G.D. Sahgal, J.
1. Hira Lal, Gbirau Lal, Mohan Lal, Atma Bam and Phool Chand applicants were tried along with one Budhdhi Lal by the Sub. Divisional Magistrate, Nanpara in the District of Bahraioh for an offence under Section 23 of the Petroleum Act, for storing at Katarniaghat 744 tins of kerosene oil more than 500 gallons in bulk, without licence and thus violating Rule 90 of the Petroleum Rules. Out of them Budhdhi Lal was acquitted and the rest convicted and sentenced to pay a fine of Rs. 400/- each. The five who were thus convicted filed an appeal which was dismissed by the Additional Sessions Judge, Bahraioh. It is against that judgment that they have come up to this Court in revision.
2. Atma Ram and Mohan Lal applicants are the partners of a firm known as Budhdhi Lal and SOUP. The firm deals in kerosene oil as an Agent of Burmah Shell. The applicant Phool Ohand is the Muneem of the firm. Ghirau Lal and Hira Lal applicants, father and son, have a certain shop in Katarniaghat.
3. A consignment of 700 tins of superior kero. sene oil and 44 tins of inferior kerosene oil of which the Burmah Shell were the consignors and the firm Budhdhi Lal and Sons the consignees, arrived at Kataraiaghat Railway Station on the 8th December, 1962. Delivery was taken on behalf of the firm and Phool Chand their Muneem on the 11th December, 1962 who took them to the shop of Ghirau Lal and Hira Lal where they were stored. It was the period when we were facing the Chinese aggression. On the 18th December, 1962 the District Magistrate of Bahraich passed an order requiring all the dealers in kerosene oil to declare their stocks. The firm Budhdhi Lal and Sons also declared their stock indicating that there were 697 tins of superior and 40 tins of inferior kerosene oil in stock. The firm had two licenses for storage one for Bahraich and the other for Nanpara. It had no licence for storing kerosene oil above 500 gallons at Katarniaghat.
On the 24th December, 1962 the Deputy Superintendent of Police, S. P. Dube p. w. 6 along with Sub-Inspector Kalap Nath P.W. 2 came to the shop of Ghirau Lal and Hira Lal at Eatarniaghat and found 681 1/2 tins of superior kerosene oil and 44 tins of inferior kerosene oil stored there. These tics, it is not disputed, were out of the same consignment of 744 tins of superior and inferior kerosene oil which bad been received by the firm through its Mimeera Phool Chand. The remaining is tins of kerosene oil out of that consignment had been sold away. The District Supply Officer Indra Deo Sharma p. w. 7 called for an explanation from the firm Budhdhi Lal and Sons as to why they had stored kerosene oil at Katarniaghat without a storage licence. In reply to this an explanation (EX. Ka. 12) was submitted by the firm through its partner Mohan Lal to the effect that this firm held storage licences for Bahraich and Nanpara, that the Burmah Shell were sending consignments to different stations for the convenience of their agents and for saving unnecessary railway freight, that the consignments if and when received by the firm Budhdhi Lal and Sons at other stations used to be distributed among its customers direct from the Railway Goods-Shed.
The consignment in question was received at Katarniaghat Railway Station under the storage licence of Nanpara in order to be distributed among the customers of the firm and after the delivery the entire goods were taken to the shop of Ghirau Lal and Hira Lal just to avoid wharfage but subsequently that stock bad been taken to Bahraich for which the firm held the storage licence. It was taken there in accordance with the orders of the District Supply Officer on the 27th December 1962. The stand taken by the firm therefore, appears to be that the stock of 725 1/2 tins of kerosene oil had been stored at the shop of Ghirau Lal and Hira Lal as a temporary measure. The authorities were not satisfied with this explanation. The applicants along with Budhdhi Lal were prosecuted with the result that Budhdhi Lal was acquitted while the remaining five applicants were convicted. The facts stated above are not in dispute. The plea on behalf of the two partners of Budhdhi Lal and Sons was that they were asked to donate liberally to the National Defence Fund by the district authorities but as the district authorities were not satisfied with the contributions that they made, they were prosecuted in the case.
