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Case Summary
| Citation | Case – State of Maharashtra v. Mayer Hans George, 1965 |
| Keywords | |
| Facts | M H George, a German Smuggler, left Zurich (Switzerland) by plane on 27th November 1962 with 34 kilos of gold concealed on his Person to be delivered in Manila (Philippines) via connecting flight of Bombay. The customs authorities searched the respondent, recovered the gold and charged him with an offence under sub-section 8(1) and 23(1-A) of the Foreign Exchange Regulation Act, 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. He was also prosecuted under Section 167 (8) (1) of the Sea Customs Act. |
| Issues | Can strict liability be applied in such a case? Can a person be convicted even without guilty mind? Whether ‘Ignorantia facti excusat, Ignorantia Juris non execusat is applicable? |
| Contentions | Supreme Court examined several cases. The purpose of FERA, 1947 was to prevent smuggling. This case is related to the economic offence and condition of the country. So, the Supreme Court applied the strict liability principle. Section 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. Section 23(1-A) is silent about mens rea. The majority opinion rejected the requirement of mens rea. The Court observed, “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)”. 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. The notification was published and made known in India by publication in the Gazette and the ignorance of it by the respondent who is a foreigner was wholly irrelevant and made no difference to his liability. Minority Opinion – Justice K. Subba Rao said that M.H. George had no intention to commit a crime in India. So, he was not guilty. |
| Law Points | |
| Judgment | |
| Ratio Decidendi & Case Authority |
Full Case Details
K. SUBBA RAO, J. – I regret my inability to agree. This appeal raises the queson of the scope of the ban imposed by the Central Government and the Central Board of Revenue in exercise of the powers conferred on them under Secon 8 of the Foreign Exchange Regulaon Act, 1947 against persons transporng prohibited arcles through India.
8. In exercise of the powers conferred under Secon 8 of the Act the Government of India issued on August 25, 1948 a noficaon that gold and gold arcles, 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 noficaon 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 noficaon dated November 8, 1962 in supersession of its earlier noficaon placing further restricons 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 aeroplane on November 27, 1962, which touched Santa Cruz Airport at 6.05 a.m. on the next day. The Customs Officers, on the basis of previous informaon, searched for the respondent and found him sing in the plane. On a search of the person of the respondent it was found that he had put on a jacket containing 28 compartments and in 19 of them he was carrying gold slabs weighing approximately 34 kilos. It was also found that the respondent was a passenger bound for Manila. The other facts are not necessary for this appeal. Till 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 a place outside the territory of India; but from that 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 condion had been imposed on the general permission given by the earlier noficaon. The gold was carried on the person of the respondent and he was only sing in the plane aer it touched the Santa Cruz Airport. The respondent was prosecuted for imporng gold into India under Secon 8(1) of the Act, read with Secon 23(1-A) thereof, and under Secon 167(8)(i) of the Sea Customs Act. The learned Presidency Magistrate found the accused “guilty” on the two counts and sentenced him to rigorous imprisonment for one year. On appeal the High Court of Bombay held that the second proviso to the relevant noficaon issued by the Central Government did not apply to a person carrying gold with him on his body, that even if it applied, the 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 condion had been imposed and, therefore, he did not commit any offence. On those findings, it held that the respondent was not guilty under any of the aforesaid secons. In the result the convicon made by the Presidency Magistrate was set aside. This appeal has been preferred by special leave against the said order of the High Court.
9. Learned Solicitor-General, appearing for the State of Maharashtra, contends that the Act was enacted to prevent smuggling of gold in the interests of the economic stability of the country and, therefore, in construing the relevant provisions of such an Act there is no scope for applying the presumpon 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 presumpon and indicate that mens rea is not a necessary ingredient of the offence. He further contents that on a reasonable construcon of the second proviso of the noficaon 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 condion 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 secons of the Foreign Exchange Act. No argument was advanced before us under Secon 168(8)(i) of the Sea Customs Act and, therefore, nothing need be said about that secon.
10. Learned counsel for the respondent sought to sustain the acquial of his client praccally on the grounds which found favour with the High Court. I shall consider in detail his argument at the appropriate places of the judgment.
11. The first queson turns upon the relevant provisions of the Act and the noficaons issued thereunder. At the outset it would be convenient to read the relevant parts of the said provisions and the noficaons, for the answer to the queson raised depends upon them.
8. (1) The Central Government may, by noficaon in the Official Gazee, order that subject to such exempons, if any, as may be contained in the noficaon, 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….
Explanaon.—The bringing or sending into any port or place in India of any such arcle 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 arcle for the purpose of this secon. In exercise of the power conferred by the said secon on the Central Government, it had issued the following noficaon dated August 25, 1948 (as amended upto July 31, 1958): In exercise of the powers conferred by sub-secon (1) of Secon 8 of the Foreign Exchange Regulaon Act, 1947 and in supersession of the Noficaon 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:-
(a) any gold coin, gold bullion, gold sheets or gold ingot, whether refined or not;….
