Fazl Ali J.

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 whethermens reais 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 weeks 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 whethermens reawas 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 ofmens reawas 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."

4. It is contended on behalf of the resp. that though ordinarily a person should not be held liable for the criminal acts of another and no person can be charged with the commission of an offence unless a particular intent or knowledge is found to be present, mens reais not of the essence of the offences with which we are concerned in this case and the applt. must be held liable for the acts of his employees. The question raised in this appeal was consd. by the P.C. in Srinivas Mall v. King Emperor,26 Pat. 460 : (A.I.R. (34)1947 P. C. 135). In that case, the applts. before the P.C. were convicted under the Defence of India Rules relating to the control of prices and were sentenced to terms of imprisonment. The 1st applt. was acting as Salt Agent for part of the dist. of Darbhanga. He had been appointed to this office by the Dist. Mag. and it was his duty to sell to licensed retail dealers the supplies of salt which were allocated by the Central Govt. to his part of Dharbanga dist. The second applt. was employed by the first applt. and had been entrusted with the duty of allotting the appropriate quantity of salt to each retail dealer, and nothing on the buyers licence the quantity which he had bought and received. By R. 81(2), Defence of India Rules, the Provincial Govts. were empowered to make orders to provide for controlling the prices at which articles or things of any description whatsoever might be sold. The Defence of India Act, 1939, under which the rules were framed, empowered the Provincial Govts. to delegate the exercise of their powers to certain officers, and the power to provide by order for controlling the prices at which various articles (among them salt) might be sold, had been delegated to the Dist. Mags. R. 81 (4) of the Rules provided for the punishment of persons guilty of contravening any such orders. Both the applts. were jointly charged with having sold salt on 3 days in July, 1943, to three named traders, in each case at a price exceeding the maximum price which had been fixed by order of the Dist. Mag. The 1st applt. was also separately charged, in respect of the same sales with having abetted the 2nd applts. contravention of the order. The trial Mag. acquitted the 1st applt. of the substantive offences but convicted him on the 3 charges of abetting. The Ses. J. and the H.C. in revn. confirmed the convictions. The P. C. ultimately upheld the conviction of the applts. on the merits, but with regard to the view taken by the H. C. that even if the first applt. was not proved to have known of the unlawful acts of the second applt. he was still liable on the ground that "where there is an absolute prohibition and no question of mens rea arises, the master is criminally liable for the acts of the servant, their Lordships observed as follows :

"With due respect to the H. C. their Lordships think it necessary to express their dissent from this view. They see no ground for saying that offences against those of the Defence of India Rules here in question are within the limited and exceptional class of offences which can be held to be committed without a guilty mind. See the Judgment of WrightJ. in Sherras v. De Rutzun,(1895)1 Q B. 918 at p. 921 : (64 L. J. M. C. 218). Offences which are within that class are usually of a comparatively minor character, and it would be a surprising result of this delegated legislation if a person who was morally innocent of blamle could be held vicariously liable for a servants crime and so punishable "with imprisonment for a term which may extend to three years." Their Lordships agree with the view which was recently expressed by the Lord Chief Justice of England, when ha said : "It is in my opinion of the utmost importance for the protection of the liberty of the subject that a Ct. should always bear in mind that, unless the statute, either clearly or by necessary implication rules out mene rea as a constituent part of a crime, a deft. should not be found guilty of an offence against the criminal law unless he has got a guilty mind" Brend v. Wood,(1946) 1101. P. 317 at p. 318 : (175 L. T. 306)).

5. In our opinion, the view of the law as propounded by the P. C. is the correct view, and applying it to the present case, it is difficult to hold the applt, guilty of the offence under cl.22 read with cl. 5 of the Motor Spirit Rationing Order, 1941. The language of cl. 22 does not lend support to the contention that even an innocent master will be criminally liable for an act of his servant. This clause has already been quoted, but, to make the point clear, it may be stated that it provides that no person shall furnish. . . . motor spirit otherwise than in accordance with the provisions contained in the Order. The clause is not aimed specifically against a supplier, but is general in its language, and will hit the individual person, whether he be the supplier or not, who contravenes the provision. The language of the clause also suggests that only the person who furnishes motor spirit contrary to the provisions of the Order will be affected by the contravention.

