JUDGMENT
R.K. Dash, J.
1. The appellant (hereinafter referred to as ‘the accused’) assails the judgment of the learned Special Judge, Berhampur, Ganjam, passed in G.R. Case No. 1112 of 1985 whereby he has been held guilty and convicted under Section 7 of the Essential Commodities Act (for short, ‘the Act’) for contravening Clause 3 of the Orissa Kerosene Control Order, 1962 (hereinafter referred to as ‘the Order’) and sentenced to undergo rigorous imprisonment for two months and to pay a fine of Rs. 500/-, in default to suffer rigorous imprisonment for a further period of 30 days.
2. Briefly stated, the prosecution case was that on 1-11-85 at about 10.30 P.M. Prabhat Chandra Tripathy, A.S.I, of Police (P.W.3) and Bhagaban Misra, S.I. of Police (P.W.4) while performing patrol duty at Aska Road, found a truck bearing registration No. APP 9538 coming from a petrol pump side and proceeding towards Gate-bazar. They detained the truck and on verification found 47 jerricans full of kerosene. On demand by P.W.4, accused, the driver of the truck, could not show any authority for transporting such huge quantity of kerosene. So P.W.4 seized the truck as also the kerosene in presence of witnesses and submitted a written report, Ext. 2 to the Inspector-in-charge, Town P.S., on receipt of which P.S. Case No. 145 of 1985 was registered and investigation was taken up and on completion thereof, charge-sheet was laid against the accused under Section 7 of the Act for violating Clause 3 of the Order.
3. The accused in his statement recorded under Section 313, Cr. P.C. while not disputing the seizure of kerosene, pleaded, inter alia, that the seized kerosene did not belong to him, but to one Bhagaban Das Chaturbhuj who had hired the truck for transport.
4. In order to bring home the charge, the prosecution examined four witnesses and the defence examined one. The learned Special Judge, on consideration of the evidence led during trial, came to hold that the factum of possession of. huge quantity of kerosene having been admitted bj the accused and he having not discharged the burden as to how he came to possess the same, and in view of the prohibition contained in Notification No. SRO 264/82 dated 19-4-82 that no one shall have in his possession kerosene exceeding 10 litres at a time, he was liable for the offence under Section 7 of the Act for contravening Clause 3 of the Order. Having so held, he convicted and sentenced the accused as hereinbefore stated.
5. It is contended by the learned counsel appearing for the accused that the accused was merely a driver of the truck and it was Bhagaban Das Chaturbhuj, a petrol pump owner of Berhampur town who had engaged the said truck to transport kerosene from Aska Road to Konisi and this having been established by examining D.W.I, the learned Special Judge should have acquitted the accused of the charge since he had no mens rea to commit any offence. On the other hand, learned Additional Standing Counsel for the State has urged that in view of the State Government Notification published in the Official Gazette that possession of more than ten litres of kerosene at a time is an offence, the accused, who was admittedly found carrying huge quantity of kerosene without any authority has been rightly convicted under Section 7 of the Act and in that view of the matter the impugned judgment being impeccable does not call for interference in the present appeal.
6. In the above factual backdrop, the questions that arise for consideration are :
1. Whether mere publication of the Notification in Official Gazette restricting possession of more than ten litres of kerosene without further proof that such Notification was made available for sale to the public and in absence of any evidence to show that the said restriction in the Notification was made known to the public, the accused can be fastened with criminal liability punishable under Section 7 of the Act ?
2. Whether Clause 8 of the Order empowers the State Government to restrict or prohibit possession of more than ten litres of kerosene at a time ?
