TMI Blog1948 (1) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... . Now, it was not the case of the prosecution that accused No. 1 was present when petrol was supplied by accused No. 3 to the bogus customer or that he had any knowledge of the supply of petrol by accused No. 3 to the bogus customer. The prosecution want to fasten a vicarious liability upon accused No. 1. Their case is that as he was the master of accused No. 3 and as he was the supplier, although he had no knowledge and although mens rea was not present, in law he was still liable and the conviction by the Presidency Magistrate is justified. 4. Now, turning to the Motor Spirit Rationing Order, 1941, supplier is defined as a person carrying on the business of supplying motor spirit, and the definition seems to be wider than the definition of dealer which restricts it to a person carrying on business in retail. Clause 5 of this Order provides that the motor spirit required for any vehicle not covered by Clause 3 or Clause 4 shall be furnished or acquired only against the surrender to a supplier at the time of supply of valid ordinary coupons or of valid supplementary coupons and only in accordance with any conditions or instructions appearing on or attached to such coupons. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter was vicariously liable for the acts of his servant, and the bench consisting of these two learned Judges held that the proprietor was liable for having committed the offence under Section 81(4) of the Defence of India Rules read with the relevant notification. In coming to that conclusion the Court accepted the principle that where there is an absolute prohibition of an act then the person committing the act is liable for the penalty provided in the statute whether he had mens rea or not. 6. After this decision was given the Privy Council had to consider the effect of this rule in a very recent case, Srinivas Mall Bairoliya v. Emperor (1947)49BOMLR688 . In that case accused No. 1 and his employee accused No. 2 were charged under Rule 81(4) of the Defence of India Rules with having sold salt at a price exceeding the maximum price fixed by the District Magistrate. The Privy Council came to the conclusion that the evidence proved beyond doubt that accused No. 1 knew of accused No. 2's illegal exactions and connived at them, and, therefore, they affirmed the conviction against accused No. 1 and agreed with the view taken by the High Court of Patna that accused No. 1 had know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to three years. There is no doubt that the obiter of the Privy Council is well considered because we have considered the line of authorities both in England and of this Court which are clearly in conformity with the principle enunciated by their Lordships of the Privy Council. 8. In Halsbury's Laws of England, Vol. IX, at p. 10 in para 3 is first stated the ordinary law, namely, that it is generally necessary that there should be a wrongful intention or some other blameworthy condition of the mind (mens rea) which can be imputed to the accused before he can be held guilty of an offence. Then at p. 11 the exception is set out and that is: In a limited class of offences, mens rea is not an essential element. This class consists, for the most part, of statutory offences of a minor and only quasi-criminal character and, in order to determine whether mens rea is an essential clement of an offence, it is necessary to look at the object and terms of the statute which creates it. And in foot-note (n) at that page the kind of offences where it has been held that mens rea is not an essential element are enumerated, and these are Nuisance Cases, Food and Drug Cases, Licensing C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have three decisions : Queen-Empress v. Tyab Alli I.L.R. (1900) 24 Bom. 423 Emperor v. Jeevanji I.L.R. (1907) 31 Bom. 611 and Emperor v. Mahadewappa I.L.R. (1926) 51 Bom. 352. In Queen-Empress v. Tyab Alli Mr. Justice Parsons and Mr. Justice Ranade held that the licensee under the Arms Act was liable to punishment under Section 22 of the Indian Arms Act, though the goods were not sold with his knowledge and consent. The maximum sentence under this section was six months or a fine which may extend to ₹ 500. In Emperor v. Jeevanji Mr. Justice Chandavarkar and Mr. Justice Heaton held that under Section 111 of the Indian Emigration Act, 1883, the master or the principal could be held liable for the acts of his servant or agent. There again for contravention of the section the sentence was a fine of ₹ 250, and in Emperor v. Mahadewappa Mr. Justice Fawcett and Mr. Justice Shah differed and the case was referred to Mr. Justice Crump, who agreed with Mr. Justice Fawcett that the accused who held a licence under the Indian Explosives Act, 1884, to manufacture gun-powder was liable for the act of his servant. The offence was constituted by the rules framed under the Indian Expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atute compel them to do so or they are driven to that conclusion by necessary implication. In this case we neither find clear words in the statute, nor can we say that by necessary implication the Legislature has introduced this principle of vicarious liability. Our attention was drawn to another war time legislation which is very much in Pari materia, namely, the Hoarding and Profiteering Prevention Ordinance, where the Legislature has in terms made the dealer liable although he might not be the person who sold the particular commodity, but it was sold by his servant (see Clause 4(3) and Clause 6(5) of the Hoarding and Profiteering Prevention Ordinance 1943). 14. The Government Pleader has attempted to impress upon us the serious consequences of the decision which we are just giving. Really that is no concern of a Court of law. The Courts are more anxious-and should be more anxious-to protect the liberty of the subject and to see that an innocent man does not suffer, rather than consider questions of policy. But we see no difficulty in the way of Government or the Legislature, because if the executive desires that the owners of petrol pumps should be held liable for unauthorise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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