TMI Blog1966 (9) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... 91 mds. 27srs. tallied with the description and weight given in the warehouse register, while the contents of the remaining 10 bags were removed from the warehouse and 15 mds. 24 srs. of local patti choora was substituted in their place. (3) Under Entry No. I/19 dated the 4th March, 1962 the recorded balance was 23 bundles and one bag weighing 45 mds., 17 srs. but on weighment the individual packages showed wide variations from their recorded weights, and out of them three bundles and the bags were found filled with local patti choora instead of Kampila Ganj and whole leaf . weighed 4 mds. 26 srs. as against their recorded weight of 7 mds. 27 srs. 3.The case for the prosecution was that the aforesaid goods had been removed from the warehouse otherwise than as provided in the Central Excise Rules and without payment of the duty leviable on them and the respondent was therefore guilty for the contravention of the provisions of section 9 (a) and 9(b) of the Central Excise Act—hereinafter called the Act—and Rule 151(c) of the Central Excise Rules—hereinafter called the Rules. 4The respondent pleaded not guilty though he. admitted that the shortages detected by P.W. 1 M.P. Mathur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject matter of numerous decisions, but, as the last word on it has been said by the Supreme Court in Nathoo Lal v. State of Madhya Pradesh (A), it is necessary to refer to them. In Nathoo Lal, the Supreme Court observed thus :- "The law on the subject is fairly well settled. It has come under judicial scrutiny of this Court on many occasions. It does not call for a detailed discussion. It is enough to restate the principles. Mens rea is an essential ingredient of a criminal offence. Doubtless a statute may exclude the element of mens rea, 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 statue expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the goods warehoused." The learned Government Advocate contended that as the acts in question resulting in the shortage referred to above, were admittedly committed by a servant of the respondent he was vicariously liable for them. In my opinion this contention is not borne out by the syntax of the Rule, and the use of the words 'with his connivance' therein. So far as the former is concerned it is to be noted that the Rule clearly states that if 'the owner of the goods warehoused' by himself or by any person in his employ—leaving aside the question of "with his connivance" for the amount—commits any of the offences enumerated in that Rule he would be held responsible for the same. In my opinion the use of the words "by himself or any person in his employ" clearly show, that if the impugned act is not performed by "the owner of the goods warehoused" himself, but is committed by person in his employ then the former can be made liable for it, only if the prosecution is able to prove, that it was done either at his asking or to his knowledge or with his connivance. I am fortified in this view as on any other construction the words "by himself" preceding the words "by any person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacturer etc., for the breach of any of the conditions, mentioned therein. That section was, therefore, of sufficiently wide import to make the manufacturer etc. vicariously liable for the acts of their servants even if those acts were done without their knowledge or connivance. Consequently this decision is of no help to us in interpreting Rule 151. The next case which was cited at the Bar was that of Govind Prasad Sharma v. Board of Revenue, Madhya Pradesh (C). In this case sub-section (7) of Section 228 of the Madhya Pradesh Land Revenue Code of 1954 came up for consideration. The said Rule reads thus : "Any person who without lawful authority extracts or removes mineral from any mine or, quarry, the right of which vests in, and has not been assigned by, the Government, shall, without prejudice to any other action that may be taken against him, be liable on the order in writing of the Deputy Commissioner, to pay penalty not exceeding a sum calculated at double the market value of the minerals so extracted or removed...................." 11. In this case a contractor from a lessee of mine from the Government extracted minerals from that mine and the question was whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f statutes that an interpretation which has the aforesaid effect is not permissible. Hence Rule 225 which appears in the Chapter headed "Miscellaneous", and is preceded by Rule 224, which lays down conditions for the removal of excisable goods, must be held to be confined in its scope to the removals which are done in violation of the restraints and conditions laid down in that Rule (Rule 224). Those restraints of conditions are quite different from those mentioned in Rule 151. There is thus nothing either in the Act or the Rules or the authorities which were brought to my notice, which militate against the view expressed by me above. The respondent was, therefore, rightly held not guilty for the contravention of Rule 151 of the Rules and Section 9 (a) of the Act. 14.This brings me to the consideration of the only other question involved in this appeal, namely whether the respondent can be held guilty for evasion of payment of duty on the shortages under Sec. 9 (b) of the Act. In my view on the finding recorded by me above, to wit, that the respondent is not liable for the breach of Rule 151, he clearly, cannot be held guilty for evading the payment of duty on the goods removed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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