UNION OF INDIA AND OTHERSversusM/S. GANESH DAS BHOJRAJ

                  lJ~ON OF INDIA A"lD OTHERS                                    A
                                     v.
                     M/S. GANESH DAS BHOJRAJ

                          FEBRCARY 22, 2CCO
                                                                                B
         [B.N. KIRPAL, M.R SHAH AND R.C. LAHOTI, ff]


      Customs Act, 1962:-Section 25-Notification---Publication--Require-
rnent of-Notification published only in Official Gazett~Held, sufficient
notice to the public.
                                                                                c
       Respondent was an importer of Green Beans. It claimed exemption
from custom duty on the article imported by it under Notification No.
129/76-Cus. dated 2.8.1976. However, the authorities claimed that the said
notificatio11 had been subsequently amended vi de Notification ~ o. 40/87-
Cus. dated 4.2.1987 and levied duty @ 25% on the article imported by the        D
respo11dent the respondent challenged the imposition of duty on the
ground, inter alia, that the said notification of 1987, although published in
the Gazette of India, was not available to the public at large and therefore
was not in force on the relevant date. The writ filed by the respondent was
allowed by the High Court.                                                      E

      The appellant filed appeal before this Court. A two Judges Bench of
this Court was of the opinion that there appears to be a conflict in the
ratio of the judgment of this Court in M/s. Pankaj Jain Agencies v. Union
of India and Ors., !1994) 5 SCC 198 and Collector of Central Excise v. New
Tobacco Co. and Ors., [1998) 8 SCC 250. The matter was referred to a
                                                                                F
three Judges Bench in view of the conflicting judgments.

      Allowing the appeal, the three Judges Bench

      HELD : 1. It is established practice that the publication in the G
Official Gazette, that is, Gazette of India is the ordinary method of
bringing a rule or subordinate legMation to the notice of the persons
concerned. Individual service of a general notification on every member of
the public is not required and the interested person ca':1 acquaint himself
with the contents of the notification published in the gazette. [1089-F]    H
                                    1081
    1082                  SUPRhME COURT REPORTS                   (2000) l S.C.R.
A          2.1. Where the parent statute prescribes the mode of publication or
    promulgation that mode must be followed. Where the parent statute is
    silent, but the subordinate legislation itself prescribes the manner of pub-
    lication, such a mode of publication may be sullicient, if reasonable.
                                                                       [1090-D]
B         2.2. The method and mode provided for grant of exemption or
    withdrawal of exemption is issuance of notification in the Official Gazette.
    For bringing a notification into operation, the only requirement of Section
    25 of the Customs Act, 1962 is its publication in the Official Gazette and
    no further publication is contemplated. The notification under Section 25
C   of the Customs Act, 1962 would come into operation as soon as it is
    published in the Gazette of India i.e. the date of publication of the Gazette.
    Apart from the prescribed requirement under Section 25 of the Customs
    Act, 1962 the usual mode of bringing into operation a notification followed
    since years in this country is its publication in the Official Gazette and
D   there is no reason to depart from the same by laying down additional
    requirement. Hence, the decision rendered in Mis. Pankaj Jain Agencies v.
    Union of India and Ors., [1994) 5 SCC 198 represents the correct exposi-
    tion of law on the subject. The decision rendered in Collector of Central
    Excise v. New Tobacco Co. and Ors., (1998) 8 SCC 250 does not lay down
    the cor~ct law. [1087-C-E]
E
          M/s. Pankaj Jain Agencies v. U11io11 of fl!dia a11d Ors., [1994) 5 SCC
    198, affirmed.

           Collector of Central Excise v. New Tobacco Co. and Ors., [1998] 8 SCC
F 250 and I. T. C. Limited v. Collector of Central Excise, Bombay, [1996) 5 SCC
    538, disapproved.

        Apar (P) Ltd. v. Union of India & Ors., (1985) 22 ELT 644; Union of
  India v. Apar (P) Ltd., [1999] 6 SCC 117; State of Maharashtra v. Mayer
  Hans George, [1965] l SCR 123; B.K. Srinivasan and Ors. v. State of
G Kamataka and Ors., [1987) l SCC 658; Garware Nylons Ltd. v. Collector of
  Customs and Celltral Excise, Pu11e, [1998) 8 SCC 282 and Har/a v. State of
  Rajasthan, [1952) SCR 110, referred to.

