State of Maharashtra Vs. Mayer Hans
George [1964] INSC 179 (24 August 1964)
24/08/1964 SUBBARAO, K.
SUBBARAO, K.
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1965 AIR 722 1965 SCR (1) 123
CITATOR INFO:
R 1966 SC 43 (4) R 1966 SC 128 (14) F 1971 SC
866 (13) F 1986 SC 702 (10)
ACT:
Foreign Exchange Regulation Act (7 of 1947),
ss. 8(1) 23(1A) and 24(1)--Mens rea-When a necessary ingredient of
offence-Publication of notification-Knowledge of notification-When can be
imputed-"Cargo" and "personal Luggage", meaning of.
HEADNOTE:
The respondent, a German smuggler, left
Zurich by plane on 27th November 1962 with 34 kilos of gold concealed on his
person to be delivered in Manila. The plane arrived in Bombay on the 28th but
the respondent did not come out of the plane. The Customs Authorities examined
the manifest of the aircraft to see if any gold was consigned by any passenger,
and not finding any entry they entered the plane, searched the respondent,
recovered the gold and charged him with an offence under ss. 8(1) and 23(1-A)
of the Foreign Exchange Regulation Act (7 of 1947) read with a notification
dated 8th November 1962 of the Reserve Bank of India which was published in the
Gazette of India on 24th November. The respondent was convicted by the Magistrate,
but acquitted by the High Court on appeal. In the appeal by the State to the
Supreme Court, the respondent sought to support the judgment of the High Court
by contending that : (i) Mens rea was an essential ingredient of the offence
charged and as it was not disputed by the prosecution that the respondent was
not I aware of the notification of the Reserve Bank, he could not be found
guilty, (ii) the notification being merely subordinate or delegated legislation
could be deemed to be in force only when it was brought to the notice of
persons! affected by it and (iii) the second proviso in the notification
requiring disclosure in the manifest was not applicable to gold carried on the
person of a passenger.
HELD : (per RAJAGOPALA AYYANGAR and MUDHOLKAR
JJ.) (i) On the language of s. 8(1) read with s. 24(1) of the Act, which throws
on the accused the burden of proving that he had the requisite permission to
bring gold into India, there was no scope for the invocation of the rule that
besides the mere act of voluntarily bringing gold into India any further mental
condition or mens rea is postulated as necessary to constitute an offence
referred to in s. 23(1-A). Further, the very object and purpose of the Act and
its effectiveness as an instrument for the prevention of smuggling would be
entirely frustrated if a condition were to be read into the sections qualifying
the plains words of the enactment, that the accused should be proved to have
knowledge that he was contravening the law before he could be held to have
contravened the provision. [145G; 147G; 154C-D; 157D-E].
Case law reviewed.
The Indo-China Steam Navigation Co. Ltd. v.
Jasjit Singh, Addl. Collector of Customs, Calcutta (A.I.R. 1964 S.C.
1140) followed.
(ii) The notification was "published"
and made known in India by publication in the and the ignorance of it by the
respondent who is a foreigner was wholly irrelevant and made no difference to
his liability. [163B-D].
124 In the absence of any statutory
requirement the rule is that subordinate or delegated legislation should be
published in the usual form, that is, by publication within the country by such
media as are generally adopted to notify to all persons concerned and
publication in the Official Gazette is the ordinary method of bringing a
notification or rule to the notice of persons concerned. [164A-B].
Lim Chin Aik v. The Queen [1963] A.C. 160,
Distinguished.
Johnson v. Sargant & Sons [1918] 1 K.B.
101 and Imperator v. Leslie Gwilt I.L.R. [1945] Bom. 681, referred to.
An enactment on the lines of the U.K.
Statutory Instruments Act, 1946 or suitable amendment of General Clauses Act
(10 of 1897) to clarify when subordinate legislation could be said to have been
passed and when it comes into effect, suggested. [164E-F].
(iii) The term "cargo" in the
notification is used in contradistinction to personal luggage" in the law
relating to the carriage of goods. The latter has been defined as whatever a
passenger takes with him for his personal use or convenience either with
reference to his immediate necessities or for his personal needs at the end of
the journey. Gold of the quantity and in the form and manner in which it was
carried by the respondent would certainly not be "personal luggage."
[165E-G].
Per SUBBA PAO J. (dissenting) : (i) The
respondent should not be held guilty of contravening the provisions of s. 8 of
the Act read with the notification issued by the Reserve Bank, as it was not
proved he had knowingly brought gold into India in contravention of the terms
of the notification. [141C-D].
There is a presumption that mens rea is an
essential ingredient of a statutory offence; but this may be rebutted by the
express words of a statute creating the offence or by necessary implication.
But the mere fact that the object of a statute is to promote welfare activities
or to eradicate grave social evils is in itself not decisive of the question
whether the element of guilty mind is excluded from the ingredients of the
offence. Mens rea by necessary implication can be excluded from a statute only
where it is absolutely clear that the implementation of the object of a statute
would otherwise be defeated and its exclusion enables those put under strict
liability by their act or omission to assist the promotion of the law. The
nature of mens rea that will be implied in a statute creating an offence
depends upon the object of the Act and the provisions there of. [139D-G].
Case law reviewed.
Lin Chin Aik v. The Queen [1963] A.C. 160,
relied upon.
(ii) The respondent was not guilty of the
offence as it had not been established that he had knowledge of the contents of
the notification. [142F].
There is no provision providing for the
publication of the notification made by the Reserve Bank of India imposing
conditions on the bringing of gold into India. The fact that it was published
in the Official Gazette does not affect the question. In such cases the maxim
that ignorance of law is not an excuse cannot be invoked and the prosecution
has to bring home to the accused that he had knowledge or could have had
knowledge if he was not negligent or had made proper enquiries. [142C-E].
Lin Chin Aik v. The Queen [1963] A.C. 160,
relied upon.
(iii)The permission given in the notification
could be taken advantage of only by a person passing through India to a foreign
country if he decared the gold in his possession in the manifest for transit as
"bottom or "transhipment cargo". [131A-B].
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 218 of 1963.
Appeal by special leave from the judgment and
order dated December 10, 1961, of the Bombay High Court in Criminal Appeal No.
653 of 1963.
H. N. Sanyal, Solicitor-Gen`eral, N. S.
Bindra and R. H. Dhebar, for the appellant.
Soli Soharabji, A. J. Rana, J. B. Dadachanji,
0. C. Mathur and Ravinder Narain, for the respondent.
SUBBA RAO J., delivered a dissenting opinion.
The judgment of RAJAGOPALA AYYANGAR and MUDHOLKAR JJ. was delivered by AYYANGAR
J.
Subba Rao J. I regret my inability to agree.
This appeal raises the question of the scope of the ban imposed by 'he Central
Government and the Central Board of Revenue in exercise of the powers conferred
on them under S. 8 of the Foreign Exchange Regulation Act, (7 of 1.947),
hereinafter called the Act, against persons transporting prohibited articles
through India.
In exercise of the powers conferred under S.
8 of the Act the, Government of India issued on August 25, 1948 a notification
that gold and gold articles, among others, should not be brought into India or
sent to India except with the general or special permission of the Reserve Bank
of India. On the same date the Reserve Bank of India issued a notification
giving a general permission for bringing or sending any such gold provided it
was on through transit to a place outside India. On November 24, 1962, the
Reserve Bank of India Published a notification dated November 8, 1962 in
supersession of its earlier notification placing further restrictions on the
transit of such gold to a place outside the territory of India, one of them
being that such gold should be declared in the "Manifest" for transit
in the "same bottom cargo" or "transhipment cargo". The
respondent left Zurich by a Swiss air plane on November 27, 1962, which touched
Santa Cruz Air Port at 6.05 a.m. on the next day.
The Customs Officers, on the basis of
previous information, searched for the respondent and found him sitting in the
plane. On a search of the person of the respondent it was found that he bad out
on a jacket containing 28 compartments and in 19 of them 64 -9 126 he was
carrying gold slabs weighing approximately 34 kilos.
I was also found that the respondent was a
passenger bound for Manila. The other facts are not necessary for this appeal.
TV, November 24, 1962 there was a general permission for a person to bring or
send gold into India, if it was on through transit to place outside the
territory of India; but from the date it could not be so done except on the
condition that it was declared in the "Manifest" for transit as
"same bottom cargo" or"transhipment cargo".
When the respondent boarded the Swiss plane
at Zurich on November 27, 1962, he could not have had knowledge of the fact
that the said condition had been imposed on the general permission given by the
earlier notification. The old was carried on the person of the respondent and
he was only sitting in the plane after it touched the Santa Crus Airport. The
respondent was prosecuted for importing gold into India under s. 8 (1) of the
Act, read with s. 23 (1-A) thereof, and under s. 167 (8) (1) of the Sea Customs
Act.
The learned Presidency Magistrate found the
accused guilty on the two count and sentenced him to rigorous imprisonment for
one year. Or appeal the High Court of Bombay held that the second proviso to
the relevant notification issued by the Central Government did not apply to a
person carrying gold with him on his body, that even if it applied, mens rea
being a necessary ingredient of the offence, the respondent, who brought gold
into India for transit to Manila, did not know that during the crucial period
such a condition had been imposed and, therefore, he did no, commit any
offence.
On those findings, it held that the
respondent was not guilty under any of the aforesaid sections. In the result
the conviction by the Presidency Magistrate was set aside This appeal has been
preferred by special leave against the said order of the High Court.
Learned Solicitor-General, appearing for the
State of Maharashtra, contends that the Act was enacted to prevent smuggling of
gold in the interests of the economic stability of the country and, therefore,
in construing the relevant provisions of such an Act there is no scope for
applying the presumption of common law that mens rea is a necessary ingredient
of the offence. The object of the statute and the mandatory terms of the
relevant provisions, the argument proceeds, rebut any such presumption and
indicate that mens rea is not a necessary ingredient of the offence. He further
contends that on a reasonable construction of the second proviso of the notification
dated November 8, 1962 issued by the Board of Revenue, it should be held that
the general permission for bringing gold into India is subject to the condition
127 laid down in the second proviso and that, as in the present case the gold
was not disclosed in the Manifest, the respondent contravened the terms thereof
and was, therefore, liable to be convicted under the aforesaid sections of the
Foreign Exchange Act. No argument was advanced before us under S. 168 (8) (1)
of the Sea Customs Act and, therefore, nothing need be said about that section.
Learned counsel for the respondent sought to
sustain the acquittal of his client practically on the grounds which found
favour with the High Court. I shall consider in detail his argument at the
appropriate places of the judgment.
The first question turns upon the relevant
provisions of the Act and the notifications issued thereunder. At the outset it
would be convenient to read the relevant parts of the said provisions and the
notifications, for the answer to the question raised depends upon them.
Section 8.(1) The Central Government may, by
notification in the Official Gazette, order that subject to such exemptions, if
any, as may be contained in the notification, no person shall, except with the
general or special permission of the Reserve Bank and on payment of the fee, if
any prescribed, bring or send into India any gold............
Explanation.-The bringing or sending into any
port or place in India of any such article as aforesaid intended to be taken out
of India without being removed from the ship or conveyance in which it is being
carried shall nonetheless be deemed to be bringing, or, as the case may be,
sending into India of that article for the purpose of this section.
