N.K. Sen, J.
1. This Rule is directed against an order of conviction of the petitioner under Section 5 of the Imports and Exports (Control) Act, 1947. He was sentenced to pay a fine of Rs, 200/-, in default, to undergo rigorous imprisonment for six weeks. At the trial there was a further, charge against him under Section 167 (81) of the Sea Customs Act, but he was acquitted of the same.
2. The allegations, on which the two charges mentioned above were founded, were as follows:
3. On the 25th July, 1961 the petitioner, who was the holder of a valid passport, arrived in Calcutta with Mis wife and minor child by M, V. Santhiya from Djkarta. On examination of his baggages by the customs officials he was found to have in his possession miscellaneous consumer goods and jewellery in excess of the permissible baggage allowance. The articles of jewellery were valued at Rs. 6388. 88hP. and the consumer goods which were separately assessed were valued at Rs. 2978/-, but subsequently the valuation was revised and raised to Rs. 5167.50nP. The prosecution alleged that the goods could not be treated as his bona fide personal baggage.
4. The defence of the petitioner was that he had no guilty intention of importing goods into India and he was not aware of the permissible limits.of the baggage allowance. The learned Magistrate held that importation of goods and jewellery into India from foreign country without permission of the Reserve Bank of India was restricted and the petitioner could not produce any import trade control license or the permit from the Reserve Bank of India. He had indeed not even disputed that he had the goods with him and that it was in contravention of the restriction imposed as regards the entry of these goods under the Import trade Control Order.
5. The learned Magistrate, however, in consideration of the fact that the petitioner had come to India after a long time and he was not well aware of changes that have been brought in the Imports and Exports Control Orders of the country by the Government of India, came to the conclusion that the petitioner had not brought the goods with him knowingly or with intent to defraud the Government of the duty payable on those goods. He further took into account the fact that the petitioner had not secreted the baggage or kept them hidden but placed them for open inspection and there was no evidence to show that he had brought the goods for sale or for the purpose of trade. Having taken into account the facts and circumstances he acquitted the petitioner of the charge under Sac, 157 (81) of the Sea Customs Act. The consumer articles as well as the gold and jewellery were ordered to be confiscated.
6. But so far as the charge under Section 5 of the Imports and Exports (Control) Act is concerned the learned Magistrate found that the petitioner had imported several baggages of miscellaneous and consumer goods of the valuation of Rs. 5167.50 nP. Under the provisions of the Import Trade Control Order No. 19, 1955 the goods were to be imported into India on the strength of Import Trade control License. Such goods fall under two categories -- restricted and prohibited. The goods which are restricted can be imported under the Import Trade Control License issued by the Chief Controller of Imports and Exports, Government of India. Goods which are prohibited or banned cannot at all be imported to India under the Import Trade Control Policy Declaration by the Government of India during the different periods of each year. During the relevant period, that is, April to September 1951 when the petitioner came to India the Import Trade Policy of the Government of India banned the entry of several items mentioned in exhibit 13. The petitioner was granted package up to the permissible limits. Still he was found to be carrying miscellaneous goods far in excess of that allowance. The learned Magistrals came to the conclusion that the petitioner had, contrary to the provisions of Import Trade Control Order No, 17/55 dated the 7th December 1.955 read with the Imports and Exports (Control) Act. committed an offence within the meaning of Section 5 of the said Act.
7. The main point that has been argued before me In this Rule by Mr. J. M. Banprfee, who has appeared in support of the Rule, is that the learned Magistrate was entirely wrong in convicting the petitioner in view of his finding that he had no guilty intention and had not Imported the goods knowingly or that he intended to detraud the Government of India of the duty payable. Mr. Banerjee cotends that unless the statute either clearly or by necessary implications ruled out mens rea as an element of offence . the learned Magistrate would not have convicted the petitioner.
8. This contention requires examination. Section 5 of the Imports and Exports (Control) Act, 1947, provides for imprisonment for a term of one year or with fine or with both. Section 167(81) of the Sea Customs Act provides for imprisonment for a term not exceeding two years or with fine or with both. Mr. Banerjee has drawn my attention to the well known case of Srinivas Mall v. Emperor, 51 Cat WN 900 : AIR 1947 PC 135. Their Lordships of the Judicial Committee of the Privy Council in that case referring to the case of Brand v. Wood, (1943) 110 JP. 317 at p. 318, held that the Court should always bear in mind that unless the statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence under the criminal law unless he has got a guilty mind. Mr. Banerjee has also drawn my attention to Maxwell on 'The Interpretation of Statutes', Tenth Edition, page as a where it, is stated,
As mens rea or a guilty mind, is, with some exceptions, an essential element in constituting a breach of the criminal law, a statute, however comprehensive and unqualified it be in its language, is usually understood as silently requiring that this element should be imported into it, unless a contrary intention be expressed or implied. the general rule of law is, that no crime can be committed unless there is mens rea, (Lord Russell of Killowen C. J., in Williamson v. Morris, 1899-1 O. B. 7.)
9. There are two conditions to be fulfilled before penal responsibilities can be rightly imposed. One is the doing of some act by the person held to be liable. The: other is the mens rea apart from the guilty mind with' which the act is done. It is not enough that a man has done some act which on account of its mischievous result' the law prohibits, before the law can justly punish the act an enquiry must be made into the mental attitude of the doer, for, although the act may even objectively be wrongful the mind and the will of the doer might have been innocent. The intent and the act must both concur to constitute a crime. In this connection reference may also be made to the case of R. v. Tolson, (1889) 23 QBD 168 where at: page 172 of the report Wills, J. remarked: 'The guilty intent is not necessarily that of intending the very act or thing done and prohibited by common or statute law, but it must at least be the intention to do something wrong.
Again at page 187 Stephen, J. observed:
If the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed; or, again, if a crime is fully defined, nothing amounts to that crime which does not satisfy that definition.
10. On behalf of the State Mr. Harideb Chatterjee has argued that the language of Section 5 of the Imports and Exports (Control) Act does not need a guilty mind as is needed in the Sea Customs Act. I have noticed the difference, but simply because the section does not mention that for a conviction guilty knowledge or intention would be necessary it cannot be said that the statute had by necessary implication excluded mensrea. The earned Magistrate in the present case was satisfied that the petitioner had no guilty mind so far as the importation of the gold was concerned. I do not think he was justified in not applying the same consideration with respect to the consumer goods for the purpose of which the petitioner was convicted under the Imports and Exports (Control) Act.
11. In this view of the matter I would set aside the order of conviction and sentence passed upon the petitioner and acquit him of the charge. The fine, if paid, will be refunded.
12. The Rule is, accordingly, made absolute.