# [1965] 1 S.C.R. 123

- **Citation:** [1965] 1 S.C.R. 123
- **Court:** Supreme Court of India
- **Decided:** 1964-08-24
- **Case number:** Criminal Appeal No. 218 of 1963
- **Bench:** K. SuBBA RAo, N. Rajagopala Ayya"Ngar, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1965-1-s-c-r-123-3290
- **Pages:** 45

## Headnote

Foreign Exchange Regulation Act (1 of 1947), ss. 8(1) 23(1-A) and
24(1)-Mens rea-When a necessary ingredient of offence-Publication of
notlfication-'-Knowledge of notification-When can h~ imputed-"Cargo"
a1td "persona/ Luggage", meaning of.
The respondent, a German smuggler, left Zurich by plane on 27th November 1962 with 34 kilos of gold concealed on his person to be delivered
in Manila. The plane arrived in Bombay on the 28th but the respondent
did not come out of the plane. The Customs Authorities examined the
manifest of the aircraft to see if any gold was consigned by any passenger.
a11d not finding any entry they entered the plane, searched the respondent.
recovered the gold and charged him with an offence under ss. 8 ( 1) and
23(1-A) of the Foreign Exchange Regulation Act (7 of 1947) read with
a notification dated 8th November 1962 of the Reserve Bank of India
which was published in the Gazette of India on 24th November. The respondent was convicted by the Magistrate, but acquitted by the High Court
on appeal. In the appeal by the State to the Supreme Court, the respondent sought to support the judgment of the High Court by contending
that : (i) Mens rea was an essential ingredient of the offence charged and
as it was not disputed by the prosecution that the respondent was not
aware of the notification of the Reserve Bank, he could not be found guilty,
(ii) the notification being merely subordinate or delegated legislation could
be deemed to be in force only when it was brought to the notice of persons
affected by it and (iii) the second proviso in the notification requiring disclosure in the manifest was not applicable to gold carried on the person of
a passenger.
HELD: (per RA.rAGOPALA AYYANGAR and MunHoLKAR JJ.) (i) On the
language of s. 8(1) read with s. 24(1) of the Act, which throws on the
accused the burden of proving that he had the requisite permission to
bring gold into India, there was no scope for the invocation of the rule
that besides the mere act of voluntarily bringing gold into India any further
mental condition or mens rea is postulated as necessary to constitute an
offence referred to ins. 23(1-A). Further, the very object and purpose
of the Act and its effectiveness as an instrument for the prevention of
&muggling would be entirely frustrated if a condition were to be read into
the sections qualifying the plains words of the enactment, that the accused
•hould be proved to have knowledge that he was contravening the law
beioce be could be held to have contravened the provision. (145G; 147G;
154C-D; 1570-E].
Case law reviewed.
The Jndo-Chlna St•am Navigation Co. Ltd. v. lasjit Singh, Addi. Coll•clor of Customs, Calcutta (A.I.R. 1964 S.C. 1140) .followed.
(ii) The notification was "published" and made known in India by publi·
cation 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.
[163B-D].
IH
SUPREME COURT REPORTS
(1965] I S.C.IL
In the absence of any statutory requirement the rule is that subordinate
or delegated legislation should be published in the usual form, that is, by
publication within the country by such media as are generally adopted to
notify to all persons concerned and .publication in the Official Gazette is
the ordinary method of hringing a notification or rule to the notice of
persons concerned.
[164A-BJ.
Um Chi11 A ik v. The Queen [ 1963] A.C. 160, Distingut•hed.
John.mn v. Sargant & Sons [1918] I K.B. 101 and lmperator v. Leslie
Gwilt I.LR. [1945} Rom. 681, referred to.
An enactment on the lines of the U.K. Statutory Instruments Act, 1946
or suitable amendment of General Clauses Act (IO of I897) to clarify
when subordinate legislation could he said to have been passed and when it
comes into effect. suggested.
[164E-FJ.
.
(iii) The term "cargo" in the notification is u~cd in contradistinction to
"'per.>e>nal luggage" in the Jaw relating to the carriage of goods. The latter
bas been defined as wha

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STATE OF MAHARASHTRA
v .
MAYER HANS GEORGE
August 24, 1964
(K. SuBBA RAo, N. RAJAGOPALA AYYA"NGAR AND
J. R. MuDHOLKAR JJ.)
Foreign Exchange Regulation Act (1 of 1947), ss. 8(1) 23(1-A) and
24(1)-Mens rea-When a necessary ingredient of offence-Publication of
notlfication-'-Knowledge of notification-When can h~ imputed-"Cargo"
a1td "persona/ Luggage", meaning of.
