P L D 1958 Dacca 188 (PLP)

The second contention as urged by him also appears to be of no substance. Nothing has been shown to us wnich would indicate that apart from publication in the relevant official Gazette somening more has to be `done for information of the public concerned that a particular law has been pro mulgated. In view of section 6 of the Bengal General Clauses Act, 1899, it can be safely said that ‑.he relevant law or notification came into force on :he aay or,), which it was first published in the uflicial Dacca Gazette. In par ticular, Notification No. 3762‑FD, dated 5th May 1956 was to come into force on 7th May 19;.6, .when it was first published in the Dacca Gazette, in view of section 1 (3) of the East Bengal Essential Food‑Stuffs Anti‑Hoarding Order, 1956. If however, for additional facility and conveniencel any particular officer of the Sovernment thought ;t proper .o publish by beat of drums the. purport A a particular notification, that could not b'e claimed . as a matter of right or as of essence of publication in the eye of law There is no provision in the Order or the Ordinaeice under considera tion which requires that, in addition to a p_ ublication in the Gazette, the subject‑matter of a particuiar notification must also be separately communicated to the person or ::lass of persons who may be affected by the same. There is no similar provision for individual communication as provided f in Rule 119 of the Defence of India Rules. It was, there fore, not obligatory on the part of the Government to employ any other means for communication to the class of persons concerned than by publishing the notification in the official Gazette. It must accordingly be presumed for our present purpose that the existence of the relevant Anti Hoarding Order, 1956, and Notification No,. 3762‑FD, dated 5th May 1956, was known to the petitioner from the respec tive dates of publication in the . official Gazette. Ignorance of law is no excuse. In Ashutosh Chatterjee v. King Emperor (50 C W N 459 ), while considering the implication of Rule 119 (1) of the Defence of India Rules which provided for certain special mode of commOnication to persons affected by any order in writing, it was observed by Lodge, J., as follows "There had been proper notification in the official Gazette, and absence of knowledge after due notification does not seem to me to be a defence to a charge of the present kin

4. Indeed, after due publication in the Gazette, retailers must be deemed to have knowledge." There is no reason for us to think in a different way in the facts and circumstances of the present case. The third contention of Mr. Nurul Amin on the point of mens rea requires a closer examination. It has been argued by him that no criminal intention on the part of the petitioner has been proved by the prosecution. Mens rea.constitutes aii essential ingredient of criminal liability and the fact that there was no machinery for issuing licence or permit would show that the petitioner, even if he had knowledge of the existence of the Anti‑Hoarding Order of 1956 or of Notification No. 3762‑FD, dated 5th May 1956, was in good faith posses sing the rice in question and arranging for removal of the same beyond the Municipal limits of the town of Mymensingh. It is however pointed out by the learned Deputy Legal Remembrancer that the Anti‑Hoarding Order of 1956 having come into force on 13th March 1956 when it was published in the official Gazette and Notification No. 3762‑FD, dated 5th May 1956, having also brought the said Anti‑Hoarding Order into force in that area on 7th May 1956 by reason of its publication in the Dacca Gazette on that date, it became the duty of the petitioner to bring himself into line with the requirements of the newly‑promulgated law. He failed for whatever reason to secure the licence or permit for keeping in his possession more than the. normal quantity of rice required by him and, therefore, came within the mischief of the penal provision of East Pakistan Ordinance VI of 1956. In view of section 14 of East Pakistan Ordinance VI of 1956, the burden of proof to show that the petitioner had lawful authority to possess 245 bags of rice was upon him. It was not his case that the seized quantity of rice was within the allowable limit of normal quantity as in dicated in, paragraph 4 of the Anti‑Hoarding Order of 1956. Unless, theref‑ure, he could secure and produce a licence granted in terms of paragraph 4 of the Anti‑Hoarding Order, he could not be regarded as having discharged his onus of proof. This he failed to do in spite of his knowledge of the promulgation of the Anti‑Hoarding Order, 1956, and Notification No. 3762‑FD, dated 5th May 1956. Such a failure or omission on his part could not have happened if there had been Iue care and attention. As a trader or businessman, rationing having been introduced in the area from 2nd April 1956 and a limit having been imposed upon the quantity of rice to be possessed by a person by introduc tion of the Anti‑Hoarding Order and no licence or permit having been secured as required by law, the .petitioner who had knowledge of these measures enfore'ed by law cannot be said to have acted in good faith, while removing the rice from his godown. These circumstances would only serve as a pointer to the fact that he had a guilty knowledge and he was trying to evade the processes of law. Such a conduct can be characterised as an intentional omission to conform to the requirements of the law. Their Lordships of the Privy Council, in Srinivas Mall Bairoliya and another v. The King‑Emperor (51 C W N 9C0 (906 ), while considering the conniving conduct of appellant No. 1 who knew of the illegal exactions made by his,employee, appellant No. 2, but did not put a stop to the same, were of the opinion that there was illegal omission on the part of the former. It is next contended on behalf of the petitioner that the omission or failure to secure and produce a licence would not relieve the prosecution from its duty of proving the criminal intention or mens rea on the part of the accused. It is difficult to hold that the piece of legislation which is under consideration has left any room or scope for such an argument. How far mens Yea can be regarded as an essential ingredient of a statutory offence can be gathered, on a reference to Article 508 of Volume 10 of Halsbury's Laws of England, Third Edition. It is stated as follows "A statutory crime may or may not contain an express definition of the necessary state of mind. A statute may require a specific intention, malice, knowledge, wilfulness, or recklessness. On the other hand, it may be silent as to any requirement of mens Yea, and in such a case in order to determine whether or not mens Yea is an essential element of the offence, it is necessary to look at the object and terms of the statute. In some cases, the Courts have concluded that despite the absence of express language the intention of the Legislature was that mens Yea was a necessary ingredient of the offence. In others, the statute has been interpreted as creating a strict liability irrespective of mens Yea. Instances of this strict liability have arisen on the legislation concerning food and drugs, liquor licensing, and many other matters." At foot‑note (b) of page 274 of the same volume, it is stated that the basic rule of interpretation is that "unless a statute clearly or by necessary implication rules out mens rea as a constituent part of a crime, the Court should not find a man guilty of an offence against the criminal law unless he has a guilty mind." That the Legislature has got power to dispense with mens Yea in certain class of cases cannotrand has not been disputed before us. Statutes of absolute prohibition may create a strict liability irrespective of mens Yea in matters E of legislation affecting essential food‑stuffs, and acts, though not criminal in any real sense, may be prohibited under a penalty in the public interest. Again in Article 522 at page 282 of the same volume of Halsbury's Laws of England, it is stated "Where a statute absolutely prohibits the doing of an act and apparently dispenses with mens Yea, it has been stated that the doing of the act itself supplied the mens rea." If, therefore, on a reference to the objects and terms of the relevant pieces of legislation it appears that it is either silent as to any requirement of mens Yea or seems to have dispensed with mens rea, then the very fact that the petitioner has been found to be in possession on 15th May 1956 of a quantity of rice much beyond his normal requirement will lead to the presumption that he had the requisite mens Yea. In other words, as pointed out by Wright, J., in Sherras v. De Rutzen (1), the presumption that mens Yea or intention or knowledge of the wrongfulness of the act is an essential ingredient in every offence may be said to have been displaced by the words of the relevant Ordinance and the Anti‑Hoarding Order, 1956, creating the offence. In order to determine whether expressly or by necessary implication, the law in question is silent as to the requirement of mens rea or has apparently dispensed with the same, reference may be made to the object of the Essential Supplies (Continu ance of Temporary Powers) Ordinance, 1955, as indicated in its preamble which is as follows "Whereas an emergency has arisen which renders it necessary to provide for the continuance of powers to control the production, treatment, keeping, storage of move ment, transport, supply, distribution disposal, acquisition, use or consumption of, and trade and commerce in, certain commodities ; And whereas the Essential Supplies (Temporary Powers) Act 1946 (XXIV of 1946), provided for the continuance of such powers and that Act expires on the 31st March 1955 ; And whereas a Proclamation of Emergency has been issued for the purposes of section 102 of the Government of India Act, 1935, ‑as amended by the India (Proclama tions of Emergency) Act, 1946, and it appears to the Governor‑General that the provisions hereinafter made are proper,provisions in view of the naturo of the emergency ; In its scheme for fulfilment of the object, as can be gathered from the aforesaid preamble, the East Bengal Essential Food‑Stuffs Anti‑Hoarding Order, 1956, has been brought into being by enacting and providing for absolute prohibition against storing or possessing any essential‑food stuffs as per Schedule 1 beyond the prescribed normal quantity. The idea underlying this piece of legislation must have been to prevent hoarding or unnecessary storage at any cost. Had there been any scope for raising the question of criminal intention or good faith in an enquiry in connection with the breach of this law, then the enforcement of the same might be rendered altogether ineffective on various grounds. The policy of the State, as envisaged in the (1) (1895) 1 Q B 918 (921) Ordinance and the Anti‑Hoarding Order, 1956, which are nothing but emergency measures, would have lost its significance and become frustrated in no time. The Legis lature should be deemed to have guarded against such eventuality. 