By:- Haseeb Khan
In the Supreme Court of India
|NAME OF THE CASE||State of Maharashtra v. M.H. George|
|CITATION||1965 AIR 722, 1965 SCR (1) 123|
|DATE OF JUDGEMENT||August 24, 1964|
|APPELLANT||State of Maharashtra|
|RESPONDENT||Mayer Hans George|
|BENCH/JUDGE||Justices K. Subba Rao, N. Rajagopala Ayyangar and J.R. Mudholkar|
|STATUTES/CONSTITUTION INVOLVED||Foreign Exchange Regulation Act, 1947.Sea Customs Act, 1878.Licensing Act, 1872.Straits Settlement Opium Ordinance, 1906.Immigration Ordinance, 1952 of the State of Singapore.English Statutory Instruments Act, 1946.General Clauses Act, 1897.|
|IMPORTANT SECTIONS/ARTICLES||Foreign Exchange Regulation Act, 1947 Ss. 8, 23.Sea Customs Act, 1878 Ss. 167(8)(i), 168(8), 52(A).Licensing Act, 1872 S. 16(2).Straits Settlement Opium Ordinance, 1906, S. 73.Immigration Ordinance, 1952 of the State of Singapore, Ss. 6, 9.English Statutory Instruments Act, 1946, S. 3(2).|
In this case, the defendant, Mayer Hans George, was a German citizen who was charged for bringing gold to India without the authorization of the Reserve Bank Of India as per Section 23A of the Foreign Exchange Regulations Act of 1947 [repealed] and was ordered to be imprisoned for a year. It was established by the authorities of the Customs office that Mr. George was smuggling 34 kilograms of gold with an intention to defraud the government. The High court acquitted him, but the State made another appeal in the Supreme Court. The Supreme Court took note of the fact that there is undeniably a certain measure of dubiety in the law except in cases where specific provision in that behalf is made in individual laws as to:
- A subsidiary enactment could be said to have been passed, and
- when it happens.
This case is a milestone judgement by four judges of the Bench of the Hon’ble Supreme Court. The entire convenience on this bit of the case was laid on the vastness of the word ‘freight’, the point hoped to be made is that what a traveler passed on with himself or with the remainder of his possessions could not be ‘cargo’, and that cargo was what was offered over to the carrier for carriage. The Supreme court considered the use of the rule of Mens Rea in legal offences. The court held that except if the rule additionally by elementary ramifications precludes Mens Rea as a constituent piece of the wrongdoing the indicted ought not to be held culpable for an offence except if he has a liable mind.
The whole Criminal law depends on the idea of Mens Rea or the guilty intention of the evildoer. Mens Rea of the evildoer, is a perspective equipped for carrying out the wrongdoing. To execute a wrongdoing, there ought to be the presence of a the intention or knowledge of wrongdoing in the mind of the evildoer. Mens Rea is a legal term that generally refers to the guilty mental state, the lack of which negates the crime situation on any given occasion. It’s one of the most important aspects of criminal liability. Only when an act is done intentionally that is prohibited by law is it considered a criminal offence. The intent, which is the driving force behind the illegal conduct, is referred to as Mens Rea. Only when an act is committed with a guilty conscience does it become criminal. In most cases, a crime is not committed if the individual committing the act has an innocent mind. Before a person can be held criminally accountable, they must be in a blameworthy state of mind. For example, inflicting injury on an aggressor in self-defense is not illegal, but inflicting injury with the aim of exact revenge is illegal.
The familiar Latin maxim ‘actus non facit reum nisi mens sit rea’—the act does not render one guilty unless the thought is also guilty—expresses the essential concept of the principle of Mens Rea. At least in the case of the more severe crimes, simply committing a criminal act (or causing the state of events that the law prohibits) is insufficient to constitute a crime. In most cases, there must also be some element of improper intent or other misconduct.
FACTS OF THE CASE
In exercise of the powers conferred under Section 8 of the Foreign Exchange Regulation Act, 1947; 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 “transshipment 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. It was also found that the respondent was a passenger bound for Manila.