In exercise of the power conferred by the
said section on the Central Government, it had issued the following
notification dated August 25, 1948 (as amended upto July 31, 1958):
"In exercise of the powers conferred by
subsection (1) of section 8 of the Foreign Exchange Regulation Act, 1947 (VII
of 1947) and in supersession of the Notification of the Government of
India...... the Central Government is pleased to direct that. except with the
general or special permission of the Reserve Bank no person shall bring or send
into India from any place out of India:128 (a) any gold coin, gold bullion,
gold sheets or gold ingot, whether refined or not;
The Reserve Bank of India issued a
notification dated August 25, 1948 giving a general permission in the following
term:
".......the Reserve Bank of India is
here pleased to give general permission to the bringing or sending of any such
gold or silver by sea or air into any port in India provided that the gold or
silver (a) is on through transit to a place which is outside both (i) the territory
of India and (ii) the Portuguese Territories which are adjacent to or
surrounded by the territory of India and (b) is not removed from the carrying
ship or aircraft, except for the purpose of transhipment.
On November 8, 1962, in supersession of the
said notification the Reserve Bank of India issued the following notification
which was published in the Official Gazette on November 24, 1962:
"...................... the Reserve Bank
of India gives general permission to the bringing or sending of any of the
following articles, namely, (a) any gold coin, gold bullion, gold sheets or
gold ingot, whether refined or not, into any port or place in India when such
article is on through transit to a place which is outside the territory of
India. Provided that such article is not removed from the ship or conveyance in
which it is being carried except for the purpose of transhipment;
Provided further that it is declared in the
manifest for transit as same bottom cargo or transhipment cargo." The
combined effect of the terms of the section and the notifications may be stated
thus: No gold can be brought in or sent to India though it is on through
transit to a place which is outside India except with the general or special
permission of the Reserve Bank of India. Till November 24, 1962, under the
general permission given by the Reserve Bank of India such gold could be
brought in or sent to India if it was not removed from the ship or aircraft
except for the purpose of transhipment. But from that date another condition
was imposed thereon, namely, 129 that such gold shall be declared in the
manifest for transit as same bottom cargo" or "transhipment
cargo".
Pausing here, it will be useful to notice the
meaning of some of the technical words used in the second proviso to the
notification. The object of maintaining a transit manifest for cargo, as
explained by the High Court, is twofold, namely, "to keep a record of
goods delivered into the custody of the carrier for safe carriage and to enable
the Customs authorities to check and verify the dutiable goods which arrive by
a particular flight". "Cargo" is a shipload or the lading of a
ship. No statutory or accepted definition of the word "cargo" has
been placedbefore us.
While the appellant contends that all the
goods carried in a ship or plane is cargo, the respondent's counsel argues that
nothing is cargo unless it is included in the manifest. But what should be
included and what need not be included in the manifest is not made clear. It is
said that the expressions "same bottom cargo" and "transit
cargo" throw some light on the meaning of the word "cargo".
Article 606 of the Chapter on "Shipping and Navigation" in Halsbury's
Laws of England, 3rd edition, Vol. 35, at p. 426, brings out the distinction
between the two types of cargo. If the cargo is to be carried to its
destination by the same conveyance throughout the voyage or journey it is
described as "same bottom cargo". On the other hand, if the cargo is
to be transhipped from one conveyance to another during the course of transit,
it is called "transhipment cargo". This distinction also does not
throw any light on the meaning of the word "cargo". If the expression
"cargo" takes in all the goods carried in the plane, whether it is
carried under the personal care of the passenger or entrusted to the care of
the officer in charge of the cargo, both the categories of cargo can squarely
fall under the said two heads. Does the word "manifest" throw any
light? Inspector Darine Bejan Bhappu says in his evidence that manifest for
transit discloses only such goods as are unaccompanied baggage but on the same
flight and that ,.accompanied baggage is never manifested as Cargo
Minifest". In the absence of any material or evidence to the contrary,
this statement must be accepted as a correct representation of the actual
practice obtaining in such matters. But that practice does not prevent the
imposition of a statutory obligation to include accompanied baggage also as an
item in the manifest if a passenger seeks to take advantage of the general
permission given thereunder. I cannot see any inherent impossibility implicit
in the expression "cargo" compelling me to exclude an accompanied
baggage from the said expression.
130 Now let me look at the second proviso of
the notification dated November 8, 1962. Under S. 8 of the Act there is ban
against bringing or sending into India gold. The notification lifts the ban to
some extent. It says that a person can bring into any port or place in India
gold when the same is on through transit to a place which is outside the
territory of India, provided that it is declared in the manifest for transit as
"same bottom cargo or transhipment cargo". It is, therefore, not an
absolute permission but one conditioned by the said proviso. If the permission
is sought to be availed of, the condition should be complied with. It is a
condition precedent for availing of the permission.
Learned counsel for the respondent contends
that the said construction of the proviso would preclude a person from carrying
small articles of gold on his person if such article could not be declared in
the manifest for transit as "same bottom cargo" or "transhipment
cargo" and that could not have been the intention of the Board of Revenue.
On that basis, the argument proceeds, the second proviso should be made to
apply only to such cargo to which the said proviso applies and the general
permission to bring gold into India would apply to all other gold not covered
by the second proviso. This argument, if accepted, would enable a passenger to
circumvent the proviso by carrying gold on his body by diverse methods. The
present case illustrates how such a construction can defeat the purpose of the
Act itself. I cannot accept such a construction unless the terms of the
notification compel me to do so. I do not see any such compulsion. The
alternative construction for which the appellant contends no doubt prevents a
passenger from carrying with him small articles of gold. The learned
Solicitor-General relies upon certain rules permitting a passenger to bring
into India on his person small articles of gold, but ex facie those rules do
not appear to apply to a person passing through India to a foreign country. No
doubt to have international goodwill the appropriate authority may be well advised
to give permission for such small articles of gold or any other article for
being carried by a person with him on his way through India to foreign
countries. But for one reason or other, the general permission in express terms
says that gold shall be declared in the manifest and I do not see, nor any
provision of law has been placed before us, why gold carried on a person cannot
be declared in the manifest if that person seeks to avail himself of the
permission. Though I appreciate the inconvenience and irritation that will be
caused to passengers bona fide passing through our country to foreign countries
for 131 honest purposes, I cannot see my way to interpret the second proviso in
such a way as to defeat its purpose. 1, therefore, hold that on a fair construction
of the notification dated November 8, 1962 that the general permission can be
taken advantage of only by a person passing through India to a foreign country
if he declares the gold in his possession in the manifest for transit as
"same bottom cargo" or "transhipment cargo".
The next argument is that mens rea is an
essential ingredient of the offence under s. 8 of the Act, read with s.
23(1-A)(a) thereof. Under s. 8 no person shall, except with the general or
special permission of the Reserve Bank of India, bring or send to India any
gold. Under the notification dated November 8, 1962, and published on November
24, 1962, as interpreted by me, such gold to earn the permission shall be
declared in the manifest. The section, read with the said notification,
prohibits bringing or sending to India gold intended to be taken out of India
unless it is declared in the manifest. If any person brings into or sends to
India any gold without declaring it. in such manifest, he will be doing an act
in contravention of s. 8 of the Act read with the notification and, therefore,
he will be contravening the provisions of the Act. Under s. 23 ( 1 -A) (a) of
the Act he will be liable to punishment of imprisonment which may extend to two
years or with fine or with both. The question is whether the intention of the
Legislature is to punish persons who break the said law without a guilty mind.
The doctrine of mens rea in the context of statutory crimes has been the
subject matter of many decisions in England as well as in our country. I shall
briefly consider some of the important standard textbooks and decisions cited
at the Bar to ascertain its exact scope.
In Russell on Crime, 11th edn. Vol. 1, it is
stated at p.
64:.......... there is a presumption that in
any statutory crime the common law mental element, mens rea, is an essential
ingredient." On the question how to rebut this presumption, the learned
author points out that the policy of the courts is unpredictable. I shall
notice some of the decisions which appear to substantiate the author's view. In
Halsbury's Laws of England, 3rd edn. Vol. 10, in para, 508, at p. 273, the
following passage appears:
"A statutory crime may or may not
contain an express definition of the necessary state of mind. A statute may
require a specific intention, malice, knowledge, wilfulness. or recklessness.
On the other hand, it may be silent as to any requirement of mens rea, 132 and
in such a case in order to determine whether or not mens rea is an essential
element of the offence, it is necessary to look at the objects and terms of the
statute." This passage also indicates that the absence of any specific
mention of a state of mind as an ingredient of an offence in a statute is not
decisive of the question whether mens rea is an ingredient of the offence or
not: it depends upon the object and the terms of the statute. So too, Archbold
in his book on "Criminal Pleading, Evidence and Practice", 35th edn.,
says much to the same effect at p.
24 thus:
"It has always been a principle of the common
law that mens rea is an essential element in the commission of any criminal
offence against the common law In the case of statutory offences it depends on
the effect of the statute...... There is a presumption that mens era is an
essential ingredient in a statutory offence, but this presumption is liable to
be displaced either by the works of the statute creating the offence or by the
subject matter with which it deals." The leading case on the subject is
Sherras v. De Rutzen(1).
Section 16(2) of the Licensing Act, 1872,
prohibited a licensed victualler from supplying liquor to a police constable
while on duty. It was held that section did not apply where a licensed
victualler bona fide believed that the police officer was off duty Wright J.,
observed "There is a presumption that mens rea, an evil intention, or a
knowledge of the wrongfulness of the act, is an essential ingredient in every
offence; but that presumption is liable to be displaced either by the words of
the statute creating the offence or by the subject-matter with which it deals,
and both must be considered." This sums up the statement of the law that
has been practically adopted in later decisions. The Privy Council in Jacob
Bruhn v. The King on the Prosecution of the Opium Farmer(2) construed S. 73 of
the Straits Settlements Opium Ordinance, 1906. Section 73 of the said Ordinance
stated that if any Ship was used for importation, landing, removal, carriage or
conveyance of any (1) [1895] 1 Q.B. 918, 921. (2) I.L.R. [1990] A. C. 317, 324.
