State of Maharashtra v. Mayer Hans George (1965)

Esha Devchandra Mandal

Symbiosis Law School, Pune

It has been written by Esha Devchandra Mandal, a second-year LLB student of Symbiosis Law School, Pune.

Facts:

State of Maharashtra is the Appellant.

Mayer Hans George is the Respondent.

In this case, on 25th August 1948, a notification was passed by the government of India stating that any gold and gold article should not be bought into India or sent to India without general or special permission given by the Reserve Bank of India this was under the power of section 8 of Foreign Exchange Regulation Act,1947. The same day another notification was published by the Reserve Bank of India stating that giving a general permission to bring or send any gold article which was through transit and placed outside India.

On November 8TH,1962 a notification was given by the Reserve Bank of India that it had restricted the transit of any gold article being sent outside India with a condition that it should be declared in the “Manifest” for transit in the “same bottom cargo” or “transshipment cargo”. This notification was published on 24th November,1962.

The respondent, a German smuggler was traveling from Zurich by Swiss airplane to Manila in the Philippines via India. On 27th November 1962 as the aircraft landed based on previous information the customs officers, suspected him, and as they searched, they found 34 kilos of gold in his jacket. They caught hold of him.

The respondent was convicted by the Presidency Magistrate on 27TH April 1963, He started his sentence since. But the High Court passed an incorrect acquittal to him and was released the next day. The court granted a special leave on 20th December 1963 and by the application of the appellant state, the court directed to arrest him. For which the imprisonment continued till 8th May 1964. When the final verdict was given his sentence was reduced as he had already been in prison for 5 months approx.

Issue:

1. Whether the respondent had “Mens Rea”?

2. Whether the respondent was liable for “Strict Liability”?

3. Whether the respondent liable for not declaring the gold?

4. Whether he has committed any wrong under the “Foreign Exchange Regulations Act”?

5. Whether the ban imposed by the Government against the person, who transports prohibited goods through the vicinity of India and what was it within the scope?

Rules:

1. Mens Rea- It is having a blameworthy mental condition. The basic meaning of “mens rea” is criminal intent. It is a Latin word which means having of guilty mind. According to the Indian Penal Code, it is the intentional mental capacity of a person to break the law. It is also one of the fundamental elements required to commit a crime. Just doing some action doesn’t constitute a crime but the intention with which it is carried out does. Mens rea denotes that the action was voluntary and he/ she was in proper knowledge of it.

Section 39 of IPC states “a person is said to cause an effect “voluntarily” when he causes it by means whereby to intend to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it”.[1] This section justifies that the person is aware.

2. Strict liability or Absolute liability- It is a regulation that a person is legally liable for the damages or loss caused by his actions or omission without the intent behind his act. The person will be liable irrespective of the fact that his intention whether good, bad, damaging, or causing losses. In a crime, both mens rea and actus rea are the fundamentals. A crime can't be without mens rea but even if it does the person is liable based on actus rea and will be punished.

The maxim “Actus non facit reum” nisi mens sit rea which means “an act does not make a person guilty unless their minds also guilty”[2]. strict liability may in certain cases act as an exception to the general principle which says mens rea and actus rea both are required but the presence of actus rea is enough for a person to be criminally liable.

3. Foreign Exchange Regulation Act, 1947- Section 8 states that “any gold article should not be bought into India or sent to India except with general or special permission of the Reserve Bank of India provided through transit to any place outside India.”[3] This act was enacted at the time of Independence and the procedure of the enactment dates pre-independence. Such a law differs from today's scenario as many amendments have been made. As of now, the import of gold is restricted in terms of certain jewelry, and licensing is required. Laws are stricter now in terms of economic stability.

Analysis:

1. Arguments of Appellant's side

Solicitor General, appearing for the state of Maharashtra stated various arguments around safety and economic stability of the country. They contend that the act was enacted for the prevention of the smuggling of gold in or out of India. The presentation was based on securing economic stability. “Section 23(1-A) of the act merely refers to the contravention 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 expression such as “willfully", "knowingly”, etc nor does it create an absolute liability.”[4]This also indicates that we need to examine whether the statues contain willful or knowingly. We need to look if mens rea was present or not.

Statutory offences are offences that are automatically declared illegal or are prohibited as well as punishable by the government. The notice published by the central government restricting that “transit of any gold article should be declared in the “manifest” for transit in the “same bottom cargo” or “transshipment cargo”.” The laws were made to keep the countries security in mind. the argument was based on the principle of strict liability and mens rea is excluded in statutory offences. In such a scenario the country's safety is of prime importance and nothing can compromise that. They also presented an argument that ignorance of the law is no defense and as the RBI had already published it in the official Gazette, it automatically meant that it is out in the public domain and should be known by them. The dissent given by Justice N Rajagopala clearly states that once ignorance of fact is acceptable but not of law and so, the respondent should be convicted as it is about the economic welfare of a developing nation. So he was accused under section 8 of the FERC Act and Section 23(1-A).

