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Report No. 29

57. Offences under the Customs Act.-Another example of a provision dispensing with mens rea is section 167(12A) read with section 52A of the (old) Sea Custom1 Acts. The net result of these two provisions was, that if a vessel constructed, adapted, etc., for the purpose of concealing goods, under section 52A, entered, etc., within the limits of India, the vessel would be liable to confiscation. The master of the ship was also liable to a penalty not exceeding rupees 1,000. It has been held2 that having regard to the fact that this sub-section, as contrasted with other sub-sections, did not use the word "knowingly", etc., and having regard to the fact that importation of the requirement of mens rea would nullify the object of section 52A (to put an end to illegal smuggling), the prohibition must be regarded as absolute. The guilty mind could rarely be established against the owners of vessels which are travelling on the high seas, and it may be difficult to prove the guilty knowledge even of the master of the ship. If absence of such knowledge was allowed to be pleaded as a defence, the owners and the master could very well plead that the alleged alteration, etc. was made without their knowledge, and it will be almost impossible to establish mens rea in such cases.

1. See, now section 115 (1)(a), Customs Act, 1962 (52 of 1962).

2. Indo-China Steam Navigation Co. v. Jasjit Singh, AIR 1964 SC 1140 (1150, 1153), paras. 24 and 33.

58. Offences under the Foreign Exchange Act.-A recent decision of the Supreme Coury1 virtually establishes the same position in respect of offences under the Foreign Exchange Regulation Act, 19472.

1. State v. M.H. George, AIR 1965 SC 722, paras. 40, 41 (May) (Reviews case-law).

2. The Foreign Exchange Regulation Act, 1947 (7 of 1947).

59. Of course, the question whether the liability under a statute is absolute, is ultimately one of construction of the particular statute, and the answer will depend on the language employed in the statute1, the policy behind it2, and how far enforcement of the statute would suffer by adherence to the doctrine of mens rea3.

The examples cited above are merely intended to show that in relation to some of the enactments relating to the offences in question, it would be proper to say, that they fix their attention on the acts themselves, irrespective of the knowledge or intention4.

1. Cf. Craies, Statute Law, (1963), p. 539.

2. Cf. Mousell Brothers, Ltd. v. L. & N. W. Railways, (1917) 2 KB 836 (845): (1916-17) All ER Rep 1101 (1106) (per Atkin J.).

3. Cf. Lim Chin Aik v. The Queen, 1963 AC 160: (1063) 2 WLR 42: (1963) 1 AER 223 (PC); and note thereon in (1963) 26 Modem Law Review 446.

4. See also para 53, supra.

Proposal to include certain Social and Economic Offences in the Indian Penal Code Back

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