133 Opium or chandu contrary to the
provisions of the said Ordinance or of the rules made thereunder, the master
and owner thereof would be liable to a fine. The section also laid down the
rule of evidence that if a particular quantity of opium was found in the ship
that was evidence that the ship had been used for importation of opium, unless
it was proved to the satisfaction of the court that every reasonable precaution
had been taken to pi-event such user of such ship and that none of the
officers, their Servants or the crew or any persons employed on board the ship,
were implicated therein. The said provisions are very clear; the offence is
defined, the relevant evidence is described and the burden of proof is placed
upon the accused. In the context of that section the Judicial Committee
observed:
"By this Ordinance every person other
than the opium farmer is prohibited from importing or exporting chandu. If any
other person does so, he prima facie commits a crime under the provisions of
the Ordinance. If it be provided in the Ordinance, as it is, that certain
facts, if established, justify or excuse what is prima facie a crime, then the
burden of proving those facts obviously rests on the party accused. In truth,
this objection is but the objection in another form, that knowledge is a
necessary element in crime, and it is answered by the same reasoning." It
would be seen from the aforesaid observations that in that case mens rea was
not really excluded but the burden of proof to negative mens rea was placed
upon the accused. In Pearks' Dairies Ltd. v. Tottenham Food Control
Committee(') the Court of Appeal considered the scope of Regulations 3 and 6 of
the Margarine (Maximum Prices) Order, 1917. The appellant's assistant, in
violation of their instructions, but by an innocent mistake, sold margarine to
a customer at the price of 1 sh. per giving only 14 1/2 ozs. by weight instead
of 16 ozs. The appellants were prosecuted for selling margarine at a price
exceeding the maximum price fixed and one of the contentions raised on behalf
of the accused was that mens rea on the part of the appellants was not -in
essential element of the offence. Lord Coleridge J., cited with approval the
following passage of Channell J., in Pearks, Gunston & Tee, Ltd. v. Ward(2)
:
"But there are exceptions to this rule
in the case of quasicriminal offences, as they may be termed, hat is to (1)
[1919] 88 L.J. K.B. 623, 626.
(2) [1902] 71 L.J. K.B. 656.
134 say, where certain acts are forbidden by
law under a penalty, possibly even under a personal penalty such as
imprisonment, at any rate in default of payment of a fine; and the reason for
this is, that the Legislature has thought it so important to prevent the
particular act from being committed that it absolutely forbids it to be done;
and if it is done the offender is liable to a penalty whether he had any mens
rea or not, and whether or not be intended to commit a breach of the law. Where
the act is of this character then the master, who, in fact, has done the
forbidden thing through his servant, is responsible and is liable to a penalty.
There is no reason why he should not be,
because the very object of the Legislature was to forbid the thing
absolutely." This decision states the same principle in a different form.
It also places emphasis on the terms and the
object of the statute in the context of the question whether mens rea is
excluded or not. The decision in Rex v. Jacobs(1) arose out of an agreement to
sell price-controlled goods at excess price. The defence was that the accused
was ignorant of the proper price. The Court of Criminal Appeal held that in the
summing up the direction given by the Judge to the jury that it was not
necessary that the prosecution should prove that the appellants knew what the
permitted price was but that they need only show in fact a sale at an excessive
price had taken place, was correct in law. This only illustrates that on a
construction of the particular statute, having regard to the object of the
statute and its terms, the Court may hold that mens rea is not a necessary
ingredient of the offence. In Bread v. Wood(2) dealing with an emergency
legislation relating to fuel rationing, Goddard C.J., observed "There are
statutes and regulations in which Parliament has seen fit to create offences and
make people responsible before criminal Courts although there is an absence of
mens rea, but it is certainly not the Court's duty to be acute to find that
mens rea is not a constituent part of a crime. It is of the utmost importance
for the protection of the liberty of the subject that a Court should always
bear in mind that, unless a statute, either clearly or by necessary
implication, rules out mens rea as a (1) [1944] K. B. 417.
(2) (1946) 2 T. L. R. 462, 463.
135 constituent part of a crime, the Court
should not find a man guilty of an offence against the criminal law unless he
has a guilty mind.
" This caution administered by an
eminent and experienced judge in the matter of construing such statutes cannot
easily be ignored. The judicial Committee in Srinivas Mall Bairoliva v.
King-Emperor(1) was dealing with a case in which one of the appellants was
charged with an offence under the rules made by virtue of the Defence of India
Act, 1939, of selling salt at prices exceeding those prescribed under the
rules, though the sales were made without the appellant's knowledge by one of
his servants. Lord du Parcq speaking for the Board, approved the view expressed
by Goddard C. J., in Brend v. Wood(2) and observed:
"Their Lordships agree with the view
which was recently expressed by the Lord Chief Justice of England, when he
said: "It is in my opinion the utmost importance for the protection of the
liberty of the subject that a court should always bear in mind that, unless the
statute, either clearly or by necessary implication, rules out mens rea as a
constituent part of a crime, a defendant should not be found guilty of an
offence against the criminal law unless he has got a guilty mind." The
acceptance of the principle by the Judicial Committee that mens rea is a
constituent part of a crime unless the statute clearly or by necessary
implication excludes the same, and the application of the same to a welfare
measure is an indication that the Court shall not be astute in construing a
statute to ignore mens rea on a slippery ground of a welfare measure unless the
statute compels it to do so.
Indeed, in that case the Judicial Committee
refused to accept the argument that where there is an absolute prohibition, no
question of mens rea arises. The Privy Council again in Lim Chin Aik v. The
Queen3) reviewed the entire law on the question in an illuminating judgment and
approached the question, if I may say so, from a correct perspective. By s. 6
of the Immigration Ordinance, 1952, of the State of Singapore, "It shall
not be lawful for any person other than a citizen of Singapore to enter the
colony from the Federation or having entered the colony from the Federation to
remain in the colony if such person has been prohibited by order made under (1)
(1947) I.L.R. 26 Pat. 460, 469 (P.C.).
(2) (1946) 62 I.L.R. 462.
(3) [1963] A.C. 160, 174, 175.
136 s. 9 of this Ordinance from entering the
colony" and s. 9, in the case of an order directed to a single individual,
contained no provision for publishing the order or for otherwise bringing it to
the attention of the person named.
The Minister made an order prohibiting the
appellant from entering the colony and forwarded it to the Immigration Officer.
There was no, evidence that the order had in fact come to the notice or attention
of the appellant. He was prosecuted for contravening s. 6(2) of the Ordinance.
Lord Evershed, speaking for the Board, reaffirmed the formulations cited from
the judgment of Wright J., and accepted by Lord du Parcq in Srinivas Mull
Bairoliya's case(1). On a review of the case law on the subject and the
principles enunciated therein, the Judicial Committee came to the following
conclusion:
"But it is not enough in their
Lordships' opinion merely to label the statute as one dealing with a grave
social evil and from that to infer that strict liability was intended.
It is pertinent also to inquire whether
putting the defendant under strict liability will assist in the enforcement of
the regulations. That means that there must be something he can do, directly or
indirectly, by supervision or inspection, by improvement of his business
methods or by exhorting those whom he may be expected to influence or control,
which will promote the observance of the regulations. Unless this is so, there
is no reason in penalising him, and it cannot be inferred that the legislature
imposed strict liability merely in order to find a luckless victim." The
same idea was repeated thus:
"Where it can be shown that the
imposition of strict liability would result in the prosecution and conviction
of a class of persons whose conduct could not in any way affect the observance
of the law, their Lordships consider that even where the statute is dealing
with a grave social evil, strict liability is not likely to be intended."
Dealing with the facts of the case before it, the Privy Council proceeded to
illustrate the principle thus:
"But Mr. Le Quesne was unable to point
to anything that the appellant could possibly have done so as (1) (1947) I.L.R.
26 Pat. 460, 469 (P.C.).
137 to ensure that he complied with the
regulations. It was not, for example, suggested that it would be practicable
for him to make continuous inquiry to see whether an order had been made
against him. Clearly one of the objects of the Ordinance is the expulsion of
prohibited persons from Singapore, but there is nothing that a man can do about
it, before the commission of the offence, there is no practical or sensible way
in which he can ascertain whether he is a prohibited person or not." On
that reasoning the Judicial Committee held that the accused was not guilty of
the offence with which he was charged. This decision adds a new dimension to
the rule of construction of a statute in the context of mens rea accepted by
earlier decisions. While it accepts the rule that for the purpose. of
ascertaining whether a statute excludes mens rea or not, the object of the
statute and its wording must be weighed, it lays down that mens rea cannot be
excluded unless the person or persons aimed at by the prohibition are in a position
to observe the law or to promote the observance of the law. I shall revert to
this decision at a later stage in a different context. This Court in Ravula
Hariprasada Rao v. The State(1), speaking through Fazl Ali J., accepted the
observations made by the Lord Chief Justice of England in Brend v. Wood(2) .
The decision of this Court in The Indo-China Steam Navigation Co. Ltd., v.
Jasjit Singh. Additional Collector of Customs, Calcutta (3 ) is strongly relied
upon by the appellant in support of the contention that mens rea is out of
place in construing statutes similar to that tinder inquiry now.
There, this Court was concerned with the
interpretation of S. 52-A of the Sea Customs Act, 1878. The Indo-China Steam
Navigation Co. Ltd., which carries on the business of carriage of goods and
passengers by sea, owns a fleet of ships, and has been carrying on its business
for over 80 years. One of he routes plied by its ships in the CalcuttaJapan-Calcutta
route. 'Me vessel "Eastern Saga" arrived at Calcutta on October 29,
1957. On a search it was found that a hole was covered with a piece of wood and
over painted and when the hole was opened a large quantity of gold in bars was
discovered. After following the prescribed procedure the Customs authorities
made an order confiscating the vessel in addition to imposing other penalties.
One of the contentions raised was that S. 52-A of the Sea Customs Act the
infringement whereof was the occasion for the con(1) [1951] S.C.R. 322. (3)
A.I.R. 1964 S.C. 1140.
(2) (1946) 62 T.L.R. 462.
138 fiscation could not be invoked unless
mens rea was established Under that section no vessel constructed, adapted,
altered of fitted for the purpose of concealing goods shall enter, or by
within, the limits of any port in India, or the Indian custom waters. This
Court in construing the scheme and object of the Sea Customs Act came to the
conclusion that mens rea was no a necessary ingredient of the offence, as, if
that was so, the statute would become a dead-letter. That decision was given on
the basis of the clear object of the statute and on a construction of the
provisions of that statute which implemented the said object It does not help
us in construing the relevant provisions of the Foreign Exchange Regulation
Act.
The Indian decisions also pursued the same
line. A division Bench of the Bombay High Court in Emperor v. Isak Solomon
Macmull(1) in the context of the Motor Spirit Rationing Order 1941, made under
the Essential Supplies (Temporary Powers' Act, 1946, held that a master is not
vicariously liable, in the absence of mens rea, for an offence committed by his
servant for selling petrol in the absence of requisite coupons and at a rate in
excess of the controlled rate. Chagla C.J., speaking for the Division Bench
(after considering the relevant English and Indian decisions, observed:
"It is not suggested that even in the
class of cases where the offence is not a minor offence or not quasi-criminal
that the Legislature cannot introduce the principle of vicarious liability and
make the master liable for the acts of his servant although the master had no
mens rea and was morally innocent. But the Courts must be reluctant to come to
such a conclusion unless the clear words of the statute compel them to do so or
they are driven to that conclusion by necessary implication." So too, a
Division Bench of the Mysore High Court in The State of Coorg v. P. K. Assu(2)
held that a driver and a cleaner of a lorry which carried bags of charcoal and
also contained bags of paddy and rice underneath without permit as required by
a notification issued under the Essential Supplies (Temporary Powers) Act,
1946, were not guilty of any offence in the absence of their knowledge that the
lorry contained foodgrains. To the same' effect a Division Bench of the
Allahabad High Court in (1) (1948) 50 Bom. L.R. 190, 194.
(2) I.L.R. [1955] Mysore 516.
