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STATE OF MADHYA PRADESH

v.

NARAYAN SINGH & ORS.

JULY 25, 1989

[S. NATARAJAN AND A.M. AHMADI,JJ.]

Essential Commodities Act, 1955: Sections 3 & 7 (as amended by

Act 36 of 1967)-Scope of-Whether includes unintentional contra­

vention.

A

B

Fertiliser (Movement Control)

Order, 1973: Clauses 2(a) and 3-C

Violation of-Export of fertilisers without permit-Pro§ecution­

Whether required to prove mens rea.

Indian Penal Code, 1860: Section 511. Attempt-Carrying ferti­

lisers in trucks without a

permit-Trucks moving from Madhya Pradesh

to Maharashtra-interception_ at Sales Tax Barrier near

State Border-:--· D

Whether attempted commission of offence.

The respondenu wllo were lorry drivers, cleaners and coolie were

carrying fertiliser bags in trneks from Indore (Madhya Pradesh) to

Maharashtra-They were intercepted

at a

Sales Tax Barrier near the

border of Maharashtra State. The documents seized from the lorry E

drivers contained the invoices and other reeords, but did not include

permits issued under the Fertilisers (Movement Control) Order, 1973.

Consequently, they were prosecuted under the Fertiliser (Movement

Control) Order, 1973 read with sections 3 and 7 of the Essential

Commodities Act,

1955 for exporting

fertilisers from Madhya Pradesh

to

Maharashtra without a valid permit. F

The Trial

Court acquitted the respondents holding that: (i) the

prosecution had failed to prove men.< rea on the part of the respondents,

and (ii) the act of transportation of the fertiliser bags in trueks by the

-respondents constituted merely preparation and not attempted commis-

sion of the offence. G

Appeals were filed

by the

State against the acquittal under section

378(3) of the Cr. P.C. 1973 but the High _Court declined to grant leave.

Hence these appeals by the State.

Allowing.the appeals,

549

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B

c

550 SUPREME COURT REPORTS I 1989) 3 S.C.R.

HELD: I. The words used in section 7( I) are "if any person

contravenes whether knowingly, intentionally or otherwise any Order

made under section 3". The section is comprehensively worded so that

it

takes within its

fold not only contraventions done knowingly or inten­

tionally

but even otherwise, i.e., done unintentionally. The

element of

mens rea in export of fertiliser hags without a valid permit is therefore

not a necessary ingredient for convicting a person for contravention of

an order made under section 3 if the factum of export or attempt to

export is established by the evidence on record. l554C-D)

I. I. The crucial words "whether knowingly, intentionally or

otherwise" were inserted in section 7 in order to prevent persons com-._.fi­

mitting offences under the Act escaping punishment on the plea that the

offences were not committed deliberately. The amendment was brought

about in 1967 in order to achieve the avowed purpose and object of the 'f

legislation. l557C)

1.2. Therefore, the Trial Court and the High Court committed an

D error in taking the view that the respondents in each of the appeals were

not liable for conviction for contravention of the Fertiliser (Movement

Control) Order, 197 3 read with sections 3 and 7 of the Essential

Commodities Act, 1955 because the prosecution had failed to prove

mens rea on their part in transporting fertiliser hags from Madhya

Pradesh to Maharashtra. l557E)

E

F

Swastik Oil Industries v. State, 11978) 19 Guj. Law Reporter

1117; approved.

Nathu Lal v. State of Madhya Pradesh, A.LR. 1966 S.C. 43,

referred to.

2.

In the commission of an offence there are four stages viz. inten­

tion, preparation, attempt and execution. The first two stages would

not

attract culpability hut the third and fourth stages would certainly

attract culpability. [557G)

G 2.1.

The respondents in each case were actually caught in the act

of exporting fertiliser hags without a permit therefor from Madhya

Pradesh to Maharashtra. If the interception bad not

taken place at the y

Sales Tax Barrier the export would have become a completed act and

the fertiliser hags would have been successfully taken to Maharashtra

State in contravention of the Fertiliser (Movement Control) Order,

H 1973. It was not therefore a case of mere preparation viz. the respon-

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STATE OF M.P. '·NARAYAN SINGH [NATARAJAN. J.J 551

dents trying to procure fertiliser bags from someone or trying to engage

A

a

lorry for taking those bags to Maharashtra. They were cases where

the bags bad been procured and were being taken in the lorries under

cover

of sales invoices for being delivered to the consignees and the

lorries would have entered the Maharashtra border but for their

interception

at the

Sales Tax barrier. Surely, no one can say that the

respondents were taking the lorries with fertiliser bags in them for B

innocuous purposes or for more thrill or amusement and that they

would have stopped

well ahead of the border and taken back the lorries

and the fertiliser bags to the initial place of despatch or to some other

place in Madhya Pradesh

State itself. The acts of transportation of the

fertiliser bags in the trucks in question

by the respondents were there-

fore clearly cases

of attempted unlawful export of the fertiliser bags and

c

not cases of mere preparation alone. [557H, 558A-B-C-D)