The Reserve Bank of India issued a noficaon dated August 25, 1948 giving a general permission in the following terms:
The Reserve Bank of India is hereby 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 aircra, except for the purpose of transhipment. On November 8, 1962, in supersession of the said noficaon the Reserve Bank of India issued the following noficaon which was published in the Official Gazee on November 24, 1962:
(T)he Reserve Bank of India gives general permission to the bringing or sending of any of the following arcles, 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 arcles is on through transit to a place which is outside the territory of India. Provided that such arcle 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 boom cargo or transhipment cargo. The combined effect of the terms of the secon and the noficaons 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 aircra except for the purpose of transhipment. But from that date another condion was imposed thereon, namely, that such gold shall be declared in the manifest transit as “same bottom cargo” or “transhipment cargo.”
12. Pausing here, it will be useful to noce the meaning of some of the technical words used in the second proviso to the noficaon. 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 Authories to check and verify the dutiable goods which arrive by a particular fight”. “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 respondents 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 Edn., Vol. 35, at p. 426, brings out the disncon between the two types of cargo. If the cargo is to be carried to its desnaon 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 Manifest”. In the absence of any material or evidence to the contrary, this statement must be accepted as a correct representaon of the actual pracce obtaining in such maers. But that pracce does not prevent the imposion of a statutory obligaon 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.
13. Now let me look at the second proviso of the noficaon dated November 8, 1962. Under Secon 8 of the Act there is ban against bringing or sending into India gold. The noficaon lis 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 condioned by the said proviso. If the permission is sought to be availed of, the condion should be complied with. It is a condion precedent for availing of the permission.
14. Learned counsel for the respondent contends that the said construcon of the proviso would preclude a person from carrying small arcles of gold on his person if such arcle could not be declared in the manifest for transit as “same bottom cargo” or “transhipment cargo” and that could not have been the intenon 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 construcon can defeat the purpose of the Act itself. I cannot accept such a construcon unless the terms of the noficaon compel me to do so. I do not see any such compulsion. The alternave construcon for which the appellant contends no doubt prevents a passenger from carrying with him small arcles of gold. The learned Solicitor-General relies upon certain rules perming a passenger to bring into India on his person small arcles 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 internaonal goodwill the appropriate authority may be well advised to give permission for such small arcles of gold or any other arcle 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 irritaon that will be caused to passengers bonafide passing through our country to foreign countries for honest purposes, I cannot see my way to interpret the second proviso in such a way as to defeat its purpose. I, therefore, hold that on a fair construcon of the noficaon 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”.
15. The next argument is that mens rea is an essenal ingredient of the offence under Secon 8 of the Act, read with Secon 23(l-A)(a) thereof. Under Secon 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 noficaon 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 secon, read with the said noficaon, 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 contravenon of Secon 8 of the Act read with the noficaon and, therefore, he will be contravening he provisions of the Act. Under Secon 23(l-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 queson is whether the intenon 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-maer 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.
16. In Russell on Crime, 11th Edn., Vol. 1, it is stated at p. 64:
… there is a presumpon that in any statutory crime the common law mental element, mens rea, is an essenal ingredient. On the queson how to rebut this presumpon, the learned author points out that the policy of the courts is unpredictable. I shall noce some of the decisions which appear to substanate 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 definion of the necessary state of mind. A statute may require a specific intenon, malice, knowledge, willfulness, or recklessness. On the other hand, it may be silent as to any requirement of mens rea, and in such a case in order to determine whether or not mens rea, is an essenal 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 menon of a state of mind as an ingredient of an offence in a statute is not decisive of the queson 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 Pracce, 35th Edn., says much to the same effect at p. 48 thus:
It has always been a principle of the common law that mens rea, is an essenal 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 presumpon that mens rea, is an essenal ingredient in a statutory offence, but this presumpon is liable to be displaced either by the words of the statute creang the offence or by the subject-maer with which it deals.
The leading case on the subject is Sherras v. De Rutzen [(1895) 1 QB 918, 921]. Secon 16(2) of the Licensing Act, 1872, prohibited a licenced victualler from supplying liquor to a police constable while on duty. It was held that that secon did not apply where a licenced victualler bona fide believed that the police officer was off duty. Wright, J., observed:
There is a presumpon that mens rea, an evil intenon, or a knowledge of the wrongfulness of the act, is an essenal ingredient in every offence; but that presumpon is liable to be displaced either by the words of the statute creang the offence or by the subject-maer with which it deals, and both must be considered.