The respondent, a German smuggler, left Zurich by plane on 27th November 1962 with 34 kilos of gold concealed on his person to be delivered
in Manila. The plane arrived in Bombay on the 28th but the respondent
did not come out of the plane. The Customs Authorities examined the
manifest of the aircraft to see if any gold was consigned by any passenger.
a11d not finding any entry they entered the plane, searched the respondent.
recovered the gold and charged him with an offence under ss. 8 ( 1) and
23(1-A) of the Foreign Exchange Regulation Act (7 of 1947) read with
a notification dated 8th November 1962 of the Reserve Bank of India
which was published in the Gazette of India on 24th November. The respondent was convicted by the Magistrate, but acquitted by the High Court
on appeal. In the appeal by the State to the Supreme Court, the respondent sought to support the judgment of the High Court by contending
that : (i) Mens rea was an essential ingredient of the offence charged and
as it was not disputed by the prosecution that the respondent was not
aware of the notification of the Reserve Bank, he could not be found guilty,
(ii) the notification being merely subordinate or delegated legislation could
be deemed to be in force only when it was brought to the notice of persons
affected by it and (iii) the second proviso in the notification requiring disclosure in the manifest was not applicable to gold carried on the person of
a passenger.
HELD: (per RA.rAGOPALA AYYANGAR and MunHoLKAR JJ.) (i) On the
language of s. 8(1) read with s. 24(1) of the Act, which throws on the
accused the burden of proving that he had the requisite permission to
bring gold into India, there was no scope for the invocation of the rule
that besides the mere act of voluntarily bringing gold into India any further
mental condition or mens rea is postulated as necessary to constitute an
offence referred to ins. 23(1-A). Further, the very object and purpose
of the Act and its effectiveness as an instrument for the prevention of
&muggling would be entirely frustrated if a condition were to be read into
the sections qualifying the plains words of the enactment, that the accused
•hould be proved to have knowledge that he was contravening the law
beioce be could be held to have contravened the provision. (145G; 147G;
154C-D; 1570-E].
Case law reviewed.
The Jndo-Chlna St•am Navigation Co. Ltd. v. lasjit Singh, Addi. Coll•clor of Customs, Calcutta (A.I.R. 1964 S.C. 1140) .followed.
(ii) The notification was "published" and made known in India by publi·
cation 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.
[163B-D].
IH
SUPREME COURT REPORTS
(1965] I S.C.IL
In the absence of any statutory requirement the rule is that subordinate
or delegated legislation should be published in the usual form, that is, by
publication within the country by such media as are generally adopted to
notify to all persons concerned and .publication in the Official Gazette is
the ordinary method of hringing a notification or rule to the notice of
persons concerned.
[164A-BJ.
Um Chi11 A ik v. The Queen [ 1963] A.C. 160, Distingut•hed.
John.mn v. Sargant & Sons [1918] I K.B. 101 and lmperator v. Leslie
Gwilt I.LR. [1945} Rom. 681, referred to.
An enactment on the lines of the U.K. Statutory Instruments Act, 1946
or suitable amendment of General Clauses Act (IO of I897) to clarify
when subordinate legislation could he said to have been passed and when it
comes into effect. suggested.
[164E-FJ.
.
(iii) The term "cargo" in the notification is u~cd in contradistinction to
"'per.>e>nal luggage" in the Jaw relating to the carriage of goods. The latter
bas been defined as whatever a passenger takes with him for bis penooal
use or convenience either with reference to his immediate necessities or
for his personal needs at the end of the journey.
Gold of the quantity
and in the fonn and manner in which it was carried by the respondent
would ccnainly not be "personal luggage." [ l 65E-GJ.
/'er SueeA RAO J. (dissenting) : (i) The respondent should not be
held guilty of contravening the provisions of s. 8 of the Act read with
the notification issued by the Rc.c;crve Bank, as it was not proved he had
knowingly brought gold into India in contravention of the terms o( the
notification.
[ 141 C-DJ.
There is a presumption that mens rea is an essential ingredient of a
statutory offence; but this may he rebutted by the expr= words of a
ltatute creating the offence or by necessary impliciltion. But the mere fact
that the object of a statute is to promole \\'Clfarc activities or to eradicate
grave social evils is in itself aot decisive of the question whether the
element of guilty mind is excluded from the ingredients of the offence.
