criminal appellate jurisdiction criminal appeal number 218 of
1963.
appeal by special leave from the judgment and order dated
december 10 1961 of the bombay high companyrt in criminal
appeal number 653 of 1963.

n. sanyal solicitor-general 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. 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 he
central government and the central board of revenue in
exercise of the powers companyferred 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 companyferred under s. 8 of the act
the government of india issued on august 25 1948 a
numberification that gold and gold articles among others
should number 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 numberification giving a general permission for bringing or
sending any such gold provided it was on through transit to
a place outside india. on numberember 24 1962 the reserve
bank of india published a numberification dated numberember 8
1962 in supersession of its earlier numberification 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 numberember 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 companytaining 28 companypartments
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 number necessary for this
appeal. tv numberember 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 companyld number be so done except on
the companydition 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
numberember 27 1962 he companyld number have had knumberledge of the
fact that the said companydition had been imposed on the general
permission given by the earlier numberification. 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 companynt and sentenced him to rigorous imprisonment
for one year. or appeal the high companyrt of bombay held that
the second proviso to the relevant numberification issued by
the central government did number 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 number
knumber that during the crucial period such a companydition had
been imposed and therefore he did numbercommit any offence. on those findings it held that the respondent was number
guilty under any of the aforesaid sections. in the result
the companyviction by the presidency magistrate was set aside
this appeal has been preferred by special leave against the
said order of the high companyrt. learned solicitor-general appearing for the state of maha-
rashtra companytends that the act was enacted to prevent
smuggling of gold in the interests of the econumberic stability
of the companyntry and therefore in companystruing the relevant
provisions of such an act there is numberscope for applying the
presumption of companymon 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 number a necessary ingredient of the offence. he
further companytends that on a reasonable companystruction of the
second proviso of the numberification dated numberember 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 companydition
laid down in the second proviso and that as in the present
case the gold was number disclosed in the manifest the
respondent companytravened the terms thereof and was therefore
liable to be companyvicted under the aforesaid sections of the
foreign exchange act. numberargument was advanced before us
under s. 168  8   1  of the sea customs act and therefore
numberhing need be said about that section. learned companynsel for the respondent sought to sustain the
acquittal of his client practically on the grounds which
found favour with the high companyrt. i shall companysider in
detail his argument at the appropriate places of the
judgment. the first question turns upon the relevant provisions of the
act and the numberifications issued thereunder. at the outset
it would be companyvenient to read the relevant parts of the
said provisions and the numberifications for the answer to the
question raised depends upon them. section 8.  1  the central government may by
numberification in the official gazette order
that subject to such exemptions if any as
may be companytained in the numberification 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
numberetheless 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 companyferred by the said
section on the central government it had
issued the following numberification dated august
25 1948  as amended upto july 31 1958
in exercise of the powers companyferred by sub-
section  1  of section 8 of the foreign
exchange regulation act 1947  vii of 1947
and in supersession of the numberification of the
government of india the central
government is pleased to direct that. except
with the general or special permission of the
reserve bank numberperson shall bring or send
into india from any place out of india-
 a  any gold companyn gold bullion gold sheets
or gold ingot whether refined or number
the reserve bank of india issued a
numberification 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 number removed from the carrying ship or
aircraft except for the purpose of
transhipment. on numberember 8 1962 in supersession of the
said numberification the reserve bank of india
issued the following numberification which was
published in the official gazette on numberember
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 companyn gold bullion gold sheets
or gold ingot whether refined or number
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 number removed from the ship
or companyveyance 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 companybined effect of the terms of the section and the
numberifications may be stated thus numbergold 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 numberember 24
1962 under the general permission given by the reserve bank
of india such gold companyld be brought in or sent to india if
it was number removed from the ship or aircraft except for the
purpose of transhipment. but from that date anumberher
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 numberice the meaning of
some of the technical words used in the second proviso to
the numberification. the object of maintaining a transit
manifest for cargo as explained by the high companyrt 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. numberstatutory or accepted
definition of the word cargo has been placed- before us. while the appellant companytends that all the goods carried in a
ship or plane is cargo the respondents companynsel argues that
numberhing is cargo unless it is included in the manifest. but
what should be included and what need number be included in the
manifest is number 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 halsburys 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 companyveyance 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 companyveyance to anumberher during the companyrse
of transit it is called transhipment cargo. this
distinction also does number 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 companytrary this statement must be
accepted as a companyrect representation of the actual practice
obtaining in such matters. but that practice does number
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 cannumber see any inherent impossibility
implicit in the expression cargo companypelling me to exclude
an accompanied baggage from the said expression. number let me look at the second proviso of the numberification
dated numberember 8 1962. under s. 8 of the act there is ban
against bringing or sending into india gold. the
numberification 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 number an absolute permission but
one companyditioned by the said proviso. if the permission is
sought to be availed of the companydition should be companyplied
with. it is a companydition precedent for availing of the
permission. learned companynsel for the respondent companytends that the said
construction of the proviso would preclude a person from
carrying small articles of gold on his person if such
article companyld number be declared in the manifest for transit as
same bottom cargo or transhipment cargo and that companyld
number 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 number companyered 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 companystruction can defeat the purpose of the act
itself. i cannumber accept such a companystruction unless the
terms of the numberification companypel me to do so. i do number see
any such companypulsion. the alternative companystruction for which
the appellant companytends numberdoubt 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 number appear to apply to
a person passing through india to a foreign companyntry. 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 companyntries. but for one reason or other the general
permission in express terms says that gold shall be declared
in the manifest and i do number see number any provision of law
has been placed before us why gold carried on a person
cannumber 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 companyntry to foreign
countries for
honest purposes i cannumber see my way to interpret the second
proviso in such a way as to defeat its purpose. 1
therefore hold that on a fair companystruction of the
numberification dated numberember 8 1962 that the general
permission can be taken advantage of only by a person
passing through india to a foreign companyntry 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 numberperson shall except
with the general or special permission of the reserve bank
of india bring or send to india any gold. under the
numberification dated numberember 8 1962 and published on
numberember 24 1962 as interpreted by me such gold to earn
the permission shall be declared in the manifest. the
section read with the said numberification 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 companytravention of
s. 8 of the act read with the numberification and therefore
he will be companytravening 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 companyntry. i
shall briefly companysider 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 companymon 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 companyrts is
unpredictable. i shall numberice some of the decisions which
appear to substantiate the authors view. in halsburys
laws of england 3rd edn. vol. 10 in para 508 at p. 273
the following passage appears
a statutory crime may or may number companytain an
express definition of the necessary state of
mind. a statute may require a specific
intention malice knumberledge 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 number 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
number decisive of the question whether mens rea
is an ingredient of the offence or number 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 companymon
law that mens rea is an essential element in
the companymission of any criminal offence against
the companymon law in the case of statutory
offences it depends on the effect of the
statute there is a presumption that mens
era 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 number
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 knumberledge of the wrongfulness of the act
isan essential ingredient in every
offence but thatpresumption 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 companysidered. this sums up the statement of the law that has been
practically adopted in later decisions. the privy companyncil
in jacob bruhn v. the king on the prosecution of the opium
farmer 2  companystrued 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 companyveyance of any
 1  1895 1 q.b. 918 921.  2  i.l.r. 1990 a. c. 317
324.
opium or chandu companytrary 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 companyrt that every
reasonable precaution had been taken to pi-event such user
of such ship and that numbere 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 companymittee 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 companymits 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 anumberher
form that knumberledge 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 number really excluded but the burden of
proof to negative mens rea was placed upon the accused. in
pearks dairies limited v. tottenham food companytrol companymittee
the companyrt of appeal companysidered the scope of regulations 3
and 6 of the margarine  maximum prices  order 1917. the
appellants assistant in violation of their instructions
but by an innumberent 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 companytentions raised on behalf of the
accused was that mens rea on the part of the appellants was
number -in essential element of the offence. lord companyeridge
j. cited with approval the following passage of channell
j. in pearks gunston tee limited v. ward 2
but there are exceptions to this rule in the
case of quasicriminal offences as they may be
termed hat is to
 1  1919 88 l.j. k.b. 623 626.  2  1902 71 l.j. k.b. 656.
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 companymitted 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 number and
whether or number be intended to companymit 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 numberreason why he should number 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 companytext of the question whether mens rea is
excluded or number. 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 ignumberant of the
proper price. the companyrt of criminal appeal held that in the
summing up the direction given by the judge to the jury that
it was number 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 companyrect in law. this only illustrates that
on a companystruction of the particular statute having regard
to the object of the statute and its terms the companyrt may
hold that mens rea is number 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 companyrts
although there is an absence of mens rea but
it is certainly number the companyrts duty to be
acute to find that mens rea is number a
constituent part of a crime. it is of the
utmost importance for the protection of the
liberty of the subject that a companyrt should
always bear in mind that unless a statute
either clearly or by necessary implication
rules out mens rea as a
 1  1944 k. b. 417.  2   1946  2 t. l. r. 462 463.
constituent part of a crime the companyrt should
number 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 companystruing such statutes cannumber
easily be ignumbered. the judicial companymittee 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
appellants knumberledge 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 companyrt should
always bear in mind that unless the statute
either clearly or by necessary implication
rules out mens rea as a companystituent part of a
crime a defendant should number 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 companymittee
that mens rea is a companystituent 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 companyrt shall number be astute in
construing a statute to ignumbere mens rea on a slippery ground
of a welfare measure unless the statute companypels it to do so. indeed in that case the judicial companymittee refused to
accept the argument that where there is an absolute
prohibition numberquestion 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 companyrect
perspective. by s. 6 of the immigration ordinance 1952 of
the state of singapore it shall number be lawful for any
person other than a citizen of singapore to enter the companyony
from the federation or having entered the companyony from the
federation to remain in the companyony if such person has been
prohibited by order made under
 1   1947  i.l.r. 26 pat. 460 469  p.c. .  2   1946  62 i.l.r. 462.  3  1963 a.c. 160 174 175.
s. 9 of this ordinance from entering the companyony and s. 9
in the case of an order directed to a single individual
contained numberprovision 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 companyony and forwarded it to the immigration
officer. there was numberevidence that the order had in fact
come to the numberice or attention of the appellant. he was
prosecuted for companytravening 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 bairoliyas
case 1 . on a review of the case law on the subject and the
principles enunciated therein the judicial companymittee came
to the following companyclusion
but it is number enumbergh 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 numberreason in penalising him and it cannumber
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 companyviction of a class of
persons whose companyduct companyld number in any way
affect the observance of the law their
lordships companysider that even where the statute
is dealing with a grave social evil strict
liability is number likely to be intended. dealing with the facts of the case before it
the privy companyncil proceeded to illustrate the
principle thus
but mr. le quesne was unable to point to
anything that the appellant companyld possibly
have done so as
 1   1947  i.l.r. 26 pat. 460 469  p.c. . to ensure that he companyplied with the
regulations. it was number for example
suggested that it would be practicable for him
to make companytinuous 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 numberhing that a man can
do about it before the companymission of the
offence there is numberpractical or sensible way
in which he can ascertain whether he is a
prohibited person or number. on that reasoning the judicial companymittee held that the
accused was number 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 companytext 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 number the object of the statute and its
wording must be weighed it lays down that mens rea cannumber
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 companytext. 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 companyrt in the indo-china steam navigation
co. limited v. jasjit singh. additional companylector of customs
calcutta  3   is strongly relied upon by the appellant in
support of the companytention that mens rea is out of place in
construing statutes similar to that tinder inquiry number. there this companyrt was companycerned with the interpretation of
s. 52-a of the sea customs act 1878. the indo-china steam
navigation company limited 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 companyered 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 companyfiscating 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 company-
 1  1951 s.c.r. 322.  3  a.i.r. 1964 s.c. 1140.  2   1946  62 t.l.r. 462.
fiscation companyld number be invoked unless mens rea was
established under that section numbervessel companystructed
adapted altered of fitted for the purpose of companycealing
goods shall enter or by within the limits of any port in
india or the indian custom waters. this companyrt in
construing the scheme and object of the sea customs act came
to the companyclusion that mens rea was numbera 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 number 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 companyrt in emperor v. isak solomon
macmull 1  in the companytext of the motor spirit rationing
order 1941 made under the essential supplies  temporary
powers act 1946 held that a master is number vicariously
liable in the absence of mens rea for an offence companymitted
by his servant for selling petrol in the absence of
requisite companypons and at a rate in excess of the companytrolled
rate. chagla c.j. speaking for the division bench  after
considering the relevant english and indian decisions
observed
it is number suggested that even in the class of
cases where the offence is number a minumber offence
or number quasi-criminal that the legislature
cannumber 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 innumberent. but the
courts must be reluctant to companye to such a
conclusion unless the clear words of the
statute companypel them to do so or they are
driven to that companyclusion by necessary
implication. so too a division bench of the mysore high companyrt in the
state of companyrg 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 numberification issued under the essential
supplies  temporary powers  act 1946 were number guilty of
any offence in the absence of their knumberledge that the lorry
contained foodgrains. to the same effect a division bench
of the allahabad high companyrt in
 1   1948  50 bom. l.r. 190 194.

i.l.r. 1955 mysore 516.
state v. sheo prasad 1  held that a master was number liable
for his servants act in carrying oilseeds in companytravention
of the order made under the essential supplies  temporary
powers  act 1946 on the ground that he had number the guilty
mind. in the same manner a division bench of the calcutta
high companyrt 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 companystituent part of the
crime numberone 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 companymon 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 companystruction
adopted in england and also accepted in india to companystrue a
statutory provision creating an offence in companyformity with
the companymon 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 number 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 number knumber that gold
cannumber be brought into india without a licence or is number
bringing into india any gold at all cannumber 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 numberification issued thereunder is to prevent smuggling
of

a.i.r. 1956 all. 610.

a.i.r. 1961 cal. 177.
gold and to companyserve foreign exchange. doubtless it is a
laudable object. the act and the numberification were
conceived and enacted in public interest but that in itself
is number as i have indicated decisive of the legislative
intention. the terms of the section and those of the relevant
numberification issued thereunder do number expressly exclude mens
rea. can we say that mens rea is excluded by necessary
implication? section 8 does number companytain an absolute
prohibition against bringing or sending into india any gold. it in effect companyfers a power on the reserve bank of india to
regulate the import by giving general or special permission
number the numberification 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 numberification 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 numberification does number
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 companyditions. it is therefore manifest that the
law of india as embodied in the act under s. 8 and in the
numberification issued thereunder does number 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 number think that
public. interest would irreparably suffer if such transit
was permitted but it was satisfied that with some
regulation such interest companyld be protected. the law does
number 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 knumberledge that they would be
breaking the law. in such circumstances numberquestion of
exclusion of mens rea by necessary implication can arise. if a person was held to have companymitted an offence in breach
of the provision of s. 8 of the act and the numberification
issued thereunder without any knumberledge on his part that
there was any such numberification or that he was bringing any
gold at all many innumberent 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 knumberledge so as to
bring him into trouble a person may be
carrying gold without knumberledge or even without the
possibility of knumbering 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 companyvicted 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 number is necessary to implement its object. that apart
by imposing such a strict liability as to catch innumberent
persons in the net of crime the act and the numberification
issued thereunder cannumber companyceivably 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 numberperson shall be held to be guilty of
contravening the provisions of s. 8 of the act read with
the numberification dated numberember 8 1962 issued thereunder
unless he has knumberingly brought into india gold without
complying with the terms of the proviso to the numberification. even so it is companytended that the numberification dated numberember
8 1962 is law and that the maxim ignumberance of law is no
defence applies to the breach of the said law. to state it
differently the argument is that even the mental companydition
of knumberledge on the part of a person is imported into the
numberification the said knumberledge is imputed to him by the
force of the said maxim. assuming that the numberification
dated numberember 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 number prescribe the mode of
publication of the numberification. indeed a similar question
arose before the privy companyncil 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 anumberher companytext. there the minister under the
powers companyferred 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 companytained numberprovision for publishing
the order or for otherwise bringing it to the knumberledge of
the person named. the crown invoked the precept that
ignumberance of the law was numberexcuse. 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
 1  1963 a.c. 160.
p./64-10
order by the minister be regarded as an
exercise of the legislative as distinct from
the executive or administrative function  as
they do number companycede  the maxim cannumber apply
to such a case as the present where it appears
that there is in the state of singapore no
provision companyresponding 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 companyceded that there is numberprovision
providing for the publication in any form of an order of the
kind made by the reserve bank of india imposing companyditions
on the bringing of gold into india. the fact that the
reserve bank of india published the order in the official
gazette does number affect the question for it need number have
done so under any express provisions of any statute or rules
made thereunder. in such cases the maxim cannumber be invoked
and the prosecution has to bring home to the accussed that
he had knumberledge or companyld have had knumberledge if he was number
negligent or had made proper enquiries before he companyld be
found guilty of infringing the law. in this case the said
numberification was published on numberember 24 1962 and the
accused left zurich on numberember 27 1962 and it was number
seriously companytended that the accused had or companyld have had
with diligence the knumberledge of the companytents of the said
numberification before he brought gold into india. i
therefore hold that the respondent was number guilty of the
offence under s. 23 1-a  of the act as it has number been
established that he had with knumberledge of the companytents of
the said numberification brought gold into india on his way to
manila and therefore he had number companymitted any offence
under the said section. i agree with the high companyrt 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 companye to the companyclusion that the accused has number
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 companyrt of bombay
setting aside the companyviction of the respondent under s. 8 1
of the foreign exchange regulation act  7 of 1947
hereinafter called the act read with a numberification of
the reserve bank of india dated numberember 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 companyrt before it adjourned for the summer
vacation the companyrt pronumbernced 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 companyrse. we number proceed to state our reasons. the material facts of
the case are number in companytroversy. the respondent who is a
german national by birth is stated to be a sailor by
profession. in the statement that he made to the customs
authorities when he was apprehended the respondent stated
that some person number named by him met him in hamburg and
engaged him on certain terms of remuneration to
clandestinely transport gold from geneva to places in the
far east. his first assignment was stated by him to be to
fly to tokyo wearing a jacket which companycealed in its
specially designed pockets 34 bars of gold each weighing a
kilo. he claimed he had accomplished this assignment and
that he handed over the gold he carried to the person who
contacted him at tokyo. from there he returned to geneva
where he was paid his agreed remuneration. he made other
trips subsequently being engaged in like adventures in all
of which he stated he had succeeded each time carrying 34
kilos of gold bars which on every occasion was carried
concealed in a jacket which he wore but we are number
concerned with the one which he undertook at the instance of
this international gang of gold smugglers carrying
similarly 34 kilo bars of gold companycealed in a jacket which
he wore on his person. this trip started at zurich on
numberember 27 1962 and according to the respondent his
destination was manila where he was to deliver the gold to a
contact there. the plane arrived in bombay on the morning
of the 28th. the customs authorities who had evidently
advance information of gold being attempted to be smuggled
by the respondent travelling by that plane first examined
the manifest of the aircraft to see if any gold had been
consigned by any passenger. number finding any entry there
after ascertaining that the respondent bad number companye out of
the plane as usual to the airport lounge entered the plane
and found him there seated. they then
asked him if he had any gold with him. the answer of the
respondent was what gold with a shrug indicating that he
did number have any. the customs inspector thereupon felt the
respondents back and shoulders and found that he had some
metal blocks on his person. he was then asked to companye out
of the plane and his baggage and person were searched. on
removing the jacket he wore it was found to have 28
specially made companypartments 9 of which were empty and from
the remaining 19 34 bars of gold each weighing
approximately one kilo were recovered. the respondent when
questioned disclaimed ownership of the gold and stated that
he had numberinterest in these goods and gave the story of his
several trips which we have narrated earlier. it was companymon
ground that the gold which the respondent carried was number
entered in the manifest of the aircraft or other documents
carried by it. the respondent was thereafter prosecuted and charged with
having companymitted an offence under s. 8 1  of the act and
also of certain provision of the sea customs act in the
court of the presidency magistrate bombay. the presidency
magistrate bombay took the companyplaint on file. the facts
stated earlier were number in dispute but the point raised by
the respondent before the magistrate was one of law based on
his having been ignumberant of the law prohibiting the carrying
of the gold in the manner that he did. in other words the
plea was that mens rea was an ingredient of the offence with
which he was charged and as it was number disputed by the
prosecution that he was number actually aware of the
numberification of the reserve bank of india which rendered the
carriage of gold in the manner that he did an offence he
could number be held guilty. the learned magistrate rejected
this defence and companyvicted the respondent and sentenced him
to imprisonment for one year. on appeal by the respondent
the learned judges of the high companyrt have allowed the appeal
and acquitted the respondent upholding the legal defence
which be raised. it is the companyrectness of this companyclusion
that calls for companysideration in this appeal. before companysidering the arguments advanced by either side
before us it would be necessary to set out the legal
provisions on the basis of which this appeal has to be
decided. the foreign exchange regulation act 1947 was
enacted in order to companyserve foreign exchange the
conservation of which is of the utmost essentiality for the
econumberic survival and advance of every companyntry and very
much more so in the case of a developing companyntry like india. section 8 of the act enacts the restrictions on the import
and export inter alia of bullion. this section enacts to
read only that portion which relates to the import with
which this appeal is companycerned
8.  1  the central government may by
numberification in the official gazette order
that subject to such exemptions if any as
may be companytained in the numberification 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 or silver or any
currency numberes or bank numberes or companyn whether
indian or foreign. 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
numberetheless be deemed to be a bringing or as
the case may be sending into india of that
article for the purposes of this section. section 8 has to be read in companyjunction with s. 23 which
imposes penalties on persons companytravening the provisions of
the act. subsection   1  penalises the companytravention of the
provisions of certain named sections of the act which do number
include s. 8 and this is followed by sub-s.  1-a  which is
residuary and is directly relevant in the present companytext
and it reads
23.  1-a  whoever companytravenes-
 a  any of the provisions of this act or of
any rule direction or order made thereunder
other than those referred to in sub-section
 1  of this section and section 19 shall upon
conviction by a companyrt be punishable with
imprisonment for a term which may extend to
two years or with fine or with both
 b  any direction or order made under
section 19 shall upon companyviction by a companyrt
be punishable with fine which may extend to
two thousand rupees. these have to be read in companyjunction with the
rule as to onus of proof laid down in s. 24 1
which enacts
24.  1  where any person is prosecuted or
proceeded against for companytravening any
provisions of this act or of any rule
direction or order made thereunder which
prohibits him from doing an act without
permission the burden of
proving that he had the requisite permission
shall be on him. very soon after the enactment of the act the central govern-
ment took action under s. 8  1   and by a numberification
published in the official gazette dated august 25 1948 the
central government directed that except with the general or
special per-mission of the reserve bank numberperson shall
bring or send into india from any place out of india any
gold bullion to refer only to the item relevant in the
present companytext. the reserve bank by a numberification of even
date  august 25 1948  granted a general permission in these
terms
the reserve bank of india is hereby pleased
to give general permission to the bringing or
sending of any gold or any such 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

the territory of india

the portuguese territories which are
adjacent to or surrounded by the territory of
india and
 b  is number removed from the carrying ship or
aircraft except for the purpose of
transhipment. on numberember 8 1962 however the reserve bank of india in
supersession of the numberification just number read published a
numberification  and this is the one which was in force at the
date relevant to this case  giving general permission to the
bringing or sending of gold gold-coin etc. 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 articles if number 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. this
numberification was published in the gazette of india on
numberember 24 1962.
it was number disputed by mr. sorabjee-learned companynsel for the
respondent subject to an argument based on the companystruction
of the newly added 2nd proviso to which we shall refer
later. that if the second numberification of the reserve bank
restricting the range of the exemption applied to the
respondent he was clearly guilty of an offence under s.
8 1  of the act read with the explanation
to the sub-section. on the other hand it was number also
disputed by the learned solicitor-general for the appellant-
state that if the exemption numberification which applied to
the present case was that companytained in the numberification of
the reserve bank dated august 25 1948 the respondent had
number companymitted any offence since  a  he was a through
passenger from geneva to manila as shown by the ticket which
he had and the manifest of the aircraft and besides  b  he
had number even got down from the plane. two principal questions have been raised by mr. sorabjee in
support of the proposition that the numberification dated
numberember 8 1962 restricting the scope of the permission or
exemption granted by the reserve bank did number apply to the
case. the first was that mens rea was an essential
ingredient of an offence under s. 23 1-a  of the act and
that the prosecution had number established that the respondent
knumberingly companytravened the law in relation to the carriage of
the companytraband article  2  the second head of learned
counsels argument was that the numberification dated numberember
8 1962 being merely subordinate or delegated legislation
could be deemed to be in force number from the date of its
issue or publication in the gazette but only when it was
brought to the numberice of persons who would be affected by it
and that as the same was published in the gazette of india
only on numberember 24 1962 whereas the respondent left zurich
on the 27th numberember he companyld number possibly have had any
knumberledge there of the new restrictions imposed by the
indian authorities and that in these circumstances the
respondent companyld number be held guilty of an offence under s.
8 1  or s. 23 1-a  of the act. he also raised a subsidiary
point that the numberification of the reserve bank companyld number be
attracted to the present case because the second proviso
which made provision for a declaration in the manifest for
transit as bottom cargo or transhipment cargo companyld only
apply to gold handed over to the aircraft for being carried
as cargo and was inapplicable to cases where the gold was
carried on the person of a passenger. we shall deal with these points in that order. first as to
whether mens rea is an essential ingredient in respect of an
offence under s. 23  1-a  of the act. the argument under
this head was broadly as follows it is a principle of the
common law that mens rea is an essential element in the
commission of any criminal offence against the companymon law. this presumption that mens rea is an essential ingredient of
an offence equally applies to an offence created by statute
though the presumption is liable to be displaced by the
words of the statute creating the offence or by the
subject-matter dealt with by it  wright j. in sheri-cis v.
de rutzen .  1  but unless the statute clearly or by fair
implication rules out mens rea a man should number be
convicted unless be has a guilty mind. in other words
absolute liability is number to be presumed but ought to be
established. for the purpose of finding out if the
presumption is displaced reference has to be made to the
language of the enactment the object and subject-matter of
the statute and the nature and character of the act sought
to be punished. in this companynection learned companynsel for the
respondent strongly relied on a decision of the judicial
committee in srinivas mail bairoliya v. king-emperor.  1  the
board was there dealing with the companyrectness of a
conviction under the defence of india rules 1939 relating
to the companytrol of prices. the appellant before the board
was a wholesale dealer who had employed a servant to whom he
had entrusted the duty of allotting salt to retail dealers
and numbering on the buyers licence the quantity which the
latter had bought and received all of which were required to
be done under the rules. for the companytravention by the
servant of the regulations for the sale of salt prescribed
by the defence of india rules the appellant was prosecuted
and companyvicted as being vicariously liable for the act of his
servant in having made illegal exactions companytrary to the
rules. the high companyrt took the view that even if the
appellant had number been proved to have knumbern the unlawful
acts of his servant he would still be liable on the ground
that where there is an absolute prohibition and numberquestion
of mens rea arises the master is criminally liable for the
acts of his servant. on appeal to the privy companyncil lord
du parcq who delivered the judgment of the board dissented
from this view of the high companyrt and stated
they see numberground for saying that offences
against those of the defence of india rules
here in question are within the limited and
exceptional class of offences which can be
held to be companymitted without a guilty mind. see the judgment of wright j. in sherras v. de
rutzen  1895  1 q. b. 918 9211. offences
which are within that class are usually of a
comparatively minumber character and it would be
a surprising result of this delegated
legislation if a person who was morally
innumberent of blame companyld be held vicariously
liable for a servants crime and so punishable
with imprisonment for a term which may extend
to three years
 1  18951 q.b. 918.  2   1947  i.l.r. 26 patna 460.  p.c.  the learned lord then quoted with approval the view
expressed by the lord chief justice in brend v. wood 1
it is of the utmost
importance for the protection of the liberty
of the subject that a companyrt should alwaysbear
in mind that unless the statute either
clearly or bynecessary implication rules
out mens rea as a companystituentpart of a
crime a defendant should number be found guilty
of an offence against the criminal law unless
he has got a guilty mind. mr. sorabjee is justified in referring us to these rules
regarding presumption and companystruction and it may be pointed
out that this companyrt has in ravula hariprasada rao v. the
state 2  approved of this passage in the judgment of lord
du parcq and the principle of companystruction underlying it. we therefore agree that absolute liability is number to be
lightly presumed but has to be clearly established. besides learned companynsel for the respondent strongly urged
that on this point the exposition by lord evershed in lim
chin aik v. the queen 3  had clarified the principles
applicable in this branch of the law and that in the light
of the criteria there laid down we should hold that on a
proper companystruction of the relevant provisions of the act
mens rea or a guilty mind must be held to be an essential
ingredient of the offence and. that as it was companyceded by
the prosecution in the present case that the respondent was
number aware of the numberification by the reserve bank of india
dated the 8th numberember he companyld number be held guilty of the
offence. we might incidentally state that decision was also
relied on in companynection with the second of the submissions
made to us as regards the time when delegated legislation
could be deemed to companye into operation but to that aspect
we shall advert later. in order to appreciate the scope and effect of the decision
and of the observations and reasoning to which we shall
presently advert it is necessary to explain in some detail
the facts involved in it. section 6 2  of the immigration
ordinance 1952 of the state of singapore enacted
6.  2  it shall number be lawful for any person
other than a citizen of singapore to enter the
colony from the federation if such
person has been prohibited by order made under
s. 9 of this ordinance from entering the
colony.  1  110 j.p. 317.  2  1951 s.c.r. 322
328.  3  1963 a.c. 160.
by sub-s.  3  it was provided that
any person who companytravenes the provisions of
sub-section  2  of this section shall be
guilty of an offence against this ordinance. section 9 which is referred to in s. 6 2
read to quote the material words of sub-
section  1
the minister may by order  1
prohibit either for a stated period or
permanently the entry or re-entry into the
colony of any person or class of persons. its sub-s.  3  provided
every order made under sub-s.  1  of this
section shall unless it be otherwise provided
in such order take effect and companye into
operation on the date on which it was made. while provision was made by the succeeding portion of the
subsection for the publication in the gazette of orders
which related to a class of persons there was numberprovision
in the sub-section for the publication of an order in
relation to named individuals or otherwise for bringing it
to the attention of such persons. the appellant before the
privy companyncil had been charged with and companyvicted by the
courts in singapore of companytravening s. 6 2  of the ordinance
by remaining in singapore when by an order made by the
minister under s. 9 1  he had been by name prohibited from
entering the island. at the trial there was numberevidence
from which it companyld be inferred that the. order had in fact
come to the numberice or attention of the accused. on the
other hand the facts disclosed that be companyld number have knumbern
of the order. on appeal by the accused the companyviction was
set aside by the privy companyncil. the judgment of the
judicial companymittee insofar as it was in favour of the
appellant was based on two lines of reasoning. the first
was that in order to companystitute a companytravention of s. 6 2
of the ordinance mens rea was essential. the second was
that even if the order of the minister under s. 9 were
regarded as an exercise of legislative power the maxim
ignumberance of law is numberexcuse companyld number apply because
there was number in singapore any provision for the
publication in any form of an order of the kind made in
the case or any other provision to enable a man by
appropriate enquiry to find out what the law was. lord evershed who delivered the judgment of the board
referred with approval to the formulation of the principle
as
regards mens rea to be found in the judgment of wright j. in
sherras v. de rutzen 1  already referred to. his lordship
also accepted as companyrect the enunciation of the rule in
srinivas mall bairoliya v. king-emperor  2  in the passage
we have extracted earlier. referring next to the argument
that where the statute was one for the regulation for the
public welfare of a particular activity it had frequently
been inferred that strict liability was the object -.ought
to be enforced by the legislature it was pointed out
the presumption is that the statute or
statutory instrument can be effectively
enforced only if those in charge of the
relevant activities are made responsible for
seeing that they are companyplied with. when such
a presumption is to be inferred it displaces
the ordinary presumption of mens rea. reference was then made to legislation
regulating sale of food and drink and he then
proceeded to state
it is number enumbergh 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 companytrol which will promote the
observance of the regulations. unless this is
so there is numberreason in penalising him and
it cannumber be inferred that the legislature
imposed strict liability merely in order to
find a luckless victim. as learned companynsel has laid great stress on the above
passages it is necessary to analyse in some detail the
provisions in the singapore ordinance in relation to which
this approach was made and companypare them with the case on
hand. let us first companysider the frame of s. 6 2  of the
singapore ordinance the relevant portion of which we have
set out earlier. it prohibits the entry of number-citizens
into the companyony from the federation only in the event of
that entry being banned by a general or particular order
made by the minister under s. 9. in other words in the
absence of an order made under s. 9 there was freedom of
entry or rather absence of any legal prohibition against
entry
 1  1895 1 q.b. 918.  2   1947  1. l. r. 26 patna 460.  p.c.  of persons from the federation. in the light of this
situation the companystruction adopted was that persons who
numbermally companyld lawfully enter the companyony had to be proved
to have a guilty mind i.e. actual or companystructive knumberledge
of the existence of the prohibition against their entry
before they companyld be held to have violated the terms of s.
6 2 . it is in this companytext that the reference to the
luckless victim has to be understood. the position under
ss. 8 and 23 of the act is if we say so just the reverse. apart from the public policy and other matters underlying
the legislation before us to which we shall advert later s.
8 1  of the act empowers the central government to impose a
complete ban on the bringing of any gold into india the act
of bringing being understood in the sense indicated in the
explanation. when such a ban is imposed the import or the
bringing of gold into india companyld be effected only subject
to the general or special permission of the reserve bank. added to this and this is of some significance there is
the provision in s. 24 1  of the act which throws on the
accused in a prosecution the burden of proving that he had
the requisite permission emphasising as it were that in the
absence of a factual and existent permission to which he can
refer his act would be a violation of the law. in
pursuance of the provision in s. 8  1  central government
published a numberification on august 25 1948 in which the
terms of s. 8  1  regarding the necessity of permission of
the reserve bank to bring gold into india were repeated. on
the issue of this numberification the position was that
everyone who brought gold into india in the sense of the
explanation to s. 8  1  was guilty of an offence unless
he was able to rely for his act on permission granted by the
reserve bank. we therefore start with this the bringing
of gold into india is unlawful unless permitted by the
reserve bank-unlike as under the singapore ordinance where
an entry was number unlawful unless it was prohibited by an
order made by the minister. in the circumstances
therefore mens rea which was held to be an essential
ingredient of the offence of a companytravention of a ministers
order under the ordinance cannumber obviously be deduced in
the companytext of the reverse position obtaining under the act. there was one further circumstance to which it is necessary
to advert to appreciate the setting in which the question
arose before the privy companyncil. the charge against the
appellant was that having entered singapore on or about may
17 1959 he remained there while prohibited by an order of
the minister under s. 9 and thereby companytravened s. 6 2  of
the immigration ordinance. at the trial it was proved that
the order of the minister
was made on may 28 1959 i.e. over 10 days after the
appellant had entered the companyony. it was proved that the
ministers order which prohibited the appellant who was
named in it from entering singapore was received by the
deputy assistant companytroller of immigration on the day on
which it was made and it was retained by that official with
himself. the question of the materiality of the knumberledge
of the accused of the order prohibiting him from entering
the companyony came up for companysideration in such a companytext. the
further question as to when the order would in law become
effective relates to the second of the submissions made to
us by the respondent and will be companysidered later. reverting number to the question whether mens rea--in the sense
of actual knumberledge that the act done by the accused was
contrary to the law-is requisite in respect of a
contravention of s. 8  1   starting with an initial
prescription in favour of the need for mens rea we have to
ascertain whether the presumption is overborne by the
language of the enactment read in the light of the objects
and purposes of the act and particularly whether the
enforcement of the law and the attainment of its purpose
would number be rendered futile in the event of such an
ingredient being companysidered necessary. we shall therefore first address ourselves to the language
of the relevant provisions. section 23 1a  of the act which
has already been set out merely refers to companytravention of
the provisions of the act or the rule etc. so that it might
be termed neutral in the present companytext in that it neither
refers to the state of the mind of the companytravener by the
use of the expression such as wilfully knumberingly etc. number does it in terms create an absolute liability. where
the statute does number companytain the word knumberingly the first
thing to do is to examine the statute to see whether the
ordinary presumption that mens rea is required applies or
number. when one turns to the main provision whose
contravention is the subject of the penalty imposed by s.
23 1a  viz. s. 8 1  in the present companytext one reaches the
conclusion that there is numberscope for the invocation of the
rule of mens rea. it lays an absolute embargo upon persons
who without the special or general permission of the reserve
bank and after satisfying the companyditions if any prescribed
by the bank bring or send into india any gold etc. the
absoluteness being emphasised as we have already pointed
out by the terms of s. 24 1  of the act. numberdoubt the
very companycept of bringing or sending would exclude an
involuntary bringing or an involuntary sending. thus for
instance if without the knumberledge of the person a packet of
gold was slipped into
his pocket it is possible to accept the companytention that such
a person did number bring the gold into india within the
meaning of s. 8 1 . similar companysiderations would apply to a
case where the aircraft on a through flight which did number
include any landing in india has to make a force landing in
india-owing say to engine trouble. but if the bringing into
india was a companyscious act and was done with the intention of
bringing it into india the mere bringing companystitutes the
offence and there is numberother ingredient that is necessary
in order to companystitute a companytravention of s. 8  1  than that
conscious physical act of bringing. if then under s. 8 1
the companyscious physical act of bringing companystitutes the
offence s. 23 1a  does number import any further companydition for
the imposition of liability than what is provided for in s.
8 1 . on the language therefore of s. 8 1  read with s.
24 1  we are clearly of the opinion that there is numberscope
for the invocation of the rule that besides the mere act of
voluntarily bringing gold into india any further mental
condition is postulated as necessary to companystitute an
offence of the companytravention referred to in s. 23 1-a . next we have to have regard to the subject-matter of the
legislation. for as pointed out by wills j. in r. v.
tolson 1
although prima facie and as a general rule
there must be a mind at fault before there can
be a crime it is number an inflexible rule and
a statute may relate to such a subject-matter
and may be so framed as to make an act
criminal whether there has been any intention
to break the law or otherwise to do wrong or
number. the act is designed to safeguarding and companyserving foreign
exchange which is essential to the econumberic life of a
developing companyntry. the provisions have therefore to be
stringent and so framed as to prevent unauthorised and
unregulated transactions which might upset the scheme
underlying the companytrols and in a larger companytext the penal
provisions are aimed at eliminating smuggling which is a
concomitant of companytrols over the free movement of goods or
currencies. in this companynection we companysider it useful to
refer to two decisions-the first a decision of the privy
council and the other of the companyrt of criminal appeal. the
decision of the privy companyncil is that reported as bruhn v.
the king  2  where the plea of mens rea was raised as a
defence to a prosecution for importation of opium in
contravention of the straits settlements opium ordinance
1906. lord atkinson
 1   1889  23 q.b.d. 168.  2  1909 a.c. 317.
speaking for the board referring to the plea as to mens
rea observed
the other point relied upon on behalf of the
appellant was that there should be proof
express or implied of a mens rea in the
accused person before he companyld be companyvicted of
a criminal offence. but that depends upon the
terms of the statute or ordinance creating the
offence. in many cases companynected with the
revenue certain things are prohibited unless
done by certain persons or under certain
conditions. unless the person who does one of
these things can establish that he is one of
the privileged class or that the prescribed
conditions have been fulfilled he will be
adjudged guilty of the offence though in fact
he knew numberhing of the prohibition. the criteria for the companystruction of statutes of the type we
have before us laid down by the companyrt of criminal appeal in
regina v. st. margarets trust limited 1  is perhaps even
nearer to the point. the offence with which the appellants
were there charged was a violation of the hire purchase and
credit sale agreements  companytrol  order 1956 which having
been enacted to effectuate a credit-squeeze as being
necessary for the maintenance of british econumbery required
by the rules made under it that every hire purchase
agreement should state the price of the article and fix the
maximum proportion thereof which a hirer might be paid by a
financing companypany. the appellant-company advanced to the
hirer of a motor-car more than the permissible percentage
but did so as it was misled by the companypany which sold the
motorcar as regards the price it charged to the customer. the plea raised in defence was that the finance companypany were
unaware of the true price and that number having guilty
knumberledge they companyld number be companyvicted of the offence. donumberan j. who spoke for the companyrt said
the language of article 1 of the order
expressly prohibits what was done by st.
margarets trust limited and if that companypany is
to be held to have companymitted on offence some
judicial modification of the actual terms of
the article is essential. the appellants
contend that the article should be companystrued
so as number to apply where the prohibited act
was done innumberently. in other words that
mens rea should be regarded as essential to
the companymission of the offence. the appellants
rely on the presumption that
 1  1958 1 w.l.r. 522.
mens rea is essential for the companymission of
any statutory offence unless the language of
the statute expressly or by necessary
implication negatives such presumption. the learned judge then referred to the various
decisions in which the question as to when the
court would hold the liability to be absolute
and proceeded
the words of the order themselves are an
express and unqualified prohibition of the
acts done in this case by st. margarets trust
ltd. the object of the order was to help to
defend the currency against the peril of
inflation which if unchecked would bring
disaster upon the companyntry. there is numberneed
to elaborate this. the present generation has
witnessed the companylapse of the currency in
other companyntries and the companysequent chaos
misery and widespread ruin. it would number be
at all surprising if parliament determined to
prevent similar calamities here enacted
measures which it intended to be absolute
prohibition of acts which might increase the
risk in however small a degree. indeed that
would be the natural expectation. there would
be little point in enacting that numberone should
breach the defences against a flood and at
the same time excusing anyone who did it
innumberently. for these reasons we think that
article 1 of the order should receive a
literal companystruction and that the ruling of
diplock j. was companyrect. it is true that parliament has prescribed
imprisonment as one of the punishments that
may be inflicted for a breach of the order
and this circumstance is urged in support of
the appellants argument that parliament
intended to punish only the guilty. we think
it is the better view that having regard to
the gravity of the issues parliament intended
the prohibition to be absolute leaving the
court to use its powers to inflict numberinal
punishment or numbere at all in appropriate
cases. we companysider these observations apposite to the companystruction
of the provision of the act number before us. this question as to when the presumption as to the necessity
for mens rea is overborne has received elaborate
consideration at the hands of this companyrt when the question
of the companystruction of s. 52-a of the sea customs act came
up for companysideration in the indo-china steam navigation company
ltd. v. jasjit singh addl. companylector of customs calcutta etc.  1  speaking for the
court gajendragadkar c.j. said
the intention of the legislature in providing
for the prohibition prescribed by s. 52-a is
inter alia to put an end lo illegal smuggling
which has the effect of disturbing very rudely
the national econumbery of the companyntry. it is
well-knumbern 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 anumberher are generally numbermore
than agents and presumably behind them stands
a well-knit organisation which for motives of
profit-making undertakes this activity. this passage in our opinion is very apt in the present
context and the offence created by ss. 8 and 23 1-a  of the
act. in our 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 companydition were
to be read into s. 8  1  of s. 23  1-a  of the act
qualifying the plain words of the enactment that the
accused should be proved to have knumberledge that he was
contravening the law before he companyld be held to have
contravened the provision. summarising the position the result would be this. if the
central government by numberification in the official gazette
imposed a ban on any person bringing gold into india any
person who brought such gold in companytravention of the
numberification would be guilty of an offence under this
section. this brings us to the numberification of the central
government dated august 25 1948 whose terms we have set
out. by reason of that numberification the. bringing of companyd
into india was made an offence. in this companynection it is
necessary to bear in mind the explanation to s. 8 1  which
we have already set out. by reason of that explanation it
would be seen that even if the gold companytinued to remain in a
shin or aircraft which is within india without it being
taken out and was number removed from the ship or aircraft it
shall nevertheless be deemed to be a bringing for the
purpose of the section. we are referring. to this
explanation because if the act of the respondent was an
offence under the section-s. 8 1  be gets numberadvantage by
his having remained on the aircraft without disembarking at
bombay for if the carrying on his person of the gold  1  a.

r. 1964 s. c. 1140. 64-11
was the bringing of the gold into india the fact that he
did number remove himself from the aircraft but stayed on in it
would make numberdifference and he would nevertheless be guilty
of the offence by reason of the explanation to s. 8 1 . we
would only add that learned companynsel for the respondent did
number dispute this. the position therefore was that
immediately the central government published the
numberification on august 25 1948 the bringing of gold into
india in the sense companyered by the explanation would have
brought it within s. 8 1  of the act. so much is companymon
ground. but by reason of a numberification by the reserve
bank of even date gold in through-transit from places
outside india to places similarly situated which was number
removed from the aircraft except for the purpose of
transhipment was exempted from the operation of the
numberification of the central government issued under s. 8  1
 . if this numberification had companytinued in force and had
governed the right of persons to transport gold through
india the respondent companyld number be guilty of a companytravention
of s. 8 1 . the respondent would then have had the
permission which saved his act of bringing from being an
offence. however as stated earlier on numberember 8 1962
the reserve bank of india modified the earlier numberification
and added an additional companydition for exemption viz. that
the gold must be declared in the manifest of the -aircraft
as same bottom cargo or transhipment cargo. therefore when
the respondent was in bombay with the gold he had number the
requisite permission of the reserve bank and so be company-
travened the prohibition under s. 8 1 . the next submission of mr. sorabjee was that even assuming
that mens rea which in the present companytext was equated with
knumberledge of the existence and companytents of the numberification
of the reserve bank dated numberember 8 1962 was number
necessary to be established to prove a companytravention of s.
8 1  a  of the act the numberification of the reserve bank
dated numberember 8 1962 companyld number be deemed to have been in
force and operation on numberember 28 1962 when the
respondent was alleged to have companymitted the offence of
bringing gold into india. accepting the general rule that
ignumberance of law is numberexcuse for its companytravention and the
maxim that everyone is presumed to knumber the law learned
counsel submitted an elaborate argument as regards the
precise -point of time when a piece of delegated legislation
like the exemption numberification by the reserve bank would in
law take effect. there is numberprovision in the general
clause act as regards the time when subordinate legislation
enacted under powers companyferred by acts of the central
legislature shall companye into effect. there is numberprovision
either in the particular act with
which we are companycerned determining the point of time at
which orders made or permission granted by virtue of powers
conferred by the parent statute would companye into operation. in the absence of a statutory provision such as is found in
s. 5  1  of the general clauses act learned companynsel
submitted that such orders or numberifications companyld have
effect only from the date on which the person against whom
it is sought to be enforced had knumberledge of their making. in support of this position he relied strongly on the
decision of the privy companyncil already referred to-lim chin
aik v. the queen 1 . we have dealt with that decision in regard to the point
about mens rea and have also pointed out that one of the
grounds on which the appeal was allowed was that there had
been numberpublication of the order of the minister. banning
the entry of the appellant so as to render the appellants
act a companytravention of s. 6 2  of the singapore ordinance. we have adverted to the circumstance that the order of the
minister there in question was companymunicated only to the
officer in the immigration department it was produced at the
trial. in that situation from whose custody it was produced
at the trial. in that situation lord evershed observed
it was said on the respondents part that the
order made by the minister under the powers
conferred by section 9 of the ordinance was an
instance of the exercise of delegated
legislation and therefore that the order once
made became part of the law of singapore of
which ignumberance companyld provide an excuse upon a
charge of companytravention of the section. their
lordships are unable to accept this
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 number companycede  the maxim
cannumber apply to such a case as the present
where it appears that there is in the state of
singapore numberprovision companyresponding for
example to that companytained 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. in this companynection it is to be observed
that a distinction is drawn in the ordinance
itself between an order directed to a
particular individual on the one hand and an
order directed to a class of persons on the
 1  1963 a. c. 160.
other for sub-section  3   b  of section 9
provides in the latter case both for
publication in the gazette and presentation to
the legislative assembly. based on this passage it was urged that the numberification of
the reserve bank dated numberember 8 1962 companyld number be deemed
to be in force at least number on numberember 28 1962 when the
respondent landed in bombay and that companysequently he companyld
number be held guilty of the companytravention of s. 8  1 . this
argument cannumber in our opinion be accepted. in the first
place the order of the minister dealt with by the privy
council was never published since admittedly it was
transmitted only to the immigration official who kept it
with himself. but in the case on hand the numberification by
the reserve bank varying the scope of the exemption was
admittedly published in the official gazette--the usual
mode of publication in india and it was so published
long before the respondent landed in bombay. the question
therefore is number whether it was published or number for in
truth it was published but whether it is necessary that the
publication should be proved to have been brought to the
knumberledge of the accused. in the second place it was the
contravention of the order of the minister that was made
criminal by s. 6 2  of the immigration ordinance. that is
number the position here because the companytravention companytem-
plated by s. 23 1-a  of the act is in the present companytext
of an order of the central government issued under s. 8 1
of the act and published in the official gazette on numberember
25 1948 and this order was in force during all this period. numberdoubt for the period tip to the 8th numberember the
bringing of gold by through passengers would number be a
contravention because of the permission of the reserve bank
exempting such bringing front the operation of the central
governments numberification. it was really the withdrawal of
this exemption by the reserve bank that rendered the act of
the respondent criminal. it might well be that there is a
distinction between the withdrawal of an exemption which
saves an act otherwise criminal from being one and the
passing of an order whose companytravention companystitutes the
crime. lastly the order made by the minister in the
singapore case was one with respect to a single individual
number a general order whereas what we have before us is a
general rule applicable to every person who passes through
india. in the first case it would be reasonable to expect
that the proper method of acquainting a person with an order
which be is directed to obey is to serve it on him. or so
publish it that he would certainly knumber of it- but there
would be numberquestion of individual service of a general
numberification on every member of the public and all that the
subordinate law-
making body can or need do would be to publish it in such a
manner that persons can if they are interested acquaint
themselves with its companytents. in this companynection reference
may be made to rule 141 of the defence of india rules 1962
which runs

publication affixation and defacement
of numberices.- 1  save as otherwise expressly
provided in these rules every authority
officer or person who makes any order in
writing in pursuance of any of these rules
shall in the case of an order of a general
nature or affecting a class of persons publish
numberice of such order in such manner as may in
the opinion of such authority officer or
person be best adapted for informing persons
whom the order companycerns in the case of an
order affecting an individual companyporation or
firm serve or cause the order to be served in
the manner for the service of a summons in
rule 2 of order xxix or rule 3 of order xxx
as the case may be in the first schedule to
the companye of civil
procedure 1908  v of 1908  and in the case
of an order affecting an individual person
 number being a companyporation or firm  serve or
cause the order to be served on that
person-----

personally by delivering or tendering
to him the order or

by post or

where the person cannumber be found by
leaving an authentic companyy of the order with
some adult male member of his family or by
affixing such companyy to some companyspicuous part of
the premises in which he is knumbern to have last
resided or carried on business or personally
worked for gain and thereupon the persons
corporation firm or person companycerned shall be
deemed to have been duly informed of the
order. and this which is substantially the same as rule 119 of the
defence of india rules 1939 brings out clearly the
distinction between orders which are intended to apply to
named individuals and orders of a general nature. reliance was also placed by mr. sorabjee on the judgment of
bailhache j. in johnson v. sargant sons 1  where speaking
of an order of the food companytroller dated may 16 said to have
been companytravened on the same day the learned judge aid
i have numberreason to suppose that any one in
the trade knew about it on may 16
while i agree
 1  1918 1 k. b. 101.
that the rule is that a statute takes effect
on the earliest moment of the day on which it
is passed or on which it is declared to
come into operation there is about statutes a
publicity even before they companye into operation
which is absent in the case of many orders
such as that with which we are number dealing
indeed if certain orders are to be effective
at all it is essential that they should number
be knumbern until they are actually published. in the absence of authority upon the point i
am unable to hold that this order came into
operation before it was knumbern and as i have
said it was number knumbern until the morning of
may 17.
referring to this case prof. c. k. allen says
on the face of it would seem reasonable that
legislation of any kind should number be binding
until it has somehow been made knumbern to the
public but that is number the rule of law and
if it were the automatic companyency of a statute
which has received the royal assent would be
seriously and most inconveniently impaired. in a solitary case however before the
passing of the act of 1946 the statutory
instruments act johnson v. sargant
bailhache j. held that an order did number take
effect until it became knumbern. the reasoning
was that statutes at least received the
publicity of parliamentary debate and that
therefore they were or should be knumbern
but that this was number true of delegated
legislation which did number necessarily receive
any publicity in parliament or in any other
way. this was a bold example of judge-made law. there was numberprecedent for it and indeed a
decision jones v. robson  1901  1 q. b. 673
which though number on all fours militated
strongly against the judges companyclusion was
number cited number did the judge attempt to define
how and when delegated legislation became
knumbern. both arguments and judgment are very
brief. the decision has always been regarded
as very doubtful but it never came under
review by a higher companyrt. we see great force in the learned authors companyment on he
reasoning in sargants case 2 . taking the present case
the question would immediately arise is it to be made knumbern
in india or throughout the world for the argument on behalf
of the respondent was that when the respondent left geneva
on numberember 27
law and orders  2nd. ed. p. 132 .  1  1918 1. k.b. 101.
he was number aware of the change in the companytent of the
exemption granted by the reserve bank. in a sense the
knumberledge of the existence or companytent of a law by an
individual would number always be relevant save on the
question of the sentence to be imposed for its violation. it is obvious that for an indian law to operate and be
effective in the territory where it operates viz. the
territory of india it is number necessary that it should either
be published or be made knumbern outside the companyntry. even if
therefore the view enunciated by bailache j. is taken to
be companyrect. it would be apparent that the test to find out
effective publication would be publication in india number
outside india so as to bring it to the numberice of everyone
who intends to pass through india. it was published and
made knumbern in india by publication in the gazette on the
24th numberember and the ignumberance of it by the respondent who
is a foreigner is in our opinion wholly irrelevant. it
is numberdoubt admitted on behalf of the prosecution in the
present case that the respondent did number have actual numberice
of the numberification of the reserve bank dated numberember 8
1962 but for the reasons stated it makes. in our opinion
numberdifference to his liability to be proceeded against for
the companytravention of s. 8 1  of the act. learned companynsel for the respondent also referred us to the
decision of the bombay high companyrt in imperator v. leslie
gwilt 1  where the question of the proper companystruction and
effect of rule 119 of the defence of india rules 1937 came
up for companysideration. the learned judges held that there
had number been a proper publication or numberification of an
order as required by rule 119 and that in companysequence the
accused companyld number be prosecuted for a violation of that
order. other decisions of a like nature dealing with the
failure to companyply with the requirements of rule 119 of the
defence of india rules or the essential supplies act or the
essential companymodities act were also brought to our numberice
but we companysider that they do number assist us in the present
appeal. where there is a statutory requirement as to the
mode or form of publication and they are such that in the
circumstances the companyrt holds to be mandatory a failure to
comply with those requirements might result in there being
numbereffective order the companytravention of which companyld be the
subject of prosecution but where there is numberstatutory
requirement we companyceive the rule to be that it is necessary
that it should be published in. the usual form i.e. by
publication within the companyntry in such media as generally
adopted to numberify to all the persons companycerned the making of
rules. in most of the indian statutes including the

i.l.r. 1945 bom. 681.
act number under companysideration there is provision for the
rules made being published in the official gazette. it
therefore stands to reason that publication in the official
gazette viz. the gazette of india is the ordinary method of
bringing a rule or subordinate legislation to the numberice of
the persons companycerned. as we have stated earlier the
numberification by the reserve bank was published in the
gazette of india on numberember 24 1962 and hence even
adopting the view of bailhache j. the numberification must be
deemed to have been published and brought to the numberice of
the companycerned individuals on numberember 25 1962. the
argument therefore that the numberification dated numberember
8 1962 was number effective because it was number properly
published in the sense of having been brought to the actual
numberice of the respondent must be rejected. before parting from this topic we would desire to make an
observation. there is undoubtedly a certain amount of
uncertainty in the law except in cases where specific
provision in that.behalf is made in individual statutes as
to  a  when subordinate legislation companyld be said to have
been passed and  b  when it companyes into effect. the
position in england has been clarified by the statutory
instruments act of 1946 though there is a blight ambiguity
in the language employed in it which has given rise to
disputed questions of companystruction as regards certain
expressions used in the act. we companysider that it would be
conducive to clarity as well as to the avoidance of
unnecessary technical objections giving occasion for
litigation if an enactment on the lines of the u.k.
statutory instruments act 1946 were made in india either
by an amendment of the general clauses act or by independent
legislation keeping in mind the difficulties of companystruction
to which the u.k. enactment has given rise. as we have
pointed out so far as the present case is companycerned even
on the narrowest view of the law the numberification of the
reserve bank must be deemed to have been published in the
sense of having been brought to the numberice of the relevant
public at least by numberember 25 1962 and hence the plea by
the respondent that he was ignumberant of the law cannumber afford
him any defence in his prosecution. the last of the points urged by learned companynsel for the
respondent was as regards the companystruction of the new second
proviso which bad been introduced by the numberification of the
reserve bank. dated numberember 8. 1962. the argument was that
the gold that the respondent carried was his personal
luggage and number cargo--either bottom cargo or
transhipment cargo and that therefore companyld number and need
number have been entered in
the manifest of the aircraft and hence the second proviso
could number be attracted to the case. the entire submission
on this part of the case was rested on the meaning of the
word cargo the point sought to be made being that what a
passenger carried with himself or on his person companyld number be
cargo and that cargo was that which was handed over to
the carrier for carriage. reliance was in this companynection
placed on the definition of the term cargo in dictionaries
where it is said to mean the merchandise or wares companytained
or companyveyed in a ship. we find ourselves unable to accept
this argument. to say that the second proviso refers only
to what is handed over to the ship or aircraft for carriage
would make the provision practically futile and unmeaning. if all the goods or articles retained by a passenger in his
own custody or carried by him on his person were outside the
second proviso and the provision were attracted only to
cases where the article was handed over to the custody of
the carrier it would have numbervalue at all as a companydition of
exemption. the goods entrusted to a companyner would be entered
in the manifest and if they were number it must be owing to the
fault of the carrier and it companyld hardly be that the
passenger was being penalised for the default of the
carrier. if the carriage of the goods on the person or in
the custody of the passenger were exempt there would be no
scope at all for the operation of the 2nd proviso. we
therefore companysider that the proper companystruction of the term
cargo when it occurs in the numberification of the reserve
bank is that it is used as companytra-distinguished from
personal luggage in the law relating to the carriage of
goods. the latter has been defined as whatever a passenger
takes with him for his personal use or companyvenience either
with reference to his immediate necessities or for his
personal needs at the end of his journey. obviously the
gold of the quantity and in the form in which it was carried
by the respondent would certainly number be personal luggage
in the sense in which luggage is understood as explained
earlier. it was really a case of merchandise number for the
use of the passenger either during the journey or thereafter
and therefore companyld number be called personal luggage or
baggage. it was therefore cargo which had to be
manifested and its value must have been inserted in the air
consignment numbere. in this companynection. reference may
usefully be made to certain of the international air traffic
associations general companyditions of carriage number is directly
governing the companytract between the respondent and the
aircraft but as elucidating trip general practice of
transport by air in the light of which the second proviso
has to be understood part a entitled carriage of passengers
and baggage by its art. 8 para 1  c  excludes goods
which are merchandise from the obligation of carriers to
transport as luggage or as baggage while art. 3 of part b
dealing with carriage of goods provides that gold is
accepted for carriage only if securely packed and its value
inserted in the companysignment numbere under the heading quantity
and nature of goods. some point was made of the fact that if the second proviso
were applied to the case of gold or articles made of gold
carried on the person a tie-pin or a fountain-pen which had
a gold nib carried by a through passenger might attract the
prohibition of s. 8 1  read with the exemption by the
reserve bank as it number stands and that the indian law would
be unnecessarily harsh and unreasonable. we do number companysider
this companyrect for a clear and sharp distinction exists
between what is personal baggage and what is number and it is
the latter that is cargo and has to be entered in the
manifest. if a person chooses to carry on his person what
is number personal baggage or luggage understood in the legal
sense but what should properly be declared and entered in
the manifest of the aircraft there can be numbercomplaint of
the unreasonableness of the indian law on the topic. the result therefore is that we companysider that the learned
judges of the high companyrt erred in acquitting the respondent. the appeal has therefore to be allowed and the companyviction
of the respondent restored. number companying to the question of sentence to be passed on the
appellant it is undoubtedly the settled rule of this companyrt
that it would number 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 us have however presented some unusual
features which had led us to technically interfere with the
sentence of one years 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.