This sums up the statement of the law that has been praccally adopted in later decisions. The Privy Council in Jacob Bruhn v. King on the Prosecuon of the Opium Farmer [LR (1909) AC 317, 324] construed Secon 73 of the Straits Selements Opium Ordinance, 1906. Secon 73 of the said Ordinance stated that if any ship was used for importaon, landing, removal, carriage or conveyance of any 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 secon also laid down the rule of evidence that if a parcular quanty of opium was found in the ship that was evidence that the ship had been used for importaon of opium, unless it was proved to the sasfacon of the court that every reasonable precauon had been taken to prevent 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 secon the Judicial Commiee observed:
By this Ordinance every person other than the opium farmer is prohibited from imporng or exporng 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, jusfy or excuse what is prima facie a crime, then the burden of proving those facts obviously rests on the party accused. In truth, this objecon is but the objecon 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 observaon that in that case mens rea, was not really excluded but the burden of proof to negave mens rea, was placed upon the accused. In Pearks’ Dairies Ltd. v. Toenham Food Control Commiee [(1919) 88 LJ KB 623, 626] the Court of Appeal considered the scope of Regulaons 3 and 6 of the Margarine (Maximum Prices) Order, 1917. The appellants’ assistant, in violation of their instructions, but by an innocent mistake, sold margarine to a customer at the price of 1 sh. per Ib. giving only 141⁄2ozs. 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 contenons raised on behalf of the accused was that mens rea, on the part of the appellants was not an essenal element of the offence. Lord Coleridge, J., cited with approval the following passage of Channell, J., in Pearks, Gunston & Tee, Ltd. v. Ward [(1902) 71 LJ KB 656]:
But there are excepons to this rule in the case of quasi-criminal offences, as they may be termed, that is to 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 parcular act from being commied 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 he 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 queson whether mens rea, is excluded or not. The decision in Rex v. Jacobs [(1944) KB 417] 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 direcon given by the Judge to the jury that it was not necessary that the prosecuon should prove that the appellants knew what the permied 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 construcon of the parcular 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 Brend v. Wood [(1946) 62 The Times LR 462, 463] dealing with an emergency legislaon relang to fuel raoning, Goddard, C.J., observed:
There are statutes and regulaons in which Parliament has been not 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 constuent part of a crime. It is of the utmost importance for the protecon of the liberty of the subject that a Court should always bear in mind that, unless a statute, either clearly or by necessary implicaon, rules out mens rea, as a constuent 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 cauon administered by an eminent and experienced Judge in the maer of construing such statutes cannot easily be ignored. The Judicial Commiee in Srinivas Mall Bairoloya v. King- Emperor [(1947) ILR 26 Pat 460, 469 (PC)] 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 Parcq, speaking for the Board, approved the view expressed by Goddard, C.J., in Brend v. Wood and observed:
Their Lordships agree with the view which was recently expressed by the Lord Chief Jusce 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 implicaon, rules out mens rea, as a constuent 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 Commiee that mens rea, is a constuent part of a crime unless the statute clearly or by necessary implicaon excludes the same, and the applicaon of the same to a welfare measure is an indicaon 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 Commiee refused to accept the argument that where there is an absolute prohibion, no queson of mens rea, arises. The Privy Council again in Lim Chin Aik v. Queen [(1963) AC 160, 174, 175] reviewed the enre law on the queson in an illuminang judgment and approached the queson, if I may say so, from a correct perspecve. By Secon 6 of the Immigration Ordinance, 1952, of the State of Singapore, “It shall not be lawful for any person other than a cizen of Singapore to enter the colony from the Federaon or having entered the colony from the Federaon to remain in the Colony if such person has been prohibited by order made under Section 9 of this Ordinance from entering the colony” and 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 aenon of the person named. The Minister made an order prohibing the appellant from entering the colony and forwarded it to the Immigraon officer. There was no evidence that the order had in fact come to the noce or aenon of the appellant. He was prosecuted for contravening Secon 6(2) of the Ordinance. Lord Evershed, speaking for the Board, reaffirmed the formulaons cited from the judgment of Wright, J., and accepted by Lord de Parcq in Srinivas Mul Bairoliya case. On a review of the case-law on the subject and the principles enunciated therein, the Judicial Commiee 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 pernent also to inquire whether pung the defendant under strict liability will assist in the enforcement of the regulaons. That means that there must be something he can do, directly or indirectly, by supervision or inspecon, by improvement of his business methods or by exhorng those whom he may be expected to influence or control, which will promote the observance of the regulaons. 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 vicm. The same idea was repeated thus: Where it can be shown that the imposion of strict liability would result in the prosecuon and convicon 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 to ensure that he complied with the regulaons. It was not, for example, suggested that it would be praccable for him to make connuous 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 praccal or sensible way in which he can ascertain whether he is a prohibited person or not.
On that reasoning the Judicial Commiee 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 construcon 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 prohibion are in a posion to observe the law or to promote the observance of the law. We shall revert to this decision at a later stage in a different context. This Court in Rahula Hariparasada Rao v. State [(1951) SCR 322] speaking through Fazl Ali, J., accepted the observaons made by the Lord Chief Jusce of England in Brend v. Wood. The decision of this Court in Indo-China Steam Navigaon Co. Ltd. v. Jasjit Singh, Addional Collector of Customs, Calcua [Civil Appeal No 770 of 1962 (judgement delivered on 3-2-64)] is strongly relied upon by the appellant in support of the contenon that mens rea, is out of place in construing statutes similar to that under inquiry now. There, this Court was concerned with the interpretaon of Secon 52-A of the Sea Customs Act, 1878. The Indo-China Steam Navigaon 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 the routes plied by its ships is the Calcua-Japan-Calcua route. The vessel Eastern Saga arrived at Calcua on October 29, 1957. On a search it was found that a hole was covered with a piece of wood and over painted and when the hole was opened a large quanty of gold in bars was discovered. Aer following the prescribed procedure the Customs Authories made an order confiscang the vessel in addion to imposing other penales. One of the contenons raised was that Secon 52-A of the Sea Customs Act the infringement whereof was the occasion for the confiscaon could not be invoked unless mens rea, was established. Under that secon no vessel constructed, adapted, altered or fied for the purpose of concealing goods shall enter, or be within, the limits of any port in India, or the Indian customs waters. This Court in construing the scheme and object of the Sea Customs Act came to the conclusion that mens rea, was not a necessary ingredient of the offence, as, if that was so, the statute would become a dead-leer. That decision was given on the basis of the clear object of the statute and on a construcon 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 Regulaon Act.