Men:; rea by neccs.,ary implication can be excluded from a statute only
where it is absolutely clear that the implementation of the object of a
statule would otherwise be defeated and ils exclusion enables those put
under
stricl liability by their act or omi\sion 10 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 th~
of.
[l 39D-G].
Ca.c;e law reviewed.
Lin Chi11 Aik v. The Queen [196)) A.C. 160. relied upon.
(ii) The re'spondcnt W:.lS not guilty of lhc offence a~ it had not been
established that he had kno•.vlcJgc of the content\ of 1hc notification. [142P].
There is no provision providing for Lhc publication of the notification
made by the Reserve Bank of India impo~iniz conditions on the bringing
of gold into India. The fact th:it it \Vas puhli5hed in the Official Gazette
does not affect the question.
In such cases the maxim that ignorance of
law is not an excuse cannot be invoked and the prosecution has to bring
home to the accused that he had knowlcd~e or could have had knowledge
if he was not negligent or had made proper enquiries.
[ 142C-EJ.
[.in Chin Aik v. The Queen [1963) A.C. 160, relied upon.
(iii) ·me rcrmis .. ion i;?ivcn in the notification could be taken advantage
of only by a person passing through India to a foreign country if he deeA
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STATE V. MAYER HANS (Subba Rao J.)
12 5
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Jared the gold in his possession in the manifest for transit as "bottom
cargo" or "transhipment cargo".
[131A-B].
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
218 of 1963.
Appeal by special leave from the judgment and order dated
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December 10, 1963, of the Bombay High Court in Criminal
Appeal No. 653 of 1963.
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H. N. Sanyal, Solicitor-Genera/, N. S. Bindra and R. H.
Dhebar, for the appellant.
Soli Soharabji, A. J. Rana, J. B. Dadachanji, 0. C. Mathur
and Ravinder Narain, for the respondent.
SunnA RAO J., delivered a dissenting opinion.
of RAJAGOPALA AYYANGAR and MUDHOLKAR JJ.
by AYYANGAR J.
The judgnient
was delivered
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
c xer~ise of the powers conferred on them under s. 8 of the Foreign
Exchange Regulation Act, (7 of 1947), hereinafter called the Act,
against persons transporting prohibited articles through India.
ln 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
F
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
G 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
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for the respondent and found hinl sitting 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
L!Sup./64 .. 9
126
SUPREME COURT REPORTS
[ 1965] I S.C.R.
he was carrying gold slabs weighing approximately 34 kilos.
It
was also found that the respondent was a passenger bound for
M<J.niia.
The other facts arc not necessary for this appeal.
Till.
November 24, 1962 there was a general permission for a person
to bring or send gold into fndia, if it was on through transit to a
place outside the territory of India; but horn 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 "transhii>-
rnent
cargo".
When
the
respondent
boarded
the
Swiss
plane at Zurich on November 27, 1962, he could not have
had
kno·v!.~<.lgc of the fact that the said condition had been
imposzd on the general pem1ission given by the earlier notification.
The gold was carried on the person of the respondent and
he \\"JS only sittin~ in the: plane after it touched the Santa Crnz
Airport.
The respondent was prosecuted for importing gold into
India under s. 8(1) of the Act, read withs. 23( 1-A) thereof, and
under s.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 r~levant notification issued by the O:ntral Government did
nvt .ipply w 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 I Pdia for
transit to Manila, did not know that durin?, the crucial
period
such ~ condition had been imposed and. <hcrefore, he did not
commit any offence.
Or, those findings. it held that the respondent was not guilty under any of the aforesaid sections.
In the
result the conviction by the Presidency M<:gimate was set aside.
This appeal has been preferred by special leave against the said
order of the High Court.
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Learned Solicitor-General. appearing for the State of Maharashtca. contends th3t the Act was enacted to prevent smug2ling
of gold in the interests of the economic stability of the country
and. thercfocc, in construing the relevant provisions of such an
Act there is no scope for applying the presumption of common. G
law that mens rea is a nccessaoy ingredient of the offence.
The
obje.:t of the statute and the mandatory terms of the relevant
provisions, the arz.ument 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
H
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STATE v. MAYl!R HANS·(Subba Rao /.)
127
A 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)(i) of the
Sea Customs Act and, therefore, nothing need, be said about that
B section.
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Learned counsel for the respondent sougl:n 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 Banis: and on
payment of the fee, if any prescribed, bring or send
into India any go!d ........... .
