Harries, C.J:— This is a petition for revision of an order made by a learned Additional Presidency Magistrate convicting the Petitioner of an offence under sec. 7(i) of the Essential Supplies Act and sentencing him to pay a fine of Rs. 200 and in default of payment, to undergo rigorous imprisonment for two months. Certain articles which were seized were ordered to be forfeited.
2. There can be no doubt that the Petitioner was on August 30, 1948, in charge of a handcart on which were loaded two bales of yarn and ten bundles of yam. He was stopped by a Sub-Inspector of the Enforcement Branch whilst crossing the Howrah Bridge. The hand cart was searched and the goods were found in it. The Petitioner was in due course sent for trial and was charged under the Essential Supplies Act for moving cloth or yarn from the Calcutta District to the Howrah District without a permit issued by the Director under the West Bengal Cotton Cloth and Yarn Movements Control Order, cated December 19, 1947, made under the Essential Supplies (Temporary Powers) Act, paragraph 4(2) of this Order reads as follows:—
“No person shall move or cause to ba moved by air, call, road or water any cloth or yarn from any place, within any of the areas specified in column 1 o! the Schedule to this Order, to any place outside that area without having the Forwarding Note or any other document for the transport of such cloth or yarn containing the particulars which are ordinarily contained in a Forwarding Note, countersigned by any of the Officers specified in the corresponding entry in column 2 of the said schedule.”
3. Column 1 of the said schedule consists of two items:
1. (a) Calcutta, and
(b) the Sadar Sub-Division of the District of Howrah.
2. Any Sub-Division of West Bengal (excluding the Sadar Sub-Division of the District of Howrah and any area included in Calcutta).
4. On June 22, 1948, the schedule was emended and Calcutta was mentioned (1) Sadar Sub-Division of Howrah, (2) and any other Sub-Division (3). On September 11, 1948, the schedule was again amended and Calcutta and the Sadar Sub-Division of Howrah were treated as one entity. However on the day this offence was committed, the schedule treated the Sadar Sub-Division of Howrah as a separate entity from Calcutta and it was clearly an offence to move yarn across the Hooghly to Howrah without a permit.
5. According to the learned Magistrate the Petitioner pleaded guilty, but it is nowhere recorded what he said precisely. He was undoubtedly moving this yarn and he had no permit or any document countersigned by any officer entitling him to move the yarn. But according to his petition, however, he was merely a servant of one Mahendra Sing, the proprietor of the Belur Engineering and Braiding Works situated in the Howrah Sadar Sub-Division. According to the petition, Mahendra Sing bought yarn which was loaded in this hand cart on August 30, 1948, from Messrs. Lachmidas Purusottamdas of Cross Street, Calcutta and paid a sum of Rs. 2,200 to that firm and obtained a cash memo. In other words, it is suggested that Mr. Mahendra Sing openly bought this yam for use at his factory at Belur.
6. Did the accused, when he was asked to plead, realise that he might well be not guilty, if he himself was unaware that this yarn was being moved without a permit or permission contrary to the provisions of the control order dealing with yarn? I am far from satisfied that when the accused is said to have pleaded guilty, he realised that he might well have a defence to this case.
7. Although in the order the movement of yarn from one area to another without a permission is an offence, nevertheless I think it is now established beyond all doubt that no one could be convicted of moving such yarn unless the prosecution established mens rea on the part of the accused persons. In India Courts had held that provisions such as those contained in the order to which I have referred created an absolute liability and that a servant could be liable ???hought he had no guilty knowledge at all. Their Lordships of the Privy Council, however, in the case of Srinivas Mall Barioliya v. The King-Emperor(1) held that no conviction for such offences could be sustained without mens rea being established. Their Lordships laid down that unless the statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, a Defendant should not be found, guilty of an offence under the criminal law, unless he has a guilty mind. Offences which can be held to be committed without a guilty mind are usually of a comparatively minor character and the selling of articles at more than their controlled price under the Defence of India Rules, punishable with imprisonment for three years, does not come within that limited and exceptional class.
8. It is to be observed that breaches of this control order involve punishment extending to three years' rigorous imprisonment. Therefore these offences were not, in the words of their Lordships of the Privy Council, minor offences for which a man can be found guilty without having a guilty mind.
9. It follows that the Petitioner's plea could not be regarded as a plea of guilty unless he realised that he was doing something which was wrong. If he was merely acting for his master on his master's instructions and moving this yarn without knowing that such movement was illegal, then he would not be committing any offence at all. The material question is, did the accused know whether his master had a permit or not, or did he know that his master required a permit before he could move the goods from one District to another? That aspect of the case has never been investigated and that being so I do not think that the accused's plea of guilty should have been accepted.
10. The Magistrate ought first to have ascertained what the accused really meant Did he mean that be was aware that he was committing an offence or doing something wrong, or was he merely admitting the obvious facts of the case, namely, that he was moving in a hand cart these goods from Calcutta to the Howrah Sadar Sub-Division?
11. That being so, it appears to me that this case must be re-heard and the plea of the accused must be regarded as a plea of not guilty and the case decided on its merits.
12. In the result, therefore, I would allow this petition, set aside the conviction and sentence and send the case back to the Court of the learned Magistrate to be heard and determined in the light of the observations made in this judgment and in accordance with law. He will treat the plea as a plea of hot guilty and proceed to decide the case.
13. The Rule will be disposed of accordingly.
Das, J.:— I agree.