In the Supreme Court of India
1965 AIR 722, 1965 SCR (1) 123
State of Maharashtra
Mayer Hans George
Date of Judgement
24 August 1964
Justice K. Subbarao, Justice Rajagopala Ayyangar, Justice J.R. Mudholkar
The respondent who was a German national for bringing gold to India without the permission of Reserve Bank Of India as per the section 23(1A)(a) of the Foreign Exchange Regulations Act of 1947 was sentenced for a year; as he was considered to be doing so with an intent to defraud the government. He was acquitted by the High court but the state made a further appeal in the Supreme Court.[i]
There it was considered that there is without a doubt a specific measure of vulnerability in the law aside from in situations where the particular arrangement in that behalf is made in individual statutes as to (a) when subordinate enactment could be said to have been passed, and (b) when it happens.
Statues and provisions involved:
Section 8(1), Section 23 (1-A) of Foreign Exchange Regulation Act, 1947. sec. 168 (8) (1) of the Sea Customs Act.
The respondent, a German dealer, left Zurich via plane on 27th November 1962 with 34 kilos of gold-covered on his person to be conveyed in Manila. The plane reached in Bombay on the 28th however, the respondent didn’t leave the plane. The Customs Authorities analyzed the manifest of the airplane to see if any gold was dispatched by any traveler, and not finding any entry they entered the plane, looked through the respondent, recouped the gold, and accused him of an offense under ss. 8(1) and 23(1-A) of the Foreign Exchange Regulation Act (7 of 1947) read with a notification dated November 8, 1962, of the Reserve Bank of India which was published in the Gazette of India on 24th November.·The respondent was sentenced by the Magistrate, however, acquitted by the High Court. A further appeal was made by the state in the Supreme Court.
Whether the respondent is liable for bringing gold to India under ss. 8(1) and 23(1-A) of the Foreign Exchange Regulation Act (7 of 1947) which was published in the Gazette of India on 24th November 1962?
This appeal raised the question of the scope of the ban forced by the Central Government and the Central Board of Revenue in the exercise of the powers given to them under Section 8 of the Foreign Exchange Regulation Act, 1947 (VII of 1947), hereinafter called the Act, against people transferring restricted articles through India?
Learned Solicitor-General, showing up for the State of Maharashtra, fights that the Act was authorized to forestall pirating of gold in the light of a legitimate concern for the financial strength of the nation and, in this way, in translating the significant arrangements of such an Act there is no extension for applying the assumption of precedent-based law that mens rea is an essential element of the offense.
The object of the resolution and the compulsory terms of the significant arrangements, the contention continues, refute any such assumption and demonstrate that mens rea is anything but a fundamental element of the offense. He further battles that on a sensible development of the second stipulation of the warning dated November 8, 1962, gave by the Board of Revenue, it ought to be held that the general consent for bringing gold into India is dependent upon the condition set down in the subsequent stipulation and that, as in the present case the gold was not unveiled in the Manifest, the respondent contradicted the terms thereof and was, in this way, at risk to be sentenced under the previously mentioned segments of the Foreign Exchange Act. No contention was progressed before us under S. 168 (8) (1) of the Sea Customs Act and, in this way, nothing need be said about that area.
Mens rea was a fundamental element of the offense charged and as it was not questioned by the arraignment that the respondent was not mindful of the notification of the Reserve Bank, he couldn’t saw as liable.
The notice being just subordinate or assigned enactment could be regarded to be in power just when it was brought to the notification of people influenced by it and, the second stipulation in the warning requiring exposure in the show was not pertinent to gold carried on the individual of a traveler.
Some point was made of the way that if the subsequent stipulation were applied to the instance of gold or articles made of gold carried on the individual, a tie-pin or a wellspring pen which had a gold nib brought by a through traveler may draw in the forbiddance of sec. 8(1) read with the exception by the Reserve Bank as it currently stands and that the Indian law would be superfluously cruel and nonsensical.
Not considered this right, for an unmistakable and sharp differentiation, exists between what is close to home things and what isn’t and the last is ‘cargo’ and must be entered in the manifest. On the off chance that an individual decides to carry with the rest of his personal effects what isn’t close to home things or gear comprehended in the legitimate sense however what ought to appropriately be announced and entered in the show of the airplane there can be no objection of the absurdity of the Indian law on the subject.
The outcome, in this manner, is that we consider that the Judges of the High Court failed in clearing the respondent. The intrigue has, hence, to be permitted and the conviction of the respondent restored. In these conditions, we coordinated that however the intrigue was permitted; the sentence would be decreased to the period previously experienced which was just specialized impedance with the sentence passed by the Presidency Magistrate; however, in substance, it was most certainly not. The appeal was allowed:
The whole accommodation on this piece of the case was laid on the significance of the word ‘cargo’, the point looked to be made is that what a traveler conveyed with himself or with the rest of his personal effects couldn’t be ‘cargo’, and that payload was what was given over to the transporter for carriage. Dependence was, right now on the meaning of the term ‘cargo’ in word references where it is said to signify “the product or products contained or passed on in a boat.” On the off chance that all the merchandise or articles held by a traveler in his’ own authority or conveyed by him with the rest of his personal effects were outside the subsequent stipulation, and the act was pulled in just to situations where the article was given over to the guardianship of the transporter, it would have no an incentive at all as a state of exception. The products depended to a corner would be entered in the show and on the off chance that they were not it must be attributable to the issue of the transporter, and it could scarcely be that the traveler was being punished for the default of the bearer. In the event that the carriage of the merchandise on the individual or in the guardianship of the traveler was absolved, there would be no degree at all for the activity of the second stipulation.
The court, subsequently, thinks about that the correct development of the term ‘cargo’ when it happens in the notice of the Reserve Bank is that it is utilized as contra-recognized from individual gear in the law identifying with the carriage of the merchandise. It was, along these lines, “cargo” which must be showed and its worth more likely than not been embedded noticeable all around transfer note.
It was observed that as per the General Conditions of Carriage of the International Air Traffic Association’s is not legitimately administering the agreement between the respondent and the airplane yet as explaining the trip general act of transport via air in the light of which the subsequent stipulation must be seen Part An entitled ‘Carriage of Passengers and Baggage’ by its Art. 8, para 1(c) prohibits products which are stock from the commitment of bearers to ship as gear or as things, while Art. 3 of Part B managing carriage of merchandise gives that gold is acknowledged to carriage just if safely stuffed and it’s worth embedded in the transfer note under the heading “Quantity and nature of goods”.
In deciding if a statutory arrangement does or doesn’t make an offense of severe obligation, the couple of contemplations appear to be significant, as given in the judgment of M.H. George’s Case – Phraseology of the statutory arrangement making an offense of strict liability, especially articulations demonstrating or barring the mental element or component required. Nature of the mischief at which the arrangement or rule is pointed, and whether the burden of exacting obligation will, in general, suppress the mischief, albeit strict liability ought not to be deduced essentially in light of the fact that the offense is depicted as a grave social malevolence. Consequently, disregarding the created rules with respect to the use of the assumption, it despite everything relies upon the realities of the case just as the kind of statutory offense whether the statutory assumption will be applied or not, and the courts will, in any case, continue growing new principles to choose the same. [ii]
Edited by Parul Soni
Approved & Published – Sakshi Raje
[i] State of Maharashtra v. Mayer Hans George, 1965 AIR 722, 1965 SCR (1) 123.