139 State v. Sheo Prasad(1) held that a
master was not liable for his servant's act in carrying oilseeds in
contravention of the order made under the Essential, Supplies (Temporary
Powers) Act, 1946, on the ground that he had not the guilty mind. In the same
manner a Division Bench of the Calcutta High Court in C. T. Prim v. The
State(2) accepted as settled law that unless a statute clearly or by necessary
implication rules out mens rea as a constituent part of the crime, no one
should be found guilty of, an offence under the criminal law unless he has got
a guilty mind.
The law on the subject relevant to the
present enquiry may briefly be stated as follows. It is a well settled
principle of common law that mens rea is an essential ingredient of a criminal
offence. Doubtless a statute can exclude that element, 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. To put it differently, there is a presumption that mens rea
is an essential ingredient of a statutory offence; but this may be rebutted by
the express words of a statute creating the offence or by necessary
implication. But the mere fact that the object of a statute is to promote
welfare activities or to eradicate grave social evils is in itself not decisive
of the question whether the element of guilty mind is excluded from the
ingredients of the offence. It is also necessary to enquire whether a statute
by putting a person under strict liability help him to assist the State in the
enforcement of the law: can he do anything to promote the observance of the
law? A person who does not know that gold cannot be brought into India without
a licence or is not bringing into India any gold at all cannot possibly do anything
to promote the observance of the law. Mens rea by necessary implication can be
excluded from a statute only where it is absolutely clear that the
implementation of the object of a statute would otherwise be defeated and its
exclusion enables those put under strict liability by their act or omission to
assist the promotion of the law. 'the nature of mens rea that will be implied
in a statute creating an offence depends upon the object of the Act and the
provisions thereof.
What is the object of the Act? The object of
the Act and the notification issued thereunder is to prevent smuggling of (1)
A.I.R. 1956 All. 610.
(2) A.I.R. 1961 Cal. 177.
140 gold and to conserve foreign exchange.
Doubtless it is a laudable object. The Act and the notification were conceived
and enacted in public interest; but that in itself is not, as I have indicated,
decisive of the legislative intention.
The terms of the section and those of the
relevant notification issued thereunder do not expressly exclude mens rea. Can
we say that mens rea is excluded by necessary implication? Section 8 does not
contain an absolute prohibition against bringing or sending into India any
gold.
It in effect confers a power on the Reserve
Bank of India to regulate the import by giving general or special permission;
nor the notification dated August 25, 1948,
issued by the Government embodies any such absolute prohibition. It again, in
substance, leaves the regulation of import of gold to the Reserve Bank of
India; in its turn the Reserve Bank of India by a notification of the same date
permitted persons to transit -old to a place which is outside the territory of
India and the Portuguese territories without any permission. Even the impugned
notification does not impose an absolute prohibition against bringing into
India gold which is on through transit to it place outside India.
It permits such import for such through
transit, but only subject to conditions. It is, therefore, manifest that the
law of India as embodied in the Act under s. 8 and in the notification issued
thereunder does not impose an absolute prohibition against bringing into India
gold which is on through transit to a place outside India; and indeed it
permits such bringing of gold but subject to certain conditions. The
Legislature, therefore, did not think that public. interest would irreparably
suffer if such transit was permitted, but it was satisfied that with some
regulation such interest could be protected. The law does not become nugatory
if the element of mens rea is read into it, for there would still be persons
who would be bringing into India gold with the knowledge that they would be
breaking the law. In such circumstances no question of exclusion of mens rea by
necessary implication can arise.
If a person was held to have committed an
offence in breach of the provision of S. 8 of the Act and the notification
issued there under without any knowledge on his part that there was any such
notification or that he was bringing any gold at all, many innocent persons
would become victims of law. An aeroplane in which a person with -old on his
body is traveling may have a forced landing in India, or an enemy of a
passenger may surreptitiously and maliciously put some gold trinket in his
pocket without his knowledge so as to bring him into trouble; a person may be
141 carrying gold without knowledge or even without the possibility of knowing
that a law prohibiting taking of gold through India is in existence. AR of
them, if the interpretation suggested by the learned Solicitor-General be
accepted, will have to be convicted and they might be put in jail for a period
extending to 2 years. Such an interpretation is neither supported by the
provision of the Act nor is necessary to implement its object. That apart, by
imposing such a strict liability as to catch innocent persons in the net of
crime, the Act and the notification issued thereunder cannot conceivably enable
such a class of persons to assist the implementation of the law: they will be
helpless victims of law. Having regard to the object of the Act, I think no
person shall be held to be guilty of contravening the provisions of s. 8 of the
Act, read with the notification dated November 8, 1962, issued there under,
unless he has knowingly brought into India gold without complying with the
terms of the proviso to the notification.
Even so it is contended that the notification
dated November 8, 1962, is law and that the maxim "ignorance of law is no
defence" applies to the breach of the said law. To state it differently,
the argument is that even the mental condition of knowledge on the part of a
person is imported into the notification; the said knowledge is imputed to him
by the force of the said maxim. Assuming that the notification dated November
8, 1962, is a delegated legislation, I find it difficult to invoke that maxim
as the statute empowering the Reserve Bank of India to give the permission, or
the rules made thereunder do not prescribe the mode of publication of the
notification. Indeed a similar question arose before the Privy Council in Lim
Chin Aik v. The Queen(1), and a similar argument was advanced before it; but
the Board rejected it. I have already dealt with this decision in another
context. There the Minister under the powers conferred on him by s. 9 of the
Immigration Ordinance 1952, issued an order prohibiting the appellant therein
from entering Singapore. He was prosecuted for disobeying that order. Section
9, in the case of an order directed to a single. individual, contained no
provision for publishing the order or for otherwise bringing it to the
knowledge of the person named. The Crown invoked the precept that ignorance of
the law was no excuse. In rejecting the contention of the Crown, Lord Evershed
speaking for the Board, observed at p. 171 thus:
"Their Lordships are unable to accept
the contention. In their Lordships opinion, even if the making of the (1)
[1963] A.C. 160.
p./64-10 142 order by the Minister be
regarded as an exercise of the legislative as distinct from the executive or
administrative function (as they do not concede), the maxim cannot apply to
such a case as the present where it appears that there is in the State of
Singapore no provision, corresponding, for example, to that contained in
section 3(2) of the English Statutory Instruments Act of 1946, for the
publication in any form of an order of the kind made in the present case or any
other provision designed to enable a man by appropriate inquiry to find out
what 'the law' is." Here, as there, it is conceded that there is no
provision providing for the publication in any form of an order of the kind
made by the Reserve Bank of India imposing conditions on the bringing of gold
into India. The fact that the Reserve Bank of India published the order in the
Official Gazette does not affect the question for it need not have done so
under any express provisions of any statute or rules made there under. In such
cases the maxim cannot be invoked and the prosecution has to bring home to the
accussed that he had knowledge or could have had knowledge if he was not
negligent or had made proper enquiries before he could be found guilty of
infringing the law. In this case the said notification was published on
November 24, 1962, and the accused left Zurich on November 27, 1962, and it was
not seriously contended that the accused had or could have had with diligence
the knowledge of the contents of the said notification before he brought gold
into India. I, therefore, hold that the respondent was not, guilty of the
offence under S. 23(1-A) of the Act as it has not been established that he had
with knowledge of the contents of the said notification brought gold into India
on his way to Manila and, therefore, he had not committed any offence under the
said section. I agree with the High Court in its conclusion though for
different reasons.
Though the facts established in the case
stamp the respondent as an experienced smuggler of gold and though I am
satisfied that the Customs authorities bona fide and with diligence performed
their difficult duties, I have reluctantly come to the conclusion that the
accused has not committed any offence under s. 23(1-A) of the Act.
In the result, the appeal fails and is
dismissed.
Ayyangar J. This appeal by special leave is
directed against the judgment and order of the High Court of Bombay 143 setting
aside the conviction of the respondent under s. 8(1) of the Foreign Exchange
Regulation Act (7 of 1947), hereinafter called the "Act", read with a
notification of the Reserve Bank of India dated November 8, 1962 and directing
his acquittal. The appeal was heard by us at the end of April last and on the
8th May which was the last working day of the Court before it adjourned for the
summer vacation, the Court pronounced the following order :
" By majority, the appeal is allowed and
the conviction of the respondent is restored; but the sentence imposed on him
is reduced to the period already undergone. The respondent shall forthwith be
released and the bail bond, if any, cancelled. Reasons will be given in due
course." We now proceed to state our reasons. The material facts of the
case are not in controversy. The respondent who is a German national by birth
is stated to be a sailor by profession. In the statement that he made to the
Customs authorities, when he was apprehended the respondent stated that some
person not named by him met him in Hamburg and engaged him on certain terms of
remuneration, to clandestinely transport gold from Geneva to places in the Far
East. His first assignment was stated by him to be to fly to Tokyo wearing a
jacket which concealed in its specially designed pockets 34 bars of gold each weighing
a kilo. He claimed he had accomplished this assignment and that he handed over
the gold he carried to the person who contacted him at Tokyo. From there he
returned to Geneva where he was paid his agreed remuneration. He made other
trips, subsequently being engaged in like adventures in all of which he stated
he had succeeded, each time carrying 34 kilos of gold bars which on every
occasion was carried concealed in a jacket which he wore, but we are now
concerned with the one which he undertook at the instance of this international
gang of gold smugglers carrying, similarly, 34 kilo bars of gold concealed in a
jacket which he wore on his person. This trip started at Zurich on November 27,
1962 and according to the respondent his destination was Manila where he was to
deliver the gold to a contact there. The plane arrived in Bombay on the morning
of the 28th. The Customs authorities who had evidently advance information of
gold being attempted to be smuggled by the respondent travelling by that plane,
first examined the manifest of the aircraft to see if any gold had been
consigned by any passenger. Not finding any entry there, after ascertaining
that the respondent bad not come out of the plane as usual to the airport
lounge, entered the plane and found him there seated. They then 144 asked him
if he had any gold with him. The answer of the respondent was "what
gold" with a shrug indicating that he did not have any. The Customs
Inspector thereupon felt the respondent's back and shoulders and found that he
had some metal blocks on his person. He was then asked to come out of the plane
and his baggage and person were searched. On removing the jacket he wore it was
found to have 28 specially made compartments 9 of which were empty and from the
remaining 19, 34 bars of gold each weighing approximately one kilo were
recovered. The respondent, when questioned, disclaimed ownership of the gold
and stated that he had no interest in these goods and gave the story of his
several trips which we have narrated earlier. It was common ground that the
gold which the respondent carried was not entered in the manifest of the
aircraft or other documents carried by it.
The respondent was thereafter prosecuted and
charged with having committed an offence under S. 8(1) of the Act and also of
certain provision of the Sea Customs Act, in the Court of the Presidency
Magistrate, Bombay. The Presidency Magistrate, Bombay took the complaint on
file. The facts stated earlier were not in dispute but the point raised by the
respondent before the Magistrate was one of law based on his having been
ignorant of the law prohibiting the carrying of the gold in the manner that he
did. In other words, the plea was that mens rea was an ingredient of the
offence with which he was charged and as it was not disputed by the prosecution
that he was not actually aware of the notification of the Reserve Bank of India
which rendered the carriage of gold in the manner that he did an offence, he
could not be held guilty. The learned Magistrate rejected this defence and
convicted the respondent and sentenced him to imprisonment for one year. On
appeal by the respondent the learned Judges of the High Court have allowed the
appeal and acquitted the respondent upholding the legal defence which be
raised. It is the correctness of this conclusion that calls for consideration
in this appeal.
