Case – State of Maharashtra v. Mayer Hans George, 1965
Fact
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.
Issue
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 and Judgement
- 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.
