1.This is a rule issued against the Magistrate of the district of Amritsar to show cause why the conviction and the sentence passed on the petitioner Nazar Mohammad be not set aside. I have had considerable difficulty in this case because the petitioner is not familiar either with English or with Urdu and the only languages which he knows are Persian and Pashto. My own knowledge of Persian is nil and my knowledge of Pashto is very imperfect. I therefore had to take the help of Doctor Camphor, a Dental Surgeon in this place, who was called in to interpret what the petitioner had to say, and I must say I received a considerable amount of assistance from this gentleman and I feel obliged to him for having interrupted his practice and for coming to this Court to give me assistance in the administration of justice,
2. The petitioner is an Afghan subject from Kandhar and he came from Pakistan to the Attari border of India on 19-12-1951 at about 1-10 p. m. He placed his box and his bedding on the counter of the Land Customs Officer for the purposes of baggage examination at what is called the Attari Road Land Customs Station. According to D. P. Dewan P. W. 2 he was given a form, which is in English, to fill up and as he was ignorant of English language he was asked to take the assistance of Baikunth Nath P. W. 3 who seems to practice the filling up of forms of persons not knowing English, and although he has no official status he seems to do so with, the knowledge and permission of the Customs authorities. The form which is Ex. P. A. was filled in and with regard to various articles mentioned therein answers are given in English. The signature at the bottom appears to be of Nazar Mohammad. The question whether it is signed by Nazar Mohammad or not has not been raised or pressed before me and it may be presumed for the purposes of argument that it is signed by Nazar Mohammad, the petitioner.
3. According to the evidence of P. W. 2 D. P. Dewan -- Magistrate should take down the full name of witnesses rather than mere initials -- he (the witness) does not know either Pashto or Persian Language. The form was given to Nazar Mohammad but D. P. Dewan admits that he never explained anything to him although he says that he told him (the petitioner) to write up everything which was with him. Although at the frontier they have got an Inspector, Balwant Singh, who knows Pashto Language he was unfortunately not present at the time when Nazar Mohammad came to the Customs Station, nor was he called because for some reason or another D. P. Dewan did not think it necessary to call a man who knew the language of the, petitioner and he satisfied himself by referring the petitioner to Baikunth Nath who was as ignorant of Pashto or Persian as he himself was. This witness P. W. 2 also stated that persons who cannot read the English Language are generally told to put in the form everything that they possess but there is no rule which casts the duty of telling a traveller as to what is dutiable and what is not. A list of dutiable goods is according to this witness exhibited in the hall, but this list has not been produced and there is merely the ipse dixit of D. P. Dewan who states that there is such a list. It is not clear whether this list is in English or in Urdu or in Pashto or in Persian.
4. The form Ex. P. A. is in the handwriting of Baikunth Nath and his evidence throws no further light on the merits of this case except that he filled in the form after asking certain questions to the petitioner who explained himself in most imperfect order ('tuti phuti').
5. The petitioner was then examined under Section 342, Criminal P. C., in a manner which shows that the learned Magistrate was doing some routine work rather than making the accused understand as to what was the nature of the offence against him and what he was being asked to reply to. I may here remark that the learned Magistrate employed Narinjan Singh P. W. 1, as the Court interpreter. He is a son of a Deputy Superintendent of the Intelligence Department of Land Customs Office and he should have been the last man to be employed in a case such as this. Where the complainant is the Department of Land Customs it is hardly fair to the accused to employ a man so intimately connected as P. W. 1 was with an officer of the Land Customs Department. One should have thought that in Amritsar there would be a large number of people who would be conversant with Pashto and with Persian and who may well have been employed by the learned Magistrate. I say this because it should be a warning to all subordinate Courts that in matters such as these interpreters should be those who are either officers of the Court or such persons Who would be absolutely free from any kind of taint or partiality.