17. The Indian decisions also pursued the same line. A Division Bench of the Bombay High Court in Emperor v. Isak Solomon Macmull [(1948) 50 Bom LR 190, 194] in the context of the Motor Spirit Raoning Order, 1941, made under the Essenal Supplies (Temporary Powers) Act, 1946, held that a master is not vicariously liable, in absence of mens rea, for an offence commied by his servant for selling petrol in absence of requisite coupons and at a rate in excess of the controlled rate. Chagla, C.J., speaking for the Division Bench, aer 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 has 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 implicaon. So too, a Division Bench of the Mysore High Court in State of Coorg v. P.K. Assu [ILR (1955) Mysore 516] 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 noficaon issued under the Essenal Supplies (Temporary Powers) Act, 1946, were not guilty of any offence in the absence of their knowledge that the lorry contained food grains. To the same effect a Division Bench of the Allahabad High Court in State v. Sheo Prasad [AIR 1956 All 610] 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 Calcua High Court in C.T. Prim v. State [AIR 1961 Cal 177] accepted as seled law that unless a statute clearly or by necessary implicaon rules out mens rea as a constuent part of the crime, no one should be found guilty of an offence under the criminal law unless he has got a guilty mind.
18. The law on the subject relevant to the present enquiry may briefly be stated as follows. It is a well seled principle of common law that mens rea is an essenal ingredient of a criminal offence. Doubtless a statute can exclude that element, but it is a sound rule of construcon adopted in England and also accepted in India to construe a statutory provision creang an offence in conformity with the common law rather than against unless the statute expressly or by necessary implicaon excluded mens rea. To put it differently, there is a presumpon that mens rea, is an essenal ingredient of a statutory offence; but this may be rebued by the express words of a statute creang the offence or by necessary implicaon. But the mere fact that the object of a statute is to promote welfare acvies or to eradicate grave social evils is in itself not decisive of the queson whether the element of guilty mind is excluded from the ingredients of the offence. It is also necessary to enquire whether a statute by pung a person under strict liability, helps him to assist the State in the enforcement of the law: can he do anything to promote the observance of the law? A person who does not know that gold cannot be brought into India without a licence or is not bringing into India any gold at all cannot possibly do anything to promote the observance of the law. Mens rea, by necessary implicaon can be excluded from a statute only where it is absolutely clear that the implementaon 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 promoon of the law. The nature of mens rea that will be implied in a statute creang an offence depends upon the object of the Act and the provisions thereof.
19. What is the object of the Act? The object of the Act and the noficaon issued thereunder is to prevent smuggling of gold and to conserve foreign exchange. Doubtless it is a laudable object. The Act and the noficaon were conceived and enacted in public interest; but that in itself is not, as I have indicated, decisive of the legislave intenon.
20. The terms of the secon and those of the relevant noficaon issued thereunder do not expressly exclude mens rea. Can we say that mens rea, is excluded by necessary implicaon? Secon 8 does not contain an absolute prohibion 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 noficaon dated August 25, 1948, issued by the Government embodies any such absolute prohibion. It again, in substance, leaves the regulaon of import of gold to the Reserve Bank of India; in its turn the Reserve Bank of India by a noficaon of the same date permied persons to transit gold to a place which is outside the territory of India and the Portuguese territories without any permission. Even the impugned noficaon does not impose an absolute prohibion against bringing into India gold which is on through transit to a place outside India. It permits such import for such through transit, but only subject to condions. It is, therefore, manifest that the law of India as embodied in the Act under Secon 8 and in the noficaon issued thereunder does not impose an absolute prohibion 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 condions. The legislature, therefore, did not think that public interest would irreparably suffer if such transit was permied, but it was sasfied that with some regulaon such interest could be protected. The law does not become nugatory if element of mens rea, was read into it, for there would sll be persons who would be bringing into India gold with the knowledge that they would be breaking the law. In such circumstances no queson of exclusion of mens rea, by necessary implicaon can arise.