7. Before adverting to the questions posed, I would like to deal with the evidence available on record to find as to whether the prosecution has been able to bring home the charge to the accused beyond all reasonable doubt. It may be stated that the accused although admitted the factum of seizure of large quantity of kerosene on the date of the incident, but his plea however, was that the same did not belong to him but to one Bhagaban Das Chaturbhuj, a licensed wholesale dealer. This plea was taken at the earliest point of time. It would appear from the suggestion given to P.W. 1 during cross-examination, which of course he denied, that kerosene and the vehicle were seized from Bhagaban Das Chaturbhuj. Similar suggestion was also given to P.W.2. Moreover, it appears from the evidence of P.W.3, A.S.I, of Police that the truck carrying kerosene was seized while it was proceeding from the side of the petrol pump belonging to Bhagaban Das Chaturbhuj towards Gate-bazar. A suggestion was also thrown to him during cross-examination, which he denied that the seized kerosene belonged to aforesaid petrol pump owner. Apart from what has been stated above, the accused, in order to prove his defence plea, led evidence by examining husband of the owner of the truck as D.W. 1. As deposed to by the said witness, on the date of incident Bhagaban Das Chaturbhuj, owner of the petrol pump and authorised wholesale dealer in kerosene, has hired his truck to transport kerosene from Aska Road to Konisi. He had accompanied the truck to the petrol pump and remained there for sometime while the containers filled with kerosene were being loaded and thereafter left the place instructing the accused to carry the same to the destination as desired by the dealer. He was cross-examined by the prosecution and nothing substantial could be elicited to impeach his credibility. The learned trial Judge while accepting the prosecution version did not assign any reason whatsoever for not relying upon his sworn testimony. Added to that, a cursory look at the evidence of P.W.4, Investigating Officer, would show that initially he suspected Bhagaban Das Chaturbhuj, the wholesale dealer to have hands in transporting kerosene, and in order to find his culpability, he verified his stock as well as the relevant registers. But after verification, according to him, he did not notice any discrepancy between actual stock and stock shown in the register. He, however, remained on the half-way of the investigation, inasmuch as he did not try to ascertain as to whether the said wholesale dealer was the owner of the seized kerosene or somebody else. This lacuna in the investigation could have been brought to surface if there was effective cross-examination to P.W.4 by the defence. A question ought to have been put to P.W.4 as to if there was actual sale of kerosene to retail dealers by the aforesaid wholesale dealer or it was being transported in the truck for being sold in black market. For the limited purpose of ‘appreciating the evidence of P.W.4,1 perused the case diary and found that the investigation was not directed in the manner as it was required to be. When it came to the notice of P.W.4 that on the date of incident the said wholesale dealer alleged to have sold 11,200 litres of kerosene to various dealers, namely, Madara Sahu, Khetra Sahu and others, and in order to ascertain the truth he verified his stock register, he ought to have examined the retail dealers and verified their stock as well as stock register to find whether in fact the wholesale dealer has transacted any business with them on that day or not. Had he done so, true state of affairs could have been unearthed. It transpires from the record that two senior officers, namely, the Inspector in-charge, Berhampur Town P.S. and the S.D.P.O., Berhampur had supervised the investigation. To my mind, their supervision was nothing but an eye wash. They did not apply their mind to ascertain what lapses were there in the investigation, so that proper instruction could be imparted to ascertain as to who the real culprit was. On perusal of both the supervision notes I find that one is almost the copy of the other. The inaction of the Investigating Officer and the Supervising Officers to nab the real culprit, in my considered opinion, was with some oblique motive. It is apparent that justice has become a casualty. The accused, a poor man, who earns his livelihood as a driver was prosecuted and ultimately held guilty for contravening the law and was sentenced to suffer imprisonment for carrying out direction of his master. By no stretch of imagination it can be said that he was the owner of large quantity of kerosene and was transporting the same on the date of incident. For the act of another, he has been ordered to go behind the prison bar. Who was that man? Why was he not brought to book? These could have been well answered by the Investigating Officer, P.W.4 had he investigated the case properly and impartially, My judicial conscience, therefore, restrains me to put seal of approval to the impugned judgment of the trial Court and send a poor and innocent man to jail to serve out sentence for the offence committed by another. This is a fit case where Section 10C of the Act should be borrowed and applied to give benefit to the accused.
