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SUPREME COURT OF INDIA
K. SUBBA RAO, N. RAJAGOPALA AYYANGAR AND J.R. MUDHOLKAR, JJ
State of Maharashtra, Appellant
Versus
Mayer Hans George, Respondent.
Criminal Appeal No. 218 of 1963.
Advocates appeared
Mr. H. N. Sanyal, Solicitor General of India, and Mr. N. S. Bindra, Senior Advocate (Mr. R. H. Dhebar, Advocate, with them), for appellant; Mr. Soli Sohrabji, Advocate, Mr. A. J. Rana, Advocate, Bombay High Court and M/s. J. B. Dadachanji, O. C. Mathur and Ravinder Narain, Advocates of M/s. J. B. Dadachanji and Co., for Respondent.
1. Mens rea is an essential ingredient of a criminal offence unless the statute clearly or by necessary implication excludes the same.2. The object of the Foreign Exchange Regulation Act, 1947 (VII of 1947) is to prevent smuggling of gold and to conserve foreign exchange. The Act and the notification issued thereunder do 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 element of mens rea was 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.3. Even if the notification dated November 8, 1962, is a delegated legislation, the maxim "ignorance of law is no defence" cannot be invoked 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.4. The term 'cargo' when it occurs in the notification of the Reserve Bank is used as contra-distinguished from personal luggage in the law relating to the carriage of goods.
Fact of the Case:
The respondent, a German national by birth, was apprehended by the Customs authorities at the Santa Cruz Airport, Bombay, on November 28, 1962, while he was travelling by a Swiss air plane on his way to Manila. On a search of his person, 34 bars of gold weighing approximately 34 kilos were recovered from 19 of the 28 specially made compartments concealed in a jacket which he wore. The respondent was prosecuted for contravening the provisions of S. 8(1) of the Foreign Exchange Regulation Act (VII of 1947), hereinafter called the "Act", read with a notification of the Reserve Bank of India dated November 8, 1962 and directing his acquittal.
Finding of the Court:
The Court held that mens rea is an essential ingredient of a criminal offence unless the statute clearly or by necessary implication excludes the same. The object of the Foreign Exchange Regulation Act, 1947 (VII of 1947) is to prevent smuggling of gold and to conserve foreign exchange. The Act and the notification issued thereunder do 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 element of mens rea was 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. Even if the notification dated November 8, 1962, is a delegated legislation, the maxim "ignorance of law is no defence" cannot be invoked 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. The term 'cargo' when it occurs in the notification of the Reserve Bank is used as contra-distinguished from personal luggage in the law relating to the carriage of goods.
Issues: 1. Whether mens rea is an essential ingredient of a criminal offence under S. 8(1) of the Foreign Exchange Regulation Act, 1947 (VII of 1947)?2. Whether the notification dated November 8, 1962, issued by the Reserve Bank of India is a delegated legislation and whether the maxim "ignorance of law is no defence" can be invoked in the present case?3. Whether the term 'cargo' used in the notification of the Reserve Bank includes personal luggage?
Ratio Decidendi: 1. Mens rea is an essential ingredient of a criminal offence unless the statute clearly or by necessary implication excludes the same. The object of the Foreign Exchange Regulation Act, 1947 (VII of 1947) is to prevent smuggling of gold and to conserve foreign exchange. The Act and the notification issued thereunder do 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 element of mens rea was 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.2. Even if the notification dated November 8, 1962, is a delegated legislation, the maxim "ignorance of law is no defence" cannot be invoked 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.3. The term 'cargo' when it occurs in the notification of the Reserve Bank is used as contra-distinguished from personal luggage in the law relating to the carriage of goods.
Final Decision: The appeal was allowed and the conviction of the respondent was restored. However, the sentence imposed on him was reduced to the period already undergone.
ORDER
BY THE COURT - (8th May, 1964) - 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.
JUDGMENT
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 Section 8 of the Foreign Exchange Regulation Act 1947 (VII of 1947), hereinafter called the Act, against persons transporting prohibited articles through India.
2. 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 had put on a jacket containing 28 compartments and in 19 of them he was carrying gold slabs weighing approximately 34 kilos. It was also found that the respondent was a pasaenger bound for Manila the other facts are not necessary for this appeal. Till November 24, 1962 there was a general permission for a person to bring or send gold into India, if it was on through transit to a place outside the territory of India; but from that date it could not be so done except on the condition that it was declared in the "Manifest" for transit as "same bottom cargo" or "transhipment cargo". When the respondent boarded the Swiss plane at Zurich on November 27, 1962, he could not have had knowledge of the fact that the said condition had been imposed on the general permission given by the earlier notification. The gold was carried on the person of the respondent and he was only sitting in the plane after it touched the Santa Cruz 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) (i) of the Sea Customs Act. The learned Presidency Magistrate found the accused "guilty" on the two counts and sentenced him to rigorous imprisonment for one year. On appeal the High Court of Bombay held that the second proviso to the relevant notification issued by the Central Government did not apply to a person carrying gold with him on his body, that even if it applied, the mens rea being a necessary ingredient of the offence, the respondent, who brought gold into India for transit to Manila, did not know that during the crucial period such a condition had been imposed and, therefore, he did not commit any offence. On those findings, it held that the respondent was not guilty under any of the aforesaid Sections. In the result the conviction made by the Presidency Magistrate was set aside. This appeal has been preferred by special leave against the said order of the High Court.
3. Learned Solicitor General, appearing for the State of Maharashtra, contends that the Act was enacted to prevent smuggling of gold in the inte
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