SCI (1964.08.24) in State Of Maharashtra vs Mayer Hans George [Criminal Appeal No. 218 of 1963, 1965 AIR 722,1965 SCR (1) 123] held that;
"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, 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."
"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 rea 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."
"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered."
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 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."
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.
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.
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.
Excerpts of the Order;
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.
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 'the 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 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 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:-
(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, 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.
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 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, 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 rea is an essential ingredient in a statutory offence, but this presumption is liable to be displaced either by the works of the statute creating the offence or by the subject matter with which it deals."
The leading case on the subject is Sherras v. De Rutzen(1). Section 16(2) of the Licensing Act, 1872, prohibited a licensed victualler from supplying liquor to a police constable while on duty. It was held that section did not apply where a licensed victualler bona fide believed that the police officer was off duty Wright J., observed
"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered."
This sums up the statement of the law that has been practically adopted in later decisions. The Privy Council in Jacob Bruhn v. The King on the Prosecution of the Opium Farmer(2) construed S. 73 of the Straits Settlements Opium Ordinance, 1906. Section 73 of the said Ordinance stated that if any Ship was used for importation, landing, removal, carriage or conveyance of any 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 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 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 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 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-fiscation could not be invoked unless mens rea was established Under that section no vessel constructed, adapted, altered of fitted for the purpose of concealing goods shall enter, or by within, the limits of any port in India, or the Indian custom waters. This Court in construing the scheme and object of the Sea Customs Act came to the conclusion that mens rea was no a necessary ingredient of the offence, as, if that was so, the statute would become a dead-letter. That decision was given on the basis of the clear object of the statute and on a construction of the provisions of that statute which implemented the said object It does not help us in construing the relevant provisions of the Foreign Exchange Regulation Act.
The Indian decisions also pursued the same line. A division Bench of the Bombay High Court in Emperor v. Isak Solomon Macmull(1) in the context of the Motor Spirit Rationing Order 1941, made under the Essential Supplies (Temporary Powers' Act, 1946, held that a master is not vicariously liable, in the absence of mens rea, for an offence committed by his servant for selling petrol in the absence of requisite coupons and at a rate in excess of the controlled rate. Chagla C.J., speaking for the Division Bench (after considering the relevant English and Indian decisions, observed:
"It is not suggested that even in the class of cases where the offence is not a minor offence or not quasi-criminal that the Legislature cannot introduce the principle of vicarious liability and make the master liable for the acts of his servant although the master had no mens rea and was morally innocent. But the Courts must be reluctant to come to such a conclusion unless the clear words of the statute compel them to do so or they are driven to that conclusion by necessary implication."
So too, a Division Bench of the Mysore High Court in The State of Coorg v. P. K. Assu(2) held that a driver and a cleaner of a lorry which carried bags of charcoal and also contained bags of paddy and rice underneath without permit as required by a notification issued under the Essential Supplies (Temporary Powers) Act, 1946, were not guilty of any offence in the absence of their knowledge that the lorry contained foodgrains. To the same' effect a Division Bench of the Allahabad High Court in 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 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 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 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 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. . . . . . .
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