Criminal Law II
Mens Rea
The fundamental principle of criminal liability is that there must be a wrongful act – actus reus, combined with a wrongful intention - mens rea. This principle is embodied in the maxim, actus non facit reum nisi mens sit rea meaning, 'an act does not make one guilty unless the mind is also guilty'. In juristic concept, actus reus represents the physical aspect of crime and mens res, its mental aspects, which must be criminal and co-operate with the first. Actus reus has been defined as 'such result of human conduct'. Mens rea covers a wide range of mental states and conditions, the existence of which would give a criminal hue to actus reus. Actus reus connotes an overt act, the physical result of human conduct.
In order to create criminal liability, it is not sufficient that there is mens rea and an act; the actus must be reus. In other words, the act must be one that is prohibited by law. Actus reus includes negative as well as positive elements. The requirements of actus reus varies depending on the definition of the crime. Actus reus may be with reference to place, fact, time, persons, etc.
This is exactly the intention of law when it stipulates that mens rea or guilty intention is the sine qua non of a criminal act and is an essential element of a crime. Intention is the conscious exercise of the mental faculties of a person to do an act, for the purpose of accomplishing or satisfying a purpose.
Objective
The object of law is always to punish a person with a guilty mind. It does not want to put behind bars an innocent person who may have had the misfortune of being involved in a incident and event, which he did not have the intention of participating in. The existence of the mental element or guilty mind of mens rea at the time of commission of the actus reus or the act alone, will make the act an offence. Every overt or outward act or the actus reus has also an essential ingredient of a crime. The element of mens rea as an essential ingredient of a crime is also approved by the growing modern philosophy. The object is that punishment should fit the offender and not merely the offence.
How to establish mens rea
As intention is an abstract idea, it is difficult to establish it and the help is taken of surrounding facts or factors -
(i)Previous relation between the accused and the victim, any object of hostility between them.
(ii)Existence of instigation, i.e. Whether accused was hired and what prompted him to commit crime; and
(iii)Whether the accused had something to gain out of the whole affair.
Thus, guilty intention is always preceded by a motive or real causal factors.
In R. Vs. Prince (1875) the accused was an adult person who got an affair with a girl he believed the girl to be adult as she seems adult due to physical built up but she is near about 14 Yrs of age. They involved in relationship (physical etc.). The boy was caught and charged with the offence of Kidnapping and Rape. Court said this is a case of strict liability therefore the mens rea can't be taken as an Excuse.
Mens Rea in the Indian Penal Code
Under the IPC, guilt in respect of almost all the offences is fastened either on the ground of intention, or knowledge or reason to believe. Though the word mens rea as such is no where found in the IPC, its essence is reflected in almost all the provisions of the Code. For framing a charge for an offence under the IPC, the traditional rule of existence of mens rea is to be followed. Chapter IV of the Code deals with General Exceptions, wherein acts which otherwise could constitute offences, cease to be so under certain circumstances.
However, this general or traditional rule that mens rea is an essential element in IPC offences is not without its exceptions. Like all other statutes, the deciding factor on whether mens rea is required or not, depends on the language of statute and the intention of the legislature as gathered from the statute.
Negligence as Mens ReaMens rea is not an unitary concept. Depending on the nature of the crime, mens rea may be presence or existence of intention in some cases, or requirement of knowledge in some, and negligence in some others. Thus, law has developed various levels of mens rea or intent such a negligence, recklessness, knowledge and purpose. Based on the nature of the offence, the requirements of particular statutory provisions and the object of the particular statute, the courts have to decide what is the extent or level of criminal intent that is required to convict a person of an offence.
In R vs. Wheals & Stock Mr. Wheals a person of very little education, want divorce from her wife. He asked solicitor for the purpose. One day when he was enjoying holiday, received some papers as required to be signed by him in order to file the divorce case. He signed them and sent back to solicitor, believing that he got divorced. He entered into marriage with Ms. Stock. His first wife filed a case of Bigamy against him. He pleaded before the court that he was not aware of the facts as he is a person of very little education and he had no mens rea . Held by the court that Bigamy is an offence under the rule of 'Mala in Se' and can not be tolerated by the state and he was held liable.
