of D.W. 1. We shall notice the evidence of D.W. 1. He says that the rice mill was not running when the Taluk Supply Officer, P.W. 1, came inside the mill of the petitioner. D.W. 1 further says that the petitioner went to Tiruttani with his family and returned on the night of 19th March, 1968. The remainder of the evidence of D.W. 1 is unnecessary, although his entire evidence has been rejected by the Magistrate.

6. Section 8 (3) (b) of the Rice Milling Industry (Regulation) Act, 1958, is as follows:

No owner of a rice mill in respect of which the licence has been revoked or suspended under Section 7, shall carry on rice milling operation in that mill after the revocation or, as the case may be, during the period for which the licence has been suspended.

Section 13 (1) of the Act is as follows:

If any person contravenes or attempts to contravene or abets the contravention of any of the provisions of Section 8 or Sub-section (2) of Section 18, he shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees, or with both, and in the case of continuing contravention, with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.

7. Two questions arise for adjudication in this petition : (1) Accepting the entire testimony of P.W. 1 in regard to what transpired in the mill of the petitioner of 19th March, 1968, can it be said that the petitioner, the owner of the rice mill, carried on rice milling operation in that mill? (2) Whether a combined reading of Section 8 (3) (b) and Section 13 of the Act warrants the interpretation of an absolute prohibition or should the prosecution prove mens rea on the part of the petitioner for contravening Section 8 (3) (b) of the Act.

8. Answering the first point it emerges from the evidence of P.W. 1 that the petitioner was not present at the premises when he inspected the mill on 19th March, 1968 at about 10-45 a.m. It is true the accountant Srinivasachari and the driver Perumal were present. I also accept the evidence of P.W. 1 that the mill ought to have been worked on 19th March, 1968 just before his inspection. I am of the view that the petitioner cannot be said to carry on rice milling operation in the mill, or at any rate the solitary instance of milling operation on 19th March 1968 would satisfy the ingredients of Section 8 (3) (b) of the Act. The requirement is that the owner of a rice mill shall carry on rice milling operation. In my view the concept of rice milling operation in the context of the phrase 'carry on ' must necessarily postulate (a) the owner being actively involved in the said operation, and (b) continuity of transaction. The connotation of the phrase ' carry on' in the context of the terms of Section 8 (3) (b) does not cover a single and solitary case of milling operation. On this interpretation of the phrase ' carry on ' in Section 8 (3) (b) I hold that the offence is not proved beyond reasonable doubt, and on the ground alone the petitioner is entitled to the benefit of doubt. For my interpretation of the phrasealogy 'carry on rice milling operation ' I derive considerable support from the principles of law enunciated in the Supreme Court ruling in Manipur Administration v. Nila Chandra Singh : 1964CriLJ465 .

9. As for the question of proof of mens rea for contravening Section 8 (3) (b) of the Act, it is worthy of note that the Parliament has enhanced the punishment under the Amending Act (XXIX of 1968) as imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees, or with both whereas it was previously imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both. There is also the further serious penalty embodied in Section 14-B which runs as follows:

Confiscation of plant and machinery.--? Where any person has been convicted for contravention of any of the provisions of Section 8 or of sub-Section (2) of Section 18, then, the Court convicting such person may order confiscation of the plant and machinery with which rice-milling operations in contravention of such provision were carried on:Provided that where such person is convicted for a second or subsequent offence, the Court shall order confiscation of such plant and machinery.

10. The date of the alleged offence in the present case is 19th March, 1968. The Amending Act (XXIX of 1968) containing more draconian provisions came into operation on 7th August, 1968. Although the petitioner's action does not come within the ambit of the new provisions which are certainly more severe in their penal consequences, the provisions like Sections 14-A and 14-B and the enhanced punishment provided for in Section 13 would furnish a proper understanding whether Section 13 (1) does or does not create an offence of absolute liability. I have already noticed that D.W. 1 stated that the accused-petitioner was not present in the premises of the mill at the time of the alleged offence and that the petitioner went to Tiruttani with his family and returned on the night of 19th March, 1968. It is significant to notice that Section 8 mentions about the owner of a rice mill. Section 8 (3) (b) does not say that no owner of a rice mill shall permit any person to carry on rice milling operation. It fastens the action of carrying on the rice milling operation solely and exclusively on the owner. In fact a reading of Section 14-A of the Amending Act would give rise to a rebuttable presumption and it is open to the owner to prove the contrary. Even taking into consideration the original provisions of the Act prior to 9th August, 1968 I am still of the view that the punishments provided for contravention of some of the provisions of the Act are really severe. Then the question that arises for consideration is whether the prosecution is bound to prove mens rea.