21. If a person was held to have commied an offence in breach of the provision of Secon 8 of the Act and the noficaon issued thereunder without any knowledge on his part that there was any such noficaon or that he was bringing any gold at all, many innocent persons would become vicms of law. An aeroplane in which a person with gold on his body is travelling may have a forced landing in India, or an enemy of a passenger may surrepously and maliciously put some gold trinket in his pocket without his knowledge so as to bring him into trouble; a person may be carrying gold without knowledge or even without the possibility of knowing that a law prohibing taking of gold through India is in existence. All of them, if the interpretaon 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 interpretaon is neither supported by the provisions 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 noficaon issued thereunder cannot conceivably enable such a class of persons to assist the implementaon of the law: they will be helpless vicms 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 Secon 8 of the Act, read with the noficaon dated November 8, 1962 issued thereunder, unless he has knowingly brought into India gold without complying with the terms of the proviso to the noficaon.
22. Even so it is contended that the noficaon 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 condion of knowledge on the part of a person is imported into the noficaon; the said knowledge is imputed to him by the force of the said maxim. Assuming that the noficaon dated November 8, 1962, is a delegated legislaon, 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 publicaon of the noficaon. Indeed a similar question arose before the Privy Council in Lim Chin Aik v. Queen 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 Secon 9 of the Immigraon Ordinance, 1952, issued an order prohibing the appellant therein from entering Singapore. He was prosecuted for disobeying that order. Secon 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 rejecng the contenon of the Crown, Lord Evershed, speaking for the Board observed at p. 171 thus:
Their Lordships are unable to accept the contenon. In their Lordships’ opinion, even if the making of the order by the Minister be regarded as an exercise of the legislave as disnct from the execuve or administrave funcon (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 Secon 3(2) of the English Statutory Instruments Act of 1946, for the publicaon 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 publicaon in any form of an order of the kind made by the Reserve Bank of India imposing condions on the bringing of gold into India. The fact that the Reserve Bank of India published the order in the Official Gazee does not affect the queson 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 prosecuon 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 before he could be found guilty of infringing the law. In this case the said noficaon was published on November 24, 1962, and the accused le 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 noficaon before he brought gold into India. I, therefore, hold that the respondent was not guilty of the offence under Secon 23(1-A) of the Act as it has not been established that he had with knowledge of the contents of the said noficaon brought gold into India on his way to Manila and, therefore, he had not commied any offence under the said secon. I agree with the High Court in its conclusion though for different reasons.
23. Though the facts established in the case stamp the respondent as an experienced smuggler of gold and though I am sasfied that the Customs Authories bona fide and with diligence performed their difficult dues, I have reluctantly come to the conclusion that the accused has not commied any offence under Secon 23(1-A) of the Act. In the result, the appeal fails and is dismissed. N. R. AYYANGAR, J. – This appeal by special leave is directed against the judgment and order of the High Court of Bombay seng aside the convicon of the respondent under Secon 8(1) of the Foreign Exchange Regulaon Act, 1947 read with a noficaon of the Reserve Bank of India dated November 8, 1962 and direcng his acquial. 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 vacaon, the Court pronounced the following order:
By majority, the appeal is allowed and the convicon 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.
25. We now proceed to state our reasons. The material facts of the case are not in controversy. The respondent who is a German naonal by birth is stated to be a sailor by profession. In the statement that he made to the Customs Authories, 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 remuneraon, to clandesnely 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 remuneraon. He made other trips, subsequently being engaged in like adventures in all of which he stated he had succeeded, each me 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 internaonal 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 desnaon 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 Authories who had evidently advance informaon of gold being aempted to be smuggled by the respondent travelling by that plane, first examined the manifest of the aircra to see if any gold had been consigned by any passenger. Not finding any entry there, aer ascertaining that the respondent had not come out of the plane as usual to the airport lounge, entered the plane and found him there seated.
They then asked him if he had any gold with him. The answer of the respondent was “what gold” with a shrug indicang 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 quesoned, 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 aircra or other documents carried by it.
26. The respondent was thereaer prosecuted and charged with having commied an offence under Secon 8(1) of the Act and also of certain provisions 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 prohibing 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 prosecuon that he was not actually aware of the noficaon 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 acquied the respondent upholding the legal defence which he raised. It is the correctness of this conclusion that calls for consideraon in this appeal.
27. 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 Regulaon Act, 1947 was enacted in order to conserve foreign exchange, the conservaon of which is of the utmost essenality for the economic survival and advance of every country, and very much more so in the case of a developing country like India. Secon 8 of the Act enacts the restricons on the import and export inter alia of bullion. This secon enacts, to read only that poron which relates to the import with which this appeal is concerned:
8. (1) The Central Government may, by noficaon in the Official Gazee, order that, subject to such exempons, if any, as may be contained in the noficaon, 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.
Explanaon.—The bringing or sending into any port or place in India, of any such arcle 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 arcle for the purposes of this secon.
Secon 8 has to be read in conjuncon with Secon 23 which imposes penales on persons contravening the provisions of the Act. Sub-secon (1) penalises the contravenon of the provisions of certain named secons of the Act which do not include Secon 8, and this is followed by sub- secon (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, direcon or order made thereunder, other than those referred to in sub-secon (1) of this secon and Secon 19 shall, upon convicon by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both;
(b) any direcon or order made under Secon 19 shall, upon convicon by a Court be punishable with fine which may extend to two thousand rupees. These have to be read in conjuncon with the rule as to onus of proof laid down in Secon 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, direcon or order made thereunder which prohibits him from doing an act without permission, the burden of proving that he had the requisite permission shall be on him.