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 shalt 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
G
dat!;ld August 25, 1948 (as amended upto July 31, 1958):
H
"In exercise of the powers conferred by su!Hection ( 1 )
of section 8 of the Foreign Exdhange Regulation
Act, 194 7 (VU of 194 7) and in supersession or
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:-
.-
128
SUPREME COURT REPORTS
[ 1965) I S.C.R.
(a) any gold coin, gold bullion, gold sheets or gold
A
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
hereby pleased to give general pennis.~ion 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 lndia 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 pennission 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
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of India.
Provided that such article is not ·removed
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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 bot~om cargo or transhipment cargo."
The combined ellect of the terms of the section and the notificaG
tions 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 tile
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
II
the ship or aircraft except for the purpose of transhipment. But
from that date another condition was imposed thereon, namely,
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STATE v. MAYER HANS (Subba Rao /.)
129
A 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 provis<i to the notification.
The object of maintaining a transit manifest for cargo, a~
B 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 partjcular ftight".,
"~" is a shipload or the lading of a &hip. · No statutory or
accepted definition of the word "cargo" has been placed before
c 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 manife&t
is not made clear.
It is said that the expressions "same bottom
cargo" and "transit cargo" throw $Ol1le ligltt on the meaning
D
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 iis destination by
the same conveyance throughout the voyage _or· journey it is
described as "same bottom cargo". On the other hand, if the
E
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
t1le word "cargo". If the expression "cargo" takes in all the
goods carried ~n the plane, whether it is carried under
the
personal care of the passenger or entrusted to the care of the
F
olicer 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 bis
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".
G In the absence of any material or evidence to the contrary, this
statemel]t 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 pa5senger seeks to take advantage of the general permission
H
given thereunder.
I cannot see ~
il\J1erent impossibility implicit in the expression "cargo" compelling me to exclude an accompanied baggage from the said expression.
130
SUPREME COURT REPORTS
[1965] I S.CR
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 "trnnshipmcnt 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 slMh
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
enab:e 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 s~e any such compulsion.
The altemafrve construction for which the appellant contends no
doubt prevents a passenger from carrying with him small article.~
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
hona fide pas>ing through our country to foreign
countries for
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STATE v. MAYER HANS (Subba Rao I.)
131
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 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 Ai;t, read withs. 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
c 'to India any gold.
Under the notification dated November 8,
1962, and published on November 24, 1962, a.S 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
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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 imprisopment "".hich 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
boeak the said Jaw without a guilty mind. The doctrine of mens
rea in ~he context of statutory c;rimes 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, I Ith 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 1he 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 .
.)Vilfulness, or reckles~ness. On the other hand, it
may be silent as to any requirement of 111e111·
rea,
132
SUPREME COURT REPORTS
[ 1965] I S.C.R.
and in such a case in order to determine whether or
A
•not mens rea is an essential element of the offence, ·
it is n=ary 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
1111
ingredient of the offence or not: it depends upon the object ud
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 commissicm
of any criminal offence against the common law ..
B
('
In the case of statutory offences it depends ol} the
effect of the statute . . . . . . There is a presumption
that mens era is an essential ingredient in a statutory
D
offence, but this presumption is liable to be displ.acc:d
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(').
Section 16(2) of the Licensing Act, 1872, prohibited a licemed
victualler from supplymg liquor to a police constable while on
duty.
It was held that that section did not apply where a licellsed victualler bona fide believed that the police officer was off
duty.
Wright J., observed :
"There is a presi1mption 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
tile
words of the statute creating the offence or by tk
subject-matter with which it deals, and both must
be considered."
This sums up the stat.emcnt of the law that has been practically
adopted in later decisions. 1be Privy Council in Jacob Bruhn
v. Tire K.ing on the Prosecution of the Opium Farmer(') CODBtrued s. 73 of the Straits Settlements Opium Ordinance, 1906.
Section 73 ot the said Ordinance stated that if any ship was uad
for .. importation, lan~g, removal, carriage or conveyance of aay
(I} (119S) I Q.B. 9tl, 921.
(2) L. R. (1909) A. C. 317, 32.4.
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STATE v. MAYER HANS (Subba Rao !.)
