D. N. Jha, J. - (1.) THIS criminal revision has been perferred against the order dated May 31, 1977 passed by Sessions Judge, Gonda in Criminal Appeal No. 147 of 1976. Through that order the learned Judge upheld the order dated May 17, 1976 passed by the Collector, Gonda under Section 6-A of the Essential Commodities Act, 1955. The Collector had, through that order confiscated 111 quintals of Gur seized from the possession of the two revisionists by the Senior Marketing Inspector, Balrampur on August 4, 1975.
(2.) THE undisputed facts of the case under revision are that the two revisionists Hari Ram Gupta and Balram Gupta are real brothers. THEy are sons of one Ram Milan. THEy reside in Mohalla Bhagwatiganj of the town of Balrampur in the district of Gonda. THEy and their father are undisputedly dealers in Gur. An order known as U. P. Sugar and Gur Dealers Licensing Order, 1962 was passed by the State Government under Section 3 of the Essential Commodities Act, 1955. Under Section 3 of this Order no person could carry on business as a Gur dealer except under and in accordance with the terms and conditions of a licence issued in that behalf by the Licensing Authority. It is also not disputed that the Licensing Authority contemplated by that order was the Collector of Gonda and the revisionists were carrying on business as Gur dealers within the jurisdiction of the Collector Gonda without obtaining a licence contemplated by the aforesaid provision of the Order of 1962. At about 4 p. m. on August 4, 1975 the Senior Marketing Inspector, Balrampur raided the premises of the revisionists and found 60 quintals of Gur stocked in their godown and 51 quintals stocked at their residence. The Inspector seized that 111 quintals of Gur and reported that seizure to the Collector, Gonda. A notice was issued by the Collector to revisionists' father Ram Milan to show cause why the seized Gur be not confiscated in favour of the Government. Ram Milan filed no objection but the two revisionists filed objections before the Collector wherein Hari Ram revisionist claimed himself to be the owner of the Gur recovered from the godown and Balram Gupta revisionist claimed himself to be the owner of the Gur recovered from the residence of the revisionists. They, however, maintained that they did not know that they had to obtain any licence from the Collector. They further pleaded that they had obtained a licence for carrying on Gur business from the Mandi Samiti concerned. They thus maintained that they had ho mens rea in not obtaining a licence from the Collector. After giving the revisionists full opportunity of being heard the Collector ordered confiscation of the entire seized quantity of 111 quintals of Gur. We have been informed by the counsel for the parties that the confiscated Gur has already been auctioned and its sale proceeds are in deposit with the Collector of Gonda. The appeal filed by the revisionist before the Sessions Judge against the aforesaid confiscation order passed by the Collector was dismissed. The revisionists then came to this Court with the present revision. It was earlier heard by brother Mahavir Singh, J. It was argued before him that mens rea was an essential condition of the contravention contemplated by Section 6-A of the Essential Commodities Act, 1955 and because there was no mens rea on the part of the revisionists in not obtaining a licence from the Collector, Gonda for carrying on Gur business, the order passed by the Collector confiscating the seized Gur was bad in law. The decision of Honourable Satish Chandra, J., of this Court (as he then was) in Kishori Lal Bihani v. Addl. Collector and District Magistrate, Kanpur, AIR 1969 Alld. 159 was cited before brother Mahavir Singh, J., wherein it was observed :- " The consideration of mens rea or bona fides of a dealer is relevent while passing an order of forfeiture of food- drains from him under Section 6-A. The view that the question of bona fides or mens rea of a dealer may have (bearing in criminal proceedings and may be considered there if any prosecution is launched against the dealer and that those considerations are out of place at the stage of the confiscation, is not correct. The contravention attracting the provisions of Section 6-A has the same legal incidence and consequences and has the same nature and character as the contravention made punishable by Section 7. The two provisions, i.e. Sections 6-A and 7 are in pari materia."
(3.) WHILE making the above observations Satish Chandra, J., had placed reliance upon the decision of the Supreme Court in Nathu Lal v. State of Madhya Pradesh, AIR 1966 SC 43. Honourable Mahavir Singh, J., was of the view that though mens rea was an ingredient of a criminal offence yet, it was not as such for confiscation proceedings-contemplated by Section 6-A of the Essential Commodities Act. He was further of the view that the opinion expressed by Satish Chandra, J., in Kishori Lal Bihani's case (supra) required reconsideration by a larger Bench. Upon the recommendation of Mahavir Singh, J. the Honourable Chief Justice has referred the entire revision case to us for disposal.;