28. Very soon aer the enactment of the Act the Central Government took acon under Secon 8(1) and by a noficaon published in the Official Gazee dated August 25, 1948 the Central Government directed 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 any gold bullion”, to refer only to the item relevant in the present context. The Reserve Bank by a noficaon 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 aircra except for the purpose of transhipment.
On November 8, 1962, however, the Reserve Bank of India in supersession of the noficaon just now read, published a noficaon (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 arcle is on through transit to a place which is outside the territory of India:
Provided that such arcles 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 boom cargo or transhipment cargo. This noficaon was published in the Gazee of India on November 24, 1962.
29. It was not disputed by Mr. Sorabjee — learned counsel for the respondent, subject to an argument based on the construcon of the newly added 2nd proviso to which we shall refer later, that if the second noficaon of the Reserve Bank restricng the range of the exempon applied to the respondent, he was clearly guilty of an offence under Secon 8(1) of the Act read with the Explanaon to the sub-secon. On the other hand, it was not also disputed by the learned Solicitor- General for the appellant-State that if the exempon noficaon which applied to the present case was that contained in the noficaon of the Reserve Bank dated August 25, 1948 the respondent had not commied any offence since (a) he was a through passenger from Geneva to Manila as shown by the cket which he had and the manifest of the aircra, and besides, (b) he had not even got down from the plane.
30. Two principal quesons have been raised by Mr. Sorabjee in support of the proposion that the noficaon dated November 8, 1962 restricng the scope of the permission or exempon granted by the Reserve Bank did not apply to the case. The first was that mens rea was an essenal ingredient of an offence under Secon 23(1-A) of the Act and that the prosecuon had not established that the respondent knowingly contravened the law in relaon 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 legislaon, could be deemed to be in force not from the date of its issue or publicaon in the Gazee but only when it was brought to the noce of persons who would be affected by it and that as the same was published in the Gazee of India only on November 24, 1962 whereas the respondent le Zurich on the 27th November he could not possibly have had any knowledge there of the new restricons imposed by the Indian authories and that, in these circumstances, the respondent could not be held guilty of an offence under Secon 8(1) or Secon 23(1-A) of the Act. He also raised a subsidiary point that the noficaon of the Reserve Bank could not be aracted 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 aircra for being carried as cargo and was inapplicable to cases where the gold was carried on the person of a passenger.
31. We shall deal with these points in that order. First as to whether mens rea is an essenal ingredient in respect of an offence under Secon 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 essenal element in the commission of any criminal offence against the Common Law. This presumpon that mens rea is an essenal ingredient of an offence equally applies to an offence created by statute, though the presumpon is liable to be displaced by the words of the statute creang the offence, or by the subject-maer dealt with by it (Wright, J. in Sherras v. De Rutzen [(1895)1 QB 918)]. But unless the statute clearly or by fair implicaon rules out mens rea, a man should not be convicted unless he has a guilty mind. In other words, absolute liability is not to be presumed, but ought to be established, or the purpose of finding out if the presumpon is displaced, reference has to be made to the language of the enactment, the object and subject-maer of the statute and the nature and character of the act sought to be punished. In this connecon learned counsel for the respondent strongly relied on a decision of the Judicial Commiee in Srinivas Mall Bairoliya v. King-Emperor. The Board was, there, dealing with the correctness of a convicon under the Defence of India Rules, 1939 relang to the control of prices. The appellant before the Board was a dealer in wholesale who had employed a servant to whom he had entrusted the duty of allong salt to retail dealers and nothing 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 contravenon by the servant of the Regulaons 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 exacons 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 prohibion and no queson 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 queson are within the limited and exceponal class of offences which can be held to be commied without a guilty mind. See the judgment of Wright, J. in Sherras v. De Rutzen. Offences which are within that class are usually of a comparavely minor character, and it would be a surprising result of this delegated legislaon 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.
The learned Lord then quoted with approval the view expressed by the Lord Chief Jusce in Brend v. Wood [(1946) 110 JP 317]:
It is … of the utmost importance for the protecon of the liberty of the subject that a court should always bear in mind that, unless the statute, either clearly or by necessary implicaon rules out mens rea as a constuent 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.
32. Mr. Sorabjee is jusfied in referring us to these rules regarding presumpon and construcon and it may be pointed out that this Court has, in Ravula Hariprasada Rao v. State approved of this passage in the judgment of Lord Du Parcq and the principle of construcon 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 exposion by Lord Evershed in Lim Chin Aik v. Queen 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 construcon of the relevant provisions of the Act, mens rea or a guilty mind must be held to be an essenal ingredient of the offence and that as it was conceded by the prosecuon in the present case that the respondent was not aware of the noficaon by the Reserve Bank of India dated the 8th November, he could not be held guilty of the offence. We might incidentally state that that decision was also relied on in connecon with the second of the submissions made to us as regards the me when delegated legislaon could be deemed to come into operaon, but to that aspect we shall advert later.
