M.B Shah, J.— A two-Judge Bench of this Court by order dated 15-10-1999 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 Pankaj Jain Agencies v. Union of India (1994) 5 SCC 198, CCE v. New Tobacco Co. (1998) 8 SCC 250 and I.T.C Ltd. v. CCE (1996) 5 SCC 538 is also relevant. In our view it is appropriate that this appeal is to be heard by a larger Bench.”
2. Before referring to the said decisions, we would narrate few facts involved in the matter:
The respondent admittedly imported a consignment of green beans (pulses) weighing 505-505 MT vide Invoice No. 14/099 dated 31-12-1986. They have filed bill of entry for the same on 5-2-1987. The importer claimed clearance of the said goods free of duty on the basis of Exemption Notification No. 129/76-Cus dated 2-8-1976. However, it was pointed out that on 4-2-1987 the said notification was amended vide Notification No. 40/87-Cus, whereby basic duty @ 25% was levied. As the duty was levied @ 25%, the importer filed Writ Petition No. 535 of 1987 in the High Court of Bombay contending inter alia 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 the Full Bench decision of the said Court in the case of Apar (P) Ltd. v. Union of India (1985) 22 ELT 644 (Bom) (FB) allowed the writ petition. Hence the present appeal by the State.
3. 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 in Apar (P) Ltd. case (1985) 22 ELT 644 (Bom) (FB) was set aside [Union of India v. Apar (P) Ltd. (1999) 6 SCC 117].
4. A copy of Original Extraordinary Gazette of India dated 4-2-1987 [Part II, Section 3, sub-section (i)] is produced for our perusal. The said notification reads as under:
“MINISTRY OF FINANCE
(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-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), 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. 129/76-Customs, dated the 2nd 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 Schedule’, the words ‘from the payment of so much of that portion of the duty of customs which is specified in the said First Schedule as is in excess of twenty-five per cent ad valorem’ shall be substituted.”
5. The contention is — the aforesaid notification was not made available to the public at large and, therefore, on the basis of the said notification customs duty cannot be levied. The learned counsel for the appellant relied upon the decision in Pankaj Jain Agencies v. Union of India (1994) 5 SCC 198 and the learned counsel for the respondent importer has relied upon the decision in CCE v. New Tobacco Co. (1998) 8 SCC 250 in support of their respective contentions.
6. In Pankaj Jain Agencies (1994) 5 SCC 198 this Court considered similar contention with regard to the exemption notification issued under Section 25 of the Customs Act, 1962 and held that there was no substance in the contention that notwithstanding the publication of the notification in the Official Gazette there was yet a failure to make law known and that, therefore, the notification did not acquire the elements of operativeness and enforceability. For this purpose the Court referred to Section 25(1) of the Customs Act, which reads as under:
“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 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.”
7. On the basis of the aforesaid section, the Court negatived the contention that until the notification was available in Bombay — and shown to be so available — the statutory rules or instrument would not become operative. The Court relied on the three-Judge Bench decision in State of Maharashtra v. Mayer Hans George AIR 1965 SC 722, (1965) 1 Cri LJ 641, (1965) 1 SCR 123 and also referred to the decision in B.K Srinivasan v. State of Karnataka (1987) 1 SCC 658, AIR 1987 SC 1059 and held thus:
“17. In the present case indisputably the mode of publication prescribed by Section 25(1) was complied with. The notification was published in the Official Gazette on 13-2-1986. As to the effect of the publication in the Official Gazette, this Court held (Srinivasan case (1987) 1 SCC 658, AIR 1987 SC 1059 AIR at p. 1067 ::
‘Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication.’
(emphasis supplied)”
8. As against this, learned counsel for the respondent referred to the decision in CCE v. New Tobacco Co. (1998) 8 SCC 250, para 11 & 12 and emphasised 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 considering the contentions has held as under:
“11. Our attention was also drawn to the decisions of this Court in Pankaj Jain Agencies v. Union of India (1994) 5 SCC 198 and I.T.C Ltd. v. CCE (1996) 5 SCC 538 but they are not helpful in deciding the question that arises in these cases.
12. 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. It would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. 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 notification cannot be said to have been duly published.”
9. In Garware Nylons Ltd. v. Collector of Customs & Central Excise (1998) 8 SCC 282, (1998) 100 ELT 321 a 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 question was whether enhanced 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 effect only from 1-11-1985 since it was made available to the public for sale on that date. Relying upon the decision in New Tobacco Co. (1998) 8 SCC 250 the Court allowed the said appeal by holding that the notification can be said to have been duly “published” when it is made known to the public.
10. It has been submitted by the learned counsel for the appellant that the afore-quoted observations in the case of New Tobacco Co. (1998) 8 SCC 250 are directly in conflict with the law laid down by this Court in Pankaj Jain Agencies (1994) 5 SCC 198 and in I.T.C Ltd. (1996) 5 SCC 538 We agree with the said submission.
11. In our view, as noted above, in Pankaj Jain Agencies case (1994) 5 SCC 198 the Court directly dealt with a similar contention and after relying upon the decision in the case of Mayer Hans George AIR 1965 SC 722, (1965) 1 Cri LJ 641, (1965) 1 SCR 123 rejected the same. That decision is followed in I.T.C Ltd. (1996) 5 SCC 538 and other matters. Hence, it is difficult to agree that the decision in Pankaj Jain Agencies case (1994) 5 SCC 198 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 subject to such conditions, from the whole or any part of the duty of customs leviable thereon by a notification in the Official Gazette. The said notification can be modified or cancelled. The method and mode provided for grant of exemption or withdrawal of exemption is issuance of notification in the Official Gazette. For bringing the notification into operation, the 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 AIR 1965 SC 722, (1965) 1 Cri LJ 641, (1965) 1 SCR 123 which is followed in Pankaj Jain Agencies case (1994) 5 SCC 198 represents the correct exposition of law and the notification under Section 25 of the Customs Act 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, the usual mode of bringing into operation such notification followed since years in this country is its publication in the Official Gazette and there is no reason to depart from the same by laying down additional requirement.
12. In the case of Mayer Hans George AIR 1965 SC 722, (1965) 1 Cri LJ 641, (1965) 1 SCR 123 it was contended that the notification under Section 8 of the Foreign Exchange Regulation Act, 1947 of the Reserve Bank of India could not be deemed to have been in force and operation merely from the date of issue or publication in the 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 take effect. In support of that contention reliance was placed on the decision of the Privy Council in Lim Chin Aik v. R. 1963 AC 160, (1963) 1 All ER 223 (PC) The Court negatived the said contention by holding that in the first place the order of the Minister dealt with by the Privy Council was never “published” since admittedly it was transmitted to the immigration official who kept it with himself. The Court observed:
“But in the case on hand, the notification by the Reserve Bank varying the scope of the exemption, was admittedly ‘published’ in the Official Gazette — the usual mode of publication in India, and it was so published long before the respondent landed in Bombay. The question, therefore, is not whether it was published or not, for in truth it was published, but whether it is necessary that the publication should 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 general order, whereas what we have before us is a general rule applicable to every 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 no question of individual service of a general notification on every member of the public, and all that the subordinate 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 contents.”
13. The Court further referred to the judgment of Bailhache, J. in Johnson v. Sargant & Sons (1918) 1 KB 101 and did not approve the observation made therein to the effect that the order was not known until the morning of May 17 but it came into operation before it was made known. On the contrary, the Court held that there was great force in the learned author's (Prof. C.K Allen) following comment on the reasoning in Sargant case (1918) 1 KB 101:
“This was a bold example of Judge-made law. There was no precedent for it, and indeed a decision, Jones v. Robson (1901) 1 KB 673 which, though not on all fours, militated strongly against the Judge's conclusion, was not cited; nor did the Judge attempt to define how and when delegated legislation ‘became known’. Both arguments and judgment are very brief. The decision has always been regarded as very doubtful, but it never came under review by a higher court.”
The Court also held that:
“It is obvious that for an Indian law to operate and be effective in the territory where it operates viz., the territory of India it is not necessary that it should either be published or be made known outside the country. Even if, therefore, the view enunciated 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 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 is, in our opinion, wholly irrelevant.”
The Court further observed:
“[B]ut 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 adopted to notify to all the persons concerned in the 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 India is the ordinary method of bringing a rule or subordinate legislation to the notice of the persons concerned.”
14. From the aforesaid judgment it can be stated that it is an established practice that the publication in the Official Gazette, that is, the Gazette of India (sic is an) ordinary method of bringing a rule or subordinate legislation 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 can acquaint himself 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 21 of 1998.
15. Further, in New Tobacco Co. case (1998) 8 SCC 250 the Court referred to the decision in Harla v. State of Rajasthan AIR 1951 SC 467, 1952 Cri LJ 54, 1952 SCR 110. In Harla case AIR 1951 SC 467, 1952 Cri LJ 54, 1952 SCR 110 the Court referred to Section 3 of the Jaipur Laws Act, 1923 which, inter 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 case, it was admitted that the 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 Jaipur State without further publication or promulgation would not be sufficient to make a law operative. The Court also observed:
“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.”
16. Further, in the case of New Tobacco Co. (1998) 8 SCC 250 the Court relied on the decision in B.K Srinivasan (1987) 1 SCC 658, AIR 1987 SC 1059. In that case (in para 15) after considering various contentions, the Court specifically held that 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 publication, such a mode of publication may be sufficient, if reasonable.