Mens rea when not essential (Strict Liability)
Although mens rea is a sacrosanct principle of criminal law, it can be waived in certain circumstances. There are some special circumstances under which the law imposes a strict or absolute liability, and such cases may be treated as exception to the doctrine of mens rea. Or it can be said that mens rea is an exception to the maxim 'actus non facit reum, nisi mens sit rea. But the principle of strict liability can not be imposed upon those people who are generally excepted ( like insane, child, etc.)The following are the exceptional cases in which mens rea is not required in criminal law :
(1)Language of the Statute and subject matter of legislation :- Language of the Statute and the intention of the legislation as gathered from statute shows whether the act imposes the strict liability or there is a requirement of mens rea in order to prosecute a accused person. This could be established by the following two modes:-
(a) Express Words :- Whether language of the statute
expressly gives indication regarding the requirement of the mens rea or not.
(b) Fair Implication :- If it is not clearly expressed in the
statute then the language of the statute should be observed
that what kind of liability it intend to impose.
(2) Nature of the act :- Involving acts that are in real sense not
criminal in nature, they are quasi-criminal in nature. They are
prohibited in public interest. It includes public welfare offence. They
are called as white collar crimes. Committed by persons at high
position e.g. Crime relating foods and drugs, weights and packages
etc.
(3)Mens rea is not essential in respect of certain offence in I.P.C.
Where the nature of offence is such that in commission bring a very
serious damage to the society which can not be compensated e.g.
Kidnapping, counterfeiting coins, etc.
(4)When it is difficult to prove mens rea, where the penalties are petty
fines and where a statute has done away with the necessity of mens
rea on the basis of expediency, strict liability in criminal law may be
imposed, e.g. Violation of traffic rules.
(5) Cases of Public Nuisance :-Under this head comes lible, defamation
where intention of defamer is not real required .
(6) Cases in which although the proceedings are of criminal form but
civil rights are to be enforced . e.g. Rights of property is infringed
by a trespasser, trespasser will be prosecuted.
(9) Another exception that might be mentioned here is related to the
maxim “ Ignorance of the law is no excuse”.
Jurisdiction of these exceptions
These are the cases where we regulate certain activities as far as regulation of those activities is concerned it is possible only when we deal with them strictly the approach is not to punish but to ensure that the duty is carried out responsibly such regulations are enacted to protect and preserve social interest of the community. If concession are given we will not be in a position to achieve the objective.
In order to determine whether to use doctrine of strict liability or prinicple of mens rea the following points should be considered :-
(1) Language of the Statute.
(2) Policy behind the statute.
(3) By examining as to how far the statute would differ by adherence to the principle of mens rea.
Burden of Proof
When a clause for presumption of mens rea exists in the statute, then the job of the prosecution is only to prove that the accused committed certain acts. Once that is proved, the statutory presumption of mens rea or guilty mind steps in and the accused is presumed to be guilty. But this presumption is always a rebuttable presumption, i.e., the accused person will be given an opportunity to prove to the court that though the person had committed certain acts, it was done innocently and without any criminal intent. To this extent, the burden on the prosecution to prove the guilt of the accused beyond reasonable doubt is shifted to the accused. It is for the accused to establish his innocence, though, the standard of proof required is not the same.
Public Welfare Offences and Mens Rea.
In the last few decades, an entire range of social or public welfare legislation have been conceived in such a manner that the law makes the mere omission of commission of acts punishable. In other words, no mens rea is required.
It must be appreciated that one is living in a world of machines. Very often, these machines are dangerous and may pose a health hazard to the worker and persons residing in and around that area. So, it is in the interest of larger good that there are laws, which lay down standards and regulate the functioning of the industries. For instance, the Factories Act 1948. This Act is a labour welfare legislation. The management of the factory is responsible to comply with the provisions of the Act and they are liable for breach, even if there is no mens rea or guilty mind. There are a host of other labour laws for which mens rea may not be necessary. The legislature is well within its power to legislate that in respect of a particular offence, the existence of mens rea is not an essential requirement.