4. We have, however, to see as to how far from the facts above stated has a case been made out against any of the applicants.
5. In order to appreciate the arguments advanced in the case certain provisions of the Petroleum Act and the Rules made thereuuder have to be looked into.
6. Under Section 2(a) 'petroleum' means any liquid hydrocarbon or mixture of hydrocarbons, and any inflammable mixture (liquid, viscous or solid) containing any liquid hydrocarbon. There is no dispute that the kerosene oil above referred to comes in this definition.
7. Under Section 2(d) of the Petroleum Act "to transport" petroleum means to move petroleum from one place to another in India,
8. Under Section 2(f) of the Act "to store" petroleum means to keep it in any one place, but does not include any detention happening during the ordinary course of transport.
9. Under Section 7 of the Petroleum Act a person need not obtain a licence for the transport or storage of non-dangerous petroleum if the total quantity in his possession at any one place does not exceed five hundred gallons and none of it is contained in a receptacle exceeding two hundred gallons in capacity.
10. Under Section 10 of the Act a railway administration need not obtain any licence for the transport of any petroleum in its possession in its capacity as carrier.
11. Under Section 23 of the Petroleum Act whoever in contravention of any of the provisions of chap. I or of any of the rules made thereunder, stores any petroleum shall be punishable with fine which may extend to five under rupees.
12. Under Rule 90 of the Petroleum Rules, 1937 framed, among others, under Rule 4 of the Act which falls under chap. I, save as provided in Sections 7, 8 and 9 ot the Act and by Rule 109, no one shall store any petroleum except under a licence granted under the rules, provided that no licence shall be necessary for storage in a well-head tank.
13. As already pointed out under Section 7 of the Act, no licence is necessary for storage of non-dangerous petroleum at any one place if the total quantity does not exceed five hundred gallons. In the instant case the total quantity of kerosene oil did exceed five hundred gallons and so Rule 90 would apply. The question is whether any breach of that rule has been committed by any of the applicants.
14. The first point that was urged on behalf of the applicants was that the word 'store' under Section 2(f) referred to above means to keep petroleum in any one place. It was urged that there was no evidence that the storage was made in one place. It might have been made at several places on the shop of Ghirau Lal and Hira Lal. This argument has to be mentioned only to be re. jested. That the kerosene oil was stored in the shop of Ghirau Lal and Hira Lal is not disputed. If the storage was made of a number of tins in one room and of another number in the other room it will not mean that it was not stored in one place. The word 'place' should not be construed so narrowly. If certain articles are stored id one shop or one premises belonging to the same person it cannot be said that they are not stored in one place. The shop admittedly belonged to Ghirau Lal and Hira Lal. It is nobody's case that there are different portions of the shop in possession of different persons and that separate quantities of kerosene oil were stored in those portions.
The whole bulk was one and it was stored in one shop. It cannot be said that it was not stored in one place.
15. It was next urged that the firm Budhdhi Lal and Sons held a license for storage of petroleum at Bhraich and Nanpiri and they received the kerosene oil in bulk at the railway station. The railways are exempt under Section 10 of the Act from obtaining a licence. What was generally done was that the dealers who purchased their supplies from the firm Budhdhi Lal and Sons generally took delivery at the railway station itself. But in the instant case it could not be so arranged with the result that the stocks could not be allowed to remain lying with the railways which would have charged wharfage (demurrage). It was in these circumstances that the kerosene tins were transported from Katarniaghat railway station to the shop of Gairau Lal and Hira Lal by the Muneem of the firm from where they were to be taken to Nanpara for storing at which place the firm holds a licence.
The kerosene oil arrived at Katarniaghat on the 8th December, 1962 and it was taken to the shop of Ghirau Lal and Hira Lal on the 11th December, 1962 and before it could be transported the firm was required to declare their stock which they declared on the 19th December, 1982 and they were even required to transport 600 tins to Bahraich which they did transport there. They were transported to Bahraich under the order of the District Supply Officer. Payment for transport was to be made by the Government which the Government did not make and as to which the District Magistrate objected. Be that as it may, the tins were stocked in the shop of Ghirau Lal and Hira Lal from the 11th December, 1962 to the 26th December, 1962.
