1. This is a petition for revision of orders of the Courts below convicting the petitioner under Section 7 of Act xxiv of 1946 read with Rule 81 (4), Defence of India Rules, and sentencing him to pay a fine of Rs. 1000 and in default of payment to undergo rigorous imprisonment for six months. There was also an order confiscating certain flour.
2. The case for the prosecution was that on 10-4-1946, the petitioner purchased 63510 pounds of flour. This flour belonged to the military and was actually put up for sale as condemned flour that is flour unfit for human consumption. The price paid for it was Rs. 2/8/- per 100 pounds which, would be a natural price for flour unfit for human consumption. The total price came to Rs. 1587-12 and this sum was deposited in the Midnapore Treasury by the petitioner on 10-4-1945 under Chalan No. 69.
3. Shortly after this sale the police seized the flour. It is not quite clear whether or not after the purchase the petitioner had moved this flour. It was stored near what is called the F.S.D. Office at Hijli Camp. In that camp the petitioner had a canteen. It is by no means clear whether the flour which originally was stored in this camp was moved at all. If it was moved it could only have been moved from one part of the camp to the other, as admittedly when it was seized it was within the boundaries of the camp.
4. The police had this flour analysed and the evidence was that 600 maunds of it was found to be genuine flour and fit for human consumption. It is said that the flour fit for human consumption was ultimately sold by the Civil Supplies Department for Rs. 9,150 at the rate of Rs. 15-4-0 per maund.
5. There appears to be no doubt that most of this flour purchased by the petitioner turned out to be flour fit for human consumption. Otherwise it would never have been taken over by the Civil Supplies Department and sold to recognized dealers.
6. Even if this flour was fit for human consumption that does not conclude that matter unless the liability of the petitioner was absolute. He was charged under para. 3, Bengal food-grains Control Order, 1945, which is in these-terms:
No dealer or large producer shall engage in any undertaking which involves the purchase, sale or storage for sale in wholesale quantities of any foodgrain and no carrier shall engage in any undertaking which involves the carrying, transport or movement of rice husked or rice in the husk (paddy) by wheeled or water transport except under or in accordance with the conditions of a license under Para. 4.
7. 'Foodgrains' is defined in para. 2 (c) of the Order as meaning any of the commodities specified in Schedule 1 to this Order or any bye-product thereof, and includes any other commodity which the Provincial Government may from time to time declare, by notification in the Official Gazette, to be a commodity to which this order applies. The Schedule sets out a number of grains and products which are to be regarded as foodgrains within the meaning of the Order. Wheat and Wheat Products including Atta, Maida etc., are included in the Schedule. It is therefore clear that if the petitioner here was a dealer or large producer he could not engage in any undertaking involving the purchase, sale or storage of flour except under a license issued under para. 4 of the Order.
8. The Courts below were of opinion that the petitioner had engaged in an undertaking which involved the purchase of flour and the storage of the same for sale. In my view, he cannot be held liable for such an offence unless para. 3 of the Order imposes an absolute liability.
9. Can a man who believes that he is buying something which is not food be held to have bought food because something other than what he intended was delivered to him under his purchase. In other words, does a man in fact, buy flour when he has contracted to buy chalk but has been delivered flour in error. Clearly in my view he could not be said to have bought wheat.
10. In the present case what the petitioner purchased was flour unfit for human consumption, that is unfit for food. The Foodgrains Control Order applies to grains fit for food or grain products fit for food. Flour which has been condemned is certainly not fit for food and probably is only fit for the making of starch and such like. It seems to me clear that flour or Atta unfit for human consumption cannot fall within the ambit of the Food Grains Control Order. That being so the petitioner purchased or believed that he was purchasing something not covered by the Foodgrains Order. It eventually turned out that what he had purchased was of much better quality than he thought and really of much better quality than the sellers thought the stuff to be,
11. The view was at one time held in Courts in this country that liability for offences under the Defence of India Rules and the Food Control Orders made under powers granted by those rules was absolute and that the prosecution were not bound to show mens rea or a guilty mind. The matter however came before their Lordships of the Privy Council in 51 C. W. N. 900.1 In that case it was sought to make a dealer liable for the act of his servant, and it was urged that the liability under Profiteering Ordinances was absolute and therefore the dealer could be made liable though he had no mens rea at all. Their Lordships, however, held that unless the statute, either clearly or by necessary implication, ruled out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence under the criminal law, unless he had a guilty mind. They further held that offences which could be held to be committed without a guilty mind were usually of a comparatively minor character and the selling of articles at more than their controlled price under the Defence of India Rules, punishable with imprisonment for three years, does not come within that limited and exceptional class. It is to be observed that offences against Foodgrains Control Order were punishable with substantial periods of imprisonment up to three years rigorous imprisonment. That being so mens rea must be established.
12. In the present case did the prosecution establish any mens rea on the part of the petitioner In my view no such mens rea or guilty mind is established; accepting the facts as proved he purchased what was advertised to be flour unfit for human consumption. In other words he purchased what he thought was not an article of food, and if he ever moved the flour to some other place for storage we must presume that he moved what he believed to be something other than food. That being so, his mind could not in any sense of the word be described as a guilty one and there was no mens rea.
13. It seems to me that the Courts in this case probably thought that this purchase was not an innocent one. Cases have occurred in this country where food or cloth has been sold after condemnation and sold deliberately so that it can be purchased by a friend for resale as good food or good cloth at exhorbitant prices and the profit shared. However, a Court cannot make a presumption that a transaction is of that nature. It must be presumed that all persons prosecuted are innocent until the contrary is shown. In the present case there was no evidence to suggest that the petitioner was hand in glove with the military authorities and that he was a party to the sale of good flour as condemned flour. All that was shown was that flour described as condemned was sold at a price at which such condemned stuff is usually sold. It was done openly and the payment was made openly in the treasury. Assuming, as I am bound to assume, that the transaction was a perfectly straight-forward and honest one, it matters not that the flour turned out to be of a much better quality than the military authorities had thought. In my view it was not shown that the petitioner had knowingly purchased flour without a license or had knowingly stored the same with a view to sell without a license. What he had done was to purchase something which he thought was not food and stored the same. The petitioner therefore cannot possibly be made liable unless mens rea be shown. This Court is bound to give effect to this recent decision of their Lordships of the Privy Council. That being so, I hold that no offence was committed in this case and the petitioner was wrongly convicted. As the conviction was not justified the order of confiscation was illegal.
14. In the result therefore I would allow this petition, set aside the conviction and the sentence of fine and the order of confiscation. If the fine has been paid it must be refunded and the flour seized must be refunded or the amount which the petitioner paid for it, namely, Rupees 1587-12-0.
15. I agree.