Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Revision No. 28 of 1957, decided on 15th August 1957.
prohibition may create strict liability irrespective of mens rea‑Provisions of East Bengal Essential Food‑stuffs Anti‑Hoarding Order, 1956, read with Central Ordinance (X of 1955) indicate that mens rea has been dispensed with as necessary ingredient of offence‑East Pakistan Ordinance (VI of 1956), S. 6.
The Legislature has got power to dispense with mens rea in certain class of cases. Statutes of absolute prohibition may create a strict liability irrespective of mens rea in matters of legislation affecting essential food‑stuffs, and acts, though not criminal in any real sense, may be prohibited under a penalty in the public interest.
Where in a case the petitioner was found guilty under section 6 (1) of East Pakistan Ordinance VI of 1956 for having in possession without any license and in contravention of the provisions of paragraph 4 of the East Bengal Essential Food‑Stuff=s Anti‑Hoarding Order, 1956, 245 bags of rice and the petitioner contended that in view of the matter that mens rea is an essential ingredient of a criminal liability, the prosecution had failed to prove that the petitioner had any guilty mind while having in possession the said quantity of rice
Held, that on a proper construction of the terms and object of the East Bengal Essential Food‑Stuff Anti‑Hoarding Order, 1956, read with that of Central Ordinance X of 1955, it appeared that mens red had been dispensed with as a necessary ingredient of the offence committed by c9ntravention p# the provision of the sate,
The very fact that the petitioner had been found to be in possession of, a quantity of rice much beyond his normal requirement would lead to the presumption that he had the requisite mens rea. [pp. 194, 195,'196]B, C & D Srinivas Mall Bairoliya and another v. The King‑Emperor 51 C W N 900 (906) ; Sherras v. De Rutzen (1895) 1 Q B 918 (921) ; Isak Solomon Macmull v. Emperor A I R 1948 Bom. 364 and Moslemuddin v. Chief Secretary P L D 1957 101 ref
.
Halsbury's Laces of England, Volume 10 Third. Edition articles 508 and 522 ref.
Subject‑matter of a particular notification, in addition to publication in Official Gazette whether must also be separately communicated by other means to persons concerned‑Defence of India Rules, Rule 19.
Where there is no provision in an Order or Ordinance which requires that, in addition to publication in the Gazette, the subject matter of a particular notification must also be arately communicated to the person or class of persons who may be affected by the same it is not obligatory on the part of Government to employ any other means for communication to the Class of persons concerned than by ,publishing the notiAcation in the official Gazette. It must accordingly be. presumed that the existence of a notification so published is known to persons concerned.
Ashutosh Chatterjee v. King‑Emperor 50 C W N 459 ref. Nural Amin for Petitioner.
Salahuddin Ahmad, Deputy Legal Remembrancer for the State.
This is an application in revision made on behalf of one Deluram Bahani, Manager of the Firm named Kushal Chand Kishan Lal alias Jiban Mall in the Mymensingh town against an order dated. 18th December 1956, passed by Mr. M. Z. Bakht, Second Additional Sessions Judge, Mymen singh, dismissing Criminal Appeal No. 272 of 1956 and up holding the order of conviction and sentence of simple imprisonment till the rising of the Court and a fine of Rs. 1,000, in default to suffer rigorous imprisonment for 6 moiaiis and forfeiture of .the seized rice and the bags con taining them as passed by Mr. S. Ahmed, Magistrate, 1st Class Mymensingh, on 29th eptember 1956, in G. R. Case No. 519 (2) of 1956
The petitioner was tried along with two others by the learned Magistrate for contravening the provision of para graph 4 of the East Bengal Essential Food‑Stuffs Anti‑Hoard ing Order, 1956, for having in his possession without any licence 245 bags of rice, each weighing 2 maunds and 10 seers, which appeared to .be in excess of the normal quantity as indicated therein. Sawal Ram was found not guilty and was, accordingly, acquitted by the trying Magistrate and the petitioner and another Ratiranjan Sah a were found guilty under section 6 (1) of East Pakistan Ordinance VI of 1956 and convicted and sentenced, as stated above. Both of them preferred two separate appeals which were dismissed by the learned Second Additional Sessions judge by one judgment and order dared 18th Decern'er 1956. We are not concerned with Ratirajan Saha in the present case as his applica tion in revision has separately been dealt with and dis posed of.
