Topic: State of Maharashtra vs Mayer Hans George - statutory provision does or does not create an offence of strict liability

State of Maharashtra vs Mayer Hans George
Equivalent citations: 1965 AIR 722, 1965 SCR (1) 123 - Bench: Subbarao, K, Ayyangar, N. Rajagopala, Mudholkar, J.R. Citation: 1965 AIR 722 1965 SCR (1) 123 - Citatory 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(1- A) 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 dec-

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ared the gold in his possession in the manifest for transit as "bottom or "transhipment cargo". [131A-B].

JUDGMENT:

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

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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 Maha- rashtra, 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

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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    sub- section (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:-

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(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,

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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 placed- before     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

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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, isan essential     ingredient in every offence; but thatpresumption 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.

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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.

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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.

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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.

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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 Calcutta- Japan-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 overpainted     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.

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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."

Re: State of Maharashtra vs Mayer Hans George - statutory provision does or does not create an offence of strict liability

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.

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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    any- thing 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.

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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    thereunder 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

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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     thereunder, 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

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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 thereunder. 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     thereunder, 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 thereunder 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 Govern- ment 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 appellant- State 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.

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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    sub- section (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

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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.)

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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

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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,

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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.

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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.

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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.

Re: State of Maharashtra vs Mayer Hans George - statutory provision does or does not create an offence of strict liability

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 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    con- travened 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

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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.

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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 contem- plated 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 law-

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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.

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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.

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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.

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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

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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.