[Section 7

of the Essential Commodities Act, 1955 was again

amended in

1974 and the words

"whether knowingly, intentionally or

otherwise" were deleted and a new provision in section IO of the Act

was added. The effect of this amendment is that a presnmption of guilty D

mind on the

part of the accused in respect of offences under the Act,

including

Sec. 7, would arise and it would be open to the accused to

rebut the same.)

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal

Nos.

49 & 24 of 1978. E

From the Judgment and

Order dated 8.4.1977 of the Madhya

Pradesh High Court in Misc. Criminal Nos. 34 & 35 of 1977 .

· Vrijendra Jain, Ms. Hima Kohali and Umanath Singh for the

Appellant. F

The Judgment of the Court was delivered by

NATARAJAN, J. In both the appeals by special leave, a

common question ·of law is involved and hence they were heard

together and are being disposed of by a common judgment. In Crl. G

Appeal No. 49/78, a lorry driver and two cleaners and in Crl. Appeal

No. 24/78 a lorry driver and a coolie were prosecuted for exporting

fertilisers without a permit therefor from Madhya Pradesh. to

Maharashtra in contravention of the Fertilisers (Movement Control)

Order, 1973 (for short the F.M.C. Order) read with Sections 3 and 7 of

the Essential Commodities Act, 1955, (for short the E.C. Act). In both H

552 SUPREME COURT REPORTS 11989] 3 S.C.R.

A the cases, the Trial Magistrate held that the prosecution had failed to ,._

prove that the accused were attempting to export the fertilisers and he

therefore acquitted them. On the State preferring appeals against

acquittal under Section 378(3) Criminal Procedure Code, the High

Court declined to grant leave. Hence the State has preferred these

appeals by special leave.

B

The facts in the two cases are identical. In

Crl. Appeal No.

49/78, a truck bearing registration no. M.P. 3668 carrying 200 bags of

fertilisers and proceeding from Indore to Maharashtra

was intercepted

on 12.2. 74 at Sendhwa

Sales Tax Barrier situate at a distance of 8 miles

from the border of Maharashtra State on the Agra-Bombay Road viz.~

C National Highway No. 3. The lorry driver was in possession of invoices '

and other records but they did not include a permit issued under the

F.M.C. Order. In Crl. Appeal No. 24/78, a lorry bearing registration >f

No. MPM-4866 proceeding from Indore to Maharashtra was similarly

intercepted on 30.10.1973 at Sendhwa Salex Tax Barrier. The truck was

carrying 170 bags of fertilisers. The documents seized from the lorry

D driver contained the invoices and other records but they did not

include a permit issued under the F.M.C. Order. Consequently, the

lorry driver and the cleaners

in the first case and the lorry driver and

the coolie in the second case were prosecuted under the F.M.C.

Order

read with Sections 3 & 7 of the E.C. Act for exporting fertilisers from

Madhya Pradesh to Maharashtra without a valid permit. In both the 1.

E cases, the accused did not deny the factum of the transport of fertiliser

bags

in their respective lorries or the interception of the lorries and the

seizure of the fertiliser bags or about the fertiliser bags not being

covered by a permit issued under the

F.M.C. Order. The defence

however was that they were not aware of the contents of the docu­

ments seized from them and that they were not engaged

in exporting

F the fertiliser bags from Madhya

Pradesh to Maharashtra in concious .If

violation of the provisions of the F .M. C. Order.

The Trial Magistrate as well as the High Court have taken the

view that in the absence of the evidence of an employee of the trans­

port company, there was no material in the cases to hold that the

G fertiliser bags were being exported to Maharashtra from Madhya Pradesh. The Trial Magistrate and the High Court refused to attach

any significance or importance to the invoices recovered from the lorry ..,

drivers because the drivers had said they had no knowledge of the T

contents of the documents seized from them. The Trial Magistrate and

the High Court have further opined that the materials on record

H would, at best, make

out only a case of preparation by the accused to

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STATE OF M.P. v. NARAYAN SINGH INATARAJAN, J.] 553

commit the offence and the evidence fell short of establishing that the A

accused were attempting to export the fertiliser bags from Madhya

Pradesh to Maharashtra

in contravention of the F.M.C.