State of Maharashtra vs. M H George
In this case the question of necessity of mens rea for an offence under the FERA. M H George was a German national, who was apprehended for smuggling gold into India. According to the statement made by him to the customs authorities, some person met him in Hamburg and engaged him on certain terms of remuneration, to clandestinely transport gold from Geneva to places. The present case was concerned with the one that he undertook at the instance of an international gang of gold smugglers carrying 34 kilo bars of gold concealed in a jacket which he wore. This trip started at Zurich on 27th November 1962 and his destination was Manila, where he was to deliver the gold . The plane arrived in Bombay on 28 November. The custom authorities who had evidently advance information of gold being attempted to be smuggled by the respondent, 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 seated there. The customs inspector upon inspection found some metal blocks on his person. On removing the jacket he wore, it was found to have 28 specially made compartments from the 19 compartments 34 bars of gold each weighing approximately one kilo were recovered. The respondent disclaimed ownership and gave the story of his several trips.
The respondent was prosecuted and charged with having committed an offence under Sec. 8,23(1-A)&24 of FERA. Sec 8 of the Act enacts the restrictiions on the import and export inter alia. 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, as the respondent left Geneva on Nov. 27 1962 and he was not aware of the change in the content of the exemption granted by the Reserve Bank in its Ist notification dated August 25, 1948. In other words, the plea was that Mens rea was an ingredient of the offence with which he was charged. It was disputed by the prosecution that he was not actually aware of the IInd notification of the Reserve Bank of India Issued on 8th Nov. and Published on 24th Nov. 1962 which rendered the carriage of gold in the manner that he did an offence, and henceforth he could not be held guilty. The learned magistrate rejected this defence and sentenced him to imprisonment for one Year. On appeal by the respondent, the learned judges of the High Court allowed the appeal and acquitted the respondent upholding the legal defence which raised. It is the correctness of this conclusion that came up for consideration before the Supreme Court. A number of cases were put up before the court for reference. As referring a decision of the Privy Council in Sriniwas Mall v. Emperor, The Board was, there, dealing with the correctness of a conviction under the Defence of India Rules, 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 had bought and received all of which were required to be done under the rules. For the contravention by the servant of the Regulation for the sale of salt prescribed by the Rules the appellant was prosecuted and convicted as being vicariously liable for the act of his servant. On appeal to the Privy Council stated : They see no ground for saying that offence against those of the Defence of India Rules here in question are within limitation and exceptional class of offences which can be held to be committed without a guilty mind.
Further in R vs. Tolson(1889) Tolson got married in. After 1 Yr. Mr. Tolson became missing there was no information about him for seven years. Mrs. Tolson waited for her husband during this period. Elder brother of Tolson told her that he has gone in vessel and it was sunk. So she decided to marry again as she believed vessel was lost and he is dead. Tolson came back when his wife get married again. He filed a case against her. In this case the court held that, “ Although, prime facie and as a general rule, there must be a mind at fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject-matter and may be so framed as to make an act criminal whether there has been any intention to break the law or otherwise to do wrong or not.” After considering the plight and circumstances during the period of 7 Yrs. of the wife they acquitted the wife from charges.
In another In the case of Lim Chin Aik v. Queen the Privy Council reviewed the entire law of the Immigration Ordinance of the State of Singapore. The Minister made an order under the powers conferred by the Ordinance in an instance of the exercise of delegated legislation, 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 of attention of the appellant. He was prosecuted for contravention of the Ordinance. On a review of the case on the subject and the principles enunciated therein, the Judicial Committee came to the conclusion that it is not enough merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended, 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.
Another reference was of Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh Co. carries on the business of carriage of goods and passengers by sea, owns a fleet of ships. On its route a vessel arrived at Calcutta. On a search it was found that a hole was covered with a piece of wood, when the hole was opened a large quantity of gold was discovered. Custom Authorities ceased the vessel. One of the contentions raised was that S 52 A of Sea Custom Act. 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. The Court in construing the scheme and object of the Sea Custom Act came to the conclusion 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.
The court in this case held that the very object and purpose of the Act and its effectiveness as an instrument for the prevention of smuggling would be entirely frustrated, if condition of mens rea were to be read into the plain reading of the enactment. Therefore the accused M H George was convicted .