8. Before dealing with Section 10C, I feel it appropriate to trace the legislative history of Section 7 of the Act. Section 7(1) as it stood prior to amendment by Act 36 of 1967 envisaged that if any person contravenes any Order made under Section 3, then he shall be punishable for different charges, mentioned in that Sectiom A question arose whether contravention referred to above covers cases where contraventions are even unintentional. The Supreme Court had the occasion to deal with such a case in Nathulal v. State of Madhya Pradesh AIR 1966 SC 43 : 1966 Cri LJ 71. In the fact situation involved in that case, their Lordships held that ‘mens rea’ which is an essential ingredient having not been proved, the accused could not be held guilty. By the aforesaid amending Act the words “if any person contravenes any Order made under Section 3” was substituted by words “If any person contravenes, whether knowingly, intentionally or otherwise” any Order made under Section 3″. The legislative intention of bringing out such amendment was to cover the cases even where mens rea was absent. Again Sub-section (1) of Section 7 underwent amendment by Essential Commodities Amendment Ordinance 1974 and subsequently the same was replaced by the Amendment Act, 1974 (Act 30 of 1974) which received the assent of the President on 29-8-1974. The relevant portion of Sub-section (1) of Section 7 which was there prior to 1967 amendment was restored. The words
whether knowingly, intentionally or otherwise” were deleted. However, by the very same amendment Act 30 of 1974, the Legislature introduced Section 10C. For better appreciation, the said section is reproduced hereinbelow :–
10C. Presumption of culpable mental state–
(1) In any prosecution for the 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’ includes 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 established by a preponderance of probability.
9. A plain reading of the aforesaid provision indicates that the ‘mens rea’ is a necessary element to attract the provisions of the Act. By virtue of legal fiction, a presumption arises that the accused had the ‘mens rea’ when the offence was committed. Such presumption is, however, rebuttable. In the case in hand learned trial Judge has not considered whether accused had the ‘mens rea’ to commit the offence and if so, whether he had been able to rebut the presumption as envisaged in Section 10C. On the other hand, on a scrutiny of the evidence of D.W. 1 and considering the attending circumstances, I am of the view that the accused had no ‘mens rea’ to commit the offence as alleged by the prosecution.
10. Now I shall deal with the questions as formulated in paragraph 6 of this judgment.
Question No. 1 : Since the learned Court below has held the accused guilty under Section 7 of the Act for contravening the restriction imposed by the Notification issued under Clause 8 of the Order, I feel it appropriate to refer to both Clause 8 and the Notification issued by the State Government in exercise of power conferred by the said Clause.
Clause 8
8. The licensing authority shall have the po\yer by order notified in the Gazette in respect of their respective jurisdiction –
(a) to fix the price of rate at which kerosene may be sold by dealers; and
(b) to regulate the storage, distribution and sale of kerosene;
Provided that where the licensing authority is the Collector no such order shall be made without the previous consent of the State Government.
Notification
The Orissa Kerosene Control Order, 1962,
Clause 8 – Order under
(19th April, 1982)
S.R.O.No. 264/82 – In supersession of Food & Civil Supplies Department Order No. 20213-PL. IC-26/79, dated the 23rd May 1979 as amended by Order No. 7635-PL. IC, 26/79, dated the 23rd February 1980 the State Government in exercise of the powers conferred by Clause 8 of the Orissa Kerosene Control Order, 1962 do hereby direct that no person other than a dealer or an oil company shall store or have in his possession kerosene in quantity exceeding ten litres at a time.
11. Undisputedly there was no restriction or prohibition to possess any quantity of kerosene by any individual till the Notification was made on 19th April, 1982. For the first time, a restriction was imposed under the said Notification that no one shall store or have in his possession kerosene in quantity exceeding ten litres at a time. Now question arises whether mere publication of the Notification in the Official Gazette will fasten a person with criminal liability if he is found to be in possession of kerosene more than ten litres at a time. Learned Additional Standing Counsel appearing for the State contended that since the notification was published in the Official Gazette, it shall be presumed that the same was made known to the public and the maxim, “Ignorance of law is no excuse” applies if one takes the plea that he was not aware of such Notification restricting possession of kerosene exceeding ten litres. This submission does not appear to be sound and I am not persuaded to accept the same.
