Criminal Appeal Nos 49  24 of 1978
From the Judgment and Order dated 841977 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 4978 a lorry driver and two cleaners and in Crl
Appeal No 2478 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 FMC Order read with Sections 3 and 7 of the Essen tial Commodities Act 1955 for short the EC 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 3783 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 4978 a truck bearing registration No MP 3668 carry ing 200 bags of fertilisers and proceeding from Indore to Maharashtra was intercepted on 12274 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 FMC Order
In Crl
Appeal No 2478 a lorry bearing registration No MPM 4866 proceeding from Indore to Maharashtra was similarly intercepted on 30101973 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 FMC 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 FMC Order read with Sections 3  7 of the EC 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 FMC 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 FMC 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 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 FMC Order
As we have already stated the respondents admit that the trucks in question were intercepted at Sendhwa Sales Tax Barrier on 12274 and 301073 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 FMC 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 EC Act
In the said Order the relevant provisions to be noticed are clauses 2a and 3
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 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 71 of the Act in its full perspective
The words used in Sec
71 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 ie done unintentionally
The element of mens tea 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 Sec 3 if the factum of export or attempt to export is established by the evidence on record
The sweep of Sec
71 in the light of the changes effected by the Legislature has been considered by one of us Ahmadi J in Swastik Oil Industries vs State Special Criminal Application 1978 19 Gujarat Law Reporter 117
In that case Ms 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
61 of the 
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 vs 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 ie 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 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
71 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
71 restored to its original frame and a new provision in Sec
10 of the Act was added which reads as under 10 CI 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
10c 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 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 FMC Order read with Sec 3 and 7 of the EC 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 FMC 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 FMC 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
3783 Cr
PC and the High Court was wrong in declining to grant leave to the State
However while setting aside the order of acquittal 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  we are not awarding any punishment to the respondents for the commission of the aforesaid offence
TNA Appeals allowed


Summary:
The appellants were in possession of certain agricultur al lands as tenants
Rev Rutar Ford Padri and Vandru Padri were their landlords who had left the country long ago
But it was alleged that the land was purchased for the benefit of American Baptist Formation Society and the respondents claim to be the Property Association of the Baptist Churches Pvt Ltd  The Association
The land stood transferred to the Association as per order made by the Madras High Court in company petition
The Association thus claimed to be the owner and also in defacto possession of the lands
In 1975 the Association issued notice us 192 of the Act terminating the appellant s tenancy on May 31 1975
The appellants received the said notice but did not send any reply
Thereafter the Association moved the Tehsildar uss 192 read with 281 of the Act for the symbolic possession of the lands from the appellants
Before the Tehsildar appellants denied all the allegations and asserted that they were protected tenants
On Nov 1977 Tehsildar made an order accepting the contentions of the Association holding that the appellants had no right since their tenancy stood terminated
Appellants appeal was also dismissed by the Joint Collector Warrangal
The appellants then approached the High Court by way of revision petition us 91 of the Act
The High Court dismissed the revision
Thereafter appellants came up before the Supreme Court by way of Spe cial Leave to appeal
Accepting the appeal this Court HELD That the contentions of the Association that it is in 473 defacto possession and entitled to symbolic possession is unavailable and indeed unacceptable
Firstly there can not be any dispute in this case about the protected tenancy rights of the appellants
The revenue documents like Panani patrika and final record of Agricultural tenancy clearly establish that the appellants were recognised as protected tenants
Secondly it was not the case of the Association that Rev Rutar Ford Padri and Vandru Padri first offered the land to the appellants before they transferred the same to the Association
The Court also observed that the Associ ation cannot be permitted to take advantage of its high handedness
It is an exploitation of the exploited
It is an oppression of the oppressed
The Court cannot countenance it
482F G 483B Reversing the impugned orders the Court directed the Tehsildar to put the appellants in possession of the agri cultural land in question within one month and ordered that the Association must pay the costs of the appellants quanti fied at Rs20000
483C D