Order.

As we have already stated, the respondents admit that the trucks

in question were intercepted at Sendhwa Sales Tax Barrier

on 12.2.74

and 30.

10. 73 and they were carrying 200 bags and 170 bags of ferti­

lisers respectively and the consignments were not covered by export

permits issued under the F.M.C. Order. In such circumstances what

falls for consideration

is whether the prosecution must prove mens rea

on the part of the accused in exporting are fertiliser bags without a

valid permit

for securing their conviction and secondly whether the

evidence on record established only preparation

by the accused for

effecting export

of fertiliser bags from the State to another without a

permit therefor and not an attempt to export fertiliser bags. For

answering these questions, it

is necessary to refer to some of the rele­

vant provisions

in the Fertiliser (Movement Control)

Order, 1973

framed in exercise of the powers conferred under Sec. 3 of the E.C.

Act. In the said Order, the relevant provisions to be noticed are

clauses 2( a) and 3.

"2. Definition•-In this Order unless the context

otheiwise requires,-

(a) "Export" means to take or cause to be taken out of any

place within a State to any place outside that State";

"3. Prohibition of Export of Fertilisers. No person shall

export, or attempt to export, or abet the export or any ferti­

lisers from any State."

(Emphasis supplied).

Section

7 of the Essential Commodities Act !955 provides the

penalty for contravention

of any order made under Section 3 and reads

as under:

B

c

D

E

F

G

"7. Penalties. (!) If any person contravenes whether

knowingly, intentionally

or otherwise any order made under

Sec.3-

(a) he shall be punishable-

(Emphasis supplied)

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554

A

B

SUPREME COURT REPORTS (1989] 3 S.C.R.

(i) in the case of an order made with reference to clause (h)

or clause (i) of sub-sec. (2) of that Sec., with imprisonment

for a term which may extend to one year and shall also

be

liable to fine; and

(ii)

in the case of any other order, with imprisonment for a

term which may extend to

five years and shall also be liable

to fine;

xx xx

xx"

Taking_ up the first question for consideration, we may at once

C state that the Trial Magistrate and the High Court have failed to

comprehend and construe Section 7(1) of the Act

in its full perspec­

tive. The words used

in

Sec. 7(1) are "if any person contravenes

whether knowingly, intentionally or otherwise any Order made under

Sec. 3''. The Section is comprehensively worded so that it takes within

its fold not only contraventions done knowingly or intentionally but

D even otherwise i.e. done unintentionally. The element of

mens rea in

export of fertiliser bags without a valid permit is therefore not a neces­

sary ingredient for convicting a person for contravention of

an order

made under

Sec. 3 if the factum of export or attempt to export is

established by the evidence on record.

E

The sweep of

Sec. 7( 1) in the light of the changes effected by the

Legislature has been considered by one of

us (Ahmadi, J.) in Swastik Oil Industries v. State, (Special Criminal Application) 1978 (19)

Gujarat Law Reporter 117. In that case, M/s. Swastik Oil Industries, a

Iicencee under the Gujarat Groundnut Dealers Licensing Order, 1966

was found to be in possession of 397 tins of groundnut oil in violation

F

of the conditions of the licence and the provisions of the Licensing Order. Consequently, the Collector ordered confiscation of 100 tins of

groundnut oil from out of the

397 tins under

Sec. 6( I) of the Essential

Commodities Act. On the firm preferring on appeal, the Appellate

Authority

viz Additional Sessions Judge, Kaira at Nadiad held

"that

cl. ( 11) of the Licensing Order had been contravened but such contra-

G vention was not deliberate as it arose out of a mere

bona fide mis­

conception regarding the true content of cl. ( 11) of the Licensing Order." The Additional Sessions Judge therefore held that the contra­

vention was merely a technical one and not a wilful or deliberate one

and hence the confiscation of 100 tins of groundnut oil was too harsh a

punishment and that confiscation of only

25 tins would meet the ends

H

of justice. Against this order, the firm preferred a petition under Arti-

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STATE OF M.P. v. NARAYAN SINGH !NATARAJAN, J.] 555

cle 227 of the Constitution to the High Court. Dealing with the matter, A

the High Court referred to Sec. 7 of the Act as it originally stood and

the interpretation

of the Section in Nathu Lal v.