          Lin Chin Aik ~. 17te Queen, (1963) AC 160 and Johnson v. Sargant &
H   Sons, (1918) 1 KB 101, referred to.
                      U.O.I. v. G.D. BHOJRAJ ;sl-IAH, J.]                1083

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6071 of A
1999.

     From the Judgment and Order dated 28.6.95 of the Bombay High
Cou1l in W.P. No. 535 of 1987.

     K.N. Bhat, C.S. Vaidyanathan, Additional Solicitor Generals,               B
Hemant Sharma, V.K. Verma, M. Gaurishankar Murthi and P. Parmes-
waran for the Appellants.

        S.L. Aneja for the Respondent.

        The Judgments of the Court were delivered by                            c
     Sll<\H, J. Two Judges Bench of this Court by order dated 15th
October, 1999 has referred this matter to a larger Bench by observing thus:-

              "It appears that there is a conflict in the ratio of the decisions
          of this Court in Mis Pankaj Jain Agencies v. Union of India and D
          Others, [1994] 5 SCC 198, Collector of Central Excise v. New
          Tobacco Co. and Others, [1998] 8 SCC 250 and I. TC. Limited v.
          Collector of Central Excise, Bombay, [ 1996] 5 SCC 538 is also
          relevant. In our view it is appropriate that this appeal is to be heard
          by a larger Bench."                                                     E
      Before referring to the said decisions, we would narrate few facts
involved in the matter.

      Respondent admittedly imported a consignment of Green Beans
(Pulses) weighing 505-505 M.T. vide Invoice No.14/099 dated 31.12.1986. F
They have filed bill of entry for the same on 05.2.1987. The importer
claimed clearance of the said goods free of duty on the basis of Exemption
Notification No.129/76-Cus dated 02.8.1976. However, it was pointed out
that on 04.2.1987 the said notification was amended vide Notification
No.40/87-Cus, whereby basic duty @ 25% was levied. As the duty was
levied @ 25%, importer filed Writ Petition No. 535 of 1987 in the High G
Court of Bombay contending inter a/ia that the said notification was not
duly published and that it was not in force on the date. A Division Bench
of the High Court of Bombay accepting the said contention on the basis
of Full Bench decision of the said Court in the case of Apar (P) Ltd. v.
Union of India and Others, (1985) 22 ELT 644 allowed the writ petition. H
    1084                  SUPREME COURT REPORTS                   [2000) 1 S.C.R.
A   Hence the present appeal by the State.

          At the outset, we. may state that in appeal filed before this Court the
    judgment of the Full Bench of the High Court of Bombay inApar (P) Ltd. 's
    case (supra) was sel aside Re: U11io11 of India v. Apar (P) Ltd., [1999) 6
    sec 111.
B
          A copy of Original Extraordinary Gazette of India dated February
    04, 1987 [Part-II-Section 3-Sub-scction (i)I is produced for our perusal. The
    said notification reads as under: -

                               "MINISTRY OF FINANCE
c                               (Department of Revenue)
                             New Delhi, the 4th February, 1987
                                    NOTIFICATION
                                  No.40/87-CUSTOMS

                 G.S.R. 81(E). - In exercise of the powers conferred by sub-
D            section (1) of section 25 of the Customs Act, 1962 (52 of 1%2),
             the Central Government, being satisfied that it is necessary in the
             public interest so to do, hereby makes the following amendment
             in the notification of the Government of India in the Department .
             of Revenue and Banking No.129n6-Customs, dated the 2nd
E            August, 1976, namely:-

                 In the said notification, for the words "from the whole of the
             duty of customs leviable thereon which is specified in the said First
             Schedult:" the words ''from payment of so much of that portion of
             the duty of customs, which is specified in the said First Schedule
F            as is in excess of twenty five per cent ad valorem" shall be sub-
             stituted."

          The contention is - the aforesaid Notification was not made available
    to public at large and, thert:fore, on the basis of the said Notification
G   customs duty cannot be levied. The learned counsel for the appellant relied
    upon the decision in Mis Pankaj Jain Agencies v. Union of India and Others,
    (1994] 5 sec 198 and the learned counsel for the respondent-importer has
    relied upon the decision in Collector of Central Excise v. New Tobacco Co.
    and Others, [1998) 8 SCC 250 in support of their respective contentions.