2. Arguments from the Respondent's side

The arguments by the counsel, Mr. Sorabjee were, whether the second provision published by the RBI applied to the respondent. The notification published on 25th August 1948 applied to him. They argued by saying that firstly, he was just a passenger traveling via Mumbai. Here his intention was not to smuggle any gold articles into India. Secondly, he did not even step out of the aircraft which also shows his clear intentions that he doesn’t want to infringe with the security and safety of the country. He was just a common traveler like many others. So the question put forward by the appellant's side of mens rea is inaccurate and unjust and he isn’t liable under section 23(1-A). The legislation here should have specifically said the exclusion of mens rea, which is absent in this case and results in him being not liable under mens rea absolute liability. Other arguments were he did not infringe on the public delegation or his actions weren’t against the public interest. no harm was done by him to the public.

“The notification publication was mere a delegated legislation, could not be deemed to be in force not from the date of its publication or issue in the Gazette of India only on 24th November 1962.”[5] As the notification was on 24th November 1962 and the respondent traveled from Zurich on 27th November 1962, the gap between the two is quite less for any individual to catch up on any new restrictions being added on and so the respondent’s conviction under section 8. Or section23 (1-A) is unethical and unfair. Unless a fair implication ruling out men's rea under statutory offences is clearly stated, one should not be convicted unless the person has a guilty mind.

3. Judgement

The Presidency Magistrate passed a sentence of one year’s imprisonment considering the facts, arguments, and notion of the case that it does violate the act. After which the case went to the high court, where the Bombay high court acquitted him on the grounds of his not being aware of the notification passed by the RBI and he did not have the mens rea to commit the act. But the matter was appealed and went to the apex court, the Supreme Court, where they stated that even actus rea is enough in case of a statutory offence, and mens rea is excluded in such scenarios. As he had already been in jail for a few months, when the final judgment was announced his imprisonment was reduced accordingly.

4. Comparative study with a similar case

In Sherras V De Rutzen, [1919], HCA35;26 CLR 477 ;[1895] 1 QB 918.[6]

This case is similar as it talks about the basic intention of a person’s mind. Here, the respondent was convicted for selling alcohol under section 16(2) of Licensing Act, to a police officer on duty. But the question arises, was the respondent aware of the other person being a police officer on duty? as this will help us to know, whether he had the mens rea to commit the act or was it unintentional. The officer on duty has a very specific way of dressing and uniform which also includes an armlet. The officer to whom the alcohol was being sold did not wear the armlet which gave the respondent an idea that he might not be on duty so it is completely fair to sell him alcohol. His intention was not to commit any wrong. So, his conviction was incorrect as mens rea was not present whereas, it was out of misunderstanding. The appeal was allowed in this case and his conviction was quashed. The case has a similar essence concerning the M H George case, his intention was not to hamper the public interest and he wasn't aware of the notification published but here the point of country safety comes into place with which mens rea as an essential element for a crime is being excluded and even the actus rea is enough causing a statutory offense.

Conclusion:

In this case, there is a thin line between reality and assumption. In my opinion, courts need to apply the law diligently in case of the use of assumption. The government makes binding laws and the legislation has the power to amend laws accordingly. Here the respondent should be held liable as from the country's point of view the social and economic stability should not be compromised, so the government was within its scope of publishing such laws. But from the individual perspective, the respondent was not at fault as he was not aware of the regulations of India and his intention was not against the public interest and he wasn’t even supposed to know as he wasn’t traveling to India. It depends upon the realities of the case, on which the judgments should be passed.

References

1. India Penal Code, K.D Guar, Fourth edition, Universal Publication.

2. Bare act of Indian Penal Code, 1860

3. SCC online

4. Manupatra

5. Indian Kannon- https://indiankanoon.org/doc/1564263/

6. Law planet- https://lawplanet.in/state-of-maharashtra-vs-mh-george-case-summary-1965-sc/

7. Indian code- https://www.indiacode.nic.in/repealed-act/repealed_act_documents/A1973-46.pdf

8. Law times journal - https://lawtimesjournal.in/strict-liability-offences-in-ipc/

REFERENCES

[1] Bare act, IPC, No. 39, Acts of Parliament,1860 (India)

[2] Strict liability under Criminal Law, ( 2020 , June), Retrieved from