The fundamental principle of criminal liability is that there must be a wrongful act – actus reus, combined with a wrongful intention - mens rea. This principle is embodied in the maxim, actus non facit reum nisi mens sit rea meaning, 'an act does not make one guilty unless the mind is also guilty'. In juristic concept, actus reus represents the physical aspect of crime and mens res, its mental aspects, which must be criminal and co-operate with the first. Actus reus has been defined as 'such result of human conduct'. Mens rea covers a wide range of mental states and conditions, the existence of which would give a criminal hue to actus reus. Actus reus connotes an overt act, the physical result of human conduct.
In order to create criminal liability, it is not sufficient that there is mens rea and an act; the actus must be reus. In other words, the act must be one that is prohibited by law. Actus reus includes negative as well as positive elements. The requirements of actus reus varies depending on the definition of the crime. Actus reus may be with reference to place, fact, time, persons, etc.
This is exactly the intention of law when it stipulates that mens rea or guilty intention is the sine qua non of a criminal act and is an essential element of a crime. Intention is the conscious exercise of the mental faculties of a person to do an act, for the purpose of accomplishing or satisfying a purpose.
Objective
The object of law is always to punish a person with a guilty mind. It does not want to put behind bars an innocent person who may have had the misfortune of being involved in a incident and event, which he did not have the intention of participating in. The existence of the mental element or guilty mind of mens rea at the time of commission of the actus reus or the act alone, will make the act an offence. Every overt or outward act or the actus reus has also an essential ingredient of a crime. The element of mens rea as an essential ingredient of a crime is also approved by the growing modern philosophy. The object is that punishment should fit the offender and not merely the offence.
How to establish mens rea
As intention is an abstract idea, it is difficult to establish it and the help is taken of surrounding facts or factors -
(i)Previous relation between the accused and the victim, any object of hostility between them.
(ii)Existence of instigation, i.e. Whether accused was hired and what prompted him to commit crime; and
(iii)Whether the accused had something to gain out of the whole affair.
Thus, guilty intention is always preceded by a motive or real causal factors.
In R. Vs. Prince (1875) the accused was an adult person who got an affair with a girl he believed the girl to be adult as she seems adult due to physical built up but she is near about 14 Yrs of age. They involved in relationship (physical etc.). The boy was caught and charged with the offence of Kidnapping and Rape. Court said this is a case of strict liability therefore the mens rea can't be taken as an Excuse.
Mens Rea in the Indian Penal Code
Under the IPC, guilt in respect of almost all the offences is fastened either on the ground of intention, or knowledge or reason to believe. Though the word mens rea as such is no where found in the IPC, its essence is reflected in almost all the provisions of the Code. For framing a charge for an offence under the IPC, the traditional rule of existence of mens rea is to be followed. Chapter IV of the Code deals with General Exceptions, wherein acts which otherwise could constitute offences, cease to be so under certain circumstances.
However, this general or traditional rule that mens rea is an essential element in IPC offences is not without its exceptions. Like all other statutes, the deciding factor on whether mens rea is required or not, depends on the language of statute and the intention of the legislature as gathered from the statute.
Negligence as Mens ReaMens rea is not an unitary concept. Depending on the nature of the crime, mens rea may be presence or existence of intention in some cases, or requirement of knowledge in some, and negligence in some others. Thus, law has developed various levels of mens rea or intent such a negligence, recklessness, knowledge and purpose. Based on the nature of the offence, the requirements of particular statutory provisions and the object of the particular statute, the courts have to decide what is the extent or level of criminal intent that is required to convict a person of an offence.
In R vs. Wheals & Stock Mr. Wheals a person of very little education, want divorce from her wife. He asked solicitor for the purpose. One day when he was enjoying holiday, received some papers as required to be signed by him in order to file the divorce case. He signed them and sent back to solicitor, believing that he got divorced. He entered into marriage with Ms. Stock. His first wife filed a case of Bigamy against him. He pleaded before the court that he was not aware of the facts as he is a person of very little education and he had no mens rea . Held by the court that Bigamy is an offence under the rule of 'Mala in Se' and can not be tolerated by the state and he was held liable.