H          In Pankaj Jain Agencies (supra), this Court considered similar con-
i

                       U.O.I. v. G.D. BHOJRAJ [SHAH, J.;                  1085

    tention with regard to the Exemption Notification issm:d under Section 25 A
    of the Customs Act, 1962 and held that thi::re was no substance in the
    contention that notwithstanding the publication of the notification in the
    Official Gazi::tte there was yet a failure to make law known and that,
    theri::fore, the notification did not acquire the elements of operativeness
    and enforceability. For this purpose, Court referred to Section 25(1) of the
    Customs Act, which reads as under: -
                                                                                 B

            ''25. Power to grant exemption from duty. - (1) If the Central
            Government is satisfied that it is necessary in the public interest
            so to do, it may, by notification in the Official Gazette, exempt
            generally either absolutely or subject to such conditions (to be      C
            fulfilled before or after clearance) as may be specified in the
            notification goods of any specified description from the whole or
            any part of duty of customs leviable thereon."

          On the basis of the aforesaid Section, the Court negatived the
    contention that until the notification was available in Bombay - and shown D
    to be so available - the statutory rules or instrument would not become
    operative. The Court relied on Three Judge Bench decision in State of
    Maharashtra v. Mayer Hans George, [19651 1 SCR 123 and also referred to
    the decision in B.K Srinivasa11 a11d Others v. State of Kamataka and Others,
    11987] 1 sec 658, 672 and held thus: -                                       E
                "In the present case indisputably tht mode of publication
            prescribed by Section 25(1) was complied with. The notification
            was published in the Official Gazette on the 13.2.1986. As to the
            effect of the publication in the Official Gazette, this Court held
            [Srinivasan case AIR at p. 1067: sec pp.672-73, para 15):--           F
                 "Where the parent statute is silent, but the subordinate legisla-
            tion itself prescribes the manner of publication, such a mode of
            publication may be sufficient, if reasonable. If the subordinate
            legislatio11 does 11ot prescribe the mode of publicatio11 or if the G
            subordi11ate legislatio11 prescribes a plainly unreaso11able mode of
            publication, it will take effect only when it is published through the
            customarily recognised official clumnel, namely, the Official Gazette
            or some other reasonable mode of publication.

                                                           (emphasis supplied)" H
    1086                  SUPREME COl:RT REPORTS                  [2000] 1 S.C.R.

A          As against this, karned counsel for the respondent referred to the
    decision in Collector of Central Excise v. New Tobacco Co. and Others, Ibid
    at 2, paras 11 & 12, and emphasized that in the aforesaid case, the Court
    has specifically held that if publication is through a Gazette then mere
    printing of it in the Gazette would not be enough unless the Gazette
    containing the notification is made available to the public. The Court after
B   considering the contentions has held as under: -

                'Our attention was also drawn to the decisions of this Court in
             Pankaj Jain Agencies v. Union of India, Ibid at 1 and I. T.C. Ltd. v.
             CCE, [19%] 5 SCC 538 but they arc not helpful in deciding the
c            question that arise~ in these cases.

                 We hold that a Central Excise notification can be said to have
             been published, except when it is provided otherwise, when it is
             so issued as to make it known to the public. lt would be a proper
             publication if it is published in such a manner that persons can, if
D
             they are so inten:sted, acquaint themselves with its contents. If
             publication is through a Gazette then mere printing of it in the
             Gazette would not be enough. l'nless the Gazette containing the ·
             notification is made availab!t: to the public, the notification cannot
             be said to have been duly published.''
E
          In Gmware Vylm•s lid. v. Collector of Customs & Central Excise,
  Pr.me, (1998] 8 SCC 282 ~ (1998) LOO ELT 321 (SC), similar question was
  considered by this Court. In that case by Notification dated 30.9.1985 the
  customs basic duty was enhanced from 100% to 150% w.e.f. 30.9.1985. The
F question was whether enhanct:d rate of duty was applicable in respect of
  goods which were cleared from the warehouse during the period 30.9.1985
  till 31.10.1985. The case of the Company was that the notification came into
  efft:ct only from 1. U.1985 since it was made available to the public for sale
  on that date. Relying upon the decision in New Tobacco Co., the Court
  allowt:d the said appeal by holding that the notification can be said to have
G been duly 'publish..:d' when it is made known to the public.

