http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: NARAYAN SINGH & ORS.

DATE OF JUDGMENT25/07/1989

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) AHMADI, A.M. (J)

CITATION:  1989 AIR 1789            1989 SCR  (3) 549  1989 SCC  (3) 596        JT 1989 (3)   239  1989 SCALE  (2)93

ACT:     Essential  Commodities  Act, 1955: Sections 3  &  7  (as amended  by  Act  36 of  1967)--Scope  of--Whether  includes unintentional contravention.     Fertiliser (Movement Control) Order, 1973: Clauses  2(a) and   3--Violation   of--Export   of   fertilisers   without permit--Prosecution-Whether required to prove mens rea.     Indian Penal Code, 1860: Section 511.  Attempt--Carrying fertilisers  in trucks without a permit--Trucks moving  from Madhya  Pradesh. to Maharashtra--Interception at  Sales  Tax Barrier  near State Border-Whether attempted  commission  of offence.

HEADNOTE:     The  respondents  who were lorry drivers,  cleaners  and coolie  were carrying fertiliser bags in trucks 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 drivers contained  the  in- voices and other records, but did not include permits issued under the Fertilisers (Movement Control) Order, 1973. Conse- quently, 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.     The Trial Court acquitted the respondents holding  that: (i) the prosecution had failed to prove mens rea on the part of  the respondents, and (ii) the act of  transportation  of the fertiliser bags in trucks by the respondents constituted merely  preparation  and  not attempted  commission  of  the offence.     Appeals  were tided 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, 550      HELD:  1.  The words used in section 7(1) 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 intentionally but even

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

otherwise,  i.e., done unintentionally. The element of  mens rea  in export of fertiliser bags 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. [554C-D]     1.1. The crucial words "whether knowingly, intentionally or otherwise" were inserted in section 7 in order to prevent persons  committing offences under the Act escaping  punish- ment on the plea that the offences were not committed delib- erately. The amendment was brought about in 1967 in order to achieve  the avowed purpose and object of  the  legislation. [557C]     1.2.  Therefore,  the  Trial Court and  the  High  Court committed  an 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, 1973 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  bags  from Madhya Pradesh to Maharashtra. [557E]     Swastik  Oil  Industries v. State, [1978]  19  Guj.  Law Reporter 1117; approved.     Nathu  Lal v. State of Madhya Pradesh, A.I.R. 1966  S.C. 43, referred to.     2. 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. [557G]     2.1.  The respondents in each case were actually  caught in  the  act of exporting fertiliser bags without  a  permit therefore from Madhya Pradesh to Maharashtra. If the  inter- ception  had  not taken place at the Sales Tax  Barrier  the export would have become a completed act and the  fertiliser bags would have been successfully taken to Maharashtra State in contravention of the Fertiliser (Movement Control) Order, 1973.  It was not therefore a case of mere preparation  viz. the resport- 551 dents  trying  to procure fertiliser bags  from  someone  or trying to engage a lorry for taking those bags to  Maharash- tra.  They were cases where the bags had been  procured  and were  being  taken in the lorries under cover of  sales  in- voices 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 ferti- liser bags in them for 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 hags in the trucks in  question  by  the respondents were therefore clearly cases of attempted unlaw- ful  export  of the fertiliser bags and 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  10  of the Act was added. The  effect  of  this amendment  is that a presumption of guilty mind on the  part of the accused in respect of offences under the Act, includ- ing Sec. 7, would arise and it would be open to the  accused to rebut the same.]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 49 & 24 of 1978.     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. 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.  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 there- for  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  Essen- tial  Commodities  Act, 1955, (for short the E.C.  Act).  In both 552 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.     The facts in the two cases are identical. In Crl. Appeal No. 49/78, a truck bearing registration no. M.P. 3668 carry- ing  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.  National Highway  No.  3. The lorry driver was in possession  of  in- voices  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 No.  MPM-4866  proceeding  from Indore   to   Maharashtra  was  similarly   intercepted   on 30.10.1973  at  Sendhwa  Sales Tax Barrier.  The  truck  was carrying 170 bags of fertilisers. The documents seized  from the  lorry 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 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  documents seized from them and that they  were  not engaged in exporting the fertiliser bags from Madhya Pradesh to  Maharashtra in concious 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 transport company, there was no material  in the  cases to hold that the fertiliser bags were  being  ex- ported to Maharashtra from Madhya Pradesh. The Trial  Magis-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