33. In order to appreciate the scope and effect of the decision and of the observaons and reasoning to which we shall presently advert it is necessary to explain in some detail the facts involved in it. Secon 6(2) of the Immigraon Ordinance, 1952, of the State of Singapore enacted:
6. (2) It shall not be lawful for any person other than a cizen of Singapore to enter the colony from the Federaon … if such person has been prohibited by order made under Secon 9 of this Ordinance from entering the colony.By sub-secon (3) it was provided that:
Any person who contravenes the provisions of sub-secon (2) of this secon shall be guilty of an offence against this ordinance. Secon 9 which is referred to in Secon 6(2) read to quote the material words of sub- secon (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-secon (3) provided:
34. Every order made under sub-secon (1) of this secon shall unless it be otherwise provided in such order take effect and come into operaon on the date on which it was made. While provision was made by the succeeding poron of the sub-secon for the publicaon in the Gazee of orders which related to a class of persons, there was no provision in the sub-secon for the publicaon of an order in relaon to named individuals or otherwise for bringing it to the aenon of such persons. The appellant before the Privy Council had been charged with and convicted by the courts in Singapore of contravening Secon 6(2) of the Ordinance by remaining in Singapore when by an order made by the Minister under Secon 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 noce or aenon of the accused. On the other hand, the facts disclosed that he could not have known of the order. On appeal by the accused, the convicon was set aside by the Privy Council. The judgment of the Judicial Commiee insofar as it was in favour of the appellant, was based on two lines of reasoning. The first was that in order to constute a contravenon of Secon 6(2) of the Ordinance mens rea was essenal. The second was that even if the order of the Minister under Secon 9 were regarded as an exercise of legislave power, the maxim “ignorance of law is no excuse” could not apply because there was not, in Singapore, any provision for the publicaon, 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.
34. Lord Evershed who delivered the judgment of the Board referred with approval to the formulaon of the principle as regards mens rea, to be found in the judgment of Wright, J. in Sherras v. DeRutzen already referred to. His Lordship also accepted as correct the enunciaon of the rule in Srinivas Mall Bairoliya v. King-Emperor in the passage we have extracted earlier. Referring next to the argument that where the statute was one for the regulaon for the public welfare of a parcular acvity it had frequently been inferred that strict liability was the object sought to be enforced by the legislature, it was pointed out:
The presumpons that the statute or statutory instrument can be effecvely enforced only if those in charge of the relevant acvies are made responsible for seeing that they are complied with: When such a presumpon is to be inferred, it displaces the ordinary presumpon of mens rea. Reference was then made to legislaon regulang sale of food and drink and he then proceeded to state:
It is not enough merely to lable the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pernent also to inquire whether pung the defendant under strict liability will assist in the enforcement of the regulaons. That means that there must be something he can do, directly or indirectly, by supervision or inspecon, by improvement of his business methods or by exhorng those whom he may be expected to influence or control, which will promote the observance of the regulaons. 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 vicm.
35. 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 relaon to which this approach was made and compare them with the case on hand. Let us first consider the frame of Secon 6(2) of the Singapore Ordinance the relevant poron of which we have set out earlier. It prohibits the entry of non-cizens into the colony from the Federaon, only in the event of that entry being banned by a general or parcular order made by the Minister under Secon 9. In other words, in the absence of an order made under Secon 9, there was freedom of entry or rather absence of any legal prohibion against entry of persons from the Federaon. In the light of this situaon, the construcon adopted was that persons who normally could lawfully enter the colony, had to be proved to have a guilty mind i.e. actual or construcve knowledge of the existence of the prohibion against their entry before they could be held to have violated the terms of Secon 6(2). It is in this context that the reference to “the luckless victim” has to be understood. The position under Sections 8 and 23 of the Act is, if we say so, just the reverse. Apart from the public policy and other maers underlying the legislaon before us to which we shall advert later, Secon 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 Secon 24(1) of the Act which throws on the accused in a prosecuon 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 violaon of the law. In pursuance of the provision in Secon 8(1), Central Government published a noficaon on August 25, 1948 in which the terms of Secon 8(1) regarding the necessity of permission of the Reserve Bank to bring gold into India were repeated. On the issue of this noficaon the posion was that everyone who “brought” gold into India, in the sense of the Explanation to Section 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 permied 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 posion obtaining under the Act.
36. There was one further circumstance to which it is necessary to advert to appreciate the seng in which the queson 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 being prohibited by an order of the Minister under Secon 9 and thereby contravened Secon 6(2) of the Immigraon Ordinance. At the trial it was proved that the order of the Minister was made on May 28, 1959 i.e. over 10 days aer 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 Immigraon on the day on which it was made and it was retained by that official with himself. The queson of the materiality of the knowledge of the accused of the order prohibing him from entering the colony came up for consideraon in such a context. The further queson as to when the order would, in law, become effecve, relates to the second of the submissions made to us by the respondent and will be considered later.
37. Reverng now to the queson 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 contravenon of Secon 8(1), starng with an inial prescripon in favour of the need for mens rea, we have to ascertain whether the presumpon is overborne by the language of the enactment, read in the light of the objects and purposes of the Act, and parcularly whether the enforcement of the law and the aainment of its purpose would not be rendered fule in the event of such an ingredient being considered necessary.