As a result of an anti‑hoarding drive on 15th May 1956, in pursuance of the Anti‑Hoarding Order of 1956 published in the Dacca Gazette on 7th May 1956, the petitioner as Manager of the Firm named Kushal Chand Kishan Lal alias Jiban Mall was found in possession of 245 bags of rice of which 116 bags were seized from the godown and 29 bags were seized from a truck in front of the godown in the presence of the petitioner and 50 bags were traced in a truck near Muktagacha police‑station and the remaining 50 bags were traced in a godown at Madhupur. The petitioner or the alleged purchaser Ratiraanjan Sab‑j could not show any licence, permit or authority for possessing that quantity of rice. The proprietors of the Firm were said to be in India.
Mr. Nural Amin, appearing on behalf of the petitioner. contends that the conviction and the sentence cannot be supported for the following reasons
(1) That the East Bengal Essential Food‑Stuffs Anti Hoarding Order, 1956, having been promulgated under the authority of a Central Ordinance, namely, the Essential Supplies (Continuance of Temporary Powers) Ordinance, 1955 (Ordinance X of 1955), the conviction and sentence is not sustainable under the East Pakistan Essential Supplies) Ordinance, 1956 (East Pakistan Ordinance VI of 1956).
(2) That Notification No. 3762‑FD, dated 5th May 1956 by which the said Anti‑Hoarding Order of 1956 was brought into force in the area under Mymensingh Munici pality, though published in the Dacca Gazette on 7th May 1956, having not been made known to the public concerned by beat of drums before the date of occur rence (15th May 1956), the petitioner had no legal knowledge of the existence of the same and was not liable for breach of the order, if any, on that date.
(3) That in any view of the matter that mens red is an essential ingredient of a criminal liability, the pro secution failed to prove that the petitioner had any guilty mind while removing the said quantity of rice.
The learned Deputy Legal Remembrancer, however, contends that the offence in question is rightly punishable under section 6 of East Pakistan Ordinance VI of 1956 and that publication in the Dacca Gazette was enough for the purpose of fixing the petitioner with the knowledge of the promulga tion of the East Bengal Essential Food‑Stuffs Anti‑Hoardins
Order, 1956, and of Notification No. 3762‑FD, dated 5th May 1956, and that in ‑ a case like this mens red is
not an essential ingredient for conviction, and, even if it were so, it had been established upon the evidence on record.
The validity of the East Bengal Essential Food‑Stuffs Anti‑Hoarding Order, 1956, as promulgated under the autho rity of Central Ordinance X of 1955 is not disputed before us. It is not also disputed that contravention of any pro vision of the said Anti‑Hoarding Order, 1956, will amount to a contravention of an Order and punishable as such within the meaning of section 7 of the Essential Supplies (Continu ance of Temporary Powers) Ordinance, 1955 (Ordinance X of 1955). It may be noted that the Essential Supplies (Temporary Powers) Act, 1946 (XXIV of 1946), which was due to expire on 31st March 1955, was repealed by section 17 of the said Ordinance X of 1955, as the latter came into force with effect from 30th March 1955, on which date it was published in the Gazette. The East Bengal Essential Food Stuffs Aderoardtng Order, 1956, was brought into being at the instance of the Provincial Government by Notification No. 2090‑FD, dated 9th March 1956, published in the Dacca Gazette on 13th March 1956. The East Pakistan (Essential Supplies) Ordinance, 1956, that is, East Pakistan Ordinance
VI of 1956, was promulgated and came into force on 25th April 1956, and thereafter the operation of the said Anti Hoarding Order of 1956 was extended to the area under the Mymensingh Municipality by Notification No. 3762‑FD, dated 5th May 1956, as published in the Dacca Gazette on 7th May 1956. Now section 16 of East Pakistan Ordinance VI of 1956 provides as follows
"Any order made or deemed to be made under the Essential Supplies (Continuance of Temporary Powers) Ordinance, 1955, and in force immediately before the com mencement of this Ordinance shall in so far as it is not inconsistent with the provisions of this Ordinance and until such time as the Provincial Government or. an officer authorised by the Provincial Government issues order under this Ordinance continues in force and be deemed to be an order made under this Ordinance and all appointments made, licences or permits granted and direc tions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made, granted or issued in pursuance of this Ordinance."