ISSUES RAISED BEFORE THE COURT
- Whether Mens Rea is an essential ingredient in respect of an offence under Section 23(1A) of the Act?
- Whether the respondent is liable for bringing gold to India under ss. 8(1) and 23(1-A) of the Foreign Exchange Regulation Act (7 of 1947) which was published in the Gazette of India on 24th November 1962?
- What was the scope of ban imposed by the Central Government and the Central Board of Revenue in exercise of the power granted under section 8 of the Foreign Exchange Regulation Act,1947, against person transporting prohibited goods through the vicinity of India?
ARGUMENTS FROM THE APPELLANT SIDE
- Learned Solicitor-General, appearing for the State of Maharashtra, contended 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 contents 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.
- H.N.. Sanyal, Solicitor-General of India, and N.S. Bindra, Senior Advocate (R.H. Dhebar, Advocate), learned counsel for the appellant contended that all the goods carried in a ship or plane is ‘cargo’.
- The learned Solicitor-General relies upon certain rules permitting a passenger to bring into India on his person small articles of gold.
- It was also not disputed by the learned Solicitor-General for the appellant state that if the exemption notification which applied to the present case was that contained in the notification of the Reserve Bank dated August 25, 1948 the respondent had not committed any offence since
- he was a through passenger from Geneva to Manila as shown by the ticket which he had and the manifest of the aircraft, and
- he had not even got down from the plane.
- The decision of this Court in Indo-China Steam Navigation Co. Ltd. V. Jasjit Singh, Additional Collector of Customs, Calcutta was 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.
ARGUMENTS FROM THE RESPONDENT SIDE
- Soli Sohrahji Advocate, A.J. Rana, Advocate, Bombay High Court and J.B. Dadachanji, O.C. Mathur and Ravinder Narain, Advocates of J.B. Dadachanji & Co, learned counsel for the respondent, sought to sustain the acquittal of his client practically on the grounds which found favor with the High Court.
- Contrary to the appellant’s argument, the respondents counsel argues that nothing is cargo unless it is included in the manifest.
- Learned counsel for the respondent contends that Section 8 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 “transshipment 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.
- It was not disputed by the learned counsel for the respondent, subject to an argument based on the construction of the newly added 2nd proviso that if the second notification of the Reserve Bank restricting the range of the exemption applied to the respondent, he was clearly guilty of an offence under Section 8(1) of the Act read with the Explanation to the sub-section.
- Learned counsel for the respondent strongly relied on a decision of the Judicial Committee in Srinivas Mall Bairoliya v. King-Emperor.
- Learned counsel for the respondent also referred us to the decision of the Bombay High Court in Imperator v. Leslie Gwilt where the question of the proper construction and effect of Rule 119 of the Defense of India Rules, 1937 came up for consideration.
- The last of the points urged by learned counsel for the respondent was as regards the construction of the new second proviso which had been introduced by the notification of the Reserve Bank dated November 8, 1962. The argument was that the gold that the respondent carried was his personal luggage and not “cargo”, either “bottom cargo” or “transshipment cargo” and that therefore could not, and need not have been entered in the manifest of the aircraft and hence the second proviso could not be attracted to the case.
Foreign Exchange Regulation Act, 1947
Section 8. Restrictions on import and export of certain currency and bullion.
- The 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 Bangladesh Bank and on payment of the fee, if any, prescribed bring or send into Bangladesh any gold or silver or any currency notes or bank notes or coin whether Bangladesh or foreign.
Explanation.- The bringing or sending into any part or place in the territories of Bangladesh of any such article as aforesaid, intended to be taken out of the territories of Bangladesh 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 the territories of Bangladesh of that article for the purposes of this section.
- No person shall, except with the general or special permission of the Bangladesh Bank or the written permission of a person authorized in this behalf by the Bangladesh Bank, take or send out of Bangladesh any gold, jewelry or precious stones, or Bangladesh currency notes, bank notes or coin or foreign exchange.
- The restrictions imposed by sub-sections (1) and (2) shall be deemed to have been imposed under 1[section 16 of the Customs Act, 1969,] without prejudice to the provisions of section 23 of this Act, and all the provisions of that Act shall have effect accordingly.
