Case: State of Madhya Pradesh Vs. Shamshersingh &amp; Another

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 Section 10-C(1) 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-section (2) thereof 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 case (AIR 1966 SC 43 ) and the same no longer holds the field. 10. Reverting back to Section 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 inserted in Section 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 Section 7 at different stages. 11. We are in full agreement with the enunciation of law as regards Section 7 of the Act in Swastik Oil Industries ((1978) 19 Guj LR 1117). 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 Sections 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. 12. 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, preparation, attempt and execution. The first two stage 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 therefor from Madhya Pradesh to Maharashtra. 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 Maharashtra State in contravention of the FMC Order. It was not therefore a case of mere preparation viz. the respondents trying to procure fertiliser bags from someone or trying to engage a lorry for taking those bags to Maharashtra. They were cases where the bags had been procured and were being taken in the lorries under cover of sales invoices 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 States itself. They were therefore clearly cases of attempted unlawful export of the fertiliser bags and not cases of mere preparation alone. 13. 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 transportation 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. 14. 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 Section 378(3) CrPC 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 nay order of punishment on the respondents on account of the fact that more than fifteen years have gone by since they were acquitted 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. 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 fullplain 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 Section 3 of the Act. In other words, by the use of the express words the element of mens rea as an essential condition of the offence was excluded so that every contravention whether intentional or otherwise was made an offence under Section 7 of theby introducing these words in Section 7 by the aforesaid statutory amendment, the legislature made its intention explicit and nullified the effect of the Supreme Court dicta in Nathu Lal case (AIR 1966 SCcan therefore be no doubt that the aforesaid legislative changes have reversed the thrust of the decision of the Supreme Court in Nathu Lal case (AIR 1966 SC 43 ) and the same no longer holds theWe are in full agreement with the enunciation of law as regards Section 7 of the Act in Swastik Oil Industries ((1978) 19 Guj LR 1117). 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 Sections 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 toAs 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, preparation, attempt and execution. The first two stage 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 therefor from Madhya Pradesh to Maharashtra. 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 Maharashtra State in contravention of the FMC Order. It was not therefore a case of mere preparation viz. the respondents trying to procure fertiliser bags from someone or trying to engage a lorry for taking those bags to Maharashtra. They were cases where the bags had been procured and were being taken in the lorries under cover of sales invoices 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 States itself. They were therefore clearly cases of attempted unlawful export of the fertiliser bags and not cases of mere preparationWe 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 transportation 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 theIn 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 Section 378(3) CrPC 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 nay order of punishment on the respondents on account of the fact that more than fifteen years have gone by since they were acquitted 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.