Narayan Roy, J.
1. have heard counsel for the parties. The sole appellant has ben convicted under Section 7 of the Essential Commodities Act and sentenced to undergo rigorous imprisonment for two years.
2. The prosecution case, briefly stated, is that in the year 1983 the appellant had obtained Licence No. 24/83 for dealing in coal in Lalji Tola, ward No. 5, P.S. Gandhi Maidan, District Patna and the same was renewed in the year 1984 but was not renewed in the year 1985 and even without renewal of the licence, he was found dealing in coal. On 26.5.1986, the Supply Inspector had visited the business premises of the appellant and had found him dealing in coal without valid licence. A written report Ext. 3 was filed before the Officer Incharge, Kotwali Police Station where a formal first information report, Ext. 4, was ,drawn and the police after due investigation submitted charge-sheet against the appellant. The1 appellant ultimately was put on trial after taking cognizance of the offence and he has been found guilty for the offence under Section 7 of $he, Essential Commodities Act and sentenced to undergo rigorous imprisonment for two years.
3. The defence, as it appears from the trend of the cross-examination of the defence witness, it the total denial of the prosecution allegation saying that the appellant bad already applied and deposited the requisite fee for renewal of his licence and after doing so, he was carrying on his business.
4. The prosecution in support of its case examined three witnesses. P.W. 1 Shailendra Kumar is an official witness dealing with the licence while P.W. 2 Sukh Deo Mandal is informant of the case. P.W. 3 Jugal Kishore Singh is the Sub-Inspector of Police, who had investigated the case and had submitted charge-sheet. The defence has also ecamined one defence witness, namely, Krishna Prasad.
5. P.W. 2, who is the informant of the case, in his evidence has stated that on 26.5.1986 while he was the Supply Inspector, Rationing, Patna, he had visited the business premises of the appellant and he had found him running a coal business without licence as his licence which had been granted in the year, 1983 had already expired on 31.12.1984. This witness has deposed after verification of the official records.
6. P.W. 1 in his evidence has stated that licence No. 24/83 of which the appellant was the licence was valid upto 31.12.1984 and thus, he has proved Ext. 1. This witness has further stated that in the year, 1986 the appellant had given an application in the office of the Special Officer Rationing marked Annexure-2 which bears the signature of the appellant. He has further stated that in between 25.8.86 and 31.12.1986, no application whatsoever was filed by the appellant in his office. From the evidence of P.W. 1 it appears that the appellant was holding licence No. 24/83 which was valid upto 31.12.1984 and an application was also filed by the appellant in the year 1986 for renewal of his trade licence. On perusal of Ext. 2, it appears that the appellant had filed an application before the Special Officer, Rationing where he had stated that on 18.12.85 he had already applied for renewal of his licence along with a copy of the challan showing deposit of renewal fee.
7. P.W. 3 is the Investigating Officer of the case. In his evidence he has stated that he had visited the place of occurrence and he had found the appellant dealing in coal. P.W. 1 in his evidence has proved Ext. B, the treasury Challan dated 18.12.85 filed by the appellant in token of proof that the requisite fee was already deposited by the appellant along with his application for renewal of his trade licence No. 24/83.
8. From the evidence of the prosecution witness namely, P.W. 1 it is manifestly clear that the apparent was already having a licence being Licence No. 24/83 which was valid upto 31.12.1984 and the appellant had applied for renewal on 18.12.85 which was pending in the office of the Special Officer, Rationing and no order was passed till date of lodging of the first information report. Ext. B is the documentary evidence led by the appellant which has been proved by P.W. 1 and it goes to show that the requisite renewal fee was already deposited by the appellant vide Challan dated 18.12.85. From Ext. A the show cause given by the Special Officer Rationing to the appellant dated 7.3.86, it goes to show that the appellant was directed to show cause as to why his licence could not be cancelled since he had not lifted coal for the months of February and March, 1986. It is manifestly clear from Ext. A show cause that the question of renewal of licence of the appellant in the year 1986 was pending consideration for which the appellant had already deposited requisite fee vide Ext. B. Had it been a case that the appellant was found dealing in coal on 26.5.86 without licence, the show cause Ext. A could not have been issued by the Special Officer, Rationing, Patna calling upon him to show cause as to why his licence should not be cancelled. The fact that the appellant had applied for renewal of his licence, thus, is manifestly proved from Exts. 2-A and B.
9. It is settled that during the pendency of the application for grant/renewal of licence, if the applicant carries on business, he cannot be alleged to have violated the provision of Clause 3 of the Bihar Trade Articles (Licences Unification) Control Order, 1984. After filing of the application for renewal along with the requisite fee, it is presumed that unless the same is rejected by the authority, the applicant bona fidely is entitled to carry on his in business.
10. In this connection, reference may be made to the case of Nathutal v. State of Madhya Pradesh : 1966CriLJ71 . The Apex Court in Nathulal v. State of Madhya Pradesh (supra), while dealing with the similar situation, has observed that:
The law on the subject is fairly well settled. It has come under judicial scrutiny of this Court on may 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 statute 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 statute would otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an offence depends on the object of the Act and the provisions thereof.
11. The evidence both occular as well as documentary already led in this case in no way proves guilt against the appellant that he had violated the provisions of Clause 3 of the Bihar Trade Articles (Licences Unification) Control Order, 1984 and the element of mens rea was there. In this view of the matter, the impugned judgment and order or conviction and sentence, therefore, is not sustainable in law.
12. I, therefore, allow this appeal and set aside the impugned judgment and order of conviction and sentence passed against the appellant and he is acquitted of the charges levelled against him. The appellant is on bail therefore, he is discharged from the liability of the bail bonds.