011 looking at the object and terms of the two Ordinances and the Anti‑Hoarding Order of 1956 and par ticularly in view of the fact that onus of proof has been placed upon the accused rather than upon the prosecution, it seems quite safe to conclude that mens rea has not been made an essential ingredient of the offence that may be occasioned by the contravention of the provisions of these laws. It has been suggested on the authority of an obser vation of Their Lordships of the Privy Council in the same case as reported in 51 C W N 900 (906) ; following the" judgment of Wright, J. In Sherras v. De Rutzen, that mens rea cannot be presumed to have been dispensed with in offences liable to be punished with imprisonment for a term which may extend to three years. In Isak Solomon Macmull v. Emperor (1), while considering the question of vicarious criminal ‑liability of a master ' who had no knowledge of the illegal action on the part of his servant, Chagla, C. J., followed such dictum of the Privy Council and took the view that offences under the Defence of India Rule could not possibly, fall within that limited and exceptional class of offences which can be held to be committed without a guilty mind inasmuch as they are not minor offences, considering the punishment which is imprisonment for a term that may extend to three years. Mr. Nurul Amin has contended that, having regard to the observations of the Privy Council, except in certain minor offences, mens rea or guilty mind should not be presumed to have been ruled out in the particular law under consideration. It is, however, difficult to agree with him. The Legislature should be credited with the knowledge of the existing laws that prevail in the country at the time when a particular statute is enacted. It is not safe to speculate as to ‑the reasons which might have weighed with the framers of these emergency laws in .dispensing with mens rea as a necessary constituent element of the offences created by reason . of breach of the same. The words employed in the preamble arid the text of the‑ relevant Ordinances and the Anti‑Hoarding‑ Order of 1956 do, however, suggest that these laws, which absolutely prohibit the ‑storing or possession of essential: food‑stuffs beyond same prescribed limits have apparently dispensed with mens rea. It is not unlikely in view of the phenomenal. changes in the‑ social order or economic structure of the country since the last Great War when the 'Defence of India . Rules‑ were in. .force that the Legislature has‑thou‑ght it‑fit to introduce emergency measures of this type. Without trying to probe further into the causes which found favour with the framers of the laws, it will suffce to say that on a proper con struction of the terms and object of the East Bengal Essential Food‑Stuffs Anti‑Hoarding Order, 1956, read with that of Central Ordinance X of 1955, it appears that mens rea 4as (1) A I R 1948 Bom. 364 been dispensed with as a necessary ingredient of the offence committed by contravention of the provision of the. same. In that view of the matter, it is not possible to hold that the prosecution had a duty in this particular case to prove mens rea or criminal intention on the part of the petitioner. It has also been argued by reference to certain observa tions made in Moslemuddin v. Chief ,Secretary (1), to which one of us was a party that mere possession of a quantity of rice or paddy (whatever the quantity may be) is no contraven tion of the notification and is not an offence under the relevant Ordinance. In that case the defence inter alia was that the quantity of paddy seized by the authorities was within the prescribed limit and it was illegal to place him under arrest or convict him without finding as to whether possession of 220 maunds of paddy exceeded the allowable limit of normal quantity required by him, taking into consideration the fact that the household of the prisoner consisted of 45 members. In the present case, however, it has never been denied that possession of 245 bags of rice exceeded the prescribed limit of normal quantity available to him. Moreover, the burden of proof, that ‑he had lawful authority to possess the said quantity of rice lay upon the present petitioner and he could not discharge the same as required under section 14 of East Pakistan Ordin ance VI of 1956. In this view of the matter, it is not possible to accept the contention that possession of the seized quantity of rice which was admittedly in excess of the prescribed allowable limit of normal quantity did not on 15th May 1956, constitute an offence under section 6 of East Pakistan Ordinance VI of 1956 by reason of the con travention of paragraph 4 of the East Bengal Essential Food Stuffs Anti‑Hoarding Order, 1956. All.contentions, as raised by Mr. Nurul Amin, therefore, fail. But in view of the fact that the Anti‑Hoarding drive was conducted shortly after the publication of Notification No. 3762‑FD, dated 5'th May 1956, we think ends of justice will be satisfied if the conviction is upheld and the sentence of fine of Rs. 1,000 in default to suffer rigorous imprisonment for 6 months is reduced to a tine of Rs. 750 (Rupees. Seven hundred and fifty only), in default to suffer rigorous imprisonment for 6 months, and the other sentences of simple imprisonment till the rising of the Court and .the order of forfeiture of the seized rice and bags, are maintained, and. we order accordingly. In the result, subject to the modification of the sentence, as indicated above, the Rule is discharged. It is further directed that if the fine has been paid, then the sum of Rs. 250 should be refunded to the petitioner. ISPAHANI, J.‑I agree. Z. A. S. Rule discharged. (1)$DLR526;PLD1957Dacca101