(1.)This appeal, which has been preferred after obtaining special leave to appeal from the P. C., is confined to the single question as to whether mens rea is necessary to constitute an offence under S. 81, Defence of India Rules.
(2.)The facts of the case are briefly these. The applt. is the licensee of two petrol filling stations Nos. 552 and 276 as Guntur but is a residents of, Chirala, 40 miles away. He is a Presidency First Class Bench Mag. at Chirala and manages what has been described as a vast business at several places. Ch. Venkatarayudu and Dadda Pichayya, his employees, were respectively in charge of the aforesaid filling stations. In 1946, the applt and his two employees were tried before the Sub-Divisional Mag. of Guntur in respect of offences under the Motor Spirit Rationing Order, 1941, and were convicted in each of the cases on 18-7-1946. In the first case, the charges against the applt. and the employee in charge of the pump in question therein were that they on 27-6-1945, at Guntur, supplied petrol to 3 cars without taking coupons, in contravention of cl. 22 read with cl. 5 of the said Order promulgated under R. 81(2), Defence of India Rules and that they, on the same day and at the same place, accepted coupons relating to two other ears in advance without supplying petrol, in contravention of cl. 2 of the Order. The charges in the second case were that the applt. and the employee in the second pump similarly supplied during the period of 14 hours from 6 A.M, of 27-6-1945 petrol to 4 motor vehicles without taking coupons, in contravention of cl. 22 read with Cl. 5, accepted coupons of 3 other vehicles in advance without issuing petrol, in contravention of Cl.27, and supplied petrol to 2 other vehicles against coupons but without making necessary endorsements and particulars on the reverse of the coupons, infringing thereby cl. 2A of the said Order. The Sub-Divisional Mag., Guntur. found the applt and the employee concerned in each case guilty of the charges brought against them and sentenced the applt. (with whose case alone we are now concerned) to a fine of Rs. 30 on the first count and Rs. 20 on the second in the first case with simple imprisonment for 1 week in default, and to a fine of Rs. 20 an each of the three counts in the second case with 1 week's imprisonment in default. The plea of the applt. before the Mag. was that he was the presiding 1st Class Bench Mag, at Chirala, that he was carrying on business in petrol at various centres through servants and he had issued instructions to them not to deviate from the rules under any circumstances and that he could not be made liable for transgression of the rules committed by his employees. The Mag. however overruled the plea and convicted the applt, as stated above. The applt, thereafter preferred an appeal to the Ses. J, at Guntur, who, while setting aside the conviction of the applt. on the second count in each case, confirmed the conviction and sentence in respect of the other charges, on 9-9-1946. This was confirmed in revn. by the H, C at Madras on 19-8 1947. Thereupon the applt. apld. to the P. C. for special leave which was granted on 9-7-1948 limited to the single question whether mens rea was necessary to constitute an offence under R. 81, Defence of India Rules.
(3.)The question to be decided in this appeal arises upon the plea taken by the applt. which has been already refd. to, and the assumption on which the Cts. below have proceeded in dealing with the case. The plea of the applt, that he was not present at Guntur when the alleged offences were committed has not been negatived by the lower Cts., but they have held that he was neverthelees liable, as the question of mens rea was not relevant to the offences with which the applt. was charged. This view is set out very clearly in the following passage which may be quoted from the judgment of the tria1 Mag.
"It is argued on behalf of accused 1 that be is not a resident of Guntur and that he has no knowledge of any infringement committed by accused 2. If any breach of the rules is committed by either proprietor or his servant, both are guilty whether they had the knowledge of the breach or not. The question of mens rea wil, of course, affect the measure of punishment but it cannot affect the conviction : vide Crown v. Ambalal, 1943 A. M. L. J 38" Before deciding the question as to how far mens rea is material to conviction for the offences with which the applt. is charged, it is necessary to refer to the relevant provisions of the Defence of India Rules and the Motar Spirit Rationing Order. 1941, R. 81 (9), Defence Of India Rules. empowers the Central or the Provincial Govt. to provide by order, in certain circumstances, for regulating amongst other matters, distribution, disposal, use or consumption of articles or things and for requiring articles or things kept for sale to be sold either generally or to specified persons or classes of persons or, in specified circumstances. The Central Govt. in pursuance of the authority thus conferred made the Motor Spirit Rationing Order, 1941, for
"securing the defence of British India, the efficient prosecution of the war and for maintaining supplies and services essential to the life of the community."
Cl. 2 (d) of the Order defines "dealer" as meaning and supplier carrying on the business of supplying motor spirit as a rstal business and includes a person having charge of a supply of motor spirit controlled by Govt. from which any person is furnished with motor spirit for private use. Sub-cl. (m) defines "supplier" as meaning a person carrying on the business of supplying motor spirit. Cl. 5, which is the next relevant provision, runs thus :
"Motor spirit required for any vehicle not covered by Cl. 3 or Cl. 4 shall be furnished or acquired only against the surrender to a supplier at the time of supply of valid ordinary coupons or of a valid supplementary coupon and only in accordance with any conditions or instructions appearing on or attached to the coupons."
Cl. 22 lays down :
'No person shall furnish or acquire a supply of motor spirit otherwise than in accordance with the provisions contained in this order,"
Cl 27 is to the following effect :
"No person shall surrender to a supplier and no supplier shall accept special receipts or coupons at a time other than the time at which the supply of motor spirit authorised by the special receipts or coupons or acknowledged by the receipts is furnished "
Cl. 27A runs as follows :
"When motor spirit is furnished against the surrender of one or more coupons, the supplier shall immediately endorse, or cause to be endorsed, on each coupon so surrendered the registration or other identifying mark of the vehicle to which the motor spirit is furnished."
R. 81 (4), Defence of India Rules, which provides for the imposition of a penalty, says that
"if any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both."