Report No. 47
4.6. Provision as to publication.-
The provision in the Income-Tax Act (section 287) relating to publication of the names of assessees and other particulars relating to proceedings under the same Act, was also revised in 1964. Similarly, elaborate provisions as to search and seizure were inserted in the Customs Act, when the law was revised in 1962.
4.7. Measures adopted so far in various enactments.-
A survey of the various enactments relevant to social and economic offences shows that one or more of the following provisions of a special character have been made:-
Substantive ingredients of the offence:
(1) Elimination or modification of the requirement of mens rea.
(2) Imprisonment to be mandatory.
(3) Minimum period of imprisonment.
(4) Public censure.
(6) Stoppage of business or cancellation of licence.
Jurisdiction of courts:
(7) Higher powers of Magistrates.
Powers & Procedure:
(8) Summary trial .
(9) Search and similar powers.
(10) Special rules of evidence. A few words about each of these would not be out of place.
4.8. Elimination or modification of the requirement of mens rea.-
One form in which the legislative desire to secure effective enforcement of social and economic legislation finds expression is a specific provision which eliminates or modifies the requirement of mens rea, in respect of particular offence1. For example, the Prevention of Food Adulteration Act provides, that it will be no defence in a prosecution for an offences pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him. The vendor is, however, protected if he has obtained the article of food with a written warranty in the prescribed form from the manufacturer, distributor or dealer, and if he further proves that the article, while in his possession, was properly stored and that he sold it in the same state as he purchased it.
An amendment made in 1967 in the Essential Commodities Act takes the matter further. Contravention of an order under the Act is, and has always been, punishable. But the wording of the relevant section2, until 1967, was, "if any person contravenes any order made under section 3". This was interpreted as not excluding mens rea.3 In 1967, the language was altered so as to read-"if any person contravenes whether knowingly, intentionally or otherwise any order made under section 3".
The amended wording appears to be wide enough to eliminate the requirement of mens rea for all practical purposes. Whether such a drastic provision is needed in other laws, or whether it is desirable even in the Essential Commodities Act, is a matter which need not be discussed at this stage. The amendment is referred to here only as illustrating the anxiety of the legislature to deal effectively with the violation of orders under the Essential Commodities Act, and the drastic step taken as a result of that anxiety.
1. Section 19(1), Prevention of Food Adulteration Act, 1954.
2. Section 7(1), Essential Commodities Act, 1955.
3. Nathu Lal v. State of Madhya Prades, AIR 1966 SC 43.
4.9. Mandatory imprisonment.-
Very often, Parliament, in order to indicate its emphatic disapproval of a particular anti-social conduct, has, in the relevant enactment, prescribed a mandatory punishment of imprisonment, the object being to avoid the possibility of the offender being sentenced to mere fine. By way of illustration, it is sufficient to refer to the provision in the Essential Commodities Act1, whereunder contravention of an order under section 3 of that Act is punishable with imprisonment (up to the specified term), and the offender "shall also be liable to fine". This makes the punishment of imprisonment mandatory. There is, of course, the usual proviso, that, for reasons to be recorded, the court may refrain from imposing the sentence of imprisonment.
1. Section 7(1)(a), Essential Commodities Act, 1955.
4.10. Minimum punishment.-
A further provision in connection with punishment is one for a minimum period of imprisonment which is found in many enactments dealing with social and economic offences.
There are, in the Penal Code, only five sections which prescribe a minimum penalty. Waging war against the State (section 121) and murder (section 302), are punished with death or imprisonment for life. Under section 303, a person committing murder while undergoing a life sentence has to be sentenced to death. A minimum sentence of seven years' imprisonment is provided in section 397 for a dacoit or robber using a deadly weapon, or causing or attempting to cause grievous hurt, and in section 398 for a dacoit or robber being armed with a deadly weapon.
But, as noticed by the Law Commission in a previous Report1, "during recent years, several enactments have been passed by the State Legislature or Parliament providing for minimum sentences. It is true that in some of these enactments the discretion of the court has not been completely fettered. Though the section provides for a minimum sentence, the court has been given the liberty, for sufficient reasons to be recorded, to award lower sentence".
1. 14th Report (Reform of Judicial Administration), Vol. 2.