trate 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 contents of the documents seized from them. The Trial Magistrate  and the High Court have further opined that  the materials on record would, at best, make out only a case  of preparation by the accused to 553 commit the offence and the evidence fell short of establish- ing that the accused were attempting to export the fertilis- er bags from Madhya Pradesh to Maharashtra in  contravention of the FM.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 fertilisers respectively and the  con- signments  were not covered by export permits  issued  under the  F.M.C.  Order.  In such circumstances  what  fails  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 fertilis- er 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 relevant  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. Definitions--In this Order unless the  context otherwise 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 fertilisers from any State."                                       (Emphasis supplied).     Section 7 of the Essential Commodities Act 1955 provides the  penalty for contravention of any order made under  Sec- tion 3 and reads as under: "7.  Penalties. (1) If any person contravenes whether  know- ingly, intentionally or otherwise any order made under  Sec. 3-- (a) he shah be punishable-                                         (Emphasis supplied) 554 (i)  in the case of an order made with reference  to  clause (h) or clause (i) of sub-sec. (2) of that Sec., with impris- onment  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 state that the Trial Magistrate and the High  Court have  failed to comprehend and construe Section 7(1) of  the Act in its full perspective. 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 even otherwise i.e. done unintentionally. The element of mens tea in  export  of  fertiliser bags without a  valid  permit  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

therefore not a necessary 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.     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 licencee under the Gujarat Groundnut Dealers Licensing Order, 1966 was found to be  in possession of 397 tins of groundnut oil in  violation of  the conditions of the licence and the provisions of  the Licensing Order. Consequently, the Collector ordered confis- cation of 100 tins of groundnut oil from out of the 397 tins under  Sec.  6(1) 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 contravention  was not deliberate as it arose out of a  mere bona  fide misconception regarding the true content  of  cl. (11) of the Licensing Order." The Additional Sessions  Judge therefore held that the contravention was merely a technical one and not a wilful or deliberate one and hence the confis- cation of 100 tins of groundnut oil was too harsh a  punish- ment  and that confiscation of only 25 tins would  meet  the ends  of justice. Against this order, the firm  preferred  a petition under Arti- 555 cle 227 of the Constitution to the High Court. Dealing  with the matter, 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 essen- tial ingredient of the criminal offence referred to in  Sec. 7. The High Court then referred to the change brought  about by  the  Legislature to Sec. 7 after the decision  in  Nathu Lal’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  know- ingly,  intentionally or otherwise" were added  between  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 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 tea as an essential condi- tion 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 introducting 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 Lal’s case."     The  High  Court thereafter proceeded  to  consider  the further amendment effected to Sec. 7 of the Act pursuant  to the recommendation of the Law Commission in its 47th Report.     Though  for the 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 stood at the relevant time  viz a contravention made of an order made under Sec. 3  "whether

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

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 556 the Swastik Oil Industries as follows and it is enough if we extract the same. "But again in the year 1974, pursuant to the recommendations of  the Law Commission in their 47th Report and the  experi- ence gained in the working of the Act, by an Ordinance, Sec. 7 of the Act was amended whereby the words "whether knowing- ly,  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 its original frame and a  new provision  in  Sec. 10 of the Act was added which  reads  as under: "10. C(I) 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"  in- cludes 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 estab- lished by a preponderance of probability." This Ordinance was replaced by Amending Act 30 of 1974.  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 ’same must be presumed unless the accused proves that he had  no  such mental state with respect to the  offence  for which he is tried. Now according to the explanation to  Sec. 10(c)  culpable  mental state  includes  intention,  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 557 which says that a fact will be said to be proved only if  it 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 prosecution.  There can  therefore  be no doubt that the  aforesaid  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 insert- ed 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

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.     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 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.     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 preparations to export  fertiliser  bags from  Madhya Pradesh to Maharashtra in contravention of  the F.M.C.  Order  and  they cannot be found  guilty  of  having attempted  to export the fertiliser bags. In the  commission of an offence there are four stages viz intention,  prepara- tion, attempt and execution. The first two stages would  not attract  culpability but the third and fourth  stages  would certainly attract culpability. The respondents in each  case were actually caught in the act of exporting fertiliser bags without a permit therefore from Madhya Pradesh to  Maharash- tra. 558 The  trucks  were  coming from Indore  and  were  proceeding towards  Maharashtra.  The interception had taken  place  at Sendhwa  Sales Tax Barrier which is only 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 successfully  taken to Maharshtra State in contravention of the F.M.C. Order. It was  not therefore a case of mere preparation viz.  the  re- spondents trying to procure fertiliser bags from someone  or trying to engage a lorry for taking those bags to  Maharash- tra.  They were cases where the bags had been  procured  and were  being  taken in the lorries under cover of  sales  in- voices for being delivered to the consignees and the lorries would  have  entered the Maharashtra border  but  for  their interception  at the Sendhwa Sales Tax Barrier.  Surely,  no one  can  say that the respondents were taking  the  lorries with  the fertiliser bags in 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 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 view the act of  transporta- tion of the fertiliser bags in the trucks in question by the respondents  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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

in each case and convicting the respondents for the  offence with  which  they were charged we do not pass any  order  of punishment  on the respondents on account of the  fact  that more than fifteen years have gone by since they were acquit- ted  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 them. Therefore, while allowing the appeals and declaring that the 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. 560