133A 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 l1sed for
· importation of opium, unless it was proved to the satisfaction of
B the court that every reasonable precaution' had been taken to
prevent such user of ~uch ship and that n,one 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 iii' described and the burdC en of proof is placed upon the accused: In the context of that
seetion the Judicial Committee observed:
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"By this Ordinance every person other tha.n tho 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
Ordinant:e. 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 instructiobs, but by an inao-·
cent mistake, sold margarine to a customer at the price of 1 sh.
per lb. giving only 14! ozs. by weight instead of 16 ozs. The
G appellants were prosecuted for selling margarine at a price exceed-·
ing the maximum price fixed and one of the eontentions raised Oii"
behalf of the accusell was that mens rea on the part of the appellants was not an essential element of the offence. Lord Coleridge J.,
cited with approval the following passage· of Channell J., in Pearks,.
H
Gunston & Tee, Ltd. v. Ward(') :
"But there are exceptidns to this rule in the case of quasicrimi~al offences, as they may be termed, that is t<i
(I) (1919) 88 L.J. K.B. 623, 626.
(2) (1902) 71 L.J. X.B. 656.
134
SUPREME COURT REPORTS
[ 1965] I S.C.R.
say, where certain acts are forbidden by law under
A
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 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, becailse 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 onlv 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. Waod(') dealing with an emergency legislation relating to fuel rationing, Goddard C.J., observed :
"There are statutes and regulations in which Parliament
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has seen
fit
to create offences and make people
responsible before criminal Courts although there
G
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 re'I as
a
(I) (19441 K. B. 417.
(~) (194jl) 62 T. L. .R. 462, 463.
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STATE v. MAYER HANS (Subba Rao J.)
135
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 ignor -
ed.
The judicial Committee in Srinivas Mall Bairoliva v.
King-Emperor(') 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 J:ndia 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 sert>tmts.
Lord du 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 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 w. Indeed, in that case the Judicial Committee
refused to accept the argument that where L11ere is an absolute
prohibition, no question of mens rea arises.
The Privy Council
again in Lim Chin Aik v. The Qlleen(') reviewed the entire law
on the question iri an illuminating judgment and approached
the question, if J may sey so, from a correct perspective.
By s. 6 of the Immigration Ordinance, 1952, of the State
of
Singapore, "Jt 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 prqhibited by order made under
(I} (1947) I.LR. 26 Pat. 460. 469 (P.C.).
(2) (19"6) 62 T.L.R. 462.
(3) [1%3] A.C. 160, 174, 175.
136
SUl'REME CC>l'RT RI.PORTS
[I 965] l S.C.R.
s. 9 of this Ordinance from entering the colony" and s. 9, in
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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 bad in fact ccme to the notice or attention
B
of the appellant.
He was prosecuted for contravening s. 6(2)
of the Ordinance.
Lord EversheCI, speaking for the Board, reafllrmcd the formulation~ cited from the judgment of Wright J.,
and accepted hy
Lord du Parcq in Srinivas Mull Bairoliyil's
case('). On a review of the case law on the subject and the
C
principles enunciated therein, the Judicial Committee came to
the following ccnclusion:
•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 whethllr
D
putting the defendant under strict liability will as.1ist
in the enforcement of the regulations.
That means
that there must be something he can do, directly or
indirectly, by supervision or inspection, by improYement of his business methods or by exhorting th05C
whom he may be expected to influence or control,
which will promote the observance of the regulatiollli.
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 prwecution and conviction of a class of persons whose conduct could
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not in any way affect the observance of the law,
their Lordships consider that even where the statute G
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:
~ut Mr. Le Quesne was unable to point to anything
H
that the appellant could possibly have done so as
(I) (1947) l.L.R. 26 Pat. 460, 469 (P.C.).
l
STATE V. MAYER HANS (Subba Rao J.)
137
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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
B
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
C 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 canD not 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('); speaking through Faz! Ali J.,
accepted the observations made by the Lord Chief Justice of
E England in Brend v. Wood('). The decision of this Court in
The Inda-China Steam Navigation Co. Ltd., v. Jasjit Singh.
Additional Collector of Customs, Calcutta(') 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 under inquiry
now.
There, this Court was concerned with the interpretation
F
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
the routes plied by its ships in the Calcutta:Japan-Calcutta route.
The vessel "Eastern Saga" arrived at Calcutta on October 29,
G
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 CusH toms Act the infringement whereof was the occasion for the con-
(!) [1951] S.C.R. 322.
(2) (1946) 62 T.L.R. 462.
(3) A.!.R. 1964 S.C. 1!40.
138
SUPREME COURT REPORTS
(1965] 1 S.C.R.
fiscation could not be invoked unless mens rea was established.
Under that section no vessel constructed, adapted, altered
or
fitted 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-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.