Before considering the arguments advanced by
either side before us it would be necessary to set out the legal provisions on
the basis of which this appeal has to be decided. The Foreign Exchange
Regulation Act, 1947 was enacted in order to conserve foreign exchange, the
conservation of which is of the utmost essentiality for the economic survival
and advance of every country, and very much more so in the case of a developing
country like India.
Section 8 of the Act enacts the restrictions
on the import 145 and export, inter alia, of bullion. This section enacts, to
read only that portion which relates to the import with which this appeal is
concerned :
"8. (1) The Central Government may, by
notification in the Official Gazette, order that, subject to such exemptions,
if any, as may be contained in the notification, no person shall, except with
the general or special permission of the Reserve Bank and on payment of the
fee, if any, prescribed, bring or send into India any gold or silver or any
currency notes or bank notes or coin whether Indian or foreign.
Explanation.--The bringing or sending into
any port or place in India, of any such article as aforesaid intended to be
taken out of India without being removed from the ship or conveyance in which
it is being carried shall nonetheless be deemed to be a bringing, or as the
case may be, sending into India of that article for the purposes of this
section." Section 8 has to be read in conjunction with s. 23 which imposes
penalties on persons contravening the provisions of the Act. Subsection ( 1)
penalises the contravention of the provisions of certain named sections of the
Act which do not include s. 8, and this is followed by sub-s. (1-A) which is
residuary and is directly relevant in the present context and it reads
23. (1-A) Whoever contravenes(a) any of the
provisions of this Act or of any rule, direction or order made there under,
other than those referred to in sub-section (1) of this section and section 19
shall, upon conviction by a Court, be punishable with imprisonment for a term
which may extend to two years, or with fine, or with both;
(b) any direction or order made under section
19 shall, upon conviction by a Court be punishable with fine which may extend
to two thousand rupees." These have to be read in conjunction with the
rule as to onus of proof laid down in s. 24(1) which enacts :
"24. (1) Where any person is prosecuted
or proceeded against for contravening any provisions of this Act or of any
rule, direction or order made there under which prohibits him from doing an act
without permission, the burden of 146 proving that he had the requisite permission
shall be on him." Very soon after the enactment of the Act the Central
Government took action under S. 8 (1 ) and by a notification published in the
Official Gazette dated August 25, 1948 the Central Government directed that
"except with the general or special per-mission of the Reserve Bank no
person shall bring or send into India from any place out of India any gold
bullion", to refer only to the item relevant in the present context. The
Reserve Bank by a notification of even date (August 25, 1948) granted a general
permission in these terms :
"The Reserve Bank of India is hereby
pleased to give general permission to the bringing or sending of any gold or
any such silver by sea or air into any port in India Provided that the gold or
silver (a) is on through transit to a place which is outside both (i) the
territory of India, (ii) the Portuguese territories which are adjacent to or
surrounded by the territory of India, and (b) is not removed from the carrying
ship or aircraft except for the purpose of transhipment".
On November 8, 1962, however, the Reserve
Bank of India in supersession of the notification just now read, published a
notification (and this is the one which was in force at the date relevant to
this case) giving general permission to the bringing or sending of gold,
gold-coin etc. "into any port or place in India when such article is on
through transit to a place which is outside the territory of India :
Provided that such articles if not removed
from the ship or conveyance in which it is being carried except for the purpose
of transhipment :
Provided further that it is declared in the
manifest for transit as same bottom cargo or transhipment cargo". This
notification was published in the Gazette of India on November 24, 1962.
It was not disputed by Mr. Sorabjee-learned
Counsel for the respondent, subject to an argument based on the construction of
the newly added 2nd proviso to which we shall refer later. that if the second
notification of the Reserve Bank restricting the range of the exemption applied
to the respondent, he was clearly guilty of an offence under S. 8(1) of the Act
read with the Explanation 147 to the sub-section. On the other hand, it was not
also disputed by the learned Solicitor-General for the appellantState that if
the exemption notification which applied to the present case was that contained
in the notification of the Reserve Bank dated August 25, 1948 the respondent
had not committed any offence since (a) he was a through passenger from Geneva
to Manila as shown by the ticket which he had and the manifest of the aircraft,
and besides, (b) he had not even got down from the plane.
Two principal questions have been raised by
Mr. Sorabjee in support of the proposition that the notification dated November
8, 1962 restricting the scope of the permission or exemption granted by the
Reserve Bank did not apply to the case. The first was that mens rea was an
essential ingredient of an offence under s. 23(1-A) of the Act and that the
prosecution had not established that the respondent knowingly contravened the
law in relation to the carriage of the contraband article; (2) The second head
of learned Counsel's argument was that the notification dated November 8, 1962,
being merely subordinate or delegated legislation, could be deemed to be in
force not from the date of its issue or publication in the Gazette but only
when it was brought to the notice of persons who would be affected by it and
that as the same was published in the Gazette of India only on November 24,
1962 whereas the respondent left Zurich on the 27th November he could not
possibly have had any knowledge there of the new restrictions imposed by the
Indian authorities and that, in these circumstances, the respondent could not
be held guilty of an offence under S.
8(1) or S. 23(1-A) of the Act. He also raised
a subsidiary point that the notification of the Reserve Bank could not be
attracted to the present case because the second proviso which made provision
for a declaration in the manifest "for transit as bottom cargo or
transhipment cargo" could only apply to gold handed over to the aircraft
for being carried as cargo and was inapplicable to cases where the gold was
carried on the person of a passenger.
We shall deal with these points in that
order. First as to whether mens rea is an essential ingredient in respect of an
offence under s. 23 (1-A) of the Act. The argument under this head was broadly
as follows : It is a principle of the Common Law that mens rea is an essential
element in the commission of any criminal offence against the Common Law.
This presumption that mens rea is an
essential ingredient of an offence equally applies to an offence created by
statute, though the presumption is liable to be displaced by the words of the
statute creating the offence, or by the 148 subject-matter dealt with by it
(Wright J. in Sheri-cis v.
De Rutzen). (1) But unless the statute
clearly or by fair implication rules out mens rea, a man should not be
convicted unless be has a guilty mind. In other words, absolute liability is
not to be presumed, but ought to be established. For the purpose of finding out
if the presumption is displaced, reference has to be made to the language of
the enactment, the object and subject-matter of the statute and the nature and
character of the act sought to be punished. In this connection learned Counsel
for the respondent strongly relied on a decision of the Judicial Committee in
Srinivas Mail Bairoliya v. King-Emperor.(1) The Board was, there, dealing with
the correctness of a conviction under the Defence of India Rules, 1939 relating
to the control of prices. The appellant before the Board was a wholesale dealer
who had employed a servant to whom he had entrusted the duty of allotting salt
to retail dealers and noting on the buyer's licence the quantity which the
latter had bought and received all of which were required to be done under the
rules. For the contravention by the servant of the Regulations for the sale of
salt prescribed by the Defence of India Rules the appellant was prosecuted and
convicted as being vicariously liable for the act of his servant in having made
illegal exactions contrary to the Rules. The High Court took the view that even
if the appellant had not been proved to have known the unlawful acts of his
servant, he would still be liable on the ground that "where there is an
absolute prohibition and no question of mens rea arises, the master is
criminally liable for the acts of his servant". On appeal to the Privy
Council Lord Du Parcq who delivered the judgment of the Board dissented from
this view of the High Court and stated :
"They see no ground for saying that
offences against those of the Defence of India Rules here in question are
within the limited and exceptional class of offences which can be held to be committed
without a guilty mind.
See the judgment of Wright J. in Sherras v.
De Rutzen [(1895) 1 Q. B. 918, 9211. Offences which are within that class are
usually of a comparatively minor character, and it would be a surprising result
of this delegated legislation if a person who was morally innocent of blame
could be held vicariously liable for a servant's crime and so punishable 'with
imprisonment for a term which may extend to three years' (1) [1895]1 Q.B. 918.
(2) (1947) I.L.R. 26 Patna 460. (P.C.) 149 The learned Lord then quoted with
approval the view expressed by the Lord Chief Justice in Brend v. Wood(1) :
"It is................ of the utmost
importance for the protection of the liberty of the subject that a court should
alwaysbear in mind that, unless the statute, either clearly or bynecessary
implication rules out mens rea as a constituentpart of a crime, a defendant
should not be found guilty of an offence against the criminal law unless he has
got a guilty mind".
Mr. Sorabjee is justified in referring us to
these rules regarding presumption and construction and it may be pointed out
that this Court has, in Ravula Hariprasada Rao v. The State(2), approved of
this passage in the judgment of Lord Du Parcq and the principle of construction
underlying it.
We therefore agree that absolute liability is
not to be lightly presumed but has to be clearly established.
Besides, learned Counsel for the respondent
strongly urged that on this point the exposition by Lord Evershed in Lim Chin
Aik v. The Queen(3), had clarified the principles applicable in this branch of
the law, and that in the light of the criteria there laid down we should hold
that on a proper construction of the relevant provisions of the Act, mens rea
or a guilty mind must be held to be an essential ingredient of the offence and.
that as it was conceded by the prosecution in the present case that the
respondent was not aware of the notification by the Reserve Bank of India,
dated the 8th November, he could not be held guilty of the offence. We might
incidentally state that decision was also relied on in connection with the
second of the submissions made to us as regards the time when delegated
legislation could be deemed to come into operation, but to that aspect we shall
advert later.
In order to appreciate the scope and effect
of the decision and of the observations and reasoning to which we shall
presently advert it is necessary to explain in some detail the facts involved
in it. Section 6(2) of the Immigration Ordinance, 1952, of the State of
Singapore enacted :
"6. (2) It shall not be lawful for any
person other than a citizen of Singapore to enter the Colony from the
Federation........ if such person has been prohibited by order made under s. 9
of this Ordinance from entering the colony." (1) 110 J.P. 317. (2) [1951]
S.C.R. 322, 328.
(3) [1963] A.C. 160.
150 By sub-s. (3) it was provided that :
"Any person who contravenes the
provisions of sub-section (2) of this section shall be guilty of an offence
against this ordinance".
Section 9 which is referred to in s. 6(2)
read, to quote the material words of subsection (1) :
"The minister may by
order................ (1) prohibit either for a stated period or permanently
the entry or re-entry into the colony of any person or class of persons".
Its sub-s. (3) provided "Every order
made under sub-s. (1) of this section shall unless it be otherwise provided in
such order take effect and come into operation on the date on which it was
made".