38. We shall therefore first address ourselves to the language of the relevant provisions. Secon 23(1-A) of the Act which has already been set out merely refers to contravenon 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 presumpon that mens rea is required applies or not. When one turns to the main provision whose contravenon is the subject of the penalty imposed by Secon 23(1-A) viz. 8(1) in the present context, one reaches the conclusion that there is no scope for the invocaon 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 aer sasfying the condions, 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 Section 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 his pocket it is possible to accept the contention that such a person did not “bring” the gold into India within the meaning of Secon 8(1). Similar consideraons would apply to a case where the aircra 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 intenon of bringing it into India the mere “bringing” constitutes the offence and there is no other ingredient that is necessary in order to constute a contravenon of Secon 8(1) than that conscious physical act of bringing. If then under Secon 8(1) the conscious physical act of “bringing” constitutes the offence, Secon 23(1-A) does not import any further condion for the imposion of liability than what is provided for in Secon 8(1). On the language, therefore, of Secon 8(1) read with Secon 24(1) we are clearly of the opinion that there is no scope for the invocaon of the rule that besides the mere act of voluntarily bringing gold into India any further mental condion is postulated as necessary to constute an offence of the contravenon referred to in Secon 23(1-A).
39. Next we have to have regard to the subject-maer of the legislaon. For, as pointed out by Wills, J. in R. v. Tolson [23 QBD 168]:
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-maer and may be so framed as to make an act criminal whether there has been any intenon to break the law or otherwise to do wrong, or not.
The Act is designed to safeguarding and conserving foreign exchange which is essenal to the economic life of a developing country. The provisions have therefore to be stringent and so framed as to prevent unauthorised and unregulated transacons which might upset the scheme underlying the controls; and in a larger context, the penal provisions are aimed at eliminang smuggling which is a concomitant of controls over the free movement of goods or currencies. In this connecon 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. King [1909 AC 317] where the plea of mens rea, was raised as a defence to a prosecuon for importaon of opium in contravenon of the Straits Selements Opium Ordinance, 1960. Lord Atkinson 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 creang the offence. In many cases connected with the revenue certain things are prohibited unless done by certain persons, or under certain condions. Unless the person who does one of these things can establish that he is one of the privileged class, of that the prescribed condions have been fulfilled, he will be adjudged guilty of the offence though in fact he knew nothing of the prohibion.
The criteria for the construcon of statutes of the type we have before us laid down by the Court of Criminal Appeal in Regina v. St. Margarets Trust Ltd. [(1958) 1 WLR 522] is perhaps even nearer to the point. The offence with which the appellants were there charged was a violaon 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 Brish economy, required by the rules made under it that every Hire Purchase agreement should state the price of the arcle and fixed the maximum proporon 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 motor car as regards the price it charged to the customer. The plea raised in defence was that the Finance Company was 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 Arcle 1 of the Order expressly prohibits what was done by St. Margarets Trust Ltd., and if that company is to be held to have commied no offence some judicial modificaon of the actual terms of the arcle is essenal. The appellants contend that the arcle 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 essenal to the commission of the offence. The appellants rely on the presumpon that mens rea, is essenal for the commission of any statutory offence unless the language of the statute, expressly or by necessary implicaon, negaves such presumpon.
The learned Judge then referred to the various decisions in which the queson 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 prohibion 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 inflaon which, if unchecked, would bring disaster upon the country. There is no need to elaborate this. The present generaon 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 calamies here, enacted measures which it intended to be absolute prohibion of acts which might increase the risk in however small a degree. Indeed, that would be the natural expectaon. There would be lile point in enacng that no one should breach the defences against a flood, and at the same me excusing anyone who did it innocently. For these reasons we think that Arcle 1 of the Order should receive a literal construcon, 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 prohibion to be absolute, leaving the court to use its powers to inflict nominal punishment or none at all in appropriate cases.
40. We consider these observaons apposite to the construcon of the provision of the Act now before us.
41. This queson as to when the presumpon as to the necessity for mens rea is overborne has received elaborate consideraon at the hands of this Court when the queson of the construcon of Secon 52-A of the Sea Customs Act came up for consideraon in Indo-China Steam Navigaon Co. Ltd. v. Jasjit Singh, Addl. Collector of Customs, Calcua etc. Speaking for the Court, Gajendragadkar, C.J. said:
The intenon of the legislature in providing for the prohibion prescribed by Secon 52-A is, inter alia, to put an end to illegal smuggling which has the effect of disturbing very rudely the naonal economy of the country. It is well-known, for example, that smuggling of gold has become a serious problem in this country and operaons of smuggling are conducted by operators who work on an internaonal 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 organisaon which, for moves of profit making, undertakes this acvity.
42. This passage, in our opinion, is very apt in the present context and the offences created by Secons 8 and 23(1-A) of the Act. In our opinion, the very object and purpose of the Act and its effecveness as an instrument for the prevenon of smuggling would be enrely frustrated if a condion were to be read into Secon 8(1) or Secon 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.