12. In a recent decision reported in AIR 1998 SC 668 : Collector of Central Excise v. New Tobacco Co. etc., etc., the question that arose before the Supreme Court was.whether mere publication of the Notification in the Gazette is sufficient to fasten a person with civil liability. Their Lordships referred to various dictionaries to ascertain the meaning of the word “publish”. According to Webster’s Comprehensive Dictionary, International Edition, the word “publish” means “(1) To make known or announce publicly; promulgate; proclaim. (2) To communicate to a third person.” In the Legal Glossary, published by the Legislative Department, Ministry of Law, Justice and Company Affairs, Government of India, in 1992, the word ‘publish’ means “to make generally accessible or available, to place before or offer to public; to bring before the public for sale or distribution”. So, in the opinion of the Court, the word ‘publish’ connotes not only an act of printing but also taking further action of issuing or making it available to the public so that they can know about it.
13. The word ‘Notification’, according to Webster’s Third New International Dictionary, means : “1 : the act or an instance of notifying : Intimation, Notice, est : the act of giving official notice or information; 2 : a written or printed matter that gives notice”. Reference was also made to the earlier decision in Harla v. State of Rajasthan 1952 SCR 110 : AIR 1951 SC 467 : 1952 Cri LJ 54 where their Lordships observed :
x x x it would be against the principles of natural justice to permit the subject of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. x x x
14. The Court also referred to another decision in the case of State of Maharashtra v. Mayer Hans George AIR 1965 SC 722 : 1965 (1) Cri LJ 641. In that case it was observed that ‘individual’ service of a general notification on every member of the public is not necessary and all the subordinate law-making authority can or need do, would be to publish it in such manner that persons can, if they are interested, acquaint “themseleves with its contents.” Decisions of Madras and Bombay High Court also attracted the notice of the Court. In Asia Tobacco Co. Ltd. v. Union of lndia (1984) 18 ELT 152 : 1985 Tax LR NOC 36 the Madras High Court in paragraph 4 of the judgment observed :
The mere printing of the Official Gazette containing the relevant notification and without making the same available for circulation and putting it on sale to the public will not amount to the ‘notification’ within the meaning of Rule 8( 1) of the Rules. The intendment of the notification in the Official Gazette is that in the case of either grant or withdrawal of exemption the public must come to know of the same. ‘Notify’ even according to ordinary dictionary meaning would be “to take note of, observe; to make known, publish, proclaim; to announce; to give notice to; to inform”. It would be a mockery of the rule to state that it would suffice the purpose of the notification if the notification is merely printed in the Official Gazette, without making the same available for circulation to the public or putting it on sale to the public…. Neither the date of the notification nor the date of printing, nor the date of Gazette counts for ‘notification’ within the meaning of the rule, But only the date when the public gets notified in the sense, the concerned Gazette is made available to the public. The date of release of the publication is the decisive date to make the notification effective. Printing of the Official Gazette and stacking them without releasing to the public would not amount to notification at all…. The respondents are taking up a stand that the petitioner is expected to be aware of the Withdrawal Notification and that the words ‘publish in Official Gazette’ and the words ‘put up for sale to public’ are not synonymous and offering for sale to public is a subsequent step which cannot be imported into the Act, and the respondents are expressing similar stands. They could not be of any avail at all to the respondents to get out of the legal implications flowing from want of notification, as exemplified above. Printing the notification in the Official Gazette, without making it available for circulation to the concerned public, or placing it for sale to the said public, would certainly not satisfy the idea of notification in the legal sense.
The same view was also taken by the Bombay High Court in GTC Industries Ltd. v. Union of India (1987) 13 ECR 1161.
Reference was also made to the observations made in the case of B.K. Srinivasan v. State of Karnataka AIR 1987 SC 1059 where the Court held :
Whether law is viewed from the stand point of the ‘conscientious good man’ seeking to abide by the law or from the stand point of Justice Holmes’s ‘unconscientious bad man’ seeking to avoid the law, law must be known, that is to say, it must be so made it can be known.
15. The fact in New Tobacco AIR 1998 SC 668 (supra) was whether the respondent was liable to.pay excise djjty at enhanced rate as per the Notification dated 30th November, 1982. The stand of the respondent was that it did not know that such a Notification enhancing the excise duty was issued. Their Lordships relying upon various judicial pronouncements referred to above, held that when a Notification is issued to make it known to the public, it would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If the publication is through a Gazette, then mere printing of it in the Gazette, would not be enough. Unless the Gazette containing the Notification is made available to the public, the Notification cannot be said to have been duly published.
