9911796707
TMI Blog1964 (8) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 airplane on November 27, 1962, which touched Santa Cruz Air Port at 6-05 a.m. on the next day. The Customs Officers, on the basis of previous information, searched for the respondent and found him sitting in the plane. On a search of the person of the respondent it was found that he had put on a jacket containing 28 compartment sand in 19 of them he was carrying gold slabs weighing approximately 34 kilos. It was also found that the respondent was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontends that on a reasonable construction of the second proviso of the notification dated November 8, 1962, issued by the Board of Revenue, it should by held that the general permission for bringing gold into India is subject to the condition laid down in the second proviso and that, as in the present case the gold was not disclosed in the manifest, the respondent contravened the terms thereof and was, therefore, liable to be convicted under the aforesaid sections of the Foreign Exchange Act. No argument was advanced before us under section 168(8)(i) 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 like 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. "8. (1) The Central Government may, by notification in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 two-fold, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond proviso of the notification dated November 8, 1962. Under section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 section 8 of the Act read with the notification and, therefore, he will be contravening the provisions of the Act. Under section 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 text books and decisions cited at the Bar to ascertain its exact scope. In Russell on Crime, nth edition, vol. 1, it is stated at page 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acob Bruhn v. King on the Prosecution of the Opium Farmer [1909] AC 317, 324 construed section 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 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 prevent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [1944] KB 417 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 metn rea is not a necessary ingredient of the offence. In Brend v. Wood [1946] 62 TLR 462, 463 ; 175 LT 306, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 section 9 of this Ordinance from entering the colony" and 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 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 section 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 Mall Bairoliya's case [1947] ILR 26 Pat 460, 469 (PC). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion at a later stage in a different context. This court in Ravula Hariprasada Rao v. State [1951] SCR 322, speaking through Fazl Ali J. accepted the observations made by the Lord Chief Justice of England in Brend v. Wood [1946] 62 TLR 462, 463. The decision of this court in Indo-China Steam Navigation Co. Lid. v. Jasjit Singh, Additional Collector of Customs, Calcutta [1964] 34 Comp Cas 435 (SC) 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 under inquiry now. There, this court was concerned with the interpretation of section 52A 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 the routes plied by its ships is the Calautta-Japan-Calcutta route. The 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 procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plies (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 State v. Sheo Prasad AIR 1956 All 610 held that a master was not liable for his servant's act in carrying oil-seeds 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. State AIR 1961 Cal 177 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn the Reserve Bank of India by a notification of the same date permitted persons to transit gold 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 a 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 section 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 element of mens rea was read into it, for there would still be persons who would be bringing into-India gold with the knowledge that they would be breaking the law. In such circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r question arose before the Privy Council in Lim Chin Aik v. The Queen [1963] AC 160, 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 section 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 page 171 thus: "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, correspon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 he 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uisite permission shall be on him." Very soon after the enactment of the Act the Central Government took action under section 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 permission 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 section 8(1) or section 23(1A) 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 section 23(1A) 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rising 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." The learned Lord then quoted with approval the view expressed by the Lord Chief Justice in Brend v. Wood [1946] 62 TLR 462 : "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 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." 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. State [1951] SCR 322, 328 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 poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arged with and convicted by the courts in Singapore of contravening section 6(2) of the Ordinance by remaining in Singapore when by an order made by the Minister under section 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 he 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, in so far 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 section 6(2) of the Ordinance mens rea was essential. The second was that even if the order of the Minister under section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was freedom of entry or rather absence of any legal prohibition against entry 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 section 6(2). It is in this context that the reference to "the luckless victim" has to be understood. The position under sections 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, section 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 section 24(1) of the Act wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 section 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(1-A) 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 pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. King [1909] AC 317, 324, where the plea of mens tea was raised as a defence to a prosecution for importation of opium in contravention of the Straits Settlements Opium Ordinance, 1960. Lord Atkinson, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 Limited. 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 I 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 gold into India was made an offence. In this connection it is necessary to bear in mind the Explanation to section 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 ship or aircraft which is within India without its 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-section 8(1)-he gets no advantage by his having remained on the aircraft without disembarking at Bombay for if the carrying on his person of the gold 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the General Clauses 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 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 section 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. Queen [1963] AC 160 . 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 appellant's act a contravention of section 6(2) of the Singapore Ordinance. We have advert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 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 section 6(2) of the Immigration Ordinance. That is not the position here, because the contravention contemplated by section 23(1A) of the Act is, in the present context, of an order of the Central Government issued under section 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 up 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 from 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 crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and Sons [1918] 1 KB 101, 103, where speaking of an order of the Food Controller dated May 16 said to have been contravened on the same day, the learned judge said : "I have no reason to suppose that any one in the trade knew about it on May 16 ... While I agree 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 Law and Orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough 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 section 8(1) of the Act. Learned counsel for the respondent also referred us to the decision of the Bombay High Court in Imperalor v. Leslie Gwilt ILR [1945] Bom 681 ; AIR 1945 Bom 368, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ines 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 had been introduced by the notification of the Reserve Bank dated November 8. 1962. The argument was that the gold that the respondent carried was his personal luggage and not "cargo"-either "bottom cargo" or "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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Carriage not as directly governing the contract between the respondent and the aircraft but as elucidating the general practice of transport by air in the light of which the 2nd proviso has to be understood. Part A entitled "Carriage of Passengers and Baggage" by its article 8, paragraph 1(c), excludes goods which are merchandise from the obligation of carriers to transport as luggage or as baggage, while article 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 was 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 section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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