            It has been submitted by the learned counsel for the appellant that
    the afore-quoted observations in the case of New Tobacco Co. are directly
    in conflict with the law laid down by this Court in Pankaj Jain Agencies and
H   in I. T.C. Ltd. (supra). We agree with the said submission.
                      U.O.I. v. G.D. BHOJRAI [SHAH, J.]                      1087

       ln our view, as noted above, in Pankaj Jain Agencies' case, the Court A
directly dealt with a similar contention and after relying upon the decision
in the case of Mayer Hans George (supra) rejected the same. That decision
is followed in /. T.C Ltd. (supra) and other matters. Hence, it is difficult
to agree that the decision in Pankaj Jain Agencies' case was not helpful in
deciding the question dealt with by the Court. Section 25 of the Customs
Act empowers the Central Government to exempt either absolutely or
                                                                                      B
subject to such conditions, from the whole or any part of the duty of
customs leviable thereon by a notification in Official Gazette. The said
notification can be modified or cancellt:d. The method and mode provided
for grant of exemption or withdrawal of exemption is issuance of notifica-
tion in the Official Gazette. For bringing Notification into operation, the         c
only requirement of the Section is its publication in the Official Gazette
and no further publication is contemplated. Additional requirement is that
under Section 159 such notification is required to be laid before each
House of Parliament for a period of thirty days as prescribed therein.
Hence, in our view Mayer Hans George (supra) which is followed in the D
Pankaj Jain Agencies' case represents the correct cxpnsition of law and the
Notification under Section 25 of the Customs Act would come into opera-
tion as soon as it is published in the Gazette of India i.e. the date of
publication of the Gazette. Apart from prescribed requirement under
Section 25, usual mode of hringing into operation ;,uch notification fol-
lowed :-ince yedrs in this count.ry is it,. pubiication in th.: Offa;ic.l Ga:·...;ttt E
and then: is no reason to depart from the samt hy layin!?, down additional
requirement.

       In the case of Mayer Hans George, it was contended that the Notifica-
tion under Section 8 of the Foreign Exchange Regulation Act, 1947 of the F
Reserve Bank of India could not be deemed to have been in force and
operation merely from the date of issue or publication in Gazette. It would
have effect only from the date on which the person against whom it is
sought to be enforced had knowledge of its making. A contention was
raised as regards the precise point of time when a piece of delegated
legislation like exemption notification by the Reserve Bank would in law G
take effect. ln support of that contention reliance was placed on the
decision of Privy Council in Lim Chin Aik v. The Queen, (1963) AC. 160.
The Court negatived the said contention by holding that in the first place
the order of Minister dealt with by the Privy Council was never ''published"
since admittedly it was transmitted to the Immigration official who kept it H
    1088                  SUPREME COURT REPORTS                     [2000) 1 S.C.R.
A with himsdf. The Court observed: -
            "... But i11 the case 011 hand, the 11otificatio11 by the Reserve Bank
            va1ying the scope of the exemption, was admittedly )ublished" in the
            Official Gazette-the usual mode of publication in India, and it was
            so published long before the respondent landed in Bombay. The
B           question, therefore, is not whether it was published or not, for in
            truth it was published, but whether it is necessary that the publi-
            cation shoulcd be proved to have been brought to the knowledge
            of the accused... Lastly, the order made by the Minister in the
            Singapore case, was one with respect to a single individual, not a
c           general order, whereas what we have before us is a general rule
            applicable to ewry person who passes through India. In the first
            case, it would be reasonable to expect that the proper method of
            acquainting a person with an order which he is directed to obey
            is to serve it on him, or so publish it that he would certainly know
            of it, but there would be 110 question of individual service of a general
D           notification on every member of the public, and all that the subor-
            dinate law-making body can or need do, would be to publish it in
            such a manner that persons can, if they are interested, acquaint
            themselves with its co11te11ts..,