It is thus clear that the Anti‑Hoarding Order of 1956 which was in force on 25th April 1956 being not inconsistent was to be recognized also as an order made under East Pakistan Ordinance VI of 1956. For all practical purposes, therefore, contravention of any provision of Anti‑Hoarding Order, 1956, will now give rise to an offence punishable not only under section 7 of Central Ordinance X of 1955, that is, Essential Supplies (Continuance of Temporary Powers) Ordinance, 1955, but also under section 6 of East Pakistan Ordinance VI of 1956. It would not be out of place to mention here that ‑he terms of secrion ti of East Pakistan Ordinance V' I of 1956 seen; to be identical with that of section 7 of Central Ordinance X of 1955. A . :oiivictioii under either of the two Ordinances seems to be equally punishable in law. There is no reason to thick that the Anti Hoarding Order, 1956, having been created under the authority of Central Ordinance X of 1955, contravention of any provision thereof cannot be the basis for convic tion and punishment under East Pakistan Ordinance VI of 1956. The contention as urged by Mr. Nurul Amin thus fails.
The second contention as urged by him also appears to be of no substance. Nothing has been shown to us wnich would indicate that apart from publication in the relevant official Gazette somening more has to be done for information of the public concerned that a particular law has been pro mulgated. In view of section 6 of the Bengal General Clauses Act, 1899, it can be safely said that ‑.he relevant law or notification came into force on :he aay or,), which it was first published in the uflicial Dacca Gazette. In par ticular, Notification No. 3762‑FD, dated 5th May 1956 was to come into force on 7th May 19;.6, .when it was first published in the Dacca Gazette, in view of section 1 (3) of the East Bengal Essential Food‑Stuffs Anti‑Hoarding Order, 1956. If however, for additional facility and conveniencel any particular officer of the Sovernment thought ;t proper .o publish by beat of drums the. purport A a particular notification, that could not b'e claimed . as a matter of right or as of essence of publication in the eye of law There is no provision in the Order or the Ordinaeice under considera tion which requires that, in addition to a p_ ublication in the Gazette, the subject‑matter of a particuiar notification must also be separately communicated to the person or ::lass of persons who may be affected by the same. There is no similar provision for individual communication as provided f in Rule 119 of the Defence of India Rules. It was, there fore, not obligatory on the part of the Government to employ any other means for communication to the class of persons concerned than by publishing the notification in the official Gazette. It must accordingly be presumed for our present purpose that the existence of the relevant Anti Hoarding Order, 1956, and Notification No,. 3762‑FD, dated 5th May 1956, was known to the petitioner from the respec tive dates of publication in the . official Gazette. Ignorance of law is no excuse. In Ashutosh Chatterjee v. King Emperor
(50 C W N 459 ), while considering the implication of Rule 119 (1) of the Defence of India Rules which provided for certain special mode of commOnication to persons affected by any order in writing, it was observed by Lodge, J., as follows
"There had been proper notification in the official Gazette, and absence of knowledge after due notification does not seem to me to be a defence to a charge of the present kin4. Indeed, after due publication in the Gazette, retailers must be deemed to have knowledge."