Section 23. Penalty and procedure.
(1) Whoever contravenes, attempts to contravene or abets the contravention of any of the provisions of this Act or of any rule, direction or order made thereunder, shall notwithstanding anything contained in the Code of Criminal Procedure, 1898, be tried by a Tribunal constituted by section 23A, and shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both, and any such Tribunal trying any such contravention may, if it thinks fit, and in addition to any sentence which it may impose for such contravention, direct that any currency, security, gold or silver, or goods or other property in respect of which the contravention has taken place shall be confiscated.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, any offence punishable under this section shall be cognizable for such period as the Government may from time to time, by notification in the official Gazette, declare.
(3) Tribunal shall not take cognizance of any offence punishable under this section and not declared by the Government under the preceding sub-section to be cognizable for the time being, or of an offence punishable under section 54 of the Income-tax Act, 1922, as applied by section 19, except upon complaint in writing made by a person authorized by the Government or the Bangladesh Bank in this behalf:
Provided that where any such offence is the contravention of any of the provisions of this Act or any rule, direction or order made thereunder which prohibits the doing of an act without permission and is not declared by the Government under the preceding sub-section to be cognizable for the time being, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission.
- Where the person guilty of an offence under this Act is a company or other body corporate every director, manager, secretary and other officer thereof who is knowingly a party to the offence shall also be guilty of the same offence and liable to the same punishment.
Sea Customs Act, 1878
Section 167(8). Punishment for offences.
If any goods, the importation or exportation of which is for the time being prohibited or restricted, be imported into or exported from British India contrary to such prohibition or restriction; or if any attempt be made so to import or export any such goods; or if any such goods be found in any package produced to any officer of Customs as containing no such goods; or if any such goods, or any dutiable goods, be found either before or after landing or shipment to have been concealed in any manner on board of any vessel within the limits of any Port in British India; or if any goods, the exportation of which is prohibited or restricted as aforesaid, be brought to any wharf in order to be put on board of any vessel for exportation contrary to such prohibition or restriction, such goods shall be liable to confiscation; and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees.
Section 52 – Declaration by parties claiming drawback.
Every person, or his duly authorized agent, claiming drawback on any goods duly exported, shall make and subscribe a declaration that such goods have been actually exported, and have not been re-landed and are not intended to be re-landed at any Customs-port; and that such person was at the time of entry outwards and shipment, and continues to be, entitled to drawback thereon.
Licensing Act, 1872
Section 16(2). Penalty for harboring constable.
If any licensed person—
(2) Supplies any liquor or refreshment, whether by way of gift or sale, to any constable on duty unless by authority of some superior officer of such constable; under this section shall, unless the convicting magistrate or justices shall otherwise direct, be recorded on the license of the person convicted.
Immigration Ordinance, 1952 of the State of Singapore
Section 6. Control of entry into and departure from Singapore.
(1) No person other than a citizen of Singapore shall enter Singapore unless;
(a) he is in possession of a valid entry permit or re-entry permit lawfully issued to him under section 10 or 11;
(b) his name is endorsed upon a valid entry permit or re-entry permit in accordance with section 12, and he is in the company of the holder of that permit;
(c) he is in possession of a valid pass lawfully issued to him to enter Singapore; or
(d) he is exempted from this section by an order made under section 56.
(2)Any person who has entered or remained in Singapore in accordance with a pass lawfully issued under this Act shall complete an embarkation form and submit it together with his passport or other travel document for examination by an immigration officer at the time he leaves Singapore.
(3)Any person who contravenes subsection (1) or (2) shall be guilty of an offence and
(a) in the case of an offence under subsection (1), shall on conviction be punished with imprisonment for a term not exceeding 6 months and shall also, subject to section 231 of the Criminal Procedure Code, be punished with caning with not less than 3 strokes, or where by virtue of that section he is not punishable with caning, he shall, in lieu of caning, be punished with a fine not exceeding $6,000.
(b) in the case of an offence under subsection (2) shall be liable on conviction to a fine not exceeding $4,000 or to imprisonment for a term not exceeding one year or to both.