11. The Public Prosecutor argued on the authority of the ruling in Crl. Revn. Case No. 1027 of 1951 In re : Kasi Raja given by Ramaswami, J., that the petitioner is liable for the acts of his servant notwithstanding the plea that he might put forward that as the acts were done without his knowledge he had no mens rea. It may be noticed that the order which had been contravened says hulling paddy either by the owner or a person in charge of the mill without a permit was punishable. The learned Judge refers to the order of the Government No. 432, Food Department, dated 12th April, 1947 in the body of his judgment. The significant words ' or a person in charge of mill ' are absent in Section 8 (3) of the Act. The apparent and significant difference will become obvious when we add this significant phrase to Section 8 (3) of the Act, Suppose we read as follows ' no owner of a rice mill or a person in charge of a mill', then in such a case I am bound to interpret it as providing for absolute prohibition. I seek to distinguish the judgment of Ramaswami, J., on this ground.

12. Let me examine the question of the requirement of mens rea in the light of the principles enunciated in the judgment of the House of Lords in Sweet v. Parsley 53 Crl. App. Rep. 221.

13. While considering whether Section 5 (b) of the Dangerous Drugs Act, 1955 does not create an offence of absolute liability, Lord Reid at page 234 enunciates the principle of law, which furnishes guidance regarding mens rea in statutory offences, thus:

How has it come about that the Divisional Court has felt bound to reach such an obviously unjust result? It has, in effect, held that it was carrying out the will of Parliament because Parliament has chosen to make this an absolute offence. And, of course, if Parliament has so chosen, the Courts must carry out its will, and they cannot be blamed for any unjust consequences. But has Parliament so chosen? I dealt with this matter at some length in Warner v. Metropolitan Police Commissioner (1968) 2 W.L.R. 1303 : (1968) 52 Crl. App. R. 373. On reconsideration I see no reason to alter anything which I there said. But I think that some amplification is necessary. Our first duty is to consider the words of the Act; if they show a clear intention to create an absolute offence, that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear ' that mens rea is required in one form or another'. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there his for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that, whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.

Where it is contended that an absolute offence has been created the words of Alderson B. in Attonery-General v. Lockwood (1842) 9 M. & W. 378 , have often been quoted : ' The rule of law, I take it, upon the construction of all statutes, and therefore applicable to the construction of this, is, whether they be penal or remedial, to construe them according to the plain literal and grammatical meaning of the words in which they are expressed unless that construction leads to a plain and clear contradiction of the apparent purpose of the Act or to some palpable and evident absurdity'. That is perfectly right as a general rule and where there is no legal presumption But what about the multitude of criminal enactments where the words of the Act simply make it an offence to do certain things but where everyone agrees that there cannot be a conviction without proof of mens rea in some form? This passage, if applied to the present problem, would mean that there is no need to prove mens rea unless it would be a ' plain and clear contradiction of the apparent purpose of the Act' to convict without proof of mens rea. But that would be putting the presumption the wrong way round; for it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary. It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the work ' knowingly' is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. I say ' must have been' because it is a universal principle that if a penal provision is reasonably capable of two interpretations that interpretation which is most favourable to the accused must be adopted.

What, then, are the circumstances which it is proper to take into account? In the well-known case of Sherras v. De Rutzen (1895) 1 Q.B. 918 , Wright, J. only mentioned the subject-matter with which the Act deals. But he was there dealing with something which was one of a class of acts which ' are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty'. It does not in the least follow that, when one is dealing with a truly criminal Act, it is sufficient merely to have regard to the subject-matter of the enactment. One must put oneself in the position of a legislator. It has long been the practice to recognise absolute offences in this class of quasi-criminal acts, and one can safely assume that when Parliament is passing new legislation dealing with this class of offences, its silence as to mens rea means that the old practice is to apply. But when one comes to acts of a truly criminal character, it appears to me that there are at least two other factors which any reasonable legislator would have in mind. In the first place, a stigma still attaches to any person convicted of a truly criminal offence, and the more serious or more disgraceful the offence, the greater the stigma. So he would have to consider whether, in a case of this gravity, the public interest really requires that an innocent person should be prevented from proving his innocence in order that fewer guilty men may escape. And equally important is the fact that, fortunately, the press in this country are vigilant to expose injustice, and every manifestly unjust conviction made known to the public tends to injure the body politic by undermining public confidence in the justice of the law and of its administration. But I regret to observe that, in some recent cases where serious offences, have been held to be absolute offences, the Court has taken into account no more than the wording of the Act and the character and seriousness of the mischief which constitutes the offence.

The choice would be much more difficult if there were no other way open than either mens rea in the full sense or an absolute offence; for there are many kinds of cases where putting on the prosecutor the full burden of proving mens rea create great difficulties and may lead to many unjust acquittals. But there are at least two other possibilities. Parliament has not infrequnetly transferred the onus as regards mens rea to the accused, so that, once the necessary facts are proved, he must convince the jury that, on balance of probabilities, he is innocent of any criminal intention. I find it a little surprising that more use has not been made of this method ; but one of the bad effects of the decision of this House in Woolmington v. Director of Public Prosecutions (1934) 25 Crl. App. R. 72 : L.R. 1935 A.C. 462, may have been to discourage its use. The other method would be in effect to substitute in appropriate classes of cases gross negligence for mens rea in the full sense as the mental element necessary to constitute the crime. It would often be much easier to infer that Parliament must have meant that gross negligence should be the necessary mental element than to infer that Parliament intended to create an absolute offence. A variant of this would be to accept the view of Gave, J., in Queen v. Tolsen (1889)23 Q.B.D. 168 . This appears to have been done in Australia where authority appears to support what Dixon, J., said in Proudman v. Davman (1941) Cri .L.R. 536 , 'As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence.' It may be that none of these methods is wholly satisfactory, but at least the public scandal of convicting on a serious charge persons who are in no way blameworthy would be avoided.