           The Court further referred to the 1udgment of Bailhache J. in
E
    Joh11so11 v. Sargant tl1 Sons, ( l918) l KB lOl and did not appruvt: the
    obst:rvation made therein to the effoct that tht: order was nut known until
    the morning of May 17 but it came into operation before it was made
    known. On the contrary, ( ourt held that tht:re was great force in learned
    author's (Prof. C.K. Allen) following comment on reasoning in Sarga11t's
F   case:

                "This was a bdd urample of judge-made law. There was no
             precedent for it, and indeed a decision, Jones v. Robson, (1901) 1
             QB 673, which, though not on all fours, militated strongly against
             the judge's conclusion, was not cited; nor did the judge attempt to
G
             define how and when delt:gated legislation 'became known'. Both
             arguments and judgment art very brit[ Tht decision has always
             been regardt:d as very doubtful, but it never came under review by
             a higher court."

H            The Court also held that:
                     U.0.1. v. G.D. BHOJRAJ [SHAH, J.:                    1089

             ".. Jt is obvious that for an Indian law to operatt: and be effective A
         in the territory when: it operates viz., the territory of India it is not
         necessary that it should eitht:r be published or be made known
         outside th..: country. Even if, therefore, the view t:nunciated by
         Bailhache, J. is taken to be correct, it would be apparent that the
         test to find out effective publication would be publication in India,
         not outside India so as to bring it to the notice of everyone who
                                                                                   B
         intends to pass through India. It was "published'' and made known
         in India by publication in the Gazette on the 24th November and
         the ignorance of it by the respondent who is a foreigner 1s, in our
         opinion, wholly irrelevant."'
                                                                                   c
         The Court further observed: -

             '' ... but where there is no statutory requirement we conceive the
         rule to be that it is necessary that it should be published in the
         usual form i.e., by publication within the country in such media as
         generally ddopted to notify to all the persons concerned in the D
         making of rules. In most of the Indian statutes, including the Act
         now under consideration, there is provision for the rules made
         being published in the Official Gazette. It therefore stands to
         reason that publication in the Official Gazette viz., the Gazette of
         Indid is the ordinary mdhod of bringing a rule or subordinate E
         lt:gb!ation to th1; notice of tht: persons concerned."

       from the aforesaid judgment it can be stated that it is establisht:d
practice that the publication in the official gazette, that is, Gazette of India
is the ordinary method of bringing a rule or subordinate legislation to the
notice of the persons concerm:d. Individual service of a gem:ral notification      F
on every member of the public is not required and the interested person
can acquaint himsdf with the contents of the notification published in the
gazette. It is the usual mode followed since years and there is no other
mode prescribed under the present statute except by the amendment in the
year 1998 by Bill No. 21 of 1998.
                                                                                   G
      Further, in New Tobacco Co. 's case (supra) the Court referred to the
decision in Har/a v. State of Rajasthan, [1952) SCR 110. In Harla's case the
Court referred to Section 3 of Jaipur Laws Act, 1923 which imer alia
provided that the Court of Jaipur State shall administer the law passed
from time to time by the State and published in the official gazette. In that H
    1090                 SUPREME COURT REPORTS                   [2000) 1 S.C.R.
A case, it was admitted that Jaipur Opium Act was never published in the
    Gazette and, therefore, the Court held that in the absence of some specific
    law or custom to the contrary, a mere resolution of a Council of Ministers
    in the Jaipur State without further publication or promulgation would not
    be sufficient to make a law operative. The Court also observed: -

B               "... We take it that if these Proclamations are not published
            strictly in accordance with the rules so drawn up, they will not be
            valid law..... The mode of publication can vary; what is a good
            method in one country may not necessarily be the best in another.
            But reasonable publication of some sort there must be."
c         Further, in the case of New Tobacco Co. (supra), the Court relied on
    the decision in B.K Srinivasan (supra). In that case (in para 15) after
    considering various contentions, the Court ~pecifically hdd that where the
    parent statute prescribes the mode of publication or promulgation that
    mode must be followed. Where the parent stacute is silent, but the subor-
D   dinate legislation itsdf prescribes the manner of publication, such a mode
    of publication may be sufficient, if reasonable.

