Kerala High Court
K. Viswanathan Nair vs The Drugs Inspector And Anr. on 1 September, 1988
Equivalent citations: 1989CRILJ540
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT K.T. Thomas, J.
1. Appellant is a licensed retailer carrying on retail business in pharmaceutical drug and medicinal formulations in his medical shop "M/s. Ajaya Medicat" at Pattannakkad. The Special Court (for trial of offences under Essential Commodities Act) convicted him for the offence under Section 7(1)(a)(ii) Essential Commodities Act, (for short 'the Act') read with Clauses 21 and 22, Drugs (Prices Control) Order 1979 (for short 'the Order') and sentenced him to imprisonment and fine.
2. The case was instituted on a complaint filed by a Drugs Inspector against the appellant and his Pharmacist for selling a formulation called "Sodium Salicylate" for a price much in excess of the maximum retail price permitted by the Order. The trial court acquitted the Pharmacist but convicted the appellant and sentenced him as aforesaid.
3. A consumer (P. W. 2) purchased sixty grams of Sodium Salicylate from the shop of the appellant on 7-6-1986 for a price of Rs. 19.20. P.W. 2 had reasons to believe that the price realised from him was much more than the maximum retail price fixed for the said formulation. Hence he sent a petition to the Drugs Inspector complaining of the ex orbitant price collected from him. The Drugs Inspector inspected the appellant's shop and traced out the carbon copy of the bill issued to the consumer. The complaint was filed by the Drugs Inspector on the strength of Ext. P9 bill which the consumer had sent along with the petition. During trial the appellant admitted that he is the licensed retail dealer of M/s. Ajaya Medical and that Ext. P9 was issued from his shop. He did not dispute the evidence which shows that the maximum retail price of Sixty grams of Sodium Salicylate during the relevant period was Rs. 9.06. His contention was that he was absent in his shop when the formulation was sold to P.W. 2 and that he came to know later that by a mistake excess price was collected from P.W. 2. According to him, the mistake was committed by his son who issued bill, due to some inadvertence and that he returned the excess amount to P.W. 2 by money order, who refused to receive it since he had already sent a petition to the Drugs Inspector.
4. It is not necessary to discuss the details of the evidence which established that sixty grams of Sodium Salicylate was sold to P.W. 2 for a price far in excess of the maximum retail price, since there is no dispute on that point. In cross-examination P.W. 2 said that the appellant was not present when he purchased the formulation and that Ext. P9 bill was issued to him by the appellant's son. On the strength of the said evidence it was contended that the appellant had no mens rea Learned Public Prosecutor argued that no retailer can be permitted to escape from penal liability by keeping away from retail shop and allowing someone else to do the business contravening the provisions of the Order.
5. Clause 21 of the Order says that no retailer shall sell any formulation specified in the Third Schedule of the Order at a price exceeding the price specified in the current price list (or the price indicated on the label of the container) whichever is less, plus the local taxes. Clause 22 contains the prohibition that no dealer shall sell loose quantity of any formulation drawn from a bottle pack of such formulation at a price which exceeds the pro rata price of the formulation plus five per cent thereof. When a dealer is prohibited from doing an act, he cannot do that act through another person. A dealer can sell an article either by himself or through another person. It is not necessary that the retailer himself should deliver the formulation to the consumer or receive the price thereof. If any agent of the retailer does the aforesaid acts, it would amount to sale effected by the retailer himself. So the first question to be considered is whether mens rea is an integral ingredient of the offence. If that question is answered in the affirmative, then the next question would arise whether the appellant had the requisite mens rea.
6. The relevant words used in Section 7(1) of the Act are these; "If any person contravenes any order made under Section 3(a) he shall be punishable...". Those words remained as such in the statute till 1967. When the provision was worded in that form, Supreme Court had considered whether mens rea is an essential ingredient of the offence under Section 7 of the Act in Nanthulal v. State of M.P. . Subba Rao, J. (as he then was) who delivered the judgment of the majority has observed thus; "Having regard to the object of the Act, namely, to control in general public interest, among others, trade in certain commodities, it cannot be said that the object of the Act would be defeated if mens rea is read as an ingredient of the offence. The provision of the Act do not lead to any such exclusion. Indeed, it could not have been the intention of the Legislature to impose heavy penalties like imprisonment for a period up to 3 years and to impose heavy fines on an innocent person who carries on business in an honest belief that he is doing the business in terms of the law. Having regard to the scope of the Act 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". Taking note of the said decision Parliament wanted to make changes in the words of the Section in order to exclude the element of mens rea therefrom. For the said purpose Act 36 of 1967 was passed by Parliament amending some of the provisions of the Act, After the amendment the relevant portion of Section 7(1) of the Act read as follows : "If any person, whether knowingly, intentionally or otherwise contravenes any order made under Section 3...". The said amendment was obviously intended to circumvent the interpretation placed by the Supreme Court in Nathulal's case. But a few years later Parliament thought it necessary to restore the position as it stood before Act 36 of 1967. Accordingly, some changes were brought about by Act 30 of 1974. The first change made was by deleting the words "whether knowingly, intentionally or otherwise" from the body of Section 7(1) of the Act. The next change was made, by introducing a new provision in the Act dealing with the onus of proof in cases involving Section 7 of the Act. The new provision is Section 10C of the Act. It is reproduced here.
Presumption of culpable mental state. -
(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in the prosecution.
Explanation. - In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
(2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
A short survey made through the aforesaid legislative changes from time to time helps to have a glimpse of the reflection of the legislative intention in emphasising that "culpable mental state" is an essential ingredient of the offence under Section 7 of the Act, although the said words as such have not been incorporated in the provision (Vide Mewalal v. State of Bihar 1978 Cri LJ 873 (Pat)). With the insertion of Section 10C in the Act existence of "culpable mental state" is to be presumed by the court and the burden is cast on the accused to rebut the presumption. (Vide Suresh Shaw v. State (1987) 2 Crimes 8 (Cal)). The burden usually cast on an accused in a criminal case to prove the existence of circumstances justifying the application of an exception is not as rigorous as the burden on the prosecution to establish the guilt of the accused. But the Parliament made a significant departure from the hitherto prevalent jurisprudential approach by introduction of Section 10C of the Act. Of course such departure is seen resorted to by the legislature in certain other statutes involving economic offences. Eg. : - similar provision has been incorporated in the Customs Act, Gold Control Act and Foreign Exchange Regulation Act. The pristine concept of insistence on mens rea in the commission of offence is safeguarded again, but the prosecution is relieved of the burden to establish something pertaining to the mental disposition of the offender. It was wisely though that the most competent person to prove the mental position is the owner of the mind himself. However, rigor is introduced in the degree of proof by insisting that the accused should prove it beyond reasonable doubt Evidently the idea was to plug up possible loopholes through which economic offenders used to escape from the clutches of law and at the same time to retain the jurisprudential concept which stood the test of time. Hence the present position under the Act is thus : Unless the accused succeeds in proving beyond reasonable doubt that he had no mens rea in the contravention of any particular clause of the Orders issued under the Act, the court has to proceed on the assumption that the accused had the requisite mens rea. Though it cannot be said that unless the accused adduces defence evidence the burden cast on him would remain undischarged in all cases, it would normally be difficult to prove any fact "beyond reasonable doubt" without the aid of positive evidence adduced for that purpose. However, an accused may succeed in discharging the onus either by adducing defence evidence or by eliciting answers from prosecution witnesses or by highlighting circumstances available in prosecution evidence itself. It would all depend upon facts and circumstances in each case.
7. Learned Counsel for the appellant contended that in the light of the evidence that the appellant was absent in the shop and the bill was written by his son it can be treated as proved beyond reasonable doubt that the appellant was innocent of the sale made to P.W. 2 as per Ext. P9 bill. It is difficult to accept the contention because the mere absence of the appellant in the shop when the formulation was sold is not sufficient to conclude that he was innocent of the sale of the formulation at the price at which it was sold. The burden on the accused does not stand discharged by showing that he was not physically present when the sale took place. It may be that the appellant would have been under the impression that he needs only that much of evidence to show it by preponderance of probabilities. Learned Counsel submitted that it would be possible for the appellant to adduce further evidence. I feel that, in the interest of justice, an opportunity must be afforded to the appellant to adduce further evidence to discharge the burden cast on him.
8. In the result, I set aside the conviction and sentence and remand the case to the trial court for disposal afresh. It is made clear that no de novo trial is necessary, but an opportunity must be given to the appellant to adduce further evidence.
9. Appeal is disposed of accordingly.