State of Madhya

Pradesh,

AIR 1966

SC 43 wherein it was held that an offence under

Sec. 7

of the Act would be committed only if a

person intentionally

contravenes

any order made under Sec. 3 of the Act as mens rea was an B

essential ingredient

of the criminal offence referred to in Sec. 7. The

High

Court then referred to the change brought about by the Legisla­

ture to Sec. 7 after the decision in

Nathu La/'s case (supra) was

rendered

by promulgating Ordinance 6 of 1967 which was later

replaced

by Act 36 of 1967 and the change effected was that with effect

from the date

of the Ordinance i.e. September 16, 1967 the words

"whether knowingly, intentionally or otherwise" were added between C

the word "contravenes" and the words and figure "any order made

under Sec. 3". Interpreting the amendment made to the Sec. the High

Court held as follows:

"The plain reading of the Section after . its amendment

made it clear that

by the amendment, the Legislature D

intended to impose strict liability for contravention

of any

order made under

Sec. 3 of the Act. In other words, by the

use

of the express words the element of mens rea as an

essential condition of the offence was excluded so that

every contravention whether intentional

or otherwise was

made an offence under Sec. 7

of the

Act. Thus by intro­

ducting these words

in

Sec. 7 by the aforesaid statutory

amendment, the Legislature made its intention explicit and

nullified the effect

of the Supreme Court dicta in Nathu

Lat's

case."

E

The High Court thereafter proceeded to consider the further F

amendment effected to Sec. 7 of the Act pursuant to the recommenda­

tion

of the Law Commission in its 47th Report.

Though

fonhe purpose of the two appeals on hand, it would be

enough if

we examine the correctness of the view taken by the High

Court in the light of the words contained in

Sec. 7 of the Act as they G

stood

at the relevant time viz a contravention made of an order made

under

Sec.· 3 "whether knowingly, intentionally or otherwise", it

would not be out

of place if we refer to the further change noticed by

the High Court, which had been made

to

Sec. 7 by, Parliament by an

Ordinance which was later replaced by Amending Act 30 of 1974. The

High Court has dealt with the further amendment made to Sec. 7(1) in H

556 SUPREME COURT REPORTS [1989) 3 S.C.R.

A the Swastik Oil Industries as follows and it is enough if we extract the

.>-·

same.

B

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D

E

F

G

H

"But again in the year 1974, pursuant to the recommenda­

tions of the Law Commission

in their 47th Report and the

experience gained

in the working of the Act, by an

Ordi-)..

nance, Sec. 7 of the Act was amended whereby the words

"whether knowingly, intentionally or otherwise" which

were introduced

by Amending Act 36 of the 1967 were

deleted and the material

part of sec. 7(1) restored to iti

original frame and a new provision in Sec. 10 of the Act was_¥

added which reads as under: '

"10. C(l) 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 that 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."

This Ordinance was replaced by Amending Act 30 of 1974. .t

The effect of this subsequent change in the statute is that a

presumption of guilty mind on the part of the accused in

respect of offences under the Act, including Sec. 7, would

arise and it would be open to the accused to rebut the same.

As the law now stands

in any prosecution under the Act

which requires a culpable mental state on the part of the

accused, the

~ame must be presumed unless the accused

proves that he had no such mental state with respect to the )I

offence for which he is tried. Now according to the expla­

nation to Sec. 10( c) culpable mental state includes inten-

tion, motive, knowledge of a fact and belief

in or reason to

believe a fact. The degree of proof expected to rebut the

presumption has been indicated

by sub-sec. (2) thereof

STATE OF M.P. >'.NARAYAN SINGH [NATARAJAN, J.] 557

which says that a fact will be said to be proved only if it A

exists beyond reasonable doubt and it

will not be sufficient

to prove its existence

by preponderance of probability.

Thus the burden

of proof lies heavily on the accused to

rebut the statutory presumption and the degree of proof

expected that required for the proof of a fact

by the pro­

secution. There can therefore be no doubt that the afore-B

said legislative changes have reversed the thrust

of the

decision

of the

Supreme Court in Nathu Lal's case (supra)

and the same no longer holds the field."