6. The petitioner was asked to open the box and according to P. W. 2 D. P. Dewan he at first hesitated to do so and then began to tremble and this aroused the suspicion of the witness. Ha was not cross-examined on this point, but I have had the petitioner before me for two days and from the questions that I put to him and the straightforward manner in which he replied I am unable to accept that the petitioner could have begun to tremble when he was asked to open the box. On the box being opened the lid of the box was found to be heavier than it usually is, it was fitted with a plate which was opened out by means of an iron instrument which D. P. Dewan got from a gardener, and this is a circumstance which has been taken against the petitioner that his intention was to smuggle gold into India. 624 Iranian gold coins were found from this lid. They had been put in a cloth bag. In regard to this matter the learned Magistrate put no question to the accused. He never gave him any opportunity to explain as to the plate in this box. I examined him at great length in regard to this matter and his reply was that this extra lid had not been specially put in but was already attached to the box which could be opened by undoing one of the contrivances attached to the lid. Since no question was put to the accused by the learned Magistrate and his counsel also did not cross-examine D. P. Dewan on this point it is difficult to decide at this stage as to what is the truth. The box is not in this Court. According to a telegram received from the Magistrate's Court it was returned to the accused and therefore it was not possible for me to have a look at it. Why anything should have been returned to the accused when the matter could have been subject to revision is not quite clear.
7. After the charge, three more witnesses were examined, Deputy Superintendent Jai Dev P. W. 4, Prem Sagar P. W. 5 and Hans Raj P. W. 6. The evidence of Deputy Superintendent Jai Dev cannot carry the matter any further because it is not stated that he is conversant with the languages which the accused understands and therefore any question which was put by him to the accused and any answer given or not given by the accused cannot be taken as a circumstance against the accused.
8. It is on this material that the Magistrate convicted the accused under section 23 of the Foreign Exchange Regulation Act (Act 7 of 1947) and sentenced the petitioner to rigorous imprisonment for one year and also ordered confiscation of gold.
9. The petitioner was asked to fill up the form Ex. P. A. which seemed to be necessary under Section 6 of the Land Customs Act, and as there was no mention of gold in this the learned Magistrate convicted him under Section 7, Land Customs Act, and sentenced him to one year's rigorous imprisonment although the maximum sentence for this offence is one of six months' rigorous imprisonment. Now the learned Judge could bring himself up to awarding a sentence more than the maximum is not quite clear and in my opinion seems to be wholly indefensible.
10. On appeal being taken to the Sessions Judge the matter was decided in a very few words, the learned Judge said that he had considered the entire evidence on the record and found that the petitioner had been rightly convicted, but in the circumstances of the case he reduced the sentence to one of six months' imprisonment. Unfortunately the learned Judge also did not consider the various questions which arose in this case and which required his careful consideration.
11. The petitioner being ignorant of the language of this Court and also of the procedure of this Court I appointed Mr. K. S. Thapar to argue the case for him and both he and counsel for the State Mr. Gandhi were of very great assistance to me.
12. It appears to me that the gravamen of the charge lies in the form which was got uilled in at the instance of the petitioner and which is Ex. P. A. It is Appendix 'A' Form I, an application for Import/Export. It begins by saying--
'The Land Customs Officer-in-Charge of the Land Customs Station at --
Please allow -- (Name of Importer/Exporter) to import/Export the under mentioned goods brought -- from foreign territory (Place)'
The importer is to fill in the description of packages, the description of goods, their weight, quantity or number and their value. At the back of this form is the Baggage Declaration and the entries and the answers made in Ex. P. A. are as follows :
Name (in block letters) NAZAR MOHD. Declaration No. 3/W.
Mohala Poopalzai Kandhar City.
For Steamship. From Date 19.12.1951.
Aircraft. Kandhar to Delhi. AFGANISTAN.
Description of goods. Value of goods in For eustoms use only. Officers' REMARKS.
rupees or in sterling. Rate of duty. Amount of duty. orders
(1) (2) (3) (4) (5)
1. Firearms. |
2. Cartridges. |
3. Other sorts of arms. |
4. Wireless sets and parts. |
5. Pianos, Pianolas, and other |
musical instruments. |
6. Gramophone records. (State |
7. Textile Fabricks. |
8. Beer, Wine, Spirits. (State |
9. Perlumed spirits. (State |
10. Cigars and Cigarettes. |
(State number). |
11. Tobacco, (State weight). |
12. Instruments, apparatus and appliances ............. One Wrist watch Rs. 210/-.
13. Personal Jowellery in use. |
14. Artioles for household use. |
(a) Glaesware |
(b) Crockery |
(c) Silverware |
(d) Platedware |
(e) Cutlery |
(f) Pictures Nil.
