TMI Blog1964 (8) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The respondent was accordingly arrested and though the Magistrate directed his release on bail pending the disposal of the appeal in this court, the respondent was unable to furnish the bail required and hence suffered imprisonment, though it would be noticed that such imprisonment was not in pursuance of the conviction and sentence passed on him by the Magistrate. Such imprisonment continued till May 8, 1964, when the decision of this court was pronounced, so that virtually the respondent had suffered the imprisonment that had been inflicted on him by the order of the Presidency Magistrate. In these circumstances, 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. - 218 OF 1963 - - - Dated:- 24-8-1964 - K. SUBBA RAO, N. RAJAGOPALA AYYANGAR AND J.R. MUDHOLKAR, JJ. H. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared in the "manifest" for transit as "same bottom cargo" or "transhipment cargo" When the respondent boarded the Swiss plane at Zurich on November 27, 1962, he could not have had knowledge of the fact that the said condition had been imposed on the general permission given by the earlier notification. The gold was carried on the person of the respondent and he was only sitting in the plane after it touched the Santa Cruz Airport. The respondent was prosecuted for importing gold into India under section 8(1) of the Act, read with section 23(1A) thereof, and under section 167(8)(1) of the Sea Customs Act. The learned Presidency Magistrate found the accused "guilty" on the two counts and sentenced him to rigorous imprisonment for one year. On appeal the High Court of Bombay held that the second proviso to the relevant notification issued by the Central Government did not apply to a person carrying gold with him on his body, that even if it applied, the mens rea being a necessary ingredient of the offence, the respondent who brought gold into India for transit to Manila, did not know that during the crucial period such a condition had been imposed and, therefore, he did not commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 none the less be deemed to be a 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 up to 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: ( 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 terms: "... the Reserve Bank of India is hereby pleased to give general permission to the bringing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 page 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" lakes in all the goads 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was 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 count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs : "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, 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 edition, says much to the same effect at page 48 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 rea is an essential ingredient in a statutory offence, but this pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 observation 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 [1918] 88 LJKB 623, 626 the Court of Appeal considered the scope of Regulations 3 and 6 of the Margarine (Maximum Prices) Order, 1917. The appellants' assistant, in violation of their instructions, but by an innocent mistake, sold margarine to a customer at the price of 1 sh. per lb. giving only 14 ozs. by weight instead of 16 ozs. The 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 wens rea on the part of the appellants was not an essential element of the offence. Lord Coleridge J. cited with approval the following passage of Channell J. in Pearks, Gunston Tee, Ltd. v. Ward [1902] 71 LJKB 656 : "But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind." This caution administered by an eminent and experienced judge in the matter of construing such statutes cannot easily be ignored. The Judicial Committee in Srtnivas Mall Bairoliya v. King Emperor [1946] ILR 26 Pat 460 (PC) 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 [1946] 62 TLR 462, 463 ; 175 LT 306 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 of 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 neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dant 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 to ensure that he complied with the regulations. It was not, for example, suggested that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that section 52A of the Sea Customs Act the infringement whereof was the occasion for the confiscation could not be invoked unless mens rea was established. Under that section no vessel constructed, adapted, altered or fitted for the purpose of concealing goods shall enter, or be within, the limits of any port in India, or the Indian customs waters. This court in construing the scheme and object of the Sea Customs Act came to the conclusion that mens rea was not a necessary ingredient of the offence, as, if that was so, the statute would become a dead-letter. That decision was given on the basis of the clear object of the statute and on a construction of the provisions of that statute which implemented the said object. It does not help us in construing the relevant provisions of the Foreign Exchange Regulation Act. The Indian decisions also pursued the same line. A Division Bench of the Bombay High Court in Emperor v. Isak Solomon Macmull [1948] 50 Bom LR 190, 194 ; AIR 1948 Bom 364, 367 in the coil-text 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 absenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 anything 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person was held to have committed an offence in breach of the provision of section 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 gold on his body is travelling 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 carrying gold without knowledge or even without the possibility of knowing that a law prohibiting taking of gold through India is in existence. All 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 provisions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory 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 accused 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... okyo. 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 had not come out of the plane as usual to the airport lounge, entered the plane and found him there seated. They then asked him if he had any gold with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 purpose of this section." Section 8 has to be read in conjunction with section 23 which imposes penalties on persons cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce 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 article is not removed from the ship or conveyance in which it is being carried except for the purpose of transshipment. 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 section 8(1) of the Act read with the Explanation 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 notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the presumption is liable to be displaced by the words of the statute creating the offence, or by the subject-matter dealt with by it (Wright J. in Sherras v. De Rutzen [1895] 1 QB 918) . But, unless the statute clearly or by fair implication rules out mens rea, a man should not be convicted unless he has a guilty mind. In other words, absolute liability is not to be presumed, but ought to be established, or 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 Mall Bairoliya v. King Emperor [1947] ILR 26 Patna 460 . 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 dealer in wholesale 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rongly urged that on this point the exposition by Lord Evershed in him Chin Aik v. Queen [1963] AC 160 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 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law was. Lord Evershed, who delivered the judgment of the Board, referred with approval to the formulation of the principle as regards mens rea to be found in the judgment of Wright, J. in Sherras v, De Rutzen, [1895] 1 QB 918 already referred to. His Lordship also accepted as correct the enunciation of the rule in Srinivas Mall Bairoliya v. King-Emperor [1947] ILR 26 Pat 460 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 . had frequently been inferred that strict liability was the object sought 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, there is the provision in section 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 section 8(1) the Central Government published a notification on August 25, 1948, in which the terms of section 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 section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 section 23(1-A) viz ., section 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 section 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 his pocket it is possible to accept the contention that such a person did not "bring" the gold into India within the meaning of section 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 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. Margaret's Trust Ltd. [1958] 1 WLR 522, 526, 527 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 shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, 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 section 52A of the Sea Customs Act came up for consideration in Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Addl. Collector of Customs, Calcutta CA. No. 770 of 1962 (not yet reported), decided on February 3, 1964. Since reported in [1964] 34 Comp. Cas. 435 (SC). Speaking for the court, Gajendragadkar C.J. said : "The intention of the legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia, 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 section 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 section 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 were 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 section 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 section 8(1). The respondent would then have had the permission which saved his act of " bringing" from being an offence. However, as stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Minister, banning the entry of the appellant, so as to render the appellant's act a contravention of section 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endered 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 he 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Law and Orders (Second Edition) at page 132 : "On the face of it, 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 [1918] 1 KB 101, 103 , 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 judgment-made law. There was no precedent. for it, and indeed a decision, Jones v. Robson [1901] 1 KB 673 , which, though not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o" or "transhipment cargo" and that therefore could not, and need not, have been entered in the manifest of the aircraft and hence the second proviso could not be attracted to the case. 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 2nd 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 2nd 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 carrier wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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