Mens rea when not essential (Strict Liability)
Although mens rea is a sacrosanct principle of criminal law, it can be waived in certain circumstances. There are some special circumstances under which the law imposes a strict or absolute liability, and such cases may be treated as exception to the doctrine of mens rea. Or it can be said that mens rea is an exception to the maxim 'actus non facit reum, nisi mens sit rea. But the principle of strict liability can not be imposed upon those people who are generally excepted ( like insane, child, etc.)The following are the exceptional cases in which mens rea is not required in criminal law :
(1)Language of the Statute and subject matter of legislation :- Language of the Statute and the intention of the legislation as gathered from statute shows whether the act imposes the strict liability or there is a requirement of mens rea in order to prosecute a accused person. This could be established by the following two modes:-
(a) Express Words :- Whether language of the statute
expressly gives indication regarding the requirement of the mens rea or not.
(b) Fair Implication :- If it is not clearly expressed in the
statute then the language of the statute should be observed
that what kind of liability it intend to impose.
(2) Nature of the act :- Involving acts that are in real sense not
criminal in nature, they are quasi-criminal in nature. They are
prohibited in public interest. It includes public welfare offence. They
are called as white collar crimes. Committed by persons at high
position e.g. Crime relating foods and drugs, weights and packages
etc.
(3)Mens rea is not essential in respect of certain offence in I.P.C.
Where the nature of offence is such that in commission bring a very
serious damage to the society which can not be compensated e.g.
Kidnapping, counterfeiting coins, etc.
(4)When it is difficult to prove mens rea, where the penalties are petty
fines and where a statute has done away with the necessity of mens
rea on the basis of expediency, strict liability in criminal law may be
imposed, e.g. Violation of traffic rules.
(5) Cases of Public Nuisance :-Under this head comes lible, defamation
where intention of defamer is not real required .
(6) Cases in which although the proceedings are of criminal form but
civil rights are to be enforced . e.g. Rights of property is infringed
by a trespasser, trespasser will be prosecuted.
(9) Another exception that might be mentioned here is related to the
maxim “ Ignorance of the law is no excuse”.
Jurisdiction of these exceptions
These are the cases where we regulate certain activities as far as regulation of those activities is concerned it is possible only when we deal with them strictly the approach is not to punish but to ensure that the duty is carried out responsibly such regulations are enacted to protect and preserve social interest of the community. If concession are given we will not be in a position to achieve the objective.
In order to determine whether to use doctrine of strict liability or prinicple of mens rea the following points should be considered :-
(1) Language of the Statute.
(2) Policy behind the statute.
(3) By examining as to how far the statute would differ by adherence to the principle of mens rea.
Burden of Proof
When a clause for presumption of mens rea exists in the statute, then the job of the prosecution is only to prove that the accused committed certain acts. Once that is proved, the statutory presumption of mens rea or guilty mind steps in and the accused is presumed to be guilty. But this presumption is always a rebuttable presumption, i.e., the accused person will be given an opportunity to prove to the court that though the person had committed certain acts, it was done innocently and without any criminal intent. To this extent, the burden on the prosecution to prove the guilt of the accused beyond reasonable doubt is shifted to the accused. It is for the accused to establish his innocence, though, the standard of proof required is not the same.
Public Welfare Offences and Mens Rea.
In the last few decades, an entire range of social or public welfare legislation have been conceived in such a manner that the law makes the mere omission of commission of acts punishable. In other words, no mens rea is required.
It must be appreciated that one is living in a world of machines. Very often, these machines are dangerous and may pose a health hazard to the worker and persons residing in and around that area. So, it is in the interest of larger good that there are laws, which lay down standards and regulate the functioning of the industries. For instance, the Factories Act 1948. This Act is a labour welfare legislation. The management of the factory is responsible to comply with the provisions of the Act and they are liable for breach, even if there is no mens rea or guilty mind. There are a host of other labour laws for which mens rea may not be necessary. The legislature is well within its power to legislate that in respect of a particular offence, the existence of mens rea is not an essential requirement.