(g) Household linen |
(h) Kitchen utensils |
(i) Portable stove |
(j) Stores (Provisions) |
(k) Furniture |
(l) Carpets |
(m) Cretonne and other oloth |
15. Motor car, Motor Cycles and |
16. Commercial samples. | Nil.
17. Indian Currency. 52/-/. |
18. Pakisthan currency.3/./. |
19. Other Articles One Bedding containing used clothes, One box containing used clothes.
20. Articles intended for sale or for
the use of other parties. .......... Nil.
13. Although by Section 8(3), Foreign Exchange Regulation Act, the restrictions imposed by Sub-Sections (1) or (2) of that Act are deemed to be imposed under Section 19, Sea Customs Act. the articles prohibited for import by the Foreign Exchange Regulation Act are not contained in this form. There is no item which would show that an importer has to declare gold or silver or such other articles as are prohibited under the Foreign Exchange Regulation Act. At the bottom of thfs Baggage Declaration there is a certificate which is to be given by the importer in the following words: 'I certify that the above is a correct and full statement of the articles in my baggage which are required to be declared in accordance with the instructions and of their estimated value. I certify also, that I have entered separately in the above list all articles included in my baggage which do not belong to me or to any member of my family travelling with me or which are for sale or are intended for the use of other parties.
Total No. of packages. R. R. No. ofsignatures, Amount Rs. As.Occupation, Full address in India,'
14. This certificate clearly mentions that the importer is making a full statement of articles which are under the instructions required to be declared. There is no proof that there are any instructions which have been exhibited in the hall for the public to see nor has it been shown in this case that the petitioner was told of any instructions which may exist.
15. On 20th of December, the Assistant Collector of Land Customs wrote a letter to Nazar Mohammad as he was required under Section 23 of the Foreign Regulation Act to do asking, him whether he (the petitioner) had any permission of the Reserve Bank of India for the import of the guineas. On this letter he wrote a reply in Persian. It seems to have escaped the attention of the Magistrate as well as of the Sessions Judge. I have had it translated and this reply was in the following words:
'I am an Afghan national I am unaware of the 'Permit System' introduced by the Government of India and also of the laws of this Government. Had I been conversant with them I would not have brought gold. Moreover, prior to my search, I myself told the Custom official sent towards me, that the said box contained 624 pieces of gold, and that the may) get me a receipt along with the price of my goods (?), by sending the same to the Senior Custom Officer, for charging duties. After the customs duty has been charged, it was not explained to me as to what was written in English on this paper. I myself do not know as to what it is.
I have respectfully explained my position by means of the writing made on this paper.' (16) In this and this is the very next day after the offence is alleged to have been committed, the petitioner stated that he was not conversant with the permit system in this country, that previous to the search he himself told the Customs official that he had gold coins and that he may give him a receipt and send the gold to a senior officer for charging duty. It cannot be said therefore that the petitioner did not at any stage previous to the trial say anything in regard to the gold coins that were with him. In his explanation which was given to me he said quite clearly that he did not know that he required any permit for bringing any gold to this Country, that he had bought the box and gold in Pakistan and that it was not his intention to cheat the revenues of this country and that had he known that he was required to get a permit from the Reserve Bank he would either not have brought gold or he would have obtained a permit from the Bank. Unfortunately, he filed a long written statement which is really not quite intelligible in spite of the fact that an Urdu translation of the same has also been filed.
The gist oi it seems to be that he was a foreigner. He did not know that he had to get a permit from the Bank nor did he know that he had to declare it, and had he been told that there was any restriction and he had to get a permit he would certainly have applied for it. It was not his intention to smuggle any gold into India and that had he been told that he could not bring gold into India he would have taken it back and gone back to his own country. And this is also the sum and substance of the explanation which he gave to me in this Court. In paragraph 14 of his written statement he had stated in the Magistrate's Court (1) I am ignorant of the language of this country, (2) I am ignor- -ant of the laws of this country, (3) I am a merchant from Afghanistan and the fourth is unintelligible to me. He has put down fourteen grounds for his acquittal in his written statement, but I cannot say that they were wholly relevant to the issue before, the learned Magistrate excepting the plea of ignorance of law and that he was not told that he had to declare gold in the form.