There is no reason for us to think in a different way in the facts and circumstances of the present case. The third contention of Mr. Nurul Amin on the point of mens rea
requires a closer examination. It has been argued by him that no criminal intention on the part of the petitioner has been proved by the prosecution. Mens
rea.constitutes aii essential ingredient of criminal liability and the fact that there was no machinery for issuing licence or permit would show that the petitioner, even if he had knowledge of the existence of the Anti‑Hoarding Order of 1956 or of Notification No. 3762‑FD, dated 5th May 1956, was in good faith posses sing the rice in question and arranging for removal of the same beyond the Municipal limits of the town of Mymensingh. It is however pointed out by the learned Deputy Legal Remembrancer that the Anti‑Hoarding Order of 1956 having come into force on 13th March 1956 when it was published in the official Gazette and Notification No. 3762‑FD, dated 5th May 1956, having also brought the said Anti‑Hoarding Order into force in that area on 7th May 1956 by reason of its publication in the Dacca Gazette on that date, it became the duty of the petitioner to bring himself into line with the requirements of the newly‑promulgated law. He failed for whatever reason to secure the licence or permit for keeping in his possession more than the. normal quantity of rice required by him and, therefore, came within the mischief of the penal provision of East Pakistan Ordinance VI of 1956.
In view of section 14 of East Pakistan Ordinance VI of 1956, the burden of proof to show that the petitioner had lawful authority to possess 245 bags of rice was upon him. It was not his case that the seized quantity of rice was within the allowable limit of normal quantity as in dicated in, paragraph 4 of the Anti‑Hoarding Order of 1956. Unless, theref‑ure, he could secure and produce a licence granted in terms of paragraph 4 of the Anti‑Hoarding Order, he could not be regarded as having discharged his onus of proof. This he failed to do in spite of his knowledge of the promulgation of the Anti‑Hoarding Order, 1956, and Notification No. 3762‑FD, dated 5th May 1956. Such a failure or omission on his part could not have happened if there had been Iue care and attention. As a trader or businessman, rationing having been introduced in the area from 2nd April 1956 and a limit having been imposed upon the quantity of rice to be possessed by a person by introduc tion of the Anti‑Hoarding Order and no licence or permit having been secured as required by law, the .petitioner who had knowledge of these measures enfore'ed by law cannot be said to have acted in good faith, while removing the rice from his godown. These circumstances would only serve as a pointer to the fact that he had a guilty knowledge and he was trying to evade the processes of law. Such a conduct can be characterised as an intentional omission to conform to the requirements of the law. Their
Lordships of the Privy Council, in Srinivas Mall Bairoliya and another v. The King‑Emperor (51 C W N 9C0 (906 ), while considering the conniving conduct of appellant No. 1 who knew of the illegal exactions made by his,employee, appellant No. 2, but did not put a stop to the same, were of the opinion that there was illegal omission on the part of the former.
It is next contended on behalf of the petitioner that the omission or failure to secure and produce a licence would not relieve the prosecution from its duty of proving the criminal intention or mens rea on the part of the accused. It is difficult to hold that the piece of legislation which is under consideration has left any room or scope for such an argument. How far mens Yea can be regarded as an essential ingredient of a statutory offence can be gathered, on a reference to Article 508 of Volume 10 of Halsbury's Laws of England, Third Edition. It is stated as follows
"A statutory crime may or may not contain an express definition of the necessary state of mind. A statute may require a specific intention, malice, knowledge, wilfulness, or recklessness. On the other hand, it may be silent as to any requirement of mens Yea, and in such a case in order to determine whether or not mens Yea is an essential element of the offence, it is necessary to look at the object and terms of the statute. In some cases, the Courts have concluded that despite the absence of express language the intention of the Legislature was that mens Yea was a necessary ingredient of the offence. In others, the statute has been interpreted as creating a strict liability irrespective of mens Yea. Instances of this strict liability have arisen on the legislation concerning food and drugs, liquor licensing, and many other matters."
At foot‑note (b) of page 274 of the same volume, it is stated that the basic rule of interpretation is that "unless a statute clearly or by necessary implication rules out mens rea as a constituent part of a crime, the Court should not find a man guilty of an offence against the criminal law unless he has a guilty mind."