State of Maharashtra vs. M H George
In this case the question of necessity of mens rea for an offence under the FERA. M H George was a German national, who was apprehended for smuggling gold into India. According to the statement made by him to the customs authorities, some person met him in Hamburg and engaged him on certain terms of remuneration, to clandestinely transport gold from Geneva to places. The present case was concerned with the one that he undertook at the instance of an international gang of gold smugglers carrying 34 kilo bars of gold concealed in a jacket which he wore. This trip started at Zurich on 27th November 1962 and his destination was Manila, where he was to deliver the gold . The plane arrived in Bombay on 28 November. The custom authorities who had evidently advance information of gold being attempted to be smuggled by the respondent, 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 seated there. The customs inspector upon inspection found some metal blocks on his person. On removing the jacket he wore, it was found to have 28 specially made compartments from the 19 compartments 34 bars of gold each weighing approximately one kilo were recovered. The respondent disclaimed ownership and gave the story of his several trips.
The respondent was prosecuted and charged with having committed an offence under Sec. 8,23(1-A)&24 of FERA. Sec 8 of the Act enacts the restrictiions on the import and export inter alia. 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, as the respondent left Geneva on Nov. 27 1962 and he was not aware of the change in the content of the exemption granted by the Reserve Bank in its Ist notification dated August 25, 1948. In other words, the plea was that Mens rea was an ingredient of the offence with which he was charged. It was disputed by the prosecution that he was not actually aware of the IInd notification of the Reserve Bank of India Issued on 8th Nov. and Published on 24th Nov. 1962 which rendered the carriage of gold in the manner that he did an offence, and henceforth he could not be held guilty. The learned magistrate rejected this defence and sentenced him to imprisonment for one Year. On appeal by the respondent, the learned judges of the High Court allowed the appeal and acquitted the respondent upholding the legal defence which raised. It is the correctness of this conclusion that came up for consideration before the Supreme Court. A number of cases were put up before the court for reference. As referring a decision of the Privy Council in Sriniwas Mall v. Emperor, The Board was, there, dealing with the correctness of a conviction under the Defence of India Rules, 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 had bought and received all of which were required to be done under the rules. For the contravention by the servant of the Regulation for the sale of salt prescribed by the Rules the appellant was prosecuted and convicted as being vicariously liable for the act of his servant. On appeal to the Privy Council stated : They see no ground for saying that offence against those of the Defence of India Rules here in question are within limitation and exceptional class of offences which can be held to be committed without a guilty mind.
Further in R vs. Tolson(1889) Tolson got married in. After 1 Yr. Mr. Tolson became missing there was no information about him for seven years. Mrs. Tolson waited for her husband during this period. Elder brother of Tolson told her that he has gone in vessel and it was sunk. So she decided to marry again as she believed vessel was lost and he is dead. Tolson came back when his wife get married again. He filed a case against her. In this case the court held that, “ Although, prime facie and as a general rule, there must be a mind at fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject-matter and may be so framed as to make an act criminal whether there has been any intention to break the law or otherwise to do wrong or not.” After considering the plight and circumstances during the period of 7 Yrs. of the wife they acquitted the wife from charges.
In another In the case of Lim Chin Aik v. Queen the Privy Council reviewed the entire law of the Immigration Ordinance of the State of Singapore. The Minister made an order under the powers conferred by the Ordinance in an instance of the exercise of delegated legislation, 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 of attention of the appellant. He was prosecuted for contravention of the Ordinance. On a review of the case on the subject and the principles enunciated therein, the Judicial Committee came to the conclusion that it is not enough merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended, 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.
Another reference was of Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh Co. carries on the business of carriage of goods and passengers by sea, owns a fleet of ships. On its route a vessel arrived at Calcutta. On a search it was found that a hole was covered with a piece of wood, when the hole was opened a large quantity of gold was discovered. Custom Authorities ceased the vessel. One of the contentions raised was that S 52 A of Sea Custom Act. 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. The Court in construing the scheme and object of the Sea Custom Act came to the conclusion 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.
The court in this case held that the very object and purpose of the Act and its effectiveness as an instrument for the prevention of smuggling would be entirely frustrated, if condition of mens rea were to be read into the plain reading of the enactment. Therefore the accused M H George was convicted .
posted by Mayank Mehandru | 2:53 AM
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