Section 9. Power to prohibit or limit entry into Singapore.
(1)The Minister may, by order
(a)where he thinks it expedient to do so in the interests of public security or by reason of any economic, industrial, social, educational or other conditions in Singapore;
(i)prohibit, either for a stated period or permanently, the entry or re-entry into Singapore of any person or class of persons;
(ii)limit the number of persons of any class who may enter Singapore within any period specified in the order;
(iii)limit the period during which any person or class of persons entering or reentering Singapore may remain therein:
Provided that no order made under this paragraph, except an order made in the interests of public security, shall apply to any person outside Singapore at the time when the order is made and who is in possession of a valid reentry permit lawfully issued to him;
(b)prohibit the entry into Singapore of passengers brought to Singapore by any transportation company which refuses or neglects to comply with the provisions of this Act.
(2)An order made under subsection (1) shall not apply to any citizen of Singapore or to any person seeking to enter Singapore under and in accordance with any pass lawfully issued to that person.
(3) (a)Every order made under subsection (1) (a) which relates to a class of persons, except an order made in the interests of public security, shall be presented to Parliament as soon as possible after publication and if a resolution is passed within the next subsequent 3 months after the order is so presented disapproving the order or any part thereof, the order or such part thereof, as the case may be, shall thenceforth cease to have effect but without prejudice to the validity of anything previously done thereunder.
(b)Every order made under subsection (1) shall, unless otherwise expressed therein, come into force on the date of the making thereof, and shall be published in the Gazette.
(4)Any person who enters or re-enters or remains in Singapore in contravention of any order made under subsection (1) shall be guilty of an offence and shall be liable on conviction to imprisonment for a term of not less than 2 years and not more than 4 years and shall also be liable to a fine not exceeding $6,000.
(5)Where a person, who has been previously convicted of any offence which is punishable with imprisonment for a term of not less than 3 years, commits an offence under subsection (4) by the use of a passport or other travel document which bears a name different from that stated in the order made against him under subsection (1), he shall be liable on conviction to imprisonment for a term of not less than 2 years and not more than 5 years and shall also be liable to a fine not exceeding $10,000 and to caning.
English Statutory Instruments Act, 1946
Section 3(2). Supplementary provisions as to publication.
In any proceedings against any person for an offence consisting of a contravention of any such statutory instrument, it shall be a defense to prove that the instrument had not been issued by [or under the authority of] His Majesty’s Stationery Office at the date of the alleged contravention unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or of the person charged.
The Honorable Court cited a judgement in which the question of the construction of Section 52-A of the Sea Customs Act came up for consideration in Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs, Calcutta, regarding the question as to when the presumption as to the necessity for Mens Rea is overborne. Speaking for the Court, Gajendragadkar, C.J. said:
“The intention of the legislature in providing for the prohibition prescribed by Section 52-A is, inter alia, to put an end to illegal smuggling which has the effect of disturbing very rudely the national economy of the country. It is well-known, for example, that smuggling of gold has become a serious problem in this country and operations of smuggling are conducted by operators who work on an international basis. The persons who actually carry out the physical part of smuggling gold by one means or another are generally no more than agents and presumably, behind them stands a well-knit organization which, for motives of profit making, undertakes this activity.”
This passage, according to the bench, was very apt in the present context and the offences created by Sections 8 and 23(1-A) of the Act.
In the bench’s opinion, the very object and purpose of the Act and its effectiveness as an instrument for the prevention of smuggling would be entirely frustrated if a condition were to be read into Section 8(1) or Section 23(1-A) of the Act qualifying the plain words of the enactment, that the accused should be proved to have knowledge that he was contravening the law before he could be held to have contravened the provision. The decision in Rex v. Jacobs arose out of an agreement to sell price-controlled goods at excess price. The defense 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 Brend v. Wood dealing with an emergency legislation relating to fuel rationing, Goddard, C.J., observed:
“There are statutes and regulations in which Parliament has been not to create offences and make people responsible before criminal courts although there is an absence of Mens Rea, but it is certainly not the Court’s duty to be acute to find that Mens Rea, is not a 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.”