While provision was made by the succeeding
portion of the subsection for the publication in the Gazette of orders which
related to a class of persons, there was no provision in the sub-section for
the publication of an order in relation to named individuals or otherwise for
bringing it to the attention of such persons. The appellant before the Privy
Council had been charged with and convicted by the courts in Singapore of
contravening s. 6(2) of the Ordinance by remaining in Singapore when by an
order made by the Minister under S. 9(1) he had been, by name, prohibited from
entering the island. At the trial there was no evidence from which it could be
inferred that the. order had in fact come to the notice or attention of the
accused. On the other hand, the facts disclosed that be could not have known of
the order. On appeal by the accused, the conviction was set aside by the Privy
Council. The judgment of the Judicial Committee insofar as it was in favour of
the appellant, was based on two lines of reasoning. The first was that in order
to constitute a contravention of s. 6(2) of the Ordinance mens rea was
essential. The second was that even if the order of the Minister under s. 9
were regarded as an exercise of legislative power, the maxim 'ignorance of law
is no excuse' could not apply because there was not, in Singapore, any
provision for the publication, in any form, of an order of the kind made in the
case or any other provision to enable a man, by appropriate enquiry, to find
out what the law was.
Lord Evershed who delivered the judgment of
the Board referred with approval to the formulation of the principle as 151
regards mens rea to be found in the judgment of Wright J. in Sherras v. De
Rutzen,(1) already referred to. His Lordship also accepted as correct the
enunciation of the rule in Srinivas Mall Bairoliya v. King-Emperor (2) in the
passage we have extracted earlier. Referring next to the argument that where
the statute was one for the regulation for the public welfare of a particular
activity it had frequently been inferred that strict liability was the object
-.ought to be enforced by the legislature, it was pointed out :
"The presumption is that the statute or
statutory instrument can be effectively enforced only if those in charge of the
relevant activities are made responsible for seeing that they are complied
with. When such a presumption is to be inferred, it displaces the ordinary
presumption of mens rea." Reference was then made to legislation
regulating sale of food and drink and he then proceeded to state :
"It is not enough merely to label the
statute as one dealing with a grave social evil and from that to infer that
strict liability was intended. It is pertinent also to inquire whether putting
the defendant under strict liability will assist in the enforcement of the
regulations. That means that there must be something he can do, directly or
indirectly, by supervision or inspection, by improvement of his business
methods or by exhorting those whom he may be expected to influence or control,
which will promote the observance of the regulations. Unless this is so, there
is no reason in penalising him, and it cannot be inferred that the legislature
imposed strict liability merely in order to find a luckless victim." As
learned Counsel has laid great stress on the above passages, it is necessary to
analyse in some detail the provisions in the Singapore Ordinance in relation to
which this approach was made and compare them with the case on hand. Let us
first consider the frame of s. 6(2) of the Singapore Ordinance the relevant
portion of which we have set out earlier. It prohibits the entry of
non-citizens into the colony from the Federation, only in the event of that
entry being banned by a general or particular order made by the Minister under
s. 9. In other words, in the absence of an order made under s. 9, there was
freedom of entry or rather absence of any legal prohibition against entry (1)
[1895] 1 Q.B. 918.
(2) (1947) 1. L. R. 26 Patna 460. (P.C.) 152
of persons from the Federation. In the light of this situation, the
construction adopted was that persons who normally could lawfully enter the
colony, had to be proved to have a guilty mind i.e., actual or constructive
knowledge of the existence of the prohibition against their entry before they
could be held to have violated the terms of S.
6(2). It is in this context that the
reference to "the luckless victim" has to be understood. The position
under ss. 8 and 23 of the Act is, if we say so, just the reverse.
Apart from the public policy and other
matters underlying the legislation before us to which we shall advert later, s.
8(1) of the Act empowers the Central Government to impose a complete ban on the
bringing of any gold into India, the act of "bringing" being
understood in the sense indicated in the Explanation. When such a ban is imposed,
the import or the bringing of gold into India could be effected only subject to
the general or special permission of the Reserve Bank.
Added to this, and this is of some
significance, there is the provision in S. 24(1) of the Act which throws on the
accused in a prosecution the burden of proving that he had the requisite
permission, emphasising as it were that in the absence of a factual and
existent permission to which he can refer, his act would be a violation of the
law. In pursuance of the provision in s. 8 (1), Central Government published a
notification on August 25, 1948 in which the terms of s. 8 (1) regarding the
necessity of permission of the Reserve Bank to bring gold into India were
repeated. On the issue of this notification the position was that everyone who
"brought" gold into India, in the sense of the Explanation to s. 8
(1), was guilty of an offence, 'unless he was able to rely for his act on
permission granted by the Reserve Bank. We therefore start with this : The
bringing of gold into India is unlawful unless permitted by the Reserve
Bank,-unlike as under the Singapore Ordinance, where an entry was not unlawful
unless it was prohibited by an order made by the Minister. In the
circumstances, therefore, mens rea, which was held to be an essential
ingredient of the offence of a contravention of a Minister's order under the
Ordinance, cannot obviously be deduced in the context of the reverse position
obtaining under the Act.
There was one further circumstance to which
it is necessary to advert to appreciate the setting in which the question arose
before the Privy Council. The charge against the appellant was that having
entered Singapore on or about May 17, 1959 he remained there while prohibited
by an order of the Minister under s. 9 and thereby contravened s. 6(2) of the
Immigration Ordinance. At the trial it was proved that the order of the
Minister 153 was made on May 28, 1959 i.e., over 10 days after the appellant
had entered the colony. It was proved that the Minister's order which prohibited
the appellant, who was named in it, from entering Singapore was received by the
Deputy Assistant Controller of Immigration on the day on which it was made and
it was retained by that official with himself. The question of the materiality
of the knowledge of the accused of the order prohibiting him from entering the
colony came up for consideration in such a context. The further question as to
when the order would, in law, become effective, relates to the second of the
submissions made to us by the respondent and will be considered later.
Reverting now to the question whether mens
rea--in the sense of actual knowledge that the act done by the accused was
contrary to the law-is requisite in respect of a contravention of s. 8 (1 ),
starting with an initial prescription in favour of the need for mens rea, we
have to ascertain whether the presumption is overborne by the language of the
enactment, read in the light of the objects and purposes of the Act, and
particularly whether the enforcement of the law and the attainment of its
purpose would not be rendered futile in the event of such an ingredient being
considered necessary.
We shall therefore first address ourselves to
the language of the relevant provisions. Section 23(1A) of the Act which has
already been set out merely refers to contravention of the provisions of the
Act or the rule etc., so that it might be termed neutral in the present
context, in that it neither refers to the state of the mind of the contravener
by the use of the expression such as 'wilfully, knowingly' etc., nor does it,
in terms, create an absolute liability. Where the statute does not contain the
word 'knowingly', the first thing to do is to examine the statute to see
whether the ordinary presumption that mens rea is required applies or not. When
one turns to the main provision whose contravention is the subject of the
penalty imposed by s. 23(1A) viz., s. 8(1) in the present context, one reaches
the conclusion that there is no scope for the invocation of the rule of mens rea.
It lays an absolute embargo upon persons who without the special or general
permission of the Reserve Bank and after satisfying the conditions, if any
prescribed by the Bank bring or send into India any gold etc., the absoluteness
being emphasised, as we have already pointed out, by the terms of S. 24(1) of
the Act. No doubt, the very concept of "bringing" or
"sending" would exclude an involuntary bringing or an involuntary
sending. Thus, for instance, if without the knowledge of the person a packet of
gold was slipped into, 154 his pocket it is possible to accept the contention
that such a person did not "bring" the gold into India within the
meaning of s. 8(1). Similar considerations would apply to a case where the
aircraft on a through flight which did not include any landing in India has to
make a force landing in India-owing say to engine trouble. But if the bringing
into India was a conscious act and was done with the intention of bringing it
into India the mere "bringing" constitutes the offence and there is
no other ingredient that is necessary in order to constitute a contravention of
s. 8 (1) than that conscious physical act of bringing. If then under s. 8(1)
the conscious physical act of "bringing" constitutes the offence, s.
23(1A) does not import any further condition for the imposition of liability
than what is provided for in s.
8(1). On the language, therefore, of s. 8(1)
read with s. 24(1) we are clearly of the opinion that there is no scope for the
invocation of the rule that besides the mere act of voluntarily bringing gold
into India any further mental condition is postulated as necessary to
constitute an offence of the contravention referred to in s. 23(1-A).
Next we have to have regard to the
subject-matter of the legislation. For, as pointed out by Wills J. in R. v.
Tolson(1) :
"Although, prima facie and as a general
rule, there must be a mind at fault before there can be a crime, it is not an
inflexible rule, and a statute may relate to such a subject-matter and may be
so framed as to make an act criminal whether there has been any intention to
break the law or otherwise to do wrong or not".
The Act is designed to safeguarding and
conserving foreign ;exchange which is essential to the economic life of a
developing country. The provisions have therefore to be stringent and so framed
as to prevent unauthorised and unregulated transactions which might upset the
scheme underlying the controls; and in a larger context, the penal provisions
are aimed at eliminating smuggling which is a concomitant of controls over the
free movement of goods or currencies. In this connection we consider it useful
to refer to two decisions-the first a decision of the Privy Council and the
other of the Court of Criminal Appeal. The decision of the Privy Council is
that reported as Bruhn v.
The ,King (2) where the plea of mens rea was
raised as a defence to a prosecution for importation of opium in contravention
of the Straits Settlements Opium Ordinance, 1906. Lord Atkinson (1) (1889) 23
Q.B.D. 168. (2) [1909] A.C. 317.
155 speaking for the Board, referring to the
plea as to mens rea, observed :
"The other point relied upon on behalf
of the appellant was that there should be proof, express or implied, of a mens
rea in the accused person before he could be convicted of a criminal offence.
But that depends upon the terms of the statute or Ordinance creating the
offence. In many cases connected with the revenue certain things are prohibited
unless done by certain persons, or under certain conditions. Unless the person
who does one of these things can establish that he is one of the privileged
class, or that the prescribed conditions have been fulfilled, he will be
adjudged guilty of the offence, though in fact he knew nothing of the
prohibition." The criteria for the construction of statutes of the type we
have before us laid down by the Court of Criminal Appeal in Regina v. St.
Margarets Trust Ltd.(1) is perhaps even nearer to the point. The offence with
which the appellants were there charged was a violation of the Hire Purchase
and Credit Sale Agreements (Control) Order, 1956 which, having been enacted to
effectuate a credit-squeeze, as being necessary for the maintenance of British
economy, required by the rules made under it that every Hire Purchase agreement
should state the price of the article and fix the maximum proportion thereof
which a hirer might be paid by a Financing Company. The appellant-company
advanced to the hirer of a motor-car more than the permissible percentage but
did so as it was misled by the company which sold the motorcar as regards the
price it charged to the customer.
The plea raised in defence was that the
Finance Company were unaware of the true price and that not having guilty
knowledge, they could not be convicted of the offence.
Donovan J. who spoke for the Court said :
"The language of article 1 of the Order
expressly prohibits what was done by St. Margarets Trust Ltd., and if that
company is to be held to have committed on offence some judicial modification
of the actual terms of the article is essential. The appellants contend that
the article should be construed so as not to apply where the prohibited act was
done innocently. In other words, that mens rea should be regarded as essential
to the commission of the offence. The appellants rely on the presumption that
(1) [1958] 1 W.L.R. 522.