If this section means what the Divisional Court have held that it means, then hundreds of thousands of people who sub-let part of their premises or take in lodgers or are concerned in the management of residential premises or institutions are daily incurring a risk of being convicted of a serious offence in circumstances where they are in no way to blame. For the greatest vilgilance cannot prevent tenants, lodgers or inmates or guests whom they bring in from smoking cannabis cigarettes in their own room. It was suggested in argument that the appellant brought this conviction on herself because it is found as a fact that, when the police searched the premises, there were people there of the ' beatnik fraternity'. But surely it would be going a very long way to say that persons managing premises of any kind ought to safeguard themselves by refusing accommodation to all who are of slovenly or exotic appearance, or who bring in guests of that kind. And, unfortunately, drug taking is by no means confined to those of unusual appearance. Speaking from a rather long experience of membership of both Houses, I assert with confidence that no Parliament within my recollection would have agreed to make an offence of this kind an absolute offence if the matter had been fully explained to it. So, if the Court ought only to hold an offence' to be an absolute offence where it appears that that must have been the intention of Parliament, offences of this kind are very far removed from those which it is proper to hold to be absolute offences.

14. The noble Law Lords (Lord Morris of Borth-Y-Gest, Lord Pearce, Lord Wilber-force and Lord Diplock) have in separate but concurring judgments enunciated the principles of law on this aspect of the matter at great length in their illuminating judgments.

15. What is the true meaning of Section 8 (3) (b) of the Act, I have no doubt in my mind in holding that the proper interpretation would be that contravention of Section 8 (3) (b) does not create an offence of absolute liability. When I look at the severe penalties imposed on the offender for contravening Section 8 (3) (b) of the Act, particularly in the light of the enhanced penalties imposed by the Amending Act (XXIX of 1968) and an examination of Section 14-B which provides for confiscation of the plant and the machinery--another penal consequence of severity, undoubtedly--I am bound to hold that the creation of an offence of absolute liability must not have been the intention of Parliament. I find that the prosecution must prove that the accused-petitioner had knowledge of the particular use to which his mill was being put. I am also fortified in this conclusion by the summation of the law as propounded in Nathulal v. The State of Madhya Pradesh : 1966CriLJ71 , relevant to the question under consideration. By the majority judgment delivered by Subba Rao and Bachawat, JJ., in Nathulal v. The State of Madhya Pradesh : 1966CriLJ71 , it has been held that having regard to the scope of the Essential Commodities Act (X of 1955) it would be legitimate to hold that a person commits an offence under Section 7 of the Act if he intentionally contravenes any order made under Section 3 of the Act, that so construed the object of the Act will be best served and innocent persons will also be protected from harassment, and that it cannot be said that the object of the Act would be defeated if mens rea is read as an ingredient of the offence. On the facts proved in the case cited above Subba Rao and Bachawat, JJ., held that the accused did not therefore intentionally contravene the provisions of the Order made under Section 3 of the Act, whereas Shah, J., held on the facts proved in that case that the accused had contravened Section 3 of the Order with the knowledge that he did not hold a licence. But one passage from the judgment of Shah, J., is worthy of reproduction in the context of the question to be determined in the present case. It is at page 682:

Definitions of diverse offences under the Indian Penal Code state with precision that a particular act or omission to be an offence must be done maliciously, dishonestly, fraudulently, intentionally, negligently or knowingly. Certain other statutes prohibit acts and penalise contravention of the provisions without expressly stating that the contravention must by with a prescribed state of mind. But an intention to offend the penal provisions of a statute is normally implicit however comprehensive or unqualified the language of the statute may appear to be unless an intention to the contrary is expressed or clearly implied, for the general rule is that a crime is not committed unless the contravenor has mens rea. Normally full definition of every crime predicates a proposition expressly or by implication as to a state of mind ; if the mental element of any conduct alleged to be a crime is absent in any given case, the crime so defined is not committed.

16. The ratio in Isak Soloman Macmull v. Emperor A.I.R. 1948 Bom. 364, and Hariprasada Rao v. State : 1951CriLJ768 , would lend support to the proposition of law, namely that mens rea is necessary to constitute an offence.

17. On the facts proved in this case I hold that Section 8 (3) (b) of the Act does not create an offence of absolute liability. I further hold that the prosecution had failed to prove mens rea, which is an essential ingredient of the crime of contravening Section 8 (3) (b) of the Act.

18. I would quash the conviction of the petitioner and allow the revision petition. It is ordered accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //