M. Karpagavinayagam, J.
1. R. Muthukrishnan, the first accused has filed the appeals in C.A. Nos. 21,22, 23. 24, 25 and 26 of 1992 against the judgment and conviction passed by the learned Presiding Officer, Special Court for Essential Commodities Act cases, Pudukottai in S.T.C. Nos. 20 to 25 of 1990 convicting the appellant for the offence under Section 7(1)(a)(ii) and 12aa(2)(f) of Essential Commodities Act for violation of the Clause 19(1)(a) of Fertilizer (Control) Order, 1985 and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, in default, to undergo R.I. for three months.
2. R. Rajamanickam, the second accused has filed the appeals in C.A. Nos. 13, 14, 15, 16, 17 and 18 of 1992 challenging the judgment and conviction passed by the learned Presiding Officer, Special Court for Essential Commodities Act cases, Pudukottai, in S.T.C. Nos. 20 to 25 of 1990 convicting the appellant for the offence under Sections 7(1)(a)(ii) and 12aa(2)(g) of E.C. Act for violation of Clause 19(1)(a) of Fertilizer (Control) Order, 1985 and sentencing him to undergo simple imprisonment for three months and to pay a fine of Rs. 500/-, in default, to undergo R.I. for one month.
3. All these appeals are being disposed of by this common judgment, since the parties as welt as the issue in these cases are one and the same.
4. The relevant facts which are required for the disposal of the appeals are as follows:-The complainant is an Agricultural Officer, office of the Deputy Director for Agriculture, Musiri/ Lalgudi. He filed the private complaints before the trial Court against the appellants and another stating that the fertilizer that was found possession in the premises of A3 was found to be substandard and that Muthukrishnan (A1), the manufacturer of the said fertilizer and Rajamanickam (A2), the distributor and A3, who kept the said substandard fertilizer in his premises for sale were liable to be punished for the offence under Clause 19(1)(a) of the Fertilizer Control Order. 1985 read with Section 7(1)(a)(ii) of the Essential Commodities Act. Since on various dates, six samples were taken from A3's premises and they were analysed and found to be substandard, six separate complaints were filed before the trial Court, which in turn took the case on file in S.T.C. Nos. 20 to 25 of 1990.
5. After the trial is over, the learned Special Judge for E.C. Act cases, Pudukottai acquitted A3, as the charge was not proved against him, however, convicted A1 and A2 as referred to 'above. These judgments imposing conviction upon Al and A2 are being challenged in these appeals before this Court.
6. Mr. Balu, the counsel appearing for the first accused Muthukrishnan, would contend that the procedures for taking samples have not been correctly followed and that therefore, the first accused is liable to be acquitted.
7. As regards this point, the learned Government Advocate would point out by reading out the relevant portions of the evidence and the impugned judgments that the procedures have been properly followed and acceptable materials have been produced to show that the first accused was the person, who manufactured the fertilizer which was found to be substandard through the Analyst report placed before the Court.
8. As regards A1, apart from the prosecution witnesses and other documents produced by the prosecution to show that the fertilizer which was distributed by the first accused to the third accused was adulterated, the reply by the first accused to the notice sent by P.W. 1 to him would itself show that the first accused accepted the prosecution case by stating that due to mistake some other material got mixed up with the said fertilizer and the same was sent to the third accused. Therefore, the submission made by the counsel for the first accused that proper procedures have not been followed, while taking samples, does not have any substance. Hence, while rejecting the arguments of the counsel for the first accused, I hold that the reasonings given by the trial Court for convicting the first accused for having manufactured the substandard fertilizer are valid and unassailable. Consequently the appeals filed by the first accused are liable to be dismissed.
9. Mr. N. T. Vanamamalai, the learned senior counsel appearing for Rajamanickam, the second accused, the appellant in other appeals, would mainly contend on the basis of the decision in Ramaiah v. State through the Deputy Agricultural Officer 1987 Mad LW (Cri) 428, that the second accused, the appellant cannot be convicted, as the prosecution failed to prove the mens rea.
10. In reply to the above contention, the learned Government Advocate, while distinguishing the judgment reported in 1987 Mad LW (Cri) 428, would point out that the question of mens rea does not arise, as it is for the accused to establish that there was no mens rea to commit such an offence in view of Section 10C of the E.C. Act.
11. In this context, the judgment rendered by this Court which is reported in 1987 Mad LW (Cri) 428 (supra) is to be carefully read through. It has been categorically held in the said decision that before an accused can be held to be guilty under any of the sections of Essential Commodities Act, it must be proved that the accused had the necessary mens rea. The relevant extract of the passage is as follows :-
Consequent upon this recommendation, the words "whether knowingly, intentionally or otherwise" introduced in Section 7(1) by the Amendment Act 36 of 1967, were deleted by the Essential Commodities (Amendment) Ordinance of 1974, which was published in the Central Gazette, dated 22-6-1974, which was then replaced by the Essential Commodities (Amendment) Act, 1974 (Act 30 of 1974), which received the assent of the President on 29-8-1974, with the result that the relevant portion of Sub-section (1) of Section 7, as it stood prior to the 1967 amendment has been restored and the words "whether knowingly, intentionally or otherwise" have been deleted. The effect of this amendment would be that since that date of deletion of these words, the position has been restored as it was when the said sub-section was considered by the Supreme Court in the aforesaid Nathulal's case. In view of this amendment it is now clear that before an accused can be held guilty for having contravened any of the provisions of any order made under Section 3 of the Essential Commodities Act, it must be established that the accused had the necessary mens rea. If on the other hand, it is found that the contravention was made unknowingly, and unintentionally, he cannot be held guilty for contravention of any such provisions of that Order and convicted under Section 78 of the Essential Commodities Act.
12. However, in the said decision, Section 10C of the Essential Commodities Act has not been discussed. Till 1967 the words used in Section 7(1) of the Act are: "If any person contravenes any order made under Section 3(a) of the E.C. Act, he shall be punishable...." While interpreting those words, the Apex Court in Nathulal v. State of M.P. would hold that 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.
13. Taking note of the said decision the Parliament wanted to make changes in the words of the section in order to exclude the element of mens rea there from. For the said purpose Act 36 of 1967 was introduced. After this 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 of the Act...." This amendment was apparently intended to circumvent the interpretation regarding mens rea given by the Apex Court in Nathulal's case. But a few years later, the Parliament made some amendment by the Act 30 of 1974 by restoring the position as it stood before 1967. According to this change, the words "whether knowingly, intentionally or otherwise" from the body of Section 7(1) of the Act were removed. On this basis, the judgment was rendered in 1987 Mad LW (Cri) 428, which is relied upon by the learned senior counsel for the appellant/second accused to show that the prosecution has to discharge its duty to establish that the appellant had mens rea, while committing the offence.
14. But in this context, it is appropriate to note down the another change that was made by the Parliament 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 E.C. Act, which is as follows :-
Presumption of culpable menial state.-
(1) In any prosecution for any offence under this Act 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 purpose 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.
15. Thus, it is clear that though the words "whether knowingly, intentionally or otherwise" have been removed by the Act 30 of 1974, by the insertion of Section 10C in the Act, the existence of culpable mental state is to be presumed by the Court and the burden is cast on the accused to rebut the presumption.
16. Normally, the burden cast on the accused in a criminal case to prove the case of the defence is not as rigorous as the burden on the prosecution. But Section 10C(2) made it clear that the Parliament made a significant departure from the usual approach by introduction of Section 10C of the Act in order to make the burden on the accused rigorous. In other words, the concept of mens rea in the commission of the offence under this Act is safeguarded again. The idea is to plug up possible loopholes through which economic offenders used to escape from the clutches of law.
17. So, in the light of the introduction of Section 10C by the amendment, while removing the words relating to the mens rea from Section 7(1), it can be safely held that unless the accused succeeds in proving beyond reasonable doubt that he had no mens rea in the contravention of any particular clause of the order issued under the Act, the Court has to proceed on the assumption that the accused had the requisite mens rea.
18. However, in my view, Section 10C(2) would not prevent the accused in succeeding 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. This view of mine is supported by the observation by Hon'ble K. T. Thomas, J. (as he then was), while rendering a judgment reported in 1989 Cri LJ 540 (K. Viswanathah Nair v. Drugs Inspector, Alleppey) following the judgments reported in 1978 Cri LJ 873 (Mewalal v. State of Bihar) and (1987) 2 Crimes 8 (Calcutta) (Suresh Shaw v. State).
19. In the light of the above principles, let me now see whether the prosecution has proved its case against the appellant /second accused and the burden to rebut the presumption as contemplated under Section 10C of the Act has been discharged by him.
20. The gravamen of the charge framed against the accused is that the first accused manufactured the substandard fertilizer and on the orders booked by the second accused, the appellant herein on the request of the superior officer of the third accused, supplied the said fertilizer to the third accused for distribution to the public.
21. Clause 19( 1 )(a) is the gist of the offence. The said clause provides thus:
19. Restriction on manufacture, sale and distribution of fertilisers
(1) No person shall himself or by any other person on his behalf:-
(a) manufacture for sale, sell offer for sale, stock or exhibit for sale ordistribute any fertilizer which is not of prescribed standard.
22. As per the section, the first accused is liable to be charged for the manufacture of the substandard fertilizer and the second accused for the distribution of the same to the third accused through the first accused and the third accused for having stocked the said fertilizer for sale.
23. There is no dispute with regard to the fact that the orders have been booked by the Senior Officer, who is an I.A.S. Officer and Managing director of the Tamil Nadu Agricultural Cooperative Society under whom A3 was working with the second accused to supply the fertilizer. On the basis of this, the second accused requested the first accused who is the manufacturer of fertilizer, to supply the same to the third accused. Accordingly, the said supply was made by the first accused to the third accused directly.
24. As a matter of fact, the complainant would admit in the cross-examination that the first accused supplied the fertilizer to the third accused on the basis of the orders of the second accused (Vernacular matter omitted.). It is also admitted in the further cross-examination done by the third accused that on the basis of the orders of the Managing Director of the second accused, the third accused received the supply of fertilizer from the first accused at Chennai. This would make it clear that the distribution was not done directly by the second accused. But, on the request of the second accused, the fertilizer was supplied by the manufacturer first accused directly to the third accused. It is also stated by the second accused in his written statement filed under Section 313, Cr. P.C. that the supply was made by the first accused directly to the third accused. The letter dated 29-7-1989 sent by the first accused to the third accused filed along with the statement of the second accused intimating about the receipt of the order from the second accused to supply the fertilizer to the third accused. Ex. D1 is the order placed by Dr. Chhattra Sal Singh, I.A.S., Managing Director of A3's Society requesting A2 to supply the fertilizer to A3. A3, who was examined as Court witness would admit in the cross-examination that he was instructed by his Head of the Department to receive the supply sent by Al. Accordingly, the supply was made by A1 to A3 on the orders of A2 and the same was received by A3 from A1 on the instruction of the Head of the Department of A3. The only material against A2 is the orders booked by the Government with A2 to supply fertilizer; to A3. However, the Court witness A3 would admit that he was instructed by the Government to receive the supply directly from Al who is the manufacturer.
25. In the light of the peculiar facts of this case, though it can be held that A2 also is liable to be charged since supply was done by A1 to A3 in the name of the distributor, namely, A2, the materials referred to above as admitted by the prosecution witnesses themselves would clearly reveal that it has been established that A2 had no culpable mental state, while the offence was committed by Al by despatching the substandard fertilizer manufactured by him to A3. Thus, though I am not able to accept the submission of the learned senior counsel appearing for A2 that mens rea shall be proved only by the prosecution, and the same had not been proved in the instant case, I shall hold that the burden which has been shifted on the accused to prove that there was no culpable mental state which shall be presumed by the Court Under Section 10C of the Act has been discharged and thereby the presumption has been rebutted.
26. In the same way, A2 was acquitted by the trial Court mainly on the ground that he had received the supply of fertilizer on the orders of his superior from A1 and the same had not been opened for sale and as such, there was no culpable mental state for him. Similarly; in the case of A2 also, as indicated above, though the defence witness has not been examined on behalf of A2, the answers elicited from the prosecution witnesses during the course of cross-examination and other highlighting circumstances available in the evidence on record would reveal that A2 has discharged the burden cast upon him, as contemplated under Section 10C of the Essential Commodities Act.
27. Under these circumstances, I am constrained to hold that the appellant/second accused is entitled to be acquitted, as there are no sufficient materials to fasten criminal liability upon him. Consequently, the appeals filed by the second accused are allowed, and he is acquitted: Fine, if paid, is directed to be refunded to him.
28. As stated above, the appeals filed by the first accused are dismissed.