16. Similar view was also expressed by the Calcutta High Court in Mahommed Sayeed v. Union of India AIR 1990 Cal 52. The learned single Judge relying upon the decisions of Bombay and Madras High Courts referred to supra observed that even where a public notice has been issued, it will not be operative unless published in the Official Gazette and such publication cannot be equated with mere printing of such notice. It is the availability of the printed material to the general, public that constitutes publication required both finder the law as well as under the rules of natural Justice.
17. The above being the position of law, learned Additional Standing counsel could not place on record as to whether the ‘Notification’ in question restricting/prohibiting possession Of kerosene more than ten litres at a time was made available to the public so as to infer that the general public are aware of such restriction/ prohibition. The ‘Notification’ in question was printed in English. It needs no mention that Orissa is a backward State, both economically, socially and educationally. More than 50 per cent of the population are illiterate. The accused, a driver, is not an English knowing man, as is evident from the Vakalatnama executed by him. So even assuming that such a ‘Notification’ was made available to the public, from that no inference can be drawn that the accused had the knowledge that there was a prohibition to possess more than ten litres of kerosene at a time. When the said Notification visits a person with penal consequence, before the same was made operative, it should have been broadcast in some rec-ognizahle way, so that all men (jould know, about it. In this context the difference between an Order’ and an ‘Act’ are obvious. As observed by the Supreme Court in Maria’s case (supra) the Acts of Parliament are publicly enacted. Debates are open to the public and the Acts are passed by accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and other modes. Not so Proclamations and Orders of appropriate authorities. There must therefore, be promulgation and publication in their cases.
18. Considering the matter from various angles, the only irresistible conclusion would be that there was no proper publication of the ‘Notification’in question in order to hold the accused guilty for violating the restrictions contained therein.
19. Question No. 2 : This question relates to whether State Government is empowered under Clause 8 of the Order to notify that possession of more than ten litres of kerosene at a time shall be an offence. Sub Clause (a) of Clause 8 provides that the licensing authority shall have power to fix the price of rate at which kerosene may be sold ‘ by dealers. So far as sub Clause (b) is concerned it states that the concerned authority shall have the power to regulate the storage, distribution and sale of kerosene. A conjoint reading of the aforesaid two sub-clauses go to show that Clause 8 permits the licensing authority to fix the price at which kerosene may be sold by the dealer and to regulate storage, distribution and sale of kerq-sene, But so far as possession of kerosene by any-1 person other than a dealer is concerned, Clause 8;; does not authorise the said authority to put any restriction. It is settled law that provisiqn of statute is to be read and interpreted keeping in mind the language and the intent thereof!
20. The words ‘storage’ and ‘possession’ have two different meanings. The word ‘storage’ has an element pf continuity as the purpose is to put the commodity in storage. But that element is not there in the ease of ‘possession’. Distinguishing the words “storage” and “possession”, R. N. Misra, J (as his Lordship then was) in the tase of Prem Bahadur v. State of Orissa (1977) 44 Cut LT 629 : 1978 Cri LJ 683 at p. 685, observed :
The Orissa Order does not make possession without a licence an offence. Storage, however, has been made an offence. Between ‘possession’ and ‘storage’ some elements may be cqjmmon and therefore it would be appropriate to say that in all instances of storage there would be possession. Yet all possession may not amount to storage. ‘Storage’ in the common parlance meaning connotes the concept of continued possession. There is an element of continuity of possession spread over some time and the concept is connected with the idea of a regular place of storage.
21. So by interpreting the word “storage” as contained in Clause 8 of the Order, it cannot be said that the licensing authority was competent to bring out Notification restricting possession by any person, of kerosene exceeding ten litres at a time. In that view of the matter, the Notification in question issued by the licensing authority being without jurisdiction is non est in the eye of law, in so far as possession is concerned.
22. In the result, the appeal is allowed. Judgment and order of conviction passed by the trial Court are set aside and consequently the accused is acquitted of the charge.