The contention on behalf of the firm Budhdhi Lal and Sons is that the detention of the kerosene oil in the shop of Ghirau Lal and Hira Lal happened during the ordinary course of transport and under Section 2(f) of the Act this detention would not amount to storing, This argument also is of no avail to the applicants. The kerosene oil wag taken to the shop of Ghirau Lal and Hira Lal as wharfage might have to be paid to the railway if it had to be kept there. Even from the shop of Ghirau Lal and Hira Lal 18 1/2 tins of the kerosene oil, as already pointed out above, were sold. So it cannot be said that it was by way of detention during the ordinary course of transport that the kerosene oil tins were kept there. It remained there from the 11th December, 1962 to the 26th December 1962. Thus, it could not be a case of detention during the ordinary course of transport, A person cannot indefinitely store a thing at one place and also sell some of it and still say that it was stored there on its way to some other place. This argument also, therefore, fails.
16. It was lastly pointed out that the storing if at all was done by Phool Chand the Muneem of the firm who took delivery of the stock at the railway station and who stored it at the shop of Ghirau Lal and Hira Lal. As to others it was urged that they having no mens rea or guilty intent, could not be held liable. There is no doubt that it was Phool Chand who took the delivery of the stock and it was he who arranged for the stock to be kept at the shop of Ghirau Lal and Hira Lal. Can Mohan Lal and Atma Ram proprietors of the firm on whose be. half Phool Chand acted be held vicariously liable on this account? The question also is as to whether Ghirau Lal and Hira Lal in whose shop the storage was done could also be held liable. There is no doubt that Mohan Lal and Atma Bam did not do the storing. It was their Muneem who did it on their behalf. It cannot be said that it was done at their instance, for the evidence on this point is silent. The shoo belongs to Ghirau Lal and Hira Lal. The evidence also is silent as to whether it was they who did the act of storing. They may have lent or let out their shop for the purpose of storing, but the question is whether it can be said that it is they who stored the kerosene oil at the shop.
17. Before proceeding to determine this question we have to see how far, if at all, mens rea or guilty intent is essential for anyone to be held guilty of the offence in this case. The law on the point was stated by the Lord Chief Justice of England in the case of Brend v. Wood (1946) no J. P. 317 (at p. 318) as follows:
It is in my opinion of the utmost importance for the protection of the liberty of the subject that a Court should always bear in mind 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 against the criminal law unless he has got a guilty mind.
This view was upheld by the Privy Council in the case of Sriniwas Mall v. Emperor AIR 1947 PC 135.
18. As to the vicarious liability of the master foe the act of the servant in a criminal case, Vis. count Heading C. J. remarked in the case of Mousell Brothers v. L. and N. W. Railway Co. (1917) 2 KB 886 (at p. 844) as follows; -
Prima facie, then, a master is not to be made criminally responsible for the acts of his servant to which the master 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.
Atkin, J. also expressed in that same case the following views:
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 bad 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.
All these authorities were considered and approved of by the Supreme Court in the case of R. Hariprasada Rao v. The State and though the doctrine of mens rea was held applicable to Clause 22 of the Motor Spirit Rationing Order, 1941, it was not held applicable to Clause 27A. Clause 22 of the Order laid down:
No person shall furnish or acquire a supply of motor spirit otherwise than in accordance with the provisions contained in this order.
Clause 27-A of the Order provided:
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 BO surrendered the registration or other identifying mark of the vehicle to which the motor spirit is furnished.
As to Clause 22 it was pointed out that it was not aimed specifically against a supplier but was general in its language and will hit the individual person whether he be the supplier or not who contravences the provision. The language of the clause, it was pointed, also suggested that only the person who furnishes motor spirit contrary to the provisions of the Order will be affected by the contravention. As such the language of that clause did not lend support to the contention that even an innocent master will be criminally liable for the act of his servant. As to Clause 27-A of the said Order it was pointed out that it threw the responsibility for making the necessary endorsement on the supplier. The object of this clause clearly was 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.