156 mens rea is essential for the commission
of any statutory offence unless the language of the statute, expressly or by
necessary implication, negatives such presumption." The learned Judge then
referred to the various decisions in which the question as to when the Court
would hold the liability to be absolute and proceeded :
"The words of the Order themselves are
an express and unqualified prohibition of the acts done in this case by St. Margarets
Trust Ltd. The object of the Order was to help to defend the currency against
the peril of inflation which, if unchecked, would bring disaster upon the
country. There is no need to elaborate this. The present generation has
witnessed the collapse of the currency in other countries and the consequent
chaos, misery and widespread ruin. It would not be at all surprising if
Parliament, determined to prevent similar calamities here, enacted measures
which it intended to be absolute prohibition of acts which might increase the
risk in however small a degree. Indeed, that would be the natural expectation.
There would be little point in enacting that no one should breach the defences
against a flood, and at the same time excusing anyone who did it innocently.
For these reasons we think that article 1 of the Order should receive a literal
construction, and that the ruling of Diplock J. was correct.
It is true that Parliament has prescribed
imprisonment as one of the punishments that may be inflicted for a breach of
the Order, and this circumstance is urged in support of the appellants'
argument that Parliament intended to punish only the guilty. We think it is the
better view that, having regard to the gravity of the issues, Parliament
intended the prohibition to be absolute, leaving the court to use its powers to
inflict nominal punishment or none at all in appropriate cases." We
consider these observations apposite to the construction of the provision of
the Act now before us.
This question as to when the presumption as
to the necessity for mens rea is overborne has received elaborate consideration
at the hands of this Court when the question of the construction of s. 52-A of
the Sea Customs Act came up for consideration in The Indo-China Steam
Navigation Co.
Ltd. v. Jasjit Singh, Addl.
157 Collector of Customs, Calcutta etc. (1)
Speaking for the Court Gajendragadkar C.J. said :
"The intention of the legislature in
providing for the prohibition prescribed by s. 52-A, is, inter alia, to put an
end Lo illegal smuggling which has the effect of disturbing very rudely the
national economy of the country. It is well-known, for example, that smuggling
of gold has become a serious problem in this country and operations of
smuggling are conducted by operators who work on an international basis. The
persons who actually carry out the physical part of smuggling gold by one means
or another are generally no more than agents and presumably, behind them stands
a well-knit organisation which for motives of profit-making, undertakes this
activity." This passage, in our opinion, is very apt in the present
context and the offence created by ss. 8 and 23(1-A) of the Act.
In our opinion, the very object and purpose
of the Act and, its effectiveness as an instrument for the prevention of
smuggling would be entirely frustrated if a condition were to be read into s. 8
(1) of s. 23 (1-A) of the Act qualifying the plain words of the enactment, that
the accused should be proved to have knowledge that he was contravening the law
before he could be held to have contravened the provision.
Summarising the position, the result would be
this. If the Central Government, by notification in the Official Gazette
imposed a ban on any person bringing gold into India any person who brought
such gold in contravention of the notification would be guilty of an offence
under this section. This brings us to the notification of the Central
Government dated August 25, 1948 whose terms we have set out. By reason of that
notification the. bringing of cold into India was made an offence. In this
connection it is necessary to bear in mind the Explanation to s. 8(1) which we
have already set out. By reason of that Explanation it would be seen that even
if the gold continued to remain in a shin or aircraft which is within India
without it being taken out and was not removed from the ship or aircraft it
shall nevertheless be deemed to be a 'bringing' for the purpose of the section.
We are referring. to this Explanation because if the act of the respondent was
an offence under the, section-s. 8(1) be gets no advantage by his having
remained on the aircraft without disembarking at Bombay, for if the carrying on
his person of the gold (1) A.
1. R. 1964 S. C. 1140.
64-11 158 was " the bringing" of
the gold into India, the fact that he did not remove himself from the aircraft
but stayed on in it would make no difference and he would nevertheless be
guilty of the offence by reason of the Explanation to S. 8(1). We Would Only
add that learned Counsel for the respondent did not dispute this. The position,
therefore, was that immediately the Central Government published the
notification on August 25, 1948 the, bringing of gold into India in the sense
covered by the Explanation would have brought it within S. 8(1) of the Act. So
much is common ground. But by reason of a notification by the Reserve Bank, of
even date, gold in through-transit from places outside India to places
similarly situated which was not removed from the aircraft except for the
purpose of transhipment was exempted from the operation of the notification of
the Central Government issued under s. 8 (1 ). If this notification had
continued in force and had governed the right of persons to transport gold
through India the respondent could not be guilty of a contravention of s. 8(1).
The respondent would then have had the permission which saved his act of
"bringing" from being an offence. However, as stated earlier, on
November 8, 1962 the Reserve Bank of India modified the earlier notification
and added an additional condition for exemption viz., that the gold must be
declared in the manifest of the -aircraft as same bottom cargo or transhipment
cargo. Therefore when the respondent was in Bombay with the gold, he had not
the requisite permission of the Reserve Bank and so be contravened the
prohibition under s. 8(1).
The next submission of Mr. Sorabjee was that
even assuming that mens rea, which in the present context was equated with
knowledge of the existence and contents of the notification of the Reserve
Bank, dated November 8, 1962, was not necessary to be established to prove a
contravention of s.
8(1)(a) of the Act, the notification of the
Reserve Bank, dated November 8, 1962, could not be deemed to have been in force
and operation on November 28, 1962, when the respondent was alleged to have
committed the offence of "bringing" gold into India. Accepting the
general rule that ignorance of law is no excuse for its contravention and the maxim
that everyone is presumed to know the law, learned Counsel submitted an
elaborate argument as regards the precise -point of time when a piece of
delegated legislation like the exemption notification by the Reserve Bank would
in law take effect. There is no provision in the General Clause Act as, regards
the time when subordinate legislation enacted under powers conferred by Acts of
the Central Legislature shall come into effect. There is no provision either in
the particular Act with 159 which we are concerned determining the point of
time at which orders made, or permission granted by virtue of powers conferred
by the parent statute would come into operation.
In the absence of a statutory provision such
as is found in s. 5 (1) of the General Clauses Act, learned Counsel submitted
that such orders or notifications could have effect only from the date on which
the person against whom it is sought to be enforced had knowledge of their
making.
In support of this position he relied
strongly on the decision of the Privy Council already referred to-Lim Chin Aik
v. The Queen(1).
We have dealt with that decision in regard to
the point about mens rea, and have also pointed out that one of the grounds on
which the appeal was allowed was that there had been no publication of the
order of the Minister. banning the entry of the appellant so as to render the
appellants act a contravention of s. 6(2) of the Singapore Ordinance.
We have adverted to the circumstance that the
order of the Minister there in question was communicated only to the officer in
the Immigration department it was produced at the trial. In that situation from
whose custody it was produced at the trial. In that situation Lord Evershed
observed "It was said on the respondent's part that the order made by the
Minister under the powers conferred by section 9 of the Ordinance was an
instance of the exercise of delegated legislation and therefore that the order,
once made, became part of the law of Singapore of which ignorance could provide
an excuse upon a charge of contravention of the section. Their Lordships are
unable to accept this contention. In their Lordships' opinion, even if the
making of the order by the Minister be regarded as an exercise of the
legislative as distinct from the executive or administrative function (as they
do not concede), the maxim cannot apply to such a case as the present where it
appears that there is in the State of Singapore no provision, corresponding,
for example, to that contained in section 3(2) of the English Statutory
Instruments Act of 1946 for the publication in any form of an order of the kind
made in the present case or any other provision designed to enable a man by
appropriate inquiry to find out what 'the law' is. In this connection it is to
be observed that a distinction is drawn in the Ordinance itself between an
order directed to a particular individual on the one hand and an order directed
to a class of persons, on the (1) [1963] A. C. 160.
160 other; for sub-section (3) (b) of section
9 provides in the latter case both for publication in the Gazette and
presentation to the Legislative Assembly." Based on this passage, it was
urged that the notification of the Reserve Bank, dated November 8, 1962 could
not be deemed to be in force, at least not on November 28, 1962 when the
respondent landed in Bombay and that consequently he could not be held guilty
of the contravention of s. 8 (1). This argument cannot, in our opinion, be
accepted. In the first place, the order of the ,Minister dealt with by the
Privy Council was never "published" since admittedly it was
transmitted only to the Immigration official who kept it with himself. But in
the case on hand, the notification by the Reserve Bank varying the scope of the
exemption, was admittedly "Published" in the Official Gazette--the
usual mode of publication in India, and it was so published long before the
respondent landed in Bombay. The question, therefore, is not whether it was
published or not, for in truth it was published, but whether it is necessary
that the publication should be proved to have been brought to the knowledge of
the accused. In the second place, it was the contravention of the order of the
Minister that was made criminal by s. 6(2) of the Immigration Ordinance. That
is not the position here, because the contravention contemplated by s. 23(1-A)
of the Act is, in the present context, of an order of the Central Government
issued under s. 8(1) of the Act and published in the Official Gazette on
November 25, 1948 and this order was in force during all this period.
No doubt, for the period, tip to the 8th
November, the bringing of gold by through passengers would not be a
contravention because of the permission of the Reserve Bank exempting such
bringing front the operation of the Central Government's notification. It was
really the withdrawal of this exemption by the Reserve Bank that rendered the
act of the respondent criminal. It might well be that there is a distinction
between the withdrawal of an exemption which saves an act otherwise criminal
from being one and the passing of an order whose contravention constitutes the
crime. Lastly, the order made by the Minister in the Singapore case, was one
with respect to a single individual, not a general order, whereas what we have
before us is a general rule applicable to every person who passes through
India. In the first case, it would be reasonable to expect that the proper
method of acquainting a person with an order which be is directed to obey is to
serve it on him. or so publish it that he would certainly know of it-, but
there would be no question of individual service of a general notification on
every member of the public, and all that the subordinate law161 making body can
or need do, would be to publish it in such a manner that persons can, if they
are interested, acquaint themselves with its contents. In this connection
reference may be made to rule 141 of the Defence of India Rules 1962 which runs
:
"141. Publication, affixation and
defacement of notices.-(1) Save as otherwise expressly provided in these Rules,
every authority, officer or person who makes any order in writing in pursuance
of any of these Rules shall, in the case of an order of a general nature or
affecting a class of persons publish notice of such order in such manner as may,
in the opinion of such authority, officer or person be best adapted for
informing persons whom the order concerns in the case of an order affecting an
individual corporation or firm serve or cause the order to be served in the
manner for the service of a summons in rule 2 of Order XXIX or rule 3 of Order
XXX, as the case may be, in the First Schedule to the Code of Civil Procedure,
1908 (V of 1908) and in the case of an order affecting an individual person
(not being a corporation or firm) serve or cause the order to be served on that
person----(i) personally, by delivering or tendering to him the order, or (ii)
by post, or (iii) where the person cannot be found, by leaving, an authentic
copy of the order with some adult male member of his family or by affixing such
copy to some conspicuous part of the premises in which he is known to have last
resided or carried on business or personally worked for gain and thereupon the
persons, corporation, firm or person concerned shall be deemed to have been duly
informed of the order." and this which is substantially the same as rule
119 of the Defence of India Rules, 1939, brings out clearly the distinction
between orders which are intended to apply to named individuals and orders of a
general nature.