17. As far as the form is concerned I do not see that there is any column which requires a person to declare the amount of gold or silver that he possesses; not even the words 'foreign currency' are mentioned. It may well be therefore that a foreigner who comes to this country ignorant of the language and laws of this country may not declare gold in bis possessions. But for -the State submission was made that the principle 'ignorantia facti excusat ignorantia' juris non execusat' should be applied and reliance is placed on an English case --'Rex v. Esop', (1836) 173 E.R. 203 (A), where it was held in the year 1836 that it is no defence on behalf of a foreigner charged in England with a crime committed there, that he did not know he was doing wrong, the act not being an offence in his own country, and he relies on the language of Section 8, Foreign Exchange Regulation Act, 1947 which provides--
'8. (1) The Central Government may, by notification in the official Gazette, order that, subject to such exemptions, if any, as may be contained in the notification, no person shall, except with the general or special permission of the Reserve Bank and on payment of the fee, if any, prescribed bring or send into the Provinces any gold or silver or any currency notes or bank notes or coin whether Indian or foreign.
(2) No person shall, except with the general or special permission of the Reserve Bank or the written permission of a person authorised in this behalf by the Reserve Bank, take or send out of the Provinces any gold, jewellery or precious stones, or Indian currency notes, bank notes or coin or foreign exchange other than foreign exchange obtained from an authorised dealer.
(3) The restrictions imposed by Sub-sections (1) and (2) shall be deemed to have been imposed under Section 19 of the Sea Customs Act, 1878, without prejudice to the. provisions of Section 23 of this Act, and all the pro visions of that Act shall have effect accordingly.'
18. There is no doubt that the language is quite clear that the mere bringing in of gold without the general or special permission of the Reserve Bank is prohibited and would fall under Section 23 of that Act, and even a foreigner cannot plead that he is ignorant of the law. Under the Indian Penal Code (Section 2) it is provided that every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within British India, and every person must include a foreigner also. To this extent the contention of the State seems to be sound, but it is in the application of this principle to the facts of the present case that the difficulty has arisen. The law no doubt presumes that even a foreigner knows the intricate laws governing import of goods into this country, and it would indeed create a chaotic thing if such a presumption was not raised, but when a form such as Ex. P. A. is put before a foreigner in a language which he does not understand & he has to fill it in in accordance with the instructions which are not proved to exist it does become a little difficult for such a foreigner to give all the information which the law requires him to give. Of course where a foreigner acts in a manner which clearly shows that his intention is to smuggle something he cannot get any protection from what I have stated above, but in the present case there are circumstances which show that the foreigner in this case had no intention of smuggling and did not act in a manner which amounted to a breach of the laws of this land.
19. The principle embodied in Section 2 of the Indian Penal Code or in the maxim 'ignorantia fact excusat ignorantia juris non excusat' would it is submitted on behalf of the State, still apply, but then the rule laid down in (Esop's case,
(A)', should, in my opinion, be applied in its entirety. Ignorance of law by a foreigner may be no legal defence but it is a matter to be taken into consideration in the matter of mitigation of punishment.
20. In the present case the petitioner has been given six months' rigorous imprisonment which unfortunately he has already undergone. It is surprising that nobody could approach this Court earlier, and in my opinion although on the principle that ignorance of law is no excuse the petitioner may not be entitled to acquittal, he is certainly entitled to a very substantial reduction in the matter of sentence. The proper sentence in the circumstances of this case should have been a nominal fine, but the sentence of six months has already been undergone and that cannot be undone. All I can do in the present circumstances is to set aside ihe order of confiscation of gold and the petitioner would be entitled to the return of the gold and to apply to the Reserve Bank for permission under Section 8, Foreign Exchange Regulation Act, to bring it in on payment of the requisite duty. Now that the gold is in India the Reserve Bank should give him permission and after the payment of duty the gold should be returned to him.
21. The petition is allowed to this extentand to that extent the rule is made absolute.Order accordingly.