That the Legislature has got power to dispense with mens Yea in certain class of cases cannotrand has not been disputed before us. Statutes of absolute prohibition may create a strict liability irrespective of mens Yea in matters E of legislation affecting essential food‑stuffs, and acts, though not criminal in any real sense, may be prohibited under a penalty in the public interest. Again in Article 522 at page 282 of the same volume of Halsbury's Laws of England, it is stated
"Where a statute absolutely prohibits the doing of an act and apparently dispenses with mens Yea, it has been stated that the doing of the act itself supplied the mens rea."
If, therefore, on a reference to the objects and terms of the relevant pieces of legislation it appears that it is either silent as to any requirement of mens Yea or seems to have dispensed with mens rea, then the very fact that the petitioner has been found to be in possession on 15th May 1956 of a quantity of rice much beyond his normal requirement will lead to the presumption that he had the requisite mens Yea. In other words, as pointed out by Wright, J., in Sherras v. De Rutzen (1), the presumption that mens Yea or intention or knowledge of the wrongfulness of the act is an essential ingredient in every offence may be said to have been displaced by the words of the relevant Ordinance and the Anti‑Hoarding Order, 1956, creating the offence.
In order to determine whether expressly or by necessary implication, the law in question is silent as to the requirement of mens rea or has apparently dispensed with the same, reference may be made to the object of the Essential Supplies (Continu ance of Temporary Powers) Ordinance, 1955, as indicated in its preamble which is as follows
"Whereas an emergency has arisen which renders it necessary to provide for the continuance of powers to control the production, treatment, keeping, storage of move ment, transport, supply, distribution disposal, acquisition, use or consumption of, and trade and commerce in, certain commodities ;
And whereas the Essential Supplies (Temporary Powers) Act 1946 (XXIV of 1946), provided for the continuance of such powers and that Act expires on the 31st March 1955 ;
And whereas a Proclamation of Emergency has been issued for the purposes of section 102 of the Government of India Act, 1935, ‑as amended by the India (Proclama tions of Emergency) Act, 1946, and it appears to the Governor‑General that the provisions hereinafter made are proper,provisions in view of the naturo of the emergency ;
In its scheme for fulfilment of the object, as can be gathered from the aforesaid preamble, the East Bengal Essential Food‑Stuffs Anti‑Hoarding Order, 1956, has been brought into being by enacting and providing for absolute prohibition against storing or possessing any essential‑food stuffs as per Schedule 1 beyond the prescribed normal quantity. The idea underlying this piece of legislation must have been to prevent hoarding or unnecessary storage at any cost. Had there been any scope for raising the question of criminal intention or good faith in an enquiry in connection with the breach of this law, then the enforcement of the same might be rendered altogether ineffective on various grounds. The policy of the State, as envisaged in the
(1) (1895) 1 Q B 918 (921)
Ordinance and the Anti‑Hoarding Order, 1956, which are nothing but emergency measures, would have lost its significance and become frustrated in no time. The Legis lature should be deemed to have guarded against such eventuality. 011 looking at the object and terms of the two Ordinances and the Anti‑Hoarding Order of 1956 and par ticularly in view of the fact that onus of proof has been placed upon the accused rather than upon the prosecution, it seems quite safe to conclude that mens rea has not been made an essential ingredient of the offence that may be occasioned by the contravention of the provisions of these laws. It has been suggested on the authority of an obser vation of Their Lordships of the Privy Council in the same case as reported in 51 C W N 900 (906) ; following the" judgment of Wright, J. In Sherras v. De Rutzen, that mens rea cannot be presumed to have been dispensed with in offences liable to be punished with imprisonment for a term which may extend to three years. In Isak Solomon Macmull v. Emperor (1), while considering the question of vicarious criminal ‑liability of a master ' who had no knowledge of the illegal action on the part of his servant, Chagla, C. J., followed such dictum of the Privy Council and took the view that offences under the Defence of India Rule could not possibly, fall within that