           From the aforesaid observations, it is plain and clear that the
    decision in B.K Srinivasan (supra) also reiterates that the notification will
E   take effect only when it is published through the customarily n:cog:nised
    official channel, namdy, the otticial gazetk. We abo agree with the reasons
    recorded in Mayer Hans George (supra) and hold that notification undtr
    Section 25 of the Customs Act would comt into operation as soon as it is
    published in the Official Gazette and no further publication is required.
    Hence, the decision rendered in Pankaj Jain Agencies (supra) represents
F
    the correct exposition of law on the subject. The decision rendered in New
    Tobacco Co. followtd in Garware Nylons Ltd. (supra) does not lay down
    the correct law.

          The learned counsel for the respondent, however, submitted that
G   there is nothing on record to establish that notification dated 4.2.1987
    withdrawing full exemption from the levy of customs d:nty was published
    on the same day. For this purpose, original copy of the Notification dated
    4.2.1987 published in the Extra-ordinary Gazette on the said date has been
    produced before us. The Gazette is admissible being official record
H   evidencing public affairs and the Court is required to presume its contents
                  U.O.l. v. G.D. BHOJRAJ [R.C. LAHOTI, J.]               1091

as genuine under Sections 35 and 38 read with Section 81 of the Evidence        A
Act, unless contrary is proved. Hence, there is no substance in the conten-
tion that notification dated 4.2.1987 was not published in the Gazette on
the same day. In our view, said notification came into force on the same
date.

      Lastly, at this stage, we would mention that Parliament has added
                                                                                B
sub-sections (4) and (5) to Section 25 of the Customs Act by Act No.21 of
1998 w.e.f. 1.6.1998 which prescribe the method and mode of publication
of the Notification and the date on which it comes into force. Newly
inserted sub-sections (4) and (5) to Section 25 are as under: -
                                                                                c
        "( 4) Every notification issued under sub-section (1) shall,--

            (a)     unless otherwise provided, come into force on the date
                    of its issue by the Central Government for publication
                    in the Official Gazette;                                    D

            (b)     also be published and offered for sale on the date of
                    its issue by the Directorate of Publicity and Public
                    Relations of the Board, New Delhi.

        (5) Notwithstanding anything contained in sub-section (4), where        E
        a notification comes into force on a dale later than the date of its
        issue, the same shall be published and offered for sale by the said
        Directorate of Publicity and Public Relations on a date on or
        before the date on which the said notification comes into force.

       In the result, the appeal is allowed. The impugned judgment and
                                                                                F
order passed by the High Court is set aside and quashed. The respondent
is held liable to pay customs duty @ 25% under Notification No.40/87-Cus.
dated 4.2.1987. There shall be no order as to costs.

       R.C. LAHOTI, J. I have gone through the judgment proposed by my G
learned brother M.B. Shah, J. I entirely agree with the reasoning given and
the ultimate conclusion arrived at by my learned brother. However, I would
like to place on record my opinion that the view so taken needs to. be
confined in its application to civil liability only and cannot be made a rult:
of universal application.                                                      H
    1092                   SUPREME COURT REPORTS                   [2000] 1 S.C.R.
A           Cases of Mis Punkaj Jain Agencies, [1994) 5 SCC 198 and B.K
    Sri11ivasa11 v. State of Kamataka, I1987] 1 sec 658 - both are tht: cases
    where civil liability was sought to be imposed on the person proct:eded
    against. There may be cases where on account of breach of a rule made or
    notification issued in exercise. of delegattd power to legislate, a persm:i may
B   incur criminal liability. Such cases can again be divided into two classes :
    (i) where meru rea is an essential ingredient of the offence; (ii) where
    expressly or by necessary implication mens rea is ruled out as an ingredient
    of the offence.


C         State of Maharashtra v. Mayer Hans George, (1965] 1 SCR 123 is a
    case of criminal liability incurrec:' by the accust:d-respondent. In that case,
   by virtue of a notification dated 25.8.1948 the bringing of gold bullion into
    India was prohibited excc:pt with the permission of Reserve Bank of India.
    On the same date Rt:strve Bank of India issm:d a notification exempting
D from operation of the Central Govt:rnmt:nt notification gold in through-
    transit from a place outside India to a place outside India which was not
  . removed from the aircraft except for the purpose of trans-shipment. On
   8th November, 1962 the: Reserve Bank of India amended its earlier notifica-
    tion by prescribing the additiolldl condition for exemption, viz., that the
    gold must be declared in the manifest of the aircraft as same-bottom cargo
E
    or trans-shipment cargo. This notification was published in Govt. Gazettt:
    on 24th Novembt:r, 1962. The accused-respondent was a passengt:r from
    Zurich to Manila in a Swiss plane which left Zurich on 27th Novt:mber,
    1962. The plane landed at airport in Bombay on 28th !'llovember. The
    accused was found sitting in the plane carrying 34 kilos of gold bars on his
F person which was not declared in the 'manifest' for transit. The: accnsed
    was prosecuted and convicted for importing gold into India in contraven-
    tion of Section 8(1) of the Foreign Exchange Regulation Act, 1947 read
    with the notification. One of the pleas raist:d in the defence was that the
    accused could not havt: known of the notification published in the Gazette
G of India only on 24th !'<ovember, 1962 whereas he had left Zurich on 27th
    November, 1962. N. Rajgopo.la Iyer, J. speaking for the: majority held that
    publication in India so as to bring it to the notice of evt:ryone who intends
    to p;iss through India and not a publication outside India was the test to
    find out effective publication. Mens rea was not an essential ingredient of
H the offence. The knowledge of the existence or contents of a law by an
                 IJ.0.I. v. G.D. BHOJRAJ [R.C. LAHOTI, J.]              1093

individual was not therefore relevant save on the question of the sentence A
to be imposed for its violation. Vide para 50, it was held that though the
Supreme Court would not interfere with the sentence passed by the courts
below unless there be any illegality in it or any question of principle
involved but in the unusual features of the case the sentence of imprison-
ment passed on the accused-respondent was reduced to the period already B
undergone.

     Actus non fa cit reum, nisi mens sit rea (the intent and act must both
concur to constitute the crime). The general rule is that there must be mind
at fault before there can be a crime. Whether or not mens rea is an essential
ingredient of an offence would depend on the object and purpose of a            C
Statute and the phraseology employed by the Legislature in defining the
offence. The doctrine that mens rea is an essential ingredient in every
offence has three recognised exceptions : (i) cases not criminal in any real
sense but which in the public interest are prohibited under a penalty; (ii)
public nuisance; and (iii) cases criminal in form but which are really only     D
a summary mode of enforcing a civil right (see She"as v. De Rutzen, [1895)
l QB 918, 922; also sec Nathu Lal v. State of M.P., AIR (1966) SC 43 and
observations of K. Subha Rao, J. in his dissenting opinion in State of
Maharashtra v. Mayer Hans George, AIR (1965) SC 722. Vide para 16 K.
Subha Rao, J. has given an illustration. An aeroplane in which a person         E
with gold on his body is travelling may have a forced landing in India and
yet he would be liable to be punished with a jail term extending to two
years.

      The case at hand is one where through the writ petition filed by the
respondent before the High Court the liability to pay customs duty at the F
rate of 25 per cent of the value of the goods was sought to be avoided and
goods were sought to be released from detention of the customs
authorities. In such a case the publication of notification in the Government
Gazette in the manner contemplated by Section 25 (1) of the Customs Act
would be enough to import the liability to pay customs duty without regard G
to the enquiry into the fact whether the notification had actually come to
the knowledge of the importer or not. It is not the respondent's case that
the relevant Gazette has been published ante-dated. What will be the
impact of publication in the Government Gazette though the Gazette in
spite of having been published was not available to be seen by the persons H
    1094                 SUPREME COURT REPORTS                  f2000J 1 S.C.R.
A affected when criminal consequences are sought to be inflicted - is a
    question which should in my opinion be left open to be gone into in an
    appropriate case. Non-availability of Gazette carrying the notification may
    provide foundation for a defence plea of innocence where mens rea is an
    ingredient of offence committed by breach of notification. Where mens rea
B   is not an ingredient, want of circulation of Gazette may still be a rt:ason
    for leniency in punishment. These are the questions which need to be left
    open.

          With this much reservation,I agree with my learned brother M.B.
    Shah, J. that the appeal has to be allowed.
c B.K.M.                                                      Appeal allowed.