Reliance was also placed by Mr. Sorabjee on
the judgment of Bailhache J. in Johnson v. Sargant & Sons(1) where speaking
of an order of the Food Controller dated May 16 said to have been contravened
on the same day, the learned Judge aid :
"I have no reason to suppose that any
one in the trade knew about it on May 16..........
While I agree (1) [1918] 1 K. B. 101.
162 that the rule is that a statute takes
effect on the earliest moment of the day on which it is passed or on which it
is declared to come into operation, there is about statutes a publicity even
before they come into operation which is absent in the case of many orders such
as that with which we are now dealing;
indeed, if certain Orders are to be effective
at all, it is essential that they should not be known until they are actually
published.
In the absence of authority upon the point I
am unable to hold that this order came into operation before it was known, and,
as I have said, it was not known until the morning of May 17." Referring
to this case Prof. C. K. Allen says "On the face of it would seem
reasonable that legislation of any kind should not be binding until it has
somehow been 'made known' to the public; but that is not the rule of law, and
if it were, the automatic cogency of a statute which has received the royal
assent would be seriously and most inconveniently impaired.
In a solitary case, however, before the
passing of the Act of 1946 [The Statutory Instruments Act] Johnson v. Sargant,
Bailhache, J. held that an Order did not take effect until it 'became known'.
The reasoning was that statutes at least received the publicity of
Parliamentary debate, and that therefore they were, or should be, 'known', but
that this was not true of delegated legislation, which did not necessarily
receive any publicity in Parliament or in any other way.
This was a bold example of judge-made law.
There was no precedent for it, and indeed a
decision, Jones v. Robson [(1901) 1 Q. B. 673] which, though not on all fours,
militated strongly against the judge's conclusion, was not cited; nor did the
judge attempt to define how and when delegated legislation 'became known'. Both
arguments and judgment are very brief. The decision has always been regarded as
very doubtful, but it never came under review by a higher court." We see
great force in the learned author's comment on +,he reasoning in Sargant's
case(2). Taking the present case, the question would immediately arise is it to
be made known in India or throughout the world, for the argument on behalf of the
respondent was that when the respondent left Geneva on November 27 *Law and
Orders (2nd. ed. p. 132).
(1) [1918] 1. K.B. 101.
163 he was not aware of the change in the
content of the exemption granted by the Reserve Bank. In a sense the knowledge
of the existence or content of a law by an individual would not always be
relevant, save on the question of the sentence to be imposed for its violation.
It is obvious that for an Indian law to
operate and be effective in the territory where it operates viz., the territory
of India it is not necessary that it should either be published or be made
known outside the country. Even if, therefore, the view enunciated by Bailache,
J. is taken to be correct. it would be apparent that the test to find out
effective publication would be publication in India, not outside India so as to
bring it to the notice of everyone who intends to pass through India. It was
"published" and made known in India by publication in the Gazette on
the 24th November and the ignorance of it by the respondent who is a foreigner
is, in our opinion, wholly irrelevant. It is, no doubt, admitted on behalf of
the prosecution in the present case that the respondent did not have actual
notice of the notification of the Reserve Bank, dated November 8, 1962 but, for
the reasons stated, it makes. in our opinion, no difference to his liability to
be proceeded against for the contravention of s. 8(1) of the Act.
Learned Counsel for the respondent also
referred us to the decision of the Bombay High Court in Imperator v. Leslie
Gwilt(1) where the question of the proper construction and effect of rule 119
of the Defence of India Rules, 1937 came up for consideration. The learned
Judges held that there had not been a proper publication or notification of an
order, as required by rule 119 and that in consequence the accused could not be
prosecuted for a violation of that order. Other decisions of a like nature
dealing with the failure to comply with the requirements of rule 119 of the
Defence of India Rules or the Essential Supplies Act, or the Essential
Commodities Act, were also brought to our notice but we consider that they do
not assist us in the present appeal. Where there is a statutory requirement as
to the mode or form of publication and they are such that, in the
circumstances, the Court holds to be mandatory, a failure to comply with those
requirements might result in there being no effective order the contravention
of which could be the subject of prosecution but where there is no statutory
requirement we conceive the rule to be that it is necessary that it should be
published in. the usual form i.e., by publication within the country in such
media as generally adopted to notify to all the persons concerned the making of
rules. In most of the Indian statutes, including the (1) I.L.R. [1945] BOM.
681.
164 Act now under consideration, there is
provision for the rules made being published in the Official Gazette. It
therefore stands to reason that publication in the Official Gazette viz., the
Gazette of India is the ordinary method of bringing a rule or subordinate
legislation to the notice of the persons concerned. As we have stated earlier,
the notification by the Reserve Bank was published in the Gazette of India on
November 24, 1962, and hence even adopting the view of Bailhache, J. the
notification must be deemed to have been published and brought to the notice of
the concerned individuals on November 25, 1962. The argument, therefore, that
the notification, dated November 8, 1962 was not effective, because it was not
properly published in the sense of having been brought to the actual notice of
the respondent must be rejected.
Before parting from this topic we would
desire to make an observation. There is undoubtedly a certain amount of
uncertainty in the law except in cases where specific provision in that behalf
is made in individual statutes as to (a) when subordinate legislation could be
said to have been passed, and (b) when it comes into effect. The position in
England has been clarified by the Statutory Instruments Act of 1946, though
there is a Blight ambiguity in the language employed in it, which has given
rise to disputed questions of construction as regards certain expressions used
in the Act. We consider that it would be conducive to clarity as well as to the
avoidance of unnecessary technical objections giving occasion for litigation if
an enactment on the lines of the U.K.
Statutory Instruments Act, 1946, were made in
India either by an amendment of the General Clauses Act or by independent legislation
keeping in mind the difficulties of construction to which the U.K. enactment
has given rise. As we have pointed out, so far as the present case is
concerned, even on the narrowest view of the law the notification of the
Reserve Bank must be deemed to have been published in the sense of having been
brought to the notice of the relevant public at least by November 25, 1962 and
hence the plea by the respondent that he was ignorant of the law cannot afford
him any defence in his Prosecution.
The last of the points urged by learned
Counsel for the respondent was as regards the construction of the new second
proviso which bad been introduced by the notification of the Reserve Bank.
dated November 8. 1962. The argument was that the gold that the respondent
carried was his personal luggage and not "cargo"--either "bottom
cargo" or "transhipment cargo" and that therefore could not, and
need not have been entered in 165 the manifest of the aircraft and hence the
second proviso could not be attracted to the case. The entire submission on
this part of the case was rested on the meaning of the word 'cargo', the point
sought to be made being that what a passenger carried with himself or on his
person could not be 'cargo', and that cargo was that which was handed over to
the carrier for carriage. Reliance was, in this connection placed on the
definition of the term 'cargo' in dictionaries where it is said to mean
"the merchandise or wares contained or conveyed in a ship." We find
ourselves unable to accept this argument. To say that the second proviso refers
only to what is handed over to the ship or aircraft for carriage would make the
provision practically futile and unmeaning.
If all the goods or articles retained by a
passenger in his' own custody or carried by him on his person were outside the
second proviso, and the provision were attracted only to cases where the
article was handed over to the custody of the carrier, it would have no value
at all as a condition of exemption. The goods entrusted to a corner would be
entered in the manifest and if they were not it must be owing to the fault of
the carrier, and it could hardly be that the passenger was being penalised for
the default of the carrier. If the carriage of the goods on the person or in
the custody of the passenger were exempt, there would be no scope at all for
the operation of the 2nd proviso. We therefore consider that the proper
construction of the term 'cargo' when it occurs in the notification of the
Reserve Bank is that it is used as contra-distinguished from personal luggage
in the law relating to the carriage of goods. The latter has been defined as
whatever a passenger takes with him for his personal use or convenience, either
with reference to his immediate necessities or for his personal needs at the
end of his journey. Obviously, the gold of the quantity and in the form in
which it was carried by the respondent would certainly not be "personal
luggage" in the sense in which "luggage" is understood, as
explained earlier. It was really a case of merchandise not for the use of the
passenger either during the journey or thereafter and therefore could not be
called personal luggage or baggage. It was therefore, "cargo" which
had to be manifested and its value must have been inserted in the air consignment
note. In this connection. reference may usefully be made to certain of the
International Air Traffic Association's General Conditions of Carriage not is
directly governing the contract between the respondent and the aircraft but as
elucidating trip general practice of transport by air in the light of which the
second proviso has to be understood Part A entitled 'Carriage of Passengers and
Baggage' by its Art. 8, para 1 (c) excludes goods 166 which are merchandise
from the obligation of carriers to transport as luggage or as baggage, while
Art. 3 of Part B dealing with carriage of goods provides that gold is accepted
for carriage only if securely packed and its value inserted in the consignment
note under the heading "Quantity and nature of goods".
Some point was made of the fact that if the
second proviso were applied to the case of gold or articles made of gold
carried on the person, a tie-pin or a fountain-pen which had a gold nib carried
by a through passenger might attract the prohibition of s. 8(1) read with the
exemption by the Reserve Bank as it now stands and that the Indian law would be
unnecessarily harsh and unreasonable. We do not consider this correct, for a
clear and sharp distinction exists between what is personal baggage and what is
not and it is the latter that is 'cargo' and has to be entered in the manifest.
If a person chooses to carry on his person what is not personal baggage or
luggage understood in the legal sense but what should properly be declared and
entered in the manifest of the aircraft there can be no complaint of the
unreasonableness of the Indian law on the topic.
The result, therefore, is that we consider
that the learned Judges of the High Court erred in acquitting the respondent.
The appeal has, therefore, to be allowed and
the conviction of the respondent restored.
Now, coming to the question of sentence to be
passed on the appellant, it is undoubtedly the settled rule of this Court that
it would not interfere with the sentence passed by the courts below unless there
is any illegality in it or the same involves any question of principle. The
facts of the case before us have, however, presented some unusual features
which had led us to technically interfere with the sentence of one year's
imprisonment passed by the Chief Presidency Magistrate. The respondent was
sentenced by the Presidency Magistrate on April 24, 1963 and thereupon he
started serving the sentence till the judgment of the High Court which was
rendered on December 10, 1963. The respondent was released the next day i.e.,
December 11, 1963. This court granted special leave on December 20, 1963 and
thereafter on application made by the appellant-State, this Court directed the
arrest of the respondent. The respondent was accordingly, arrested and though the
Magistrate directed his release on bail pending the disposal of the appeal in
this Court, the respondent was unable to furnish the bail required and hence
suffered imprisonment, though it would be noticed that such imprisonment was
not in 167 pursuance of the conviction and sentence passed on him by the
Magistrate. Such imprisonment continued till May 8, 1964 when the decision of
this Court was pronounced, so that virtually the respondent had suffered the
imprisonment that had been inflicted on him by the order of the Presidency
Magistrate. In these circumstances, we directed that though the appeal was
allowed, the sentence would be reduced to the period already undergone which
was only a technical interference with the sentence passed by the Presidency Magistrate,
though in substance it was not.
Appeal allowed.
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