Reverting back to Sec. 7 of the Act as amended by Act 36 of

1967, it is manifestly seen that the crucial words "whether knowingly,

+' intentionally or otherwise" were inserted in Sec. 7 in order to prevent

persons committing offences under the Act escaping punishment on

the plea that the offences were not committed deliberately. The .

amendment was brought about

in 1967 in order to achieve the avowed

purpose and object

of the legislation. To the same end, a further

amendment came to be made in

1974, with which we are not now

directly concerned but reference to which we have made in order to

show the scheme of the Act and the amplitude of

Sec. 7 at different

stages.

J.

c

D

We are in full agreement with the enunciation of law as regard

Sec. 7 of the Act in Swastik Oil Industries (supra). We therefore hold. E

that. the Trial Magistrate and the High Court were in error

in taking · • the view that the respondents in each of the appeals were not liable for

conviction for contravention

of the F.M.C.

Order read with Sec. 3 and

. 7

of the E.C. Act since the prosecution had failed to prove mens rea on ., their part in transporting fertiliser bags from Madhya Pradesh to

Maharashtra. F

As regards the second question,

we find that the Trial Magistrate

and the High Court have again committed an error in taking the view

that the respondents can at best be said to have only made prepara­

tions

to export fertiliser bags from Madhya Pradesh to Maharashtra in

contravention of the

F.M.C. Order and they cannot be found guilty of G

y having attempted to export the fertiliser bags. In the commission of an

-offence there are four stages viz intention, preparation, attempt and

execution. The first two stages would not attract culpability but the

third and fourth stages would certainly attract culpability. The respon­

dents in each case were actually caught

in the act of exporting fertiliser

bags without a

permit therefor from Madhya Pradesh to Maharashtra. H

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558 SUPREME COURT REPORTS [1989] 3 S.C.R.

A The trucks were coming from Indore and were proceeding towards

Maharashtra. The interception had taken place at Sendhwa Sales Tax

Barrier which

is

oµly 8 miles away from the· border of Maharashtra

State. If the interception had not taken place, the export would have

become a completed act and the fertiliser bags would have been

B

successfully taken to Maharshtra

State in contravention of the F.M.C.

Order. It was not therefore a case of mere preparation viz. the respon­

dents trying to procure fertiliser bags from someone or trying to

engage a lorry for taking those bags to Maharashtra. They were cases

where the bags had been procured and were being taken

in the lorries

under cover of sales invoices for being delivered to the consignees and

the lorries would have entered the Maharashtra border but for their

.,.._

C interception at the Sendhwa Sales Tax Barrier. Surely, no one can say

that the respondents were taking the lorries with the fertiliser bags in '-f

them for innocuous purposes or for mere thrill or amusement and that

they would have stopped

well ahead of the border and taken back the

lorries and the fertiliser bags to the initial place of despatch or to some

other place in Madhya

Pradesh State itself. They were therefore

D clearly cases of attempted unlawful export of the fertiliser bags and not

cases of mere preparation alone.

We have already seen that Clause 3 forbids not only export but

also attempt to export and abetment of export of

any fertiliser from

one

State to another without a permit. It would therefore be wrong to

E view the act of transporation of the fertiliser bags in the trucks

in

question by the

respondent~ as only a preparation to commit an

offence and not an act of attempted commission of the offence. Hence

the second question

is also answered in favour of the

State.

In the light of our pronouncement of the two questions of law, it

F goes without saying that the judgments of the Trial Magistrate and the

High Court under appeal should be declared erroneous and held

unsustainable. The State ought to have been granted leave under

Sec. 378(3) Cr. P.C. and the High Court was wrong in declining to

grant leave to the State. However, while setting aside the order of

acquittal

in each case and convicting the respondents for the offence

G with which they were charged

we do not pass any order of punishment

on the respvndents on account of the fact that more than fifteen years

have gone

by since they were acquitted by the Trial Magistrate. The

learned counsel for the appellant

State was more interested in having

the correct position of law set out than

in securing punishment orders

for

the respondents in the two appeals for the offence committed by

H them. Therefore, while allowing the appeals and declaring that the

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STATE OF M.P. v. NARAYAN SINGH [NATARAJAN, J.] 559

Trial Magistrate and the High Court were wrong in the view taken by

them of the Fertilizer (Movement Control} Order read with Sections 3

and 7 of the Essential Commodities Act, we are not awarding any

punishment to the respondents for the commission of the aforesaid

offence.

T.N.A. Appeals allowed.

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