Mens rea to constitute offence essential.

Accused in C.C. No. 61 of 1959 on the file of the First Class; Magistrate's Court Trichur, who has been convicted for an offence under section 6(3) of the Indian Explosives Act (Act IV of 1884) and whose appeal before the Sessions Judge of Trichur was dismissed has filed this Revision Petition.

The accused is the proprietor of Jupiter Trading Concern in Trichur, a firm licensed to possess fireworks and Chinese Crackers On 15th September, 1958, P.W. 4 the Assistant Inspector of Explosives checked the consignment of fireworks which P.W. 7 the manage of the accused had taken to the Trichur Railway Station. On checking the stock it was found some of the fireworks contained potassium chlorate. Possession of an explosive mixture containing sulphur in admixture with potassium chlorate is prohibited under the Government of India Notification No. M. 1217, dated 9th February, 1939. At the request of the accused the samples were sent to the Chemical Examiner, Trivandrum, who also certified that the samples contained potassium chlorate.

The evidence of P.W. 1 the goods clerk, P.W. 2 the forwarding agent of the accused, P.W. 7 the manager and P.W. 4 the Assistant Inspector of Explosive have proved that the explosives were produced for testing preliminary to the transit by rail for and on behalf of the accused. This fact is not disputed by the accused. Possession of the explosives must be taken to be that of the accused even though it was P.W. 7 the manager who actually produced it before the Explosives Inspector. Possession of the prohibited article through his servant or agent really constitutes possession by the accused as the so-called possession of the representative is detention and not possession in a legal or juridical sense.

The learned counsel appearing for the accused contends that the accused had no mens rea or the knowledge that the fireworks contained prohibited material and in the absence of such guilty knowledge he cannot be found guilty of the offence charged. It is true that actus non facit reum nisi mens sit rea is a cardinal doctrine of criminal law, but the legislature can create offences which consist solely in doing an act or being in possession without any intention whatsoever. Whether mens rea is a constituent part of a crime or not must in every case depend upon the wording of the particular enactment.

Goddard, J., in Evans v. Dell (1937) 53 T.L.R. 310 at 313 stated:

“With the complexity of modern legislation one knows that there” are times when the Court is constrained to find that, by reason of the clear terms of an Act of Parliament, mens rea or the absence of mens rea becomes immaterial and that if a certain act is done, an offence is committed whether the person charged knew or did not know of the act.”

In Brend v. Wood (1946) 62 T.L.R. 462 at 463 Lord Goddard, C.J., again reiterated the same principle:

“It is of the utmost importance for the liberty of the subject that a Court should always bear in mind that unless a statute either clearly or by necessary implication rules out mens rea as a consti-tutent part of a crime, the Court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.”

In Sherras v. De Rutsen L.R. (1895) 1 Q.B. 918 at 931 Mr. Justice Wright pointed out:

“There is a presumption that mens rea…………….Intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence, but that ‘presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.”

In Halsbury's Laws of England, Vol. 9, at page 11 the learned author says:

“In a limited class of offences, mens rea is not an essential element. This class consists, for the most part, of statutory offences of minor and only quasi-criminal character and, in order to determine whether mens rea is an essential element of an offence, it is necessary to look at the object and terms of the st