17. From the aforesaid observations, it is plain and clear that the decision in B.K Srinivasan (1987) 1 SCC 658, AIR 1987 SC 1059 also reiterates that the notification will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette. We also agree with the reasons recorded in Mayer Hans George AIR 1965 SC 722, (1965) 1 Cri LJ 641, (1965) 1 SCR 123 and hold that notification under Section 25 of the Customs Act would come 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 (1994) 5 SCC 198 represents the correct exposition of law on the subject. The decision rendered in New Tobacco Co. (1998) 8 SCC 250 followed in Garware Nylons Ltd. (1998) 8 SCC 282, (1998) 100 ELT 321 does not lay down the correct law.
18. The learned counsel for the respondent, however, submitted that there is nothing on record to establish that notification dated 4-2-1987 withdrawing full exemption from the levy of customs duty was published on the same day. For this purpose, original copy of the notification dated 4-2-1987 published in the Extraordinary Gazette on the said date has been produced before us. The Gazette is admissible being the official record evidencing public affairs and the Court is required to presume its contents as genuine under Sections 35 and 38 read with Section 81 of the Evidence Act, unless the contrary is proved. Hence, there is no substance in the contention that notification dated 4-2-1987 was not published in the Gazette on the same day. In our view, the said notification came into force on the same date.
19. Lastly, at this stage, we would mention that Parliament has added sub-sections (4) and (5) to Section 25 of the Customs Act by Act 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. The newly-inserted sub-sections (4) and (5) to Section 25 are as under:
“25. (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;
(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 a notification comes into force on a date 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.”
20. In the result, the appeal is allowed. The impugned judgment and 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. (partly dissenting)— I have gone through the judgment proposed by my 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 rule of universal application.
22. Both the cases of Pankaj Jain Agencies (1994) 5 SCC 198 and B.K Srinivasan v. State of Karnataka (1987) 1 SCC 658, AIR 1987 SC 1059 are cases where civil liability was sought to be imposed on the person proceeded against. There may be cases where on account of breach of a rule made or notification issued in exercise of delegated power to legislate, a person may incur criminal liability. Such cases can again be divided into two classes: (i) where mens 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.
23. State of Maharashtra v. Mayer Hans George AIR 1965 SC 722, (1965) 1 Cri LJ 641, (1965) 1 SCR 123 is a case of criminal liability incurred by the accused-respondent. In that case, by virtue of a notification dated 25-8-1948 the bringing of gold bullion into India was prohibited except with the permission of Reserve Bank of India. On the same date Reserve Bank of India issued a notification exempting from operation of the Central Government 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 8-11-1962 the Reserve Bank of India amended its earlier notification by prescribing the additional condition for exemption, viz., that the gold must be declared in the manifest of the aircraft as same-bottom cargo or trans-shipment cargo. This notification was published in the Government Gazette on 24-11-1962. The accused-respondent was a passenger from Zurich to Manila in a Swiss plane which left Zurich on 27-11-1962. The plane landed at the airport in Bombay on 28th November. The accused was found sitting in the plane carrying 34 kilos of gold bars on his person which was not declared in the “manifest” for transit. The accused was prosecuted and convicted for importing gold into India in contravention of Section 8(1) of the Foreign Exchange Regulation Act, 1947 read with the notification. One of the pleas raised in the defence was that the accused could not have known of the notification published in the Gazette of India only on 24-11-1962 whereas he had left Zurich on 27-11-1962. N. Rajgopala Iyer, J. speaking for the majority held that publication in India so as to bring it to the notice of everyone who intends to pass through India and not a publication outside India was the test to find out effective publication. Mens rea was not an essential ingredient of the offence. The knowledge of the existence or contents of a law by an individual was not therefore relevant save on the question of the sentence 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 imprisonment passed on the accused-respondent was reduced to the period already undergone.
24. Actus non facit reum, nisi mens sit rea (the intent and act must both concur to constitute the crime). The general rule is that there must be the 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 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 a summary mode of enforcing a civil right (see Sherras v. De Rutzen (1895) 1 QB 918 — QB at p. 922; also see Nathulal v. State of M.P AIR 1966 SC 43, 1966 Cri LJ 71 and observations of K. Subba Rao, J. in his dissenting opinion in State of Maharashtra v. Mayer Hans George AIR 1965 SC 722, (1965) 1 Cri LJ 641, (1965) 1 SCR 123). Vide para 16 K. Subba Rao, J. has given an illustration. An aeroplane in which a person 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.
25. 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 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 the 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 to the inquiry 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 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 the Gazette carrying the notification may provide the foundation for a defence plea of innocence where mens rea is an ingredient of offence committed by breach of notification. Where mens rea is not an ingredient, want of circulation of the Gazette may still be a reason for leniency in punishment. These are the questions which need to be left open.
26. With this much reservation I agree with my learned brother M.B Shah, J. that the appeal has to be allowed.