The leading case on the subject is Sherras v. De Rutzen, where 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 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.”
The result considered by the Supreme Court was that the learned Judges of the High Court erred in acquitting the respondent. The appeal was therefore to be allowed and the conviction of the respondent restored. Regarding the question of sentence to be passed on the appellant, it was decided that undoubtedly, it is the settled rule of this Court that it would not interfere with the sentence passed by the courts below unless there is any illegality in it or the same involves any question of principle. The facts of the case before the learned judges, however, presented some unusual features which had led them to technically interfere with the sentence of one year’s imprisonment passed by the Chief Presidency Magistrate.
The respondent was sentenced by the Presidency Magistrate on April 24, 1963 and thereupon he started serving the sentence till the judgment of the High Court which was rendered on December 10, 1963. The respondent was released the next day i.e. December 11, 1963. This Court granted special leave on December 20, 1963 and thereafter on application made by the appellant State, this Court directed the arrest of the respondent. The respondent was accordingly arrested and though the Magistrate directed his release on bail pending the disposal of the appeal in this Court, the respondent was unable to furnish the bail required and hence suffered imprisonment, though it would be noticed that such imprisonment was not in pursuance of the conviction and sentence passed on him by the Magistrate.
Such imprisonment continued till May 8, 1964 when the decision of this Court was pronounced, so that virtually the respondent had suffered the imprisonment that had been inflicted on him by the order of the Presidency Magistrate. In these circumstances, the court directed that though the appeal was allowed, the sentence would be reduced to the period already undergone which was only a technical interference with the sentence passed by the Presidency Magistrate, though in substance it was not.
In deciding if a statutory arrangement does or doesn’t make an offense of severe obligation, the couple of contemplations appear to be significant, as given in the judgment of M.H. George’s Case, phraseology of the statutory arrangement making an offense of strict liability, especially articulations demonstrating or barring the mental element or component required. Nature of the mischief at which the arrangement or rule is pointed, and whether the burden of exacting obligation will, in general, suppress the mischief, albeit strict liability ought not to be deduced essentially in light of the fact that the offense is depicted as a grave social malevolence. Consequently, disregarding the created rules with respect to the use of the assumption, it despite everything relies upon the realities of the case just as the kind of statutory offense whether the statutory assumption will be applied or not, and the courts will, in any case, continue growing new principles to choose the same.
 Author is 2nd semester student at Amity Law School, Lucknow.
 Indo-China Steam Navigation Co. Ltd. V. Jasjit Singh, Additional Collector of Customs, Calcutta, 1964 AIR 1140, 1964 SCR (6) 594.
 Srinivas Mall Bairoliya v. King-Emperor, (1947) 49 BOMLR 688.
 Imperator v. Leslie Gwilt, AIR 1945 BOM 368, 1945 (47) BOMLR 431.
 Foreign Exchange Regulation Act, 1947 S. 8, No. 7, Acts of Parliament, 1947 (India).
 Foreign Exchange Regulation Act, 1947 S. 23, No. 7, Acts of Parliament, 1947 (India).
 Sea Customs Act, 1878, S. 167(8), No. 8, Acts of Parliament, 1878 (India).
 Sea Customs Act, 1878, S. 52, No. 8, Acts of Parliament, 1878 (India).
 Licensing Act, 1872, S. 16(2), 35 & 36 Vict c 94, Acts of Parliament,1872 (United Kingdom).
 Immigration Ordinance, 1952, S. 6, No. 5, Acts of Singapore State Legislature, 1952 (Singapore).
 English Statutory Instruments Act, 1946, S. 3(2), Acts of Parliament, 1946 (United Kingdom).
 Indo-China Steam Navigation Co. Ltd. V. Jasjit Singh, Additional Collector of Customs, Calcutta, 1964 AIR 1140, 1964 SCR (6) 594.
 Rex v. Jacobs,  SCR 92.
 Brend v. Wood 175 LT 306, (1946) 62 TLR 462.
 Sherras v. De Rutzen,  1 QB 918.