limited and exceptional class of offences which can be held to be committed without a guilty mind inasmuch as they are not minor offences, considering the punishment which is imprisonment for a term that may extend to three years. Mr. Nurul Amin has contended that, having regard to the observations of the Privy Council, except in certain minor offences, mens rea or guilty mind should not be presumed to have been ruled out in the particular law under consideration. It is, however, difficult to agree with him. The Legislature should be credited with the knowledge of the existing laws that prevail in the country at the time when a particular statute is enacted. It is not safe to speculate as to ‑the reasons which might have weighed with the framers of these emergency laws in .dispensing with mens rea as a necessary constituent element of the offences created by reason . of breach of the same. The words employed in the preamble arid the text of the‑ relevant Ordinances and the Anti‑Hoarding‑ Order of 1956 do, however, suggest that these laws, which absolutely prohibit the ‑storing or possession of essential: food‑stuffs beyond same prescribed limits have apparently dispensed with mens rea. It is not unlikely in view of the phenomenal. changes in the‑ social order or economic structure of the
country since the last Great War when the 'Defence of India . Rules‑ were in. .force that the Legislature has‑thou‑ght it‑fit to introduce emergency measures of this type. Without trying to probe further into the causes which found favour with the framers of the laws, it will suffce to say that on a proper con struction of the terms and object of the East Bengal Essential Food‑Stuffs Anti‑Hoarding Order, 1956, read with that of Central Ordinance X of 1955, it appears that mens rea 4as
(1) A I R 1948 Bom. 364
been dispensed with as a necessary ingredient of the offence committed by contravention of the provision of the. same. In that view of the matter, it is not possible to hold that the prosecution had a duty in this particular case to prove mens rea or criminal intention on the part of the petitioner.
It has also been argued by reference to certain observa tions made in Moslemuddin v. Chief ,Secretary (1), to which one of us was a party that mere possession of a quantity of rice or paddy (whatever the quantity may be) is no contraven tion of the notification and is not an offence under the relevant Ordinance. In that case the defence inter alia was that the quantity of paddy seized by the authorities was within the prescribed limit and it was illegal to place him under arrest or convict him without finding as to whether possession of 220 maunds of paddy exceeded the allowable limit of normal quantity required by him, taking into consideration the fact that the household of the prisoner consisted of 45 members. In the present case, however, it has never been denied that possession of 245 bags of rice exceeded the prescribed limit of normal quantity available to him. Moreover, the burden of proof, that ‑he had lawful authority to possess the said quantity of rice lay upon the present petitioner and he could not discharge the same as required under section 14 of East Pakistan Ordin ance VI of 1956. In this view of the matter, it is not possible to accept the contention that possession of the seized quantity of rice which was admittedly in excess of the prescribed allowable limit of normal quantity did not on 15th May 1956, constitute an offence under section 6 of East
Pakistan Ordinance VI of 1956 by reason of the con travention of paragraph 4 of the East Bengal Essential Food Stuffs Anti‑Hoarding Order, 1956.
All.contentions, as raised by Mr. Nurul Amin, therefore, fail. But in view of the fact that the Anti‑Hoarding drive was conducted shortly after the publication of Notification No. 3762‑FD, dated 5'th May 1956, we think ends of justice will be satisfied if the conviction is upheld and the sentence of fine of Rs. 1,000 in default to suffer rigorous imprisonment for 6 months is reduced to a tine of Rs. 750 (Rupees. Seven hundred and fifty only), in default to suffer rigorous imprisonment for 6 months, and the other sentences of simple imprisonment till the rising of the Court and .the order of forfeiture of the seized rice and bags, are maintained, and. we order accordingly.
In the result, subject to the modification of the sentence, as indicated above, the Rule is discharged. It is further directed that if the fine has been paid, then the sum of Rs. 250 should be refunded to the petitioner.
Z. A. S. Rule discharged.
(1) DLR526;PLD1957Dacca101
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer