24 August 1964
Supreme Court


Case number: Appeal (crl.) 218 of 1963






DATE OF JUDGMENT: 24/08/1964


CITATION:  1965 AIR  722            1965 SCR  (1) 123  CITATOR INFO :  R          1966 SC  43  (4)  R          1966 SC 128  (14)  F          1971 SC 866  (13)  F          1986 SC 702  (10)

ACT: Foreign Exchange Regulation Act (7 of 1947), ss. 8(1)  23(1- A)  and  24(1)--Mens  rea-When  a  necessary  ingredient  of offence-Publication     of     notification-Knowledge     of notification-When  can  be  imputed-"Cargo"  and   "personal Luggage", meaning of.

HEADNOTE: The  respondent, a German smuggler, left Zurich by plane  on 27th  November 1962 with 34 kilos of gold concealed  on  his person  to  be delivered in Manila.  The  plane  arrived  in Bombay  on the 28th but the respondent did not come  out  of the plane.  The Customs Authorities examined the manifest of the  aircraft  to  see  if any gold  was  consigned  by  any passenger, and not finding any entry they entered the plane, searched the respondent, recovered the gold and charged  him with  an offence under ss. 8(1) and 23(1-A) of  the  Foreign Exchange Regulation Act (7 of 1947) read with a notification dated  8th November 1962 of the Reserve Bank of India  which was published in the Gazette of India on 24th November.  The respondent was convicted by the Magistrate, but acquitted by the High Court on appeal.  In the appeal by the State to the Supreme Court, the respondent sought to support the judgment of  the High Court by contending that : (i) Mens rea was  an essential  ingredient of the offence charged and as  it  was not disputed by the prosecution that the respondent was  not I  aware of the notification of the Reserve Bank,  he  could not  be  found guilty,  (ii) the notification  being  merely subordinate  or delegated legislation could be deemed to  be in force only when it was brought to the notice of  persons! affected  by  it  and  (iii)  the  second  proviso  in   the notification  requiring disclosure in the manifest  was  not applicable to gold carried on the person of a passenger. HELD  : (per RAJAGOPALA AYYANGAR and MUDHOLKAR JJ.)  (i)  On the language of s. 8(1) read with s. 24(1) of the Act, which throws on the accused the burden of proving that he had  the



requisite permission to bring gold into India, there was  no scope  for the invocation of the rule that besides the  mere act  of  voluntarily bringing gold into  India  any  further mental  condition or mens rea is postulated as necessary  to constitute  an offence referred to in s. 23(1-A).   Further, the very object and purpose of the Act and its effectiveness as  an instrument for the prevention of smuggling  would  be entirely frustrated if a condition were to be read into  the sections qualifying the plains words of the enactment,  that the  accused should be proved to have knowledge that he  was contravening  the  law  before  he could  be  held  to  have contravened the provision. [145G; 147G; 154C-D; 157D-E]. Case law reviewed. The  Indo-China Steam Navigation Co. Ltd. v.  Jasjit  Singh, Addl.   Collector  of Customs, Calcutta  (A.I.R.  1964  S.C. 1140) followed.  (ii)     The notification was "published" and made known in India  by publication in the and the ignorance of it by  the respondent  who  is a  foreigner was wholly  irrelevant  and made no difference to his liability. [163B-D]. 124 In the absence of any statutory requirement the rule is that subordinate or delegated legislation should be published  in the  usual form, that is, by publication within the  country by  such  media as are generally adopted to  notify  to  all persons concerned and publication in the Official Gazette is the  ordinary method of bringing a notification or  rule  to the notice of persons concerned. [164A-B]. Lim Chin Aik v. The Queen [1963] A.C. 160, Distinguished. Johnson v. Sargant & Sons [1918] 1 K.B. 101 and Imperator v. Leslie Gwilt I.L.R. [1945] Bom. 681, referred to. An enactment on the lines of the U.K. Statutory  Instruments Act,  1946 or suitable amendment of General Clauses Act  (10 of  1897) to clarify when subordinate legislation  could  be said  to  have been passed and when it  comes  into  effect, suggested. [164E-F]. (iii)     The  term "cargo" in the notification is  used  in contradistinction  to 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 convenience   either   with  reference  to   his   immediate necessities  or  for his personal needs at the  end  of  the journey.  Gold of the quantity and in the form and manner in which  it was carried by the respondent would certainly  not be "personal luggage." [165E-G]. Per  SUBBA PAO J. (dissenting) : (i) The  respondent  should not be held guilty of contravening the provisions of s. 8 of the  Act  read with the notification issued by  the  Reserve Bank,  as  it was not proved he had knowingly  brought  gold into   India   in  contravention  of  the   terms   of   the notification. [141C-D]. There  is  a  presumption  that mens  rea  is  an  essential ingredient of a statutory offence; but this may be  rebutted by the express words of a statute creating the offence or by necessary implication.  But the mere fact that the object of a  statute is to promote welfare activities or to  eradicate grave social evils is in itself not decisive of the question whether  the  element of guilty mind is  excluded  from  the ingredients   of   the  offence.  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 there of. [139D-G]. Case law reviewed. Lin Chin Aik v. The Queen [1963] A.C. 160, relied upon. (ii) The respondent was not guilty of the offence as it  had not  been established that he had knowledge of the  contents of the notification. [142F]. There  is no provision providing for the publication of  the notification  made  by the Reserve Bank  of  India  imposing conditions  on  the bringing of gold into India.   The  fact that  it  was  published in the Official  Gazette  does  not affect the question.  In such cases the maxim that ignorance of  law  is  not  an  excuse  cannot  be  invoked  and   the prosecution  has  to bring home to the accused that  he  had knowledge  or  could  have  had  knowledge  if  he  was  not negligent or had made proper enquiries. [142C-E]. Lin Chin Aik v. The Queen [1963] A.C. 160, relied upon. (iii)The permission given in the notification could be taken advantage  of  only by a person passing through India  to  a foreign country if he dec- 125 ared the gold in his possession in the manifest for  transit as "bottom or "transhipment cargo". [131A-B].

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 218 of 1963. Appeal  by special leave from the judgment and  order  dated December  10,  1961, of the Bombay High  Court  in  Criminal Appeal No. 653 of 1963. H.   N.  Sanyal, Solicitor-Gen‘eral, 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 conferred on them under S. 8 of  the Foreign  Exchange Regulation Act, (7 of 1.947),  hereinafter called  the  Act, against  persons  transporting  prohibited articles through India. In  exercise of the powers conferred under S. 8 of  the  Act the,  Government  of  India  issued on  August  25,  1948  a notification  that  gold and gold  articles,  among  others, should  not  be brought into India or sent to  India  except with  the general or special permission of the Reserve  Bank of India.  On the same date the Reserve Bank of India issued a  notification giving a general permission for bringing  or sending any such gold provided it was on through transit  to a  place outside India.  On November 24, 1962,  the  Reserve Bank  of  India Published a notification dated  November  8, 1962  in  supersession of its earlier  notification  placing further restrictions on the transit of such gold to a  place outside the territory of India, one of them being that  such gold should be declared in the "Manifest" for transit in the "same bottom cargo" or "transhipment cargo".  The respondent left Zurich by a Swiss air plane on November 27, 1962, which touched  Santa Cruz Air Port at 6.05 a.m. on the  next  day. The Customs Officers, on the basis of previous  information, searched  for  the respondent and found him sitting  in  the



plane.   On a search of the person of the respondent it  was found that he bad out on a jacket containing 28 compartments and in 19 of them 64 -9 126 he was carrying gold slabs weighing approximately 34  kilos. I  was also found that the respondent was a passenger  bound for  Manila.   The other facts are not  necessary  for  this appeal.    TV,  November  24,  1962  there  was  a   general permission for a person to bring or send gold into India, if it was on through transit to place outside the territory  of India;  but from the date it could not be so done except  on the  condition  that it was declared in the  "Manifest"  for transit  as  "same bottom cargo" or-  "transhipment  cargo". When  the  respondent boarded the Swiss plane at  Zurich  on November  27, 1962, he could not have had knowledge  of  the fact that the said condition had been imposed on the general permission  given by the earlier notification.  The old  was carried  on  the person of the respondent and  he  was  only sitting  in  the  plane  after it  touched  the  Santa  Crus Airport.   The respondent was prosecuted for importing  gold into India under s. 8 (1) of the Act, read with s. 23  (1-A) thereof,  and under s. 167 (8) (1) of the Sea  Customs  Act. The  learned Presidency Magistrate found the accused  guilty on the two count and sentenced him to rigorous  imprisonment for one year.  Or appeal the High Court of Bombay held  that the  second proviso to the relevant notification  issued  by the  Central Government did not apply to a  person  carrying gold with him on his body, that even if it applied, mens rea being a necessary ingredient of the offence, the respondent, who  brought gold into India for transit to Manila, did  not know  that  during the crucial period such a  condition  had been imposed and, therefore, he did no, commit any  offence. On  those  findings,  it held that the  respondent  was  not guilty  under any of the aforesaid sections.  In the  result the  conviction by the Presidency Magistrate was  set  aside This appeal has been preferred by special leave against  the said order of the High Court. Learned Solicitor-General, appearing for the State of  Maha- rashtra,  contends  that  the Act  was  enacted  to  prevent smuggling of gold in the interests of the economic stability of  the country and, therefore, in construing  the  relevant provisions of such an Act there is no scope for applying the presumption  of  common  law that mens rea  is  a  necessary ingredient  of the offence.  The object of the  statute  and the mandatory terms of the relevant provisions, the argument proceeds, rebut any such presumption and indicate that  mens rea  is  not  a necessary ingredient  of  the  offence.   He further  contends that on a reasonable construction  of  the second  proviso of the notification dated November  8,  1962 issued  by the Board of Revenue, it should be held that  the general  permission for bringing gold into India is  subject to the condition 127 laid down in the second proviso and that, as in the  present case  the  gold  was  not disclosed  in  the  Manifest,  the respondent contravened the terms thereof and was, therefore, liable  to be convicted under the aforesaid sections of  the Foreign  Exchange Act.  No argument was advanced  before  us under S. 168 (8) (1) of the Sea Customs Act and,  therefore, nothing need be said about that section. Learned  counsel  for the respondent sought to  sustain  the acquittal  of  his client practically on the  grounds  which found  favour  with  the High Court.  I  shall  consider  in detail  his  argument  at  the  appropriate  places  of  the



judgment. The first question turns upon the relevant provisions of the Act and the notifications issued thereunder.  At the  outset it  would  be convenient to read the relevant parts  of  the said provisions and the notifications, for the answer to the question raised depends upon them.               Section  8.(1) The Central Government may,  by               notification  in the Official  Gazette,  order               that  subject to such exemptions, if  any,  as               may  be  contained  in  the  notification,  no               person  shall,  except  with  the  general  or               special permission of the Reserve Bank and  on               payment  of the fee, if any prescribed,  bring               or send into India any gold............               Explanation.-The bringing or sending into  any               port or place in India of any such article  as               aforesaid  intended to be taken out  of  India               without   being  removed  from  the  ship   or               conveyance in which it is being carried  shall               nonetheless  be deemed to be bringing, or,  as               the  case may be, sending into India  of  that               article for the purpose of this section.               In exercise of the power conferred by the said               section  on  the Central  Government,  it  had               issued the following notification dated August               25, 1948 (as amended upto July 31, 1958):               "In  exercise of the powers conferred by  sub-               section  (1)  of  section  8  of  the  Foreign               Exchange  Regulation Act, 1947 (VII  of  1947)               and in supersession of the Notification of the               Government   of   India......   the    Central               Government  is pleased to direct that.  except               with the general or special permission of  the               Reserve  Bank  no person shall bring  or  send               into India from any place out of India:-               128               (a)   any gold coin, gold bullion, gold sheets               or gold ingot, whether refined or not;               The   Reserve   Bank   of   India   issued   a               notification  dated August 25, 1948  giving  a               general permission in the following term:               ".......the  Reserve  Bank of  India  is  here               pleased   to   give  general   permission   to               the  bringing or sending of any such  gold  or               silver  by sea or air into any port  in  India               provided  that  the gold or silver (a)  is  on               through  transit to a place which  is  outside               both  (i) the territory of India and (ii)  the               Portuguese  Territories which are adjacent  to               or  surrounded by the territory of  India  and               (b)  is not removed from the carrying ship  or               aircraft,   except   for   the   purpose    of               transhipment.               On  November 8, 1962, in supersession  of  the               said  notification the Reserve Bank  of  India               issued  the following notification  which  was               published in the Official Gazette on  November               24, 1962:               "......................  the Reserve  Bank  of               India gives general permission to the bringing               or  sending of any of the following  articles,               namely,               (a)   any gold coin, gold bullion, gold sheets               or gold ingot, whether refined or not,               into  any  port or place in  India  when  such



             article is on through transit to a place which               is  outside the territory of India.   Provided               that such article is not removed from the ship               or  conveyance  in which it is  being  carried               except for the purpose of transhipment;               Provided  further that it is declared  in  the               manifest  for transit as same bottom cargo  or               transhipment cargo." The  combined  effect of the terms of the  section  and  the notifications may be stated thus: No gold can be brought  in or sent to India though it is on through transit to a  place which  is outside India except with the general  or  special permission of the Reserve Bank of India.  Till November  24, 1962, under the general permission given by the Reserve Bank of  India such gold could be brought in or sent to India  if it was not removed from the ship or aircraft except for  the purpose  of  transhipment.   But  from  that  date   another condition was imposed thereon, namely, 129 that such gold shall be declared in the manifest for transit as same bottom cargo" or "transhipment cargo". Pausing  here,  it will be useful to notice the  meaning  of some  of the technical words used in the second  proviso  to the  notification.   The  object of  maintaining  a  transit manifest  for  cargo,  as explained by the  High  Court,  is twofold,  namely, "to keep a record of goods delivered  into the  custody of the carrier for safe carriage and to  enable the  Customs  authorities to check and verify  the  dutiable goods  which arrive by a particular flight".  "Cargo"  is  a shipload or the lading of a ship.  No statutory or  accepted definition  of the word "cargo" has been placed- before  us. While the appellant contends that all the goods carried in a ship or plane is cargo, the respondent’s counsel argues that nothing is cargo unless it is included in the manifest.  But what should be included and what need not be included in the manifest is not made clear.  It is said that the expressions "same bottom cargo" and "transit cargo" throw some light  on the meaning of the word "cargo".  Article 606 of the Chapter on "Shipping and Navigation" in Halsbury’s Laws of  England, 3rd edition, Vol. 35, at p. 426, brings out the  distinction between  the  two  types of cargo.  If the cargo  is  to  be carried to its destination by the same conveyance throughout the  voyage  or  journey it is  described  as  "same  bottom cargo".   On  the  other  hand,  if  the  cargo  is  to   be transhipped from one conveyance to another during the course of  transit,  it  is  called  "transhipment  cargo".    This distinction also does not throw any light on the meaning  of the  word "cargo".  If the expression "cargo" takes  in  all the goods carried in the plane, whether it is carried  under the personal care of the passenger or entrusted to the  care of  the officer in charge of the cargo, both the  categories of  cargo can squarely fall under the said two heads.   Does the word "manifest" throw any light?  Inspector Darine Bejan Bhappu  says  in  his evidence  that  manifest  for  transit discloses  only such goods as are unaccompanied baggage  but on  the same flight and that ,.accompanied baggage is  never manifested  as  Cargo  Minifest".  In  the  absence  of  any material or evidence to the contrary, this statement must be accepted as a correct representation of the actual  practice obtaining  in  such  matters.  But that  practice  does  not prevent the imposition of a statutory obligation to  include accompanied  baggage  also as an item in the manifest  if  a passenger seeks to take advantage of the general  permission given  thereunder.  I cannot see any inherent  impossibility implicit in the expression "cargo" compelling me to  exclude



an accompanied baggage from the said expression. 130 Now  let me look at the second proviso of  the  notification dated November 8, 1962.  Under S. 8 of the Act there is  ban against   bringing   or  sending  into  India   gold.    The notification  lifts the ban to some extent.  It says that  a person  can bring into any port or place in India gold  when the  same is on through transit to a place which is  outside the territory of India, provided that it is declared in  the manifest  for transit as "same bottom cargo or  transhipment cargo".   It is, therefore, not an absolute  permission  but one  conditioned by the said proviso.  If the permission  is sought  to be availed of, the condition should  be  complied with.   It  is  a condition precedent for  availing  of  the permission. Learned  counsel for the respondent contends that  the  said construction  of  the proviso would preclude a  person  from carrying  small  articles  of gold on  his  person  if  such article could not be declared in the manifest for transit as "same  bottom cargo" or "transhipment cargo" and that  could not  have  been the intention of the Board of  Revenue.   On that basis, the argument proceeds, the second proviso should be  made  to  apply only to such cargo  to  which  the  said proviso  applies  and the general permission to  bring  gold into India would apply to all other gold not covered by  the second proviso.  This argument, if accepted, would enable  a passenger to circumvent the proviso by carrying gold on  his body  by diverse methods.  The present case illustrates  how such  a  construction  can defeat the  purpose  of  the  Act itself.   I  cannot accept such a  construction  unless  the terms of the notification compel me to do so.  I do not  see any such compulsion.  The alternative construction for which the  appellant contends no doubt prevents a  passenger  from carrying  with  him  small articles of  gold.   The  learned Solicitor-General  relies  upon certain rules  permitting  a passenger  to bring into India on his person small  articles of gold, but ex facie those rules do not appear to apply  to a  person  passing through India to a foreign  country.   No doubt   to  have  international  goodwill  the   appropriate authority  may be well advised to give permission  for  such small  articles  of  gold or any  other  article  for  being carried  by  a person with him on his way through  India  to foreign countries.  But for one reason or other, the general permission in express terms says that gold shall be declared in  the manifest and I do not see, nor any provision of  law has  been  placed before us, why gold carried  on  a  person cannot  be declared in the manifest if that person seeks  to avail  himself of the permission.  Though I  appreciate  the inconvenience   and  irritation  that  will  be  caused   to passengers bona fide passing through our country to  foreign countries for 131 honest purposes, I cannot see my way to interpret the second proviso  in  such  a  way  as  to  defeat  its  purpose.  1, therefore,   hold  that  on  a  fair  construction  of   the notification  dated  November  8,  1962  that  the   general permission  can  be  taken advantage of  only  by  a  person passing  through India to a foreign country if  he  declares the  gold in his possession in the manifest for  transit  as "same bottom cargo" or "transhipment cargo". The  next  argument  is  that  mens  rea  is  an   essential ingredient  of the offence under s. 8 of the Act, read  with s.  23(1-A)(a) thereof.  Under s. 8 no person shall,  except with  the general or special permission of the Reserve  Bank of  India,  bring  or send to India  any  gold.   Under  the



notification  dated  November  8,  1962,  and  published  on November  24, 1962, as interpreted by me, such gold to  earn the  permission  shall  be declared in  the  manifest.   The section, read with the said notification, prohibits bringing or  sending to India gold intended to be taken out of  India unless it is declared in the manifest.  If any person brings into  or  sends to India any gold without declaring  it.  in such  manifest, he will be doing an act in contravention  of s.  8 of the Act read with the notification and,  therefore, he will be contravening the provisions of the Act.  Under s. 23 ( 1 -A) (a) of the Act he will be liable to punishment of imprisonment  which may extend to two years or with fine  or with  both.   The question is whether the intention  of  the Legislature  is  to punish persons who break  the  said  law without  a  guilty mind.  The doctrine of mens rea  in   the context  of statutory crimes has been the subject matter  of many  decisions  in England as well as in  our  country.   I shall  briefly  consider  some  of  the  important  standard textbooks  and decisions cited at the Bar to  ascertain  its exact scope. In  Russell on Crime, 11th edn.  Vol. 1, it is stated at  p. 64:..........  there is a presumption that in any  statutory crime  the  common  law  mental element,  mens  rea,  is  an essential ingredient." On  the question how to rebut this presumption, the  learned author  points  out  that  the  policy  of  the  courts   is unpredictable.   I shall notice some of the decisions  which appear  to  substantiate the author’s view.   In  Halsbury’s Laws of England, 3rd edn.  Vol. 10, in para, 508, at p. 273, the following passage appears:               "A  statutory crime may or may not contain  an               express  definition of the necessary state  of               mind.   A  statute  may  require  a   specific               intention,  malice, knowledge, wilfulness.  or               recklessness.   On the other hand, it  may  be               silent as to any requirement of mens rea,               132               and  in  such  a case in  order  to  determine               whether  or  not  mens  rea  is  an  essential               element  of  the offence, it is  necessary  to               look at the objects and terms of the statute."               This  passage also indicates that the  absence               of any specific mention of a state of mind  as               an  ingredient of an offence in a  statute  is               not decisive of the question whether mens  rea               is  an  ingredient of the offence or  not:  it               depends  upon the object and the terms of  the               statute.   So  too, Archbold in  his  book  on               "Criminal  Pleading, Evidence  and  Practice",               35th edn., says much to the same effect at  p.               24 thus:               "It has always been a principle of the  common               law  that mens rea is an essential element  in               the commission of any criminal offence against               the  common  law  In  the  case  of  statutory               offences  it  depends  on the  effect  of  the               statute...... There is a presumption that mens               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  not apply  where a licensed victualler bona fide  believed  that the police officer was off duty Wright J., observed               "There is a presumption that mens rea, an evil               intention,               or a knowledge of the wrongfulness of the act,               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 considered." This  sums  up  the  statement of  the  law  that  has  been practically  adopted in later decisions.  The Privy  Council in  Jacob Bruhn v. The King on the Prosecution of the  Opium Farmer(2)  construed S. 73 of the Straits Settlements  Opium Ordinance,  1906.  Section 73 of the said  Ordinance  stated that if any Ship was used for importation, landing, removal, carriage or conveyance of any (1)  [1895] 1 Q.B. 918, 921.   (2) I.L.R. [1990] A. C.  317, 324. 133 Opium  or  chandu  contrary to the provisions  of  the  said Ordinance  or of the rules made thereunder, the  master  and owner  thereof would be liable to a fine.  The section  also laid down the rule of evidence that if a particular quantity of  opium was found in the ship that was evidence  that  the ship  had been used for importation of opium, unless it  was proved   to  the  satisfaction  of  the  court  that   every reasonable  precaution had been taken to pi-event such  user of  such ship and that none of the officers, their  Servants or the crew or any persons employed on board the ship,  were implicated therein.  The said provisions are very clear; the offence  is defined, the relevant evidence is described  and the  burden  of proof is placed upon the  accused.   In  the context of that section the Judicial Committee observed:               "By this Ordinance every person other than the               opium  farmer is prohibited from importing  or               exporting  chandu.  If any other  person  does               so,  he prima facie commits a crime under  the               provisions   of  the  Ordinance.   If  it   be               provided  in  the Ordinance, as  it  is,  that               certain  facts,  if  established,  justify  or               excuse  what is prima facie a crime, then  the               burden of proving those facts obviously  rests               on   the  party  accused.   In   truth,   this               objection  is  but the  objection  in  another               form, that knowledge is a necessary element in               crime,   and  it  is  answered  by  the   same               reasoning." It  would  be seen from the aforesaid observations  that  in that case mens rea was not really excluded but the burden of proof to negative mens rea was placed upon the accused.   In Pearks’ Dairies Ltd. v. Tottenham Food Control  Committee(’) the  Court of Appeal considered the scope of  Regulations  3 and  6 of the Margarine (Maximum Prices) Order,  1917.   The appellant’s  assistant, in violation of their  instructions, but by an innocent mistake, sold margarine to a customer  at the  price  of 1 sh. per giving only 14 1/2 ozs.  by  weight instead  of  16  ozs.  The appellants  were  prosecuted  for selling  margarine  at a price exceeding the  maximum  price fixed  and  one of the contentions raised on behalf  of  the accused was that mens rea on the part of the appellants  was not  -in essential element of the offence.   Lord  Coleridge J.,  cited with  approval the following passage of  Channell



J., in Pearks, Gunston & Tee, Ltd. v. Ward(2) :               "But there are exceptions to this rule in  the               case of quasicriminal offences, as they may be               termed, hat is to               (1) [1919] 88 L.J. K.B. 623, 626.               (2) [1902] 71 L.J. K.B. 656.               134               say,  where certain acts are forbidden by  law               under   a  penalty,  possibly  even  under   a               personal penalty such as imprisonment, at  any               rate in default of payment of a fine; and  the               reason  for this is, that the Legislature  has               thought   it  so  important  to  prevent   the               particular  act from being committed  that  it               absolutely forbids it to be done; and if it is               done  the  offender  is liable  to  a  penalty               whether  he  had  any mens  rea  or  not,  and               whether or not be intended to commit a  breach               of  the  law.   Where  the  act  is  of   this               character  then the master, who, in fact,  has               done the forbidden thing through his  servant,               is  responsible  and is liable to  a  penalty.               There  is  no  reason why he  should  not  be,               because the very object of the Legislature was               to forbid the thing absolutely." This decision states the same principle in a different form. It  also places emphasis on the terms and the object of  the statute  in the context of the question whether mens rea  is excluded or not.  The decision in Rex v. Jacobs(1) arose out of  an  agreement to sell price-controlled goods  at  excess price.  The defence was that the accused was ignorant of the proper price.  The Court of Criminal Appeal held that in the summing up the direction given by the Judge to the jury that it was not necessary that the prosecution should prove  that the  appellants knew what the permitted price was  but  that they need only show in fact a sale at an excessive price had taken place, was correct in law.  This only illustrates that on  a construction of the particular statute, having  regard to  the object of the statute and its terms, the  Court  may hold  that  mens rea is not a necessary  ingredient  of  the offence.   In  Bread v. Wood(2) dealing  with  an  emergency legislation  relating  to  fuel  rationing,  Goddard   C.J., observed               "There  are statutes and regulations in  which               Parliament has seen fit to create offences and               make people responsible before criminal Courts               although there is an absence of mens rea,  but               it  is  certainly not the Court’s duty  to  be               acute   to  find  that  mens  rea  is  not   a               constituent  part  of a crime.  It is  of  the               utmost  importance for the protection  of  the               liberty  of  the subject that a  Court  should               always  bear in mind that, unless  a  statute,               either  clearly or by  necessary  implication,               rules out mens rea as a               (1) [1944] K. B. 417.                 (2) (1946) 2 T. L. R. 462, 463.               135               constituent part of a crime, the Court  should               not  find a man guilty of an  offence  against               the criminal law unless he has a guilty  mind.               " This  caution  administered by an  eminent  and  experienced judge  in  the  matter of construing  such  statutes  cannot easily  be ignored. The judicial Committee in Srinivas  Mall



Bairoliva  v.  King-Emperor(1) was dealing with  a  case  in which  one  of the appellants was charged  with  an  offence under the rules made by virtue of the Defence of India  Act, 1939,  of selling salt at prices exceeding those  prescribed under  the  rules, though the sales were  made  without  the appellant’s knowledge by one of his servants.  Lord du Parcq speaking  for  the  Board, approved the  view  expressed  by Goddard C. J., in Brend v. Wood(2) and observed:               "Their Lordships agree with the view which was               recently  expressed by the Lord Chief  Justice               of England, when he said: "It is in my opinion               the  utmost importance for the  protection  of               the liberty of the subject that a court should               always bear in mind that, unless the  statute,               either  clearly or by  necessary  implication,               rules out mens rea as a constituent part of  a               crime, a defendant should not be found  guilty               of an offence against the criminal law  unless               he has got a guilty mind." The  acceptance of the principle by the  Judicial  Committee that  mens rea is a constituent part of a crime  unless  the statute  clearly  or by necessary implication  excludes  the same,  and the application of the same to a welfare  measure is  an  indication  that the Court shall not  be  astute  in construing a statute to ignore mens rea on a slippery ground of a welfare measure unless the statute compels it to do so. Indeed,  in  that  case the Judicial  Committee  refused  to accept  the  argument  that  where  there  is  an   absolute prohibition,  no  question of mens rea  arises.   The  Privy Council  again in Lim Chin Aik v. The Queen3)  reviewed  the entire  law on the question in an illuminating judgment  and approached  the  question, if I may say so, from  a  correct perspective.  By s. 6 of the Immigration Ordinance, 1952, of the  State  of Singapore, "It shall not be  lawful  for  any person other than a citizen of Singapore to enter the colony from  the Federation or having entered the colony  from  the Federation  to remain in the colony if such person has  been prohibited by order made under (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. 136 s.   9 of this Ordinance from entering the colony" and s. 9, in  the  case of an order directed to a  single  individual, contained  no  provision  for publishing the  order  or  for otherwise bringing it to the attention of the person  named. The  Minister made an order prohibiting the  appellant  from entering  the  colony and forwarded it  to  the  Immigration Officer.  There was no, evidence that the order had in  fact come  to the notice or attention of the appellant.   He  was prosecuted for contravening s. 6(2) of the Ordinance.   Lord Evershed,   speaking   for   the   Board,   reaffirmed   the formulations  cited  from  the judgment of  Wright  J.,  and accepted  by  Lord  du Parcq in  Srinivas  Mull  Bairoliya’s case(1).  On a review of the case law on the subject and the principles  enunciated therein, the Judicial Committee  came to the following conclusion:               "But  it  is not enough  in  their  Lordships’               opinion  merely  to label the statute  as  one               dealing with a grave social evil and from that               to  infer that strict liability was  intended.               It  is  pertinent  also  to  inquire   whether               putting  the defendant under strict  liability               will   assist  in  the  enforcement   of   the               regulations.   That means that there  must  be



             something  he can do, directly or  indirectly,               by  supervision or inspection, by  improvement               of his business methods or by exhorting  those               whom  he  may  be  expected  to  influence  or               control, which will promote the observance               of the regulations.  Unless this is so,  there               is no reason in penalising him, and it  cannot               be  inferred  that  the  legislature   imposed               strict  liability  merely in order to  find  a               luckless victim."               The same idea was repeated thus:               "Where it can be shown that the imposition  of               strict   liability   would   result   in   the               prosecution  and  conviction  of  a  class  of               persons  whose  conduct could not in  any  way               affect  the  observance  of  the  law,   their               Lordships consider that even where the statute               is  dealing with a grave social  evil,  strict               liability is not likely to be intended."               Dealing with the facts of the case before  it,               the Privy Council proceeded to illustrate  the               principle thus:                "But  Mr.  Le Quesne was unable to  point  to               anything  that  the appellant  could  possibly               have done so as               (1)   (1947) I.L.R. 26 Pat. 460, 469 (P.C.).               137               to   ensure   that  he   complied   with   the               regulations.    It  was  not,   for   example,               suggested that it would be practicable for him               to  make continuous inquiry to see whether  an               order had been made against him.  Clearly  one               of  the  objects  of  the  Ordinance  is   the               expulsion    of   prohibited   persons    from               Singapore, but there is nothing that a man can               do  about  it, before the  commission  of  the               offence, there is no practical or sensible way               in  which  he can ascertain whether  he  is  a               prohibited person or not." On  that  reasoning  the Judicial Committee  held  that  the accused  was  not guilty of the offence with  which  he  was charged.  This decision adds a new dimension to the rule  of construction  of  a  statute  in the  context  of  mens  rea accepted  by earlier decisions.  While it accepts  the  rule that  for  the purpose. of ascertaining  whether  a  statute excludes mens rea or not, the object of the statute and  its wording  must be weighed, it lays down that mens rea  cannot be  excluded  unless the person or persons aimed at  by  the prohibition  are  in  a position to observe the  law  or  to promote  the observance of the law.  I shall revert to  this decision  at  a later stage in a  different  context.   This Court  in Ravula Hariprasada Rao v. The  State(1),  speaking through  Fazl Ali J., accepted the observations made by  the Lord  Chief  Justice of England in Brend v.  Wood(2)  .  The decision  of this Court in The Indo-China  Steam  Navigation Co. Ltd., v. Jasjit Singh. Additional Collector of  Customs, Calcutta  (3 ) is strongly relied upon by the  appellant  in support  of the contention that mens rea is out of place  in construing  statutes  similar to that  tinder  inquiry  now. There,  this Court was concerned with the interpretation  of S. 52-A of the Sea Customs Act, 1878.  The Indo-China  Steam Navigation  Co.  Ltd.,  which carries  on  the  business  of carriage  of  goods and passengers by sea, owns a  fleet  of ships,  and  has been carrying on its business for  over  80 years.  One of he routes plied by its ships in the Calcutta-



Japan-Calcutta route.  ’Me vessel "Eastern Saga" arrived  at Calcutta on October 29, 1957.  On a search it was found that a hole was covered with a piece of wood and overpainted  and when  the hole was opened a large quantity of gold  in  bars was  discovered.  After following the  prescribed  procedure the  Customs  authorities  made an  order  confiscating  the vessel in addition to imposing other penalties.  One of  the contentions  raised was that S. 52-A of the Sea Customs  Act the infringement whereof was the occasion for the con- (1) [1951] S.C.R. 322.   (3) A.I.R. 1964 S.C. 1140. (2) (1946) 62 T.L.R. 462. 138 fiscation   could  not  be  invoked  unless  mens  rea   was established  Under  that  section  no  vessel   constructed, adapted,  altered  of fitted for the purpose  of  concealing goods  shall enter, or by within, the limits of any port  in India,   or  the  Indian  custom  waters.   This  Court   in construing the scheme and object of the Sea Customs Act came to  the  conclusion  that  mens  rea  was  no  a   necessary ingredient  of the offence, as, if that was so, the  statute would become a dead-letter.  That decision was given on  the basis  of  the  clear  object  of  the  statute  and  on   a construction  of  the  provisions  of  that  statute   which implemented  the  said  object  It  does  not  help  us   in construing  the relevant provisions of the Foreign  Exchange Regulation Act. The Indian decisions also pursued the same line.  A division Bench  of the Bombay High Court in Emperor v.  Isak  Solomon Macmull(1)  in  the context of the  Motor  Spirit  Rationing Order  1941,  made under the Essential  Supplies  (Temporary Powers’  Act,  1946, held that a master is  not  vicariously liable, in the absence of mens rea, for an offence committed by  his  servant  for  selling  petrol  in  the  absence  of requisite coupons and at a rate in excess of the  controlled rate.   Chagla C.J., speaking for the Division Bench  (after considering  the  relevant  English  and  Indian  decisions, observed:               "It is not suggested that even in the class of               cases where the offence is not a minor offence               or  not  quasi-criminal that  the  Legislature               cannot  introduce the principle  of  vicarious               liability  and make the master liable for  the               acts of his servant although the master had no               mens  rea and was morally innocent.   But  the               Courts  must  be reluctant to come to  such  a               conclusion  unless  the  clear  words  of  the               statute  compel  them  to do so  or  they  are               driven   to  that  conclusion   by   necessary               implication." So  too,  a Division Bench of the Mysore High Court  in  The State  of  Coorg v. P. K. Assu(2) held that a driver  and  a cleaner  of a lorry which carried bags of charcoal and  also contained  bags of paddy and rice underneath without  permit as  required  by a notification issued under  the  Essential Supplies  (Temporary Powers) Act, 1946, were not  guilty  of any offence in the absence of their knowledge that the lorry contained foodgrains.  To the same’ effect a Division  Bench of the Allahabad High Court in (1) (1948) 50 Bom.  L.R. 190, 194. (2) I.L.R. [1955] Mysore 516. 139 State  v. Sheo Prasad(1) held that a master was  not  liable for his servant’s act in carrying oilseeds in  contravention of  the order made under the Essential, Supplies  (Temporary Powers) Act, 1946, on the ground that he had not the  guilty



mind.   In the same manner a Division Bench of the  Calcutta High Court in C. T. Prim v. The State(2) accepted as settled law   that  unless  a  statute  clearly  or   by   necessary implication rules out mens rea as a constituent part of  the crime,  no one should be found guilty of, an  offence  under the criminal law unless he has got a guilty mind. The  law on the subject relevant to the present enquiry  may briefly  be  stated  as  follows.   It  is  a  well  settled principle  of  common  law that mens  rea  is  an  essential ingredient  of a criminal offence.  Doubtless a statute  can exclude that element, but it is a sound rule of construction adopted in England and also accepted in India to construe  a statutory  provision creating an offence in conformity  with the  common  law rather than against it unless  the  statute expressly or by necessary implication excluded mens rea.  To put it differently, there is a presumption that mens rea  is an essential ingredient of a statutory offence; but this may be  rebutted by the express words of a statute creating  the offence or by necessary implication.  But the mere fact that the object of a statute is to promote welfare activities  or to eradicate grave social evils is in itself not decisive of the question whether the element of guilty mind is  excluded from  the ingredients of the offence.  It is also  necessary to  enquire  whether  a statute by putting  a  person  under strict  liability  help  him  to assist  the  State  in  the enforcement  of the law: can he do anything to  promote  the observance of the law?  A person who does not know that gold cannot  be  brought into India without a licence or  is  not bringing into India any gold at all cannot possibly do  any- thing  to  promote the observance of the law.  Mens  rea  by necessary  implication can be excluded from a  statute  only where it is absolutely clear that the implementation of  the object  of  a statute would otherwise be  defeated  and  its exclusion enables those put under strict liability by  their act  or omission to assist the promotion of the  law.   ’the nature  of  mens  rea  that will be  implied  in  a  statute creating  an offence depends upon the object of the Act  and the provisions thereof. What  is the object of the Act?  The object of the  Act  and the  notification issued thereunder is to prevent  smuggling of (1) A.I.R. 1956 All. 610. (2) A.I.R. 1961 Cal. 177. 140 gold  and to conserve foreign exchange.  Doubtless it  is  a laudable   object.   The  Act  and  the  notification   were conceived and enacted in public interest; but that in itself is  not,  as I have indicated, decisive of  the  legislative intention. The  terms  of  the  section  and  those  of  the   relevant notification issued thereunder do not expressly exclude mens rea.   Can  we say that mens rea is  excluded  by  necessary implication?   Section  8  does  not  contain  an   absolute prohibition against bringing or sending into India any gold. It in effect confers a power on the Reserve Bank of India to regulate the import by giving general or special permission; nor  the notification dated August 25, 1948, issued  by  the Government  embodies  any  such  absolute  prohibition.   It again, in substance, leaves the regulation of import of gold to  the Reserve Bank of India; in its turn the Reserve  Bank of  India  by  a notification of  the  same  date  permitted persons  to  transit -old to a place which  is  outside  the territory  of India and the Portuguese  territories  without any  permission.   Even the impugned notification  does  not impose  an absolute prohibition against bringing into  India



gold which is on through transit to it place outside  India. It  permits such import for such through transit,  but  only subject to conditions.  It is, therefore, manifest that  the law  of India as embodied in the Act under s. 8 and  in  the notification  issued thereunder does not impose an  absolute prohibition  against  bringing into India gold which  is  on through  transit  to a place outside India;  and  indeed  it permits  such  bringing  of  gold  but  subject  to  certain conditions.  The Legislature, therefore, did not think  that public.  interest would irreparably suffer if  such  transit was   permitted,  but  it  was  satisfied  that  with   some regulation  such interest could be protected.  The law  does not become nugatory if the element of mens rea is read  into it,  for there would still be persons who would be  bringing into  India  gold  with the knowledge  that  they  would  be breaking  the  law.  In such circumstances  no  question  of exclusion of mens rea by necessary implication can arise. If a person was held to have committed an offence in  breach of  the  provision of S. 8 of the Act and  the  notification issued  thereunder  without any knowledge on his  part  that there was any such notification or that he was bringing  any gold  at all, many innocent persons would become victims  of law.   An aeroplane in which a person with -old on his  body is traveling may have a forced landing in India, or an enemy of a passenger may surreptitiously and maliciously put  some gold  trinket in his pocket without his knowledge so  as  to bring him into trouble; a person may be 141 carrying   gold  without  knowledge  or  even  without   the possibility of knowing that a law prohibiting taking of gold through  India  is  in  existence.   AR  of  them,  if   the interpretation suggested by the learned Solicitor-General be accepted, will have to be convicted and they might be put in jail   for  a  period  extending  to  2  years.    Such   an interpretation is neither supported by the provision of  the Act  nor is necessary to implement its object.  That  apart, by  imposing  such a strict liability as to  catch  innocent persons  in the net of crime, the Act and  the  notification issued thereunder cannot conceivably enable such a class  of persons  to assist the implementation of the law: they  will be helpless victims of law.  Having regard to the object  of the  Act,  I think no person shall be held to be  guilty  of contravening  the provisions of s. 8 of the Act,  read  with the notification dated November 8, 1962, issued  thereunder, unless  he  has knowingly brought into  India  gold  without complying with the terms of the proviso to the notification. Even so it is contended that the notification dated November 8,  1962, is law and that the maxim "ignorance of law is  no defence" applies to the breach of the said law.  To state it differently, the argument is that even the mental  condition of  knowledge on the part of a person is imported  into  the notification;  the said knowledge is imputed to him  by  the force  of  the said maxim.  Assuming that  the  notification dated  November 8, 1962, is a delegated legislation, I  find it difficult to invoke that maxim as the statute  empowering the  Reserve  Bank of India to give the permission,  or  the rules   made  thereunder  do  not  prescribe  the  mode   of publication of the notification.  Indeed a similar  question arose  before  the  Privy Council in Lim  Chin  Aik  v.  The Queen(1), and a similar argument was advanced before it; but the  Board  rejected  it.  I have already  dealt  with  this decision  in another context.  There the Minister under  the powers conferred on him by s. 9 of the Immigration Ordinance 1952, issued an order prohibiting the appellant therein from entering  Singapore.  He was prosecuted for disobeying  that



order.   Section  9, in the case of an order directed  to  a single.  individual, contained no provision  for  publishing the  order or for otherwise bringing it to the knowledge  of the  person  named.   The Crown  invoked  the  precept  that ignorance  of  the  law was no  excuse.   In  rejecting  the contention of the Crown, Lord Evershed  speaking   for   the Board, observed at p. 171 thus:               "Their  Lordships  are unable  to  accept  the               contention.  In their Lordships opinion,  even               if the making of the               (1) [1963] A.C. 160.               p./64-10               142               order  by  the  Minister  be  regarded  as  an               exercise  of the legislative as distinct  from               the  executive or administrative function  (as               they  do not concede), the maxim cannot  apply               to such a case as the present where it appears               that  there  is in the State of  Singapore  no               provision, corresponding, for example, to that               contained  in  section  3(2)  of  the  English               Statutory  Instruments  Act of 1946,  for  the               publication  in  any form of an order  of  the               kind  made  in the present case or  any  other               provision   designed  to  enable  a   man   by               appropriate inquiry to find out what ’the law’               is." Here,  as there, it is conceded that there is  no  provision providing for the publication in any form of an order of the kind  made by the Reserve Bank of India imposing  conditions on  the  bringing  of gold into India.  The  fact  that  the Reserve  Bank of India published the order in  the  Official Gazette  does not affect the question for it need  not  have done so under any express provisions of any statute or rules made thereunder.  In such cases the maxim cannot be  invoked and  the prosecution has to bring home to the accussed  that he  had knowledge or could have had knowledge if he was  not negligent  or had made proper enquiries before he  could  be found  guilty of infringing the law.  In this case the  said notification  was  published on November 24, 1962,  and  the accused  left  Zurich on November 27, 1962, and it  was  not seriously  contended that the accused had or could have  had with  diligence  the knowledge of the contents of  the  said notification   before  he  brought  gold  into  India.    I, therefore,  hold that the respondent was not, guilty of  the offence  under  S.  23(1-A) of the Act as it  has  not  been established  that he had with knowledge of the  contents  of the said notification brought gold into India on his way  to Manila  and,  therefore, he had not  committed  any  offence under the said section.  I agree with the High Court in  its conclusion though for different reasons. Though   the  facts  established  in  the  case  stamp   the respondent  as an experienced smuggler of gold and though  I am satisfied that the Customs authorities bona fide and with diligence   performed   their  difficult  duties,   I   have reluctantly come to the conclusion that the accused has  not committed any offence under s. 23(1-A) of the Act. In the result, the appeal fails and is dismissed. Ayyangar J. This appeal by special leave is directed against the judgment and order of the High Court of Bombay 143 setting aside the conviction of the respondent under s. 8(1) of  the  Foreign  Exchange  Regulation  Act  (7  of   1947), hereinafter  called the "Act", read with a  notification  of the  Reserve  Bank  of  India dated  November  8,  1962  and



directing his acquittal.  The appeal was heard by us at  the end  of  April last and on the 8th May which  was  the  last working day of the Court before it adjourned for the  summer vacation, the Court pronounced the following order :               "  By majority, the appeal is allowed and  the               conviction of the respondent is restored;  but               the sentence imposed on him is reduced to  the               period  already  undergone.   The   respondent               shall forthwith be released and the bail bond,               if  any, cancelled.  Reasons will be given  in               due course." We now proceed to state our reasons.  The material facts  of the  case are not in controversy.  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 not 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  concealed  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  now concerned with the one which he undertook at the instance of this   international  gang  of  gold   smugglers   carrying, similarly, 34 kilo bars of gold concealed in a jacket  which he  wore  on  his person.  This trip started  at  Zurich  on November  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.  Not finding any  entry  there, after  ascertaining that the respondent bad not come out  of the plane as usual to the airport lounge, entered the  plane and found him there seated.  They then 144 asked  him if he had any gold with him.  The answer  of  the respondent  was "what gold" with a shrug indicating that  he did not have any.  The Customs Inspector thereupon felt  the respondent’s  back and shoulders and found that he had  some metal  blocks on his person.  He was then asked to come  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 compartments 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 no interest in these goods and gave the story of  his several trips which we have narrated earlier.  It was common ground  that the gold which the respondent carried  was  not entered  in the manifest of the aircraft or other  documents carried by it. The  respondent was thereafter prosecuted and  charged  with having  committed  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 complaint on file.   The  facts stated  earlier were not in dispute but the point raised  by the respondent before the Magistrate was one of law based on his having been ignorant 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 not  disputed  by  the prosecution   that  he  was  not  actually  aware   of   the notification of the Reserve Bank of India which rendered the carriage  of gold in the manner that he did an  offence,  he could  not be held guilty.  The learned Magistrate  rejected this defence and convicted the respondent and sentenced  him to  imprisonment for one year.  On appeal by the  respondent the learned Judges of the High Court have allowed the appeal and  acquitted  the respondent upholding the  legal  defence which  be raised.  It is the correctness of this  conclusion that calls for consideration in this appeal. Before  considering  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  conserve  foreign   exchange,   the conservation of which is of the utmost essentiality for  the economic  survival  and advance of every country,  and  very much more so in the case of a developing country like India. Section 8 of the Act enacts the restrictions on the import 145 and export, inter alia, of bullion.  This section enacts, to read  only  that portion which relates to  the  import  with which this appeal is concerned :               "8.   (1)  The  Central  Government  may,   by               notification  in the Official  Gazette,  order               that,  subject to such exemptions, if any,  as               may  be  contained  in  the  notification,  no               person  shall,  except  with  the  general  or               special permission of the Reserve Bank and  on               payment of the fee, if any, prescribed,  bring               or  send into India any gold or silver or  any               currency  notes or bank notes or coin  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               nonetheless 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 conjunction with s.  23  which imposes penalties on persons contravening the provisions  of the Act.  Subsection ( 1) penalises the contravention of the provisions of certain named sections of the Act which do not include s. 8, and this is followed by sub-s. (1-A) which  is residuary  and is directly relevant in the  present  context and it reads               23.   (1-A) Whoever contravenes-               (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 Court,  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 conviction by a  Court               be  punishable with fine which may  extend  to               two thousand rupees."               These have to be read in conjunction 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   contravening   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               146               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  notification 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  no  person  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 context.  The Reserve Bank by a notification 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               (i)   the territory of India,               (ii)  the  Portuguese  territories  which  are               adjacent to or surrounded by the territory  of               India, and               (b)   is not removed from the carrying ship or               aircraft    except   for   the   purpose    of               transhipment". On  November 8, 1962, however, the Reserve Bank of India  in supersession of the notification just now read, published  a notification (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 not removed from the ship  or conveyance  in  which  it is being carried  except  for  the purpose of transhipment : Provided  further  that it is declared in the  manifest  for transit  as same bottom cargo or transhipment cargo".   This notification  was  published  in the  Gazette  of  India  on November 24, 1962. It was not disputed by Mr. Sorabjee-learned Counsel for  the respondent, subject to an argument based on the construction of  the  newly  added 2nd proviso to which  we  shall  refer later.  that if the second notification of the Reserve  Bank restricting  the  range  of the  exemption  applied  to  the respondent,  he  was clearly guilty of an offence  under  S. 8(1) of the Act read with the Explanation 147 to  the  sub-section.  On the other hand, it  was  not  also disputed by the learned Solicitor-General for the appellant- State  that if the exemption notification which  applied  to the  present case was that contained in the notification  of



the  Reserve Bank dated August 25, 1948 the  respondent  had not  committed  any  offence  since (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 not even got down from the plane. Two principal questions have been raised by Mr. Sorabjee  in support  of  the  proposition that  the  notification  dated November 8, 1962 restricting the scope of the permission  or exemption  granted by the Reserve Bank did not 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 not established that the respondent knowingly contravened the law in relation to the carriage of the  contraband  article;  (2) The second  head  of  learned Counsel’s argument was that the notification dated  November 8, 1962, being merely subordinate or delegated  legislation, could  be  deemed to be in force not from the  date  of  its issue  or  publication in the Gazette but only when  it  was brought to the notice of persons who would be affected by it and  that as the same was published in the Gazette of  India only on November 24, 1962 whereas the respondent left Zurich on  the  27th November he could not possibly  have  had  any knowledge  there  of  the new restrictions  imposed  by  the Indian  authorities  and that, in these  circumstances,  the respondent  could not 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 notification of the Reserve Bank could not 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"  could  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 Common  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 148 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  not  be convicted  unless  be has a guilty mind.   In  other  words, absolute  liability is not 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 connection learned Counsel 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  correctness  of   a conviction  under the Defence of India Rules, 1939  relating to  the control 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  noting  on the buyer’s licence the quantity  which  the latter had bought and received all of which were required to be  done  under  the rules.  For the  contravention  by  the servant  of the Regulations for the sale of salt  prescribed



by  the Defence of India Rules the appellant was  prosecuted and convicted as being vicariously liable for the act of his servant  in  having made illegal exactions contrary  to  the Rules.   The  High  Court took the view  that  even  if  the appellant  had  not been proved to have known  the  unlawful acts of his servant, he would still be liable on the  ground that "where there is an absolute prohibition and no question of mens rea arises, the master is criminally liable for  the acts  of his servant".  On appeal to the Privy Council  Lord Du  Parcq who delivered the judgment of the Board  dissented from this view of the High Court and stated :               "They  see no ground 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 committed 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 minor character, and it would be               a   surprising   result  of   this   delegated               legislation  if  a  person  who  was   morally               innocent  of blame could be  held  vicariously               liable for a servant’s crime and so punishable               ’with imprisonment for a term which may extend               to three years’ (1) [1895]1 Q.B. 918. (2) (1947) I.L.R. 26 Patna 460. (P.C.) 149 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 court should alwaysbear               in mind that, unless the statute,   either               clearly or bynecessary  implication   rules               out mens rea as a constituentpart    of    a               crime, a defendant should not 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 construction and it may be pointed out  that this Court has, in Ravula Hariprasada Rao  v.  The State(2),  approved of this passage in the judgment of  Lord Du  Parcq and the principle of construction  underlying  it. We  therefore  agree that absolute liability is  not  to  be lightly   presumed  but  has  to  be  clearly   established. Besides,  learned Counsel 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  construction 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  conceded  by the prosecution in the present case that the respondent  was not aware of the notification by the Reserve Bank of  India, dated  the 8th November, he could not be held guilty of  the offence.  We might incidentally state that decision was also relied  on in connection with the second of the  submissions made  to us as regards the time when  delegated  legislation could  be deemed to come 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 not 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.               150               By sub-s. (3) it was provided that :               "Any person who contravenes 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  come  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 no  provision 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  Council  had been charged with and convicted  by  the courts in Singapore of contravening 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  no  evidence from which it could be inferred that the. order had in  fact come  to  the notice or attention of the  accused.   On  the other hand, the facts disclosed that be could not have known of the order.  On appeal by the accused, the conviction  was set  aside  by  the  Privy Council.   The  judgment  of  the Judicial  Committee  insofar  as it was  in  favour  of  the appellant,  was based on two lines of reasoning.  The  first was  that in order to constitute a contravention 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 ’ignorance  of  law is no excuse’ could  not  apply  because there   was  not,  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 151 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 correct 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 complied 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 not enough merely to label the  statute               as  one dealing with a grave social  evil  and               from  that to infer that strict liability  was               intended.   It  is pertinent also  to  inquire               whether  putting  the defendant  under  strict               liability  will assist in the  enforcement  of               the  regulations.  That means that there  must               be   something   he  can   do,   directly   or               indirectly,  by supervision or inspection,  by               improvement  of  his business  methods  or  by               exhorting  those  whom he may be  expected  to               influence  or control, which will promote  the               observance of the regulations.  Unless this is               so, there is no reason in penalising him,  and               it  cannot  be inferred that  the  legislature               imposed  strict liability merely in  order  to               find a luckless victim." As  learned  Counsel  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 compare them with the  case  on hand.   Let  us first consider 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  non-citizens into  the colony 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.) 152 of  persons  from  the Federation.  In  the  light  of  this situation,  the  construction adopted was that  persons  who normally  could lawfully enter the colony, had to be  proved to have a guilty mind i.e., actual or constructive knowledge of  the  existence of the prohibition  against  their  entry before  they could be held to have violated the terms of  S. 6(2).   It  is in this context 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 could 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  notification 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  notification  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 not 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 contravention of a Minister’s order  under the Ordinance, cannot obviously be  deduced  in the context 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 Council.  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 contravened s. 6(2)  of the Immigration Ordinance.  At the trial it was proved  that the order of the Minister 153 was  made  on  May 28, 1959 i.e., over  10  days  after  the appellant  had entered the colony.  It was proved  that  the Minister’s  order  which prohibited the appellant,  who  was named  in  it, from entering Singapore was received  by  the Deputy  Assistant  Controller 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  knowledge of  the accused of the order prohibiting him  from  entering the colony came up for consideration in such a context.  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 considered later. Reverting now to the question whether mens rea--in the sense of  actual  knowledge 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  not  be  rendered  futile in the  event  of  such  an ingredient being considered 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 contravention  of the provisions of the Act or the rule etc., so that it might be termed neutral in the present context, in that it neither refers  to the state of the mind of the contravener  by  the use  of the expression such as ’wilfully,  knowingly’  etc., nor does it, in terms, create an absolute liability.   Where the statute does not contain the word ’knowingly’, the first thing  to  do is to examine the statute to see  whether  the ordinary  presumption that mens rea is required  applies  or not.    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 context, one reaches the conclusion that there is no scope 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 conditions, 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.  No  doubt,  the very  concept  of "bringing" or "sending" would  exclude  an involuntary  bringing or an involuntary sending.  Thus,  for instance, if without the knowledge of the person a packet of gold was slipped into, 154 his pocket it is possible to accept the contention that such a  person  did not "bring" the gold into  India  within  the meaning of s. 8(1).  Similar considerations would apply to a case  where the aircraft on a through flight which  did  not 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 conscious act and was done with the intention of bringing  it into India the mere "bringing" constitutes  the offence  and there is no other ingredient that is  necessary in order to constitute a contravention of s. 8 (1) than that conscious  physical act of bringing.  If then under s.  8(1) the  conscious  physical act of "bringing"  constitutes  the offence, s. 23(1A) does not import any further condition 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 no  scope 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  constitute  an offence of the contravention 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 not 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               not". The  Act is designed to safeguarding and conserving  foreign ;exchange  which  is  essential to the economic  life  of  a developing  country.   The provisions have therefore  to  be stringent  and  so  framed as to  prevent  unauthorised  and unregulated  transactions  which  might  upset  the   scheme underlying the controls; and in a larger context, the  penal provisions  are  aimed at eliminating smuggling which  is  a concomitant  of controls over the free movement of goods  or currencies.   In  this connection we consider it  useful  to refer  to  two decisions-the first a decision of  the  Privy Council and the other of the Court of Criminal Appeal.   The decision  of the Privy Council 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. 155 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 could be convicted of               a criminal offence.  But that depends upon the               terms of the statute or Ordinance creating the               offence.   In  many cases connected  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 nothing of the prohibition." The criteria for the construction of statutes of the type we have before us laid down by the Court of Criminal Appeal  in Regina  v.  St.   Margarets Trust Ltd.(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 (Control) Order, 1956 which,  having been  enacted  to  effectuate  a  credit-squeeze,  as  being necessary  for the maintenance of British economy,  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  Company.  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 company which  sold  the motorcar  as regards the price it charged to  the  customer. The plea raised in defence was that the Finance Company were unaware  of  the  true  price and  that  not  having  guilty knowledge,  they  could  not be convicted  of  the  offence. Donovan J. who spoke for the Court said :               "The  language  of  article  1  of  the  Order               expressly  prohibits  what  was  done  by  St.               Margarets  Trust Ltd., and if that company  is               to  be held to have committed on offence  some               judicial  modification of the actual terms  of               the  article  is  essential.   The  appellants               contend  that the article should be  construed               so  as not to apply where the  prohibited  act               was  done  innocently.  In other  words,  that               mens  rea should be regarded as  essential  to               the commission of the offence.  The appellants               rely on the presumption that               (1)   [1958] 1 W.L.R. 522.               156               mens  rea is essential for the  commission  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 country.  There is no  need               to elaborate this.  The present generation has               witnessed  the  collapse of  the  currency  in



             other  countries  and  the  consequent  chaos,               misery  and widespread ruin.  It would not  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 no one should               breach  the defences against a flood,  and  at               the  same  time  excusing anyone  who  did  it               innocently.   For these reasons we think  that               article  1  of  the  Order  should  receive  a               literal  construction, and that the ruling  of               Diplock J. was correct.               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  nominal               punishment  or  none  at  all  in  appropriate               cases." We consider these observations apposite to the  construction of the provision of the Act now 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 Court when the  question of  the construction of s. 52-A of the Sea Customs Act  came up for consideration in The Indo-China Steam Navigation  Co. Ltd. v. Jasjit Singh, Addl. 157 Collector  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 economy of the country.   It  is               well-known,  for  example, that  smuggling  of               gold  has  become a serious  problem  in  this               country   and  operations  of  smuggling   are               conducted   by  operators  who  work   on   an               international basis.  The persons who actually               carry out the physical part of smuggling  gold               by one means or another are generally no  more               than agents and presumably, behind them stands               a well-knit 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 condition  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 knowledge  that  he  was contravening  the  law  before  he could  be  held  to  have contravened the provision. Summarising the position, the result would be this.  If  the



Central Government, by notification in the Official  Gazette imposed  a  ban on any person bringing gold into  India  any person  who  brought  such  gold  in  contravention  of  the notification  would  be  guilty of  an  offence  under  this section.  This brings us to the notification of the  Central Government  dated  August 25, 1948 whose terms we  have  set out.   By reason of that notification the. bringing of  cold into  India was made an offence.  In this connection  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 continued to remain in a shin  or  aircraft which is within India  without  it  being taken  out and was not 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 no advantage  by his having remained on the aircraft without disembarking  at Bombay, for if the carrying on his person of the gold (1) A. 1. R. 1964 S. C. 1140. 64-11 158 was " the bringing" of the gold into India, the fact that he did not remove himself from the aircraft but stayed on in it would make no difference and he would nevertheless be guilty of the offence by reason of the Explanation to S. 8(1).   We Would  Only add that learned Counsel for the respondent  did not  dispute  this.   The  position,  therefore,  was   that immediately    the   Central   Government   published    the notification  on August 25, 1948 the, bringing of gold  into India  in  the sense covered by the Explanation  would  have brought  it  within S. 8(1) of the Act.  So much  is  common ground.   But  by reason of a notification  by  the  Reserve Bank,  of  even date, gold in  through-transit  from  places outside  India  to places similarly situated which  was  not removed  from  the  aircraft  except  for  the  purpose   of transhipment   was  exempted  from  the  operation  of   the notification of the Central Government issued under s. 8  (1 ).  If  this  notification had continued in  force  and  had governed  the  right of persons to  transport  gold  through India the respondent could not be guilty of a  contravention 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 November  8,  1962 the Reserve Bank of India modified the earlier  notification and  added an additional condition 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 not  the requisite  permission  of the Reserve Bank and  so  be  con- travened the prohibition under s. 8(1).  The next submission of Mr. Sorabjee was that even  assuming that mens rea, which in the present context was equated with knowledge of the existence and contents of the  notification of  the  Reserve  Bank,  dated November  8,  1962,  was  not necessary  to be established to prove a contravention of  s. 8(1)(a)  of the Act, the notification of the  Reserve  Bank, dated November 8, 1962, could not be deemed to have been  in force   and  operation  on  November  28,  1962,  when   the respondent  was  alleged to have committed  the  offence  of "bringing" gold into India.  Accepting the general rule that ignorance of law is no excuse for its contravention and  the maxim  that  everyone is presumed to know the  law,  learned Counsel  submitted  an  elaborate argument  as  regards  the precise -point of time when a piece of delegated legislation



like the exemption notification by the Reserve Bank would in law  take  effect.   There is no provision  in  the  General Clause Act as, regards the time when subordinate legislation enacted  under  powers  conferred by  Acts  of  the  Central Legislature  shall come into effect.  There is no  provision either in the particular Act with 159 which  we  are concerned determining the point  of  time  at which orders made, or permission granted by virtue of powers conferred  by the parent statute would come into  operation. In the absence of a statutory provision such as is found  in s.  5  (1)  of  the General  Clauses  Act,  learned  Counsel submitted  that  such  orders or  notifications  could  have effect  only from the date on which the person against  whom it  is sought to be enforced had knowledge of their  making. In  support  of  this position he  relied  strongly  on  the decision  of the Privy Council 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  no publication of the order of the  Minister.  banning the  entry of the appellant so as to render  the  appellants act  a contravention of s. 6(2) of the Singapore  Ordinance. We  have adverted to the circumstance that the order of  the Minister  there  in question was communicated  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 respondent’s 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 ignorance could provide an excuse upon a               charge of contravention 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 not concede), the  maxim               cannot  apply  to such a case as  the  present               where it appears that there is in the State of               Singapore  no  provision,  corresponding,  for               example, to that contained in section 3(2)  of               the English Statutory Instruments Act of  1946               for the publication in any form of an order of               the kind made in the present case or any other               provision   designed  to  enable  a   man   by               appropriate inquiry to find out what ’the law’               is.   In this connection 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.               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 notification of the Reserve Bank, dated November 8, 1962 could not be deemed



to  be in force, at least not on November 28, 1962 when  the respondent  landed in Bombay and that consequently he  could not  be held guilty of the contravention of s. 8 (1).   This argument cannot, 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 notification  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 not whether it was published or not,  for  in truth it was published, but whether it is necessary that the publication  should  be proved to have been brought  to  the knowledge  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 not  the  position here, because the  contravention  contem- plated by s. 23(1-A) of the Act is, in the present  context, of  an order of the Central Government issued under s.  8(1) of the Act and published in the Official Gazette on November 25, 1948 and this order was in force during all this period. No  doubt,  for  the period, tip to the  8th  November,  the bringing  of  gold  by through passengers  would  not  be  a contravention because of the permission of the Reserve  Bank exempting  such bringing front the operation of the  Central Government’s notification.  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  contravention  constitutes  the crime.   Lastly,  the  order made by  the  Minister  in  the Singapore case, was one with respect to a single individual, not  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 know of it-,  but  there would  be  no question of individual service  of  a  general notification on every member of the public, and all that the subordinate law- 161 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 contents.  In this connection  reference may  be made to rule 141 of the Defence of India Rules  1962 which runs :               "141.  Publication, affixation and  defacement               of  notices.-(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               notice 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 concerns in the  case  of  an               order affecting an individual  corporation  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 Code of Civil                Procedure,  1908 (V of 1908) and in the  case               of  an  order affecting an  individual  person               (not  being  a corporation or firm)  serve  or               cause   the  order  to  be  served   on   that               person-----               (i)   personally,  by delivering or  tendering               to him the order, or               (ii)  by post, or               (iii) where  the  person cannot be  found,  by               leaving,  an authentic copy of the order  with               some  adult  male member of his family  or  by               affixing such copy to some conspicuous part of               the premises in which he is known to have last               resided  or carried on business or  personally               worked  for  gain and thereupon  the  persons,               corporation, firm or person concerned 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 Controller dated May 16 said to have been contravened on the same day, the learned Judge aid :               "I  have no reason to suppose that any one  in               the  trade knew about it on  May  16..........               While I agree               (1)   [1918] 1 K. B. 101.               162               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 come into operation               which  is  absent in the case of  many  orders               such  as that with which we are  now  dealing;               indeed, if certain Orders are to be  effective               at  all, it is essential that they should  not               be  known 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 known, and, as I  have               said,  it was not known 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 not be  binding               until it has somehow been ’made known’ to  the               public;  but that is not the rule of law,  and               if it were, the automatic cogency 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 not  take               effect until it ’became known’.  The reasoning               was  that  statutes  at  least  received   the               publicity  of Parliamentary debate,  and  that               therefore  they were, or should  be,  ’known’,               but  that  this  was  not  true  of  delegated



             legislation, which did not necessarily receive               any  publicity in Parliament or in  any  other               way.               This  was  a bold example of  judge-made  law.               There  was no precedent for it, and  indeed  a               decision, Jones v. Robson [(1901) 1 Q. B. 673]               which,  though  not on  all  fours,  militated               strongly  against the judge’s conclusion,  was               not cited; nor did the judge attempt to define               how  and  when delegated  legislation  ’became               known’.  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 court." We  see great force in the learned author’s comment on  +,he reasoning  in Sargant’s case(2).  Taking the  present  case, the question would immediately arise is it to be made  known in India or throughout the world, for the argument on behalf of  the respondent was that when the respondent left  Geneva on November 27 *Law and Orders (2nd. ed. p. 132). (1) [1918] 1. K.B. 101. 163 he  was  not  aware  of the change in  the  content  of  the exemption  granted  by  the Reserve Bank.  In  a  sense  the knowledge  of  the  existence  or content of  a  law  by  an individual  would  not  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 not necessary that it should either be published or be made known outside the country.  Even if, therefore,  the view enunciated by Bailache, J. is taken  to be  correct. it would be apparent that the test to find  out effective  publication  would be publication in  India,  not outside  India so as to bring it to the notice  of  everyone who  intends to pass through India.  It was "published"  and made  known  in India by publication in the Gazette  on  the 24th November and the ignorance of it by the respondent  who is  a foreigner is, in our opinion, wholly  irrelevant.   It is,  no doubt, admitted on behalf of the prosecution in  the present case that the respondent did not have actual  notice of  the notification of the Reserve Bank, dated November  8, 1962 but, for the reasons stated, it makes. in our  opinion, no  difference to his liability to be proceeded against  for the contravention of s. 8(1) of the Act. Learned  Counsel for the respondent also referred us to  the decision  of  the Bombay High Court in Imperator  v.  Leslie Gwilt(1)  where the question of the proper construction  and effect of rule 119 of the Defence of India Rules, 1937  came up  for consideration.  The learned Judges held  that  there had  not  been a proper publication or  notification  of  an order,  as required by rule 119 and that in consequence  the accused  could  not be prosecuted for a  violation  of  that order.   Other decisions of a like nature dealing  with  the failure  to comply with the requirements of rule 119 of  the Defence of India Rules or the Essential Supplies Act, or the Essential  Commodities Act, were also brought to our  notice but  we consider that they do not 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 Court holds to be mandatory, a failure to comply  with those requirements might result in there  being no  effective order the contravention of which could be  the subject  of  prosecution  but where there  is  no  statutory



requirement we conceive the rule to be that it is  necessary that  it  should be published in. the usual  form  i.e.,  by publication  within the country in such media  as  generally adopted to notify to all the persons concerned the making of rules. In most of the Indian statutes, including the (1)  I.L.R. [1945] BOM. 681. 164 Act  now  under consideration, 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 notice  of the  persons  concerned.   As we have  stated  earlier,  the notification  by  the  Reserve Bank  was  published  in  the Gazette  of  India  on November 24,  1962,  and  hence  even adopting the view of Bailhache, J. the notification must  be deemed  to have been published and brought to the notice  of the  concerned  individuals  on  November  25,  1962.    The argument,  therefore, that the notification, dated  November 8,  1962  was  not effective, because it  was  not  properly published in the sense of having been brought to the  actual notice 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 could be said  to  have been  passed,  and  (b)  when it  comes  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  construction  as  regards   certain expressions  used in the Act.  We consider 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 construction to  which  the U.K. enactment has given rise.   As  we  have pointed  out, so far as the present case is concerned,  even on  the  narrowest view of the law the notification  of  the Reserve  Bank must be deemed to have been published  in  the sense  of having been brought to the notice of the  relevant public  at least by November 25, 1962 and hence the plea  by the respondent that he was ignorant of the law cannot afford him any defence in his Prosecution. The  last  of the points urged by learned  Counsel  for  the respondent was as regards the construction of the new second proviso which bad been introduced by the notification of the Reserve Bank. dated November 8. 1962.  The argument was that the  gold  that  the respondent  carried  was  his  personal luggage   and   not  "cargo"--either   "bottom   cargo"   or "transhipment cargo" and that therefore could not, and  need not have been entered in 165 the  manifest of the aircraft and hence the  second  proviso could  not 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 could not be ’cargo’,  and that cargo was that which was handed  over  to the carrier for carriage.  Reliance was, in this  connection placed on the definition of the term ’cargo’ in dictionaries where it is said to mean "the merchandise or wares contained



or  conveyed 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 no value at all as a condition of exemption.  The goods entrusted to a corner would be entered in the manifest and if they were not it must be owing to the fault  of  the  carrier, and it could  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 consider that the proper construction of the  term ’cargo’  when it occurs in the notification of  the  Reserve Bank  is  that  it  is  used  as  contra-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 convenience,  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 not be "personal  luggage" in the sense in which "luggage" is understood, as  explained earlier.   It was really a case of merchandise not  for  the use of the passenger either during the journey or thereafter and  therefore  could  not 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   note.   In  this  connection.  reference   may usefully be made to certain of the International Air Traffic Association’s General Conditions of Carriage not is directly governing  the  contract  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 166 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 consignment note 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 now stands and that the Indian law  would be unnecessarily harsh and unreasonable.  We do not consider this  correct,  for  a clear and  sharp  distinction  exists between  what is personal baggage and what is not 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  not 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 no  complaint  of the unreasonableness of the Indian law on the topic. The result, therefore, is that we consider that the  learned Judges of the High Court erred in acquitting the respondent. The appeal has, therefore, to be allowed and the  conviction



of the respondent restored. Now, coming to the question of sentence to be passed on  the appellant, it is undoubtedly the settled rule of this  Court that it would not interfere with the sentence passed by  the courts  below  unless there is any illegality in it  or  the same  involves any question of principle. The facts  of  the case  before  us  have,  however,  presented  some   unusual features which had led us to technically interfere with  the sentence  of  one year’s imprisonment passed  by  the  Chief Presidency Magistrate.  The respondent was sentenced by  the Presidency  Magistrate  on April 24, 1963 and  thereupon  he started  serving the sentence till the judgment of the  High Court  which  was  rendered  on  December  10,  1963.    The respondent  was  released the next day  i.e.,  December  11, 1963.  This court granted special leave on December 20, 1963 and  thereafter on application made by the  appellant-State, this  Court  directed  the arrest of  the  respondent.   The respondent   was  accordingly,  arrested  and   though   the Magistrate directed his release on bail pending the disposal of  the appeal in this Court, the respondent was  unable  to furnish  the bail required and hence suffered  imprisonment, though it would be noticed that such imprisonment was not in 167 pursuance  of the conviction and sentence passed on  him  by the  Magistrate.   Such imprisonment continued till  May  8, 1964 when the decision of this Court was pronounced, so that virtually the respondent had suffered the imprisonment  that had  been  inflicted on him by the order of  the  Presidency Magistrate.  In these circumstances, we directed that though the appeal was allowed, the sentence would be reduced to the period   already  undergone  which  was  only  a   technical interference  with  the sentence passed  by  the  Presidency Magistrate, though in substance it was not. Appeal allowed. 168