6. In the course of the arguments, reference was made on behalf of the applt, to the decision of the Bombay H. C. in Isak Solomon Macmull v. Emperor, A.I.R. (35) 1948 Bom. 564 :( 49 Cr. L.J. 551), which is a case relating to the contravention of cl. 22 of the Motor Spirit Rationing Order. In that case, the learned Chief Justice, who delivered the judgment, referred to the well-established rule that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the deft. should not be held guilty of on offence under the criminal law unless he has a guilty mind. Relying upon this rule, he held then where a servant sells petrol to a bogus customer in the absence of coupons in contravention of the Motor Spirit Rationing Order, and the master is not present at the time nor has he any knowledge of the supply of petrol by the servants to the bogus customer, the master cannot be held to be vicariously liable for the act of the servant. In our opinion, this decision is correct and is directly applicable to the present case.

7. We have yet to deal with the third charge in the second case, which relates to the infringement of Cl.27A of the Motor Spirit Rationing Order. That Cl. as already stated, makes it incumbent upon the supplier to endorse, or cause to be endorsed, the registration or other identifying mark of the vehicle to which the motor spirit is furnished. The substance of the charge on which the applt, has been convicted is that these particulars were not endorsed on several coupons against which petrol had been supplied. Here again, the main contention put forward on behalf of the applt. was that the applt. cannot he held guilty inasmuch as the default in question was committed not by him personally, but by his servants. Having regard to the language of the clause, however, this contention cannot be accepted. Cl. 27A, as we have already seen throws the responsibility for making the necessary endorsement on the supplier. The definition of the word supplier in the Act has already been quoted, and there can be no doubt that if Cl. 27A is contravened, a person who comes within the definition of the word supplier must be held guilty of the contravention. The object of this clause clearly is that the supplier of petrol should set up a complete machinery to ensure that the necessary endorsements are made on the coupons against which petrol is supplied. It is conceivable that in many cases the default will be committed by the servants of the supplier, who are in charge of the petrol pump, but that fact by itself will not exonerate the supplier from liability.

8. In Mousell Bros. v. L. and N. W. Rly, Co.,(1917) 2 K. B. 836 at p. 844 : (87 L. J. K. B. 82), Viscount Reading C, J, dealing with a case under the Railways Clauses Consolidation Act, 1845, observed as follows :

"Prima facie, then, a master is not to be made criminally responsible for the acts of his servant to which the matter is not a party. But it may be the intention of the Legislature, in order to guard against the happening of the forbidden thing, to impose a liability upon a principal even though he does not know of, and is not party to the forbidden act done by his servant. Many statutes are passed with this object. Acts done by the servant of the licensed holder of licensed premises render the licensed holder in some instances liable, even though the act was done by his servant without the knowledge of the master. Under the Food and Drugs Acts there are again instances well known in these Cts. where the master is made responsible, even though he knows nothing of the act done by his servant, and he may be fined or rendered amenable to the penalty enjoined by the law. In those cases the Legislature absolutely forbids the act and makes the principal liable without amens rea,"

In the same case, Atkin J. expressed the same view in these words :

"I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed. If authority for this is necessary it will be found in the judgment of Bowen L. J. in Reg v. Tyler and International Commercial Co., Ltd.,(1891) 2 Q. B. 588 at p. 592 : (61 L. J. M. C. 38)."

9. In Mullins v. Collins,(1874) 9 Q. B. 292 :(43 L. J. M. C 67), the servant of a licensed victualler having knowingly supplied liquor to a constable an duty without the authority of his superior officer, it was held that the licensed victualler was liable to be convicted although he had no knowledge of the act of his servant. In dealing with the case, Blackburn J. observed thus: "If we hold that there must be a personal knowledge in the licensed person, we should make the enacatment of no effect."

10. There are many other cases in England in which the same view has been enunciated, and some of them have been collected and classified in the judgment of Wright J. in Sherras v. De Rutzen,(1895) 1 Q. B. 918, at p. 922 : (64 L. J P. C. 218). The principle laid down in these cases has been followed in several cases in this country.

11. In this view, the appeal is allowed in part, and while the conviction and sentence imposed on the applt. on the first charge in both the cases are quashed, the conviction and sentence on the third charge in the second case are affirmed.

12. Appeal partly allowed.