Report No. 47
3.13. Need for stringent action.-
These offences, affecting as they do the health and wealth of the entire community, require to be put down with a heavy hand at a time when the country has embarked upon a gigantic process of social and economic planning. With its vastness in size, its magnitude of problems and its long history of poverty and subjugation, our Welfare State needs weapons of attack on poverty, ill nourishment, and exploitation that are sharp and effective in contrast with the weapons intended to repress other evils.
The legislative armoury for fighting socio-economic crimes, therefore, should be furnished with weapons which may not be needed for fighting ordinary crimes. The damage caused by socio-economic offences to a developing society could be treated on a level different from ordinary crimes. In a sense, anti-social activities in the nature of deliberate and persistent violations of economic laws could be described as extra-hazardous activities, and it is in this light that we approach the problem.
3.14. Concept of public welfare.-
Since the casualty is the nation's welfare, it is these offences which really deserve the name of 'public welfare' offences.
3.15. Sayre's view as to 'public welfare' offences.-
Long ago, Sayre1 cited and classified a large number of cases of 'public welfare offences' and concluded that they fall roughly into sub-divisions of (1) illegal sale of intoxicating liquor, (2) sales of impure or adulterated food or drugs, (3) sale of misbranded articles, (4) violations of anti-narcotic Acts, (5) criminal nuisances, (6) violations of traffic regulations. (7) violations of motor-vehicles laws, and (8) violations of general police regulations, passed for the safety, health or well-being of the community.
1. Sayree Public Walfare Offences, 33 Col L Rev 55, 73, 84, cited in Morissette v. U.S., (1951) 342 US 244 (262), footnote 20.
3.16. Need for widening the concept of public welfare offences.-
The time has come when the concept of "public welfare offences" should be given a new dimension and extended to cover activities that affect national health or wealth on a big scale. Demands of the economic prosperity of the nation have brought into being risks of a volume and variety unheard of, and if those concerned with the transactions and activities in this field were not to observe new standards of care and conduct, vital damage will be caused to the public welfare.
In the field of health, for example, the wide distribution of goods has become an instrument of wide distribution of harm. When those who disperse food, drink and drugs, do not comply with the prescribed standard of quality, integrity, disclosure and care, public welfare receives a vital blow. In the economic field, again, freshly discovered sources of harm require the imposition of a higher type of precautiorfs, without Which there would be vital damage to the fabric of the country and even to its very survival.
3.17. Justification for treating social and economic offences differently from conventional crimes.-
These cases do not fit neatly in the accepted categories of crimes. They represent harm of greater magnitude than the traditional crimes and of a nature different from them. Unlike the traditional crimes, they are not in the shape of positive aggressions or invasions. They may not result in direct or immediate injury; nevertheless, they create a danger which, or the probability of which, the law must seek to minimise. Whatever the intent of the violator, the injury is the same. Hence, if legislation applicable to such offences, as a matter of policy, departs from legislation applicable to ordinary crimes in respect of the traditional requirements as to mens rea and the other substantive matters as well as on points of procedure, the departure would, we think, be justifiable.
3.18. Hope about appeal of above approach.-
We.hope that our approach will appeal to and to be shared by all agencies concerned with the investigation, prosecution, trial and punishment of these offences.
3.19. Important changes.-
It would, we think, be convenient if we, at this stage, indicate illustrations from some of the important recommendations which flow from the above approach.
3.20. Mens rea-Burden of proof shifted.-
First we should refer to an important change pertaining to mens rea. Having regard to the considerations mentioned above, we have recommended placing the burden of disproving mens rea on the accused. After very careful consideration, we have come to the conclusion that the social interest in the prosecution and conviction of those guilty of anti-social acts would be protected by the amendment which we propose. At the same time, the substantive provision would not, in its formulation, be so unreasonable as to attach culpability (and, consequentially to impose punishment), where there is no intention to evade its provisions and no want of reasonable care.