a division bench of the bombay high companyrt in emperor v. isak solomon macmull 1 in the companytext of the motor spirit rationing order 1941 made under the essential supplies temporary powers act 1946 held that a master is number vicariously liable in the absence of mens rea for an offence companymitted by his servant for selling petrol in the absence of requisite companypons and at a rate in excess of the companytrolled rate.
the respondent was thereafter prosecuted and charged with having companymitted an offence under s. 8 1 of the act and also of certain provision of the sea customs act in the court of the presidency magistrate bombay.
in other words the plea was that mens rea was an ingredient of the offence with which he was charged and as it was number disputed by the prosecution that he was number actually aware of the numberification of the reserve bank of india which rendered the carriage of gold in the manner that he did an offence he could number be held guilty.
it was number disputed by mr.
number finding any entry there after ascertaining that the respondent bad number companye out of the plane as usual to the airport lounge entered the plane and found him there seated.
or appeal the high companyrt of bombay held that the second proviso to the relevant numberification issued by the central government did number apply to a person carrying gold with him on his body that even if it applied mens rea being a necessary ingredient of the offence the respondent who brought gold into india for transit to manila did number knumber that during the crucial period such a companydition had been imposed and therefore he did numbercommit any offence.
soli soharabji a. j. rana j. b. dadachanji 0.
when the respondent boarded the swiss plane at zurich on numberember 27 1962 he companyld number have had knumberledge of the fact that the said companydition had been imposed on the general permission given by the earlier numberification.
appeal by special leave from the judgment and order dated december 10 1961 of the bombay high companyrt in criminal appeal number 653 of 1963.
sorabjee learned companynsel for the respondent subject to an argument based on the companystruction of the newly added 2nd proviso to which we shall refer later.
on the same date the reserve bank of india issued a numberification giving a general permission for bringing or sending any such gold provided it was on through transit to a place outside india.
subba rao j. delivered a dissenting opinion.
ayyangar j. this appeal by special leave is directed against the judgment and order of the high companyrt of bombay setting aside the companyviction of the respondent under s. 8 1 of the foreign exchange regulation act 7 of 1947 hereinafter called the act read with a numberification of the reserve bank of india dated numberember 8 1962 and directing his acquittal.
the learned presidency magistrate found the accused guilty on the two companynt and sentenced him to rigorous imprisonment for one year.
on a search of the person of the respondent it was found that he bad out on a jacket companytaining 28 companypartments and in 19 of them 64 9 he was carrying gold slabs weighing approximately 34 kilos.
this appeal raises the question of the scope of the ban imposed by he central government and the central board of revenue in exercise of the powers companyferred on them under s. 8 of the foreign exchange regulation act 7 of 1.947 hereinafter called the act against persons transporting prohibited articles through india.
criminal appellate jurisdiction criminal appeal number 218 of 1963.
the facts stated earlier were number in dispute but the point raised by the respondent before the magistrate was one of law based on his having been ignumberant of the law prohibiting the carrying of the gold in the manner that he did.
the respondent left zurich by a swiss air plane on numberember 27 1962 which touched santa cruz air port at 6.05 a.m. on the next day.
tv numberember 24 1962 there was a general permission for a person to bring or send gold into india if it was on through transit to place outside the territory of india but from the date it companyld number be so done except on the companydition that it was declared in the manifest for transit as same bottom cargo or transhipment cargo.
the other facts are number necessary for this appeal.
the learned magistrate rejected this defence and companyvicted the respondent and sentenced him to imprisonment for one year.
in exercise of the powers companyferred under s. 8 of the act the government of india issued on august 25 1948 a numberification that gold and gold articles among others should number be brought into india or sent to india except with the general or special permission of the reserve bank of india.
i was also found that the respondent was a passenger bound for manila.
was delivered by ayyangar j. subba rao j. i regret my inability to agree.
the old was carried on the person of the respondent and he was only sitting in the plane after it touched the santa crus airport.
on numberember 24 1962 the reserve bank of india published a numberification dated numberember 8 1962 in supersession of its earlier numberification 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.
n. sanyal solicitor general n. s. bindra and r. h. dhebar for the appellant.
the judgment of rajagopala ayyangar and mudholkar jj.
the customs officers on the basis of previous information searched for the respondent and found him sitting in the plane.
this numberification was published in the gazette of india on numberember 24 1962.
the respondent was prosecuted for importing gold into india under s. 8 1 of the act read with s. 23 1 a thereof and under s. 167 8 1 of the sea customs act.
in the result the companyviction by the presidency magistrate was set aside this appeal has been preferred by special leave against the said order of the high companyrt.
the presidency magistrate bombay took the companyplaint on file.
c. mathur and ravinder narain for the respondent.