19. The matter came up for consideration again before the Supreme Court in the case of Indo China Steam Navigation Co., Ltd. v. Jasjit Singh AIR 1984 so 1140. The principles enunciated in the cases above referred to were followed and it was held after considering the provisions of Section 52.A of the Sea Customs Act along with Section 167 (12A) of the said Act that the legislature intended, by necessary implication, the exclusion of mens rea in dealing with the contravention of B. 52-A.
20. Lastly, we come to the case of State of Maharashtra v. Mayer Hans George where also the authorities above referred to were relied upon and certain other authorities besides them and Subba Rao, J. (as he then was) stated the law to be as follows;-
It is a well settled principle of common law that mens rea is an essential ingredient of a criminal offence. Doubtless a statute can exclude that element, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. To put it differently, there is a presumption that mens rea is an essential ingredient of a statutory offence; but this may be rebutted by the express words of a statute creating the offence or by necessary implication.
Though the view of Ayyangar and Mudholkar, JJ., also appears to be the same so far as the statement of law goes, they differed in its applicability to the facts of that case.
21. We have now to see how far those principles can be made applicable to the present case.
22. What was prohibited under B. 90 when read with Section 7 of the Petroleum Act is that no one shall store petroleum except under a licence granted under the rules. The definition of 'petroleum' as pointed out above, included kerosene oil also. Primarily persons who do business in kerosene oil may be responsible for storing it but if any part of the business is looked after by their employees bow can it be said if the employees have not followed the rules as to storage, that they are liable for it? The employers in this case i.e. firm Budhdhi Lal and Sons, had a licence for storing at Nanpara and Bahraich where they do business but if an employee of theirs proceeds to Katarniaghat to take delivery of kerosene oil on their behalf how could they be made responsible if their employee stores the kerosene oil after taking delivery from the railways against the terms of B. 90? It cannot be the intention of the legislature in the circumstances that the master should be held liable for the acts of his servant. It may be that when the firm was asked to explain the storage of the kerosene oil tins in the premises of the shop of Ghirau Lal and Hira Lal, they pointed out as appears from Ext. Ka.12 that the consignments when received out stations are generally distributed among several dealers from the railway goods-shed, but this time the stock could not be sold from the station and to avoid wharfage charges they had to remove the stock from the goods-shed to the temporary godowns. This letter only explains the circumstances in which the storage was made at what was described as 'temporary godowns'. But this letter does not show that Atma Ram one of the partners who signed that letter was responsible for getting the tins stored at the godown referred to by him. The proprietors of the firm, therefore, cannot be held liable for the act of Phool Chand, their Muneem, who was responsible for storing the kerosene oil tins at the shop of Ghirau Lal and Hira Lal.
23. The case covered by el. 27-A. of the Motor Spirit Rationing Order, 1941 is distinguishable from the present case for in that case as would appear from the wording of the clause itself quoted earlier the words "cause to be endorsed" made all the difference in throwing the liability on the supplier even if his employee committed a breach of the rule by not endorsing on the coupon the registration or other identifying mark of the vehicle to which the motor spirit is furnished. There is no such provision in Rule 90 of the Petroleum Rules.
24. As to Ghirau Lal and Hira Lal, the shop belongs to them and it had been taken from them for storing the kerosene oil tins. They cannot be held responsible for actual storing. It is not suggested that the kerosene oil belongs to them or that after taking it from Phool Chand they got it stored at their shop. They are only responsible for letting out their shop to Phool Chand. They too cannot be held liable.
25. Altogether, therefore, the conviction of Hira Lal, Ghirau Lal, Mohan Lal and Atma Ram cannot be maintained and they have to be acquitted. Phool Chand only is liable. The application is, accordingly, allowed so far an Hira Lal, Ghirau Lal, Mohan Lal and Atma Ram are concerned and their conviction is set aside and also the sentences passed against them. The fine if any, that might have been paid by them shall be refunded.
26. As to Phool Chand, however, the application in revision is dismissed and his conviction and the sentence passed against him upheld and maintained. The stay order as to the realization of fine so far as he is concerned is vacated.