Howes J:

In this case the Appellant was convicted under s. 11 (3) (d) of Ch 223 (Chandu Revenue Ordinance) of having in her possession chandu other than Government chandu. The subsection reads: "No person shall, except as permitted by this Ordinance or by any rules made thereunder

(d) have in his possession, custody or control any chandu other than Government chandu.

It will be noted that in this subsection there is no question of "knowingly," or any other qualifying attribute to the having in possession, custody or control. It is an absolute prohibition by the legislature, such as occurs in several statutes of this nature, where revenue or excise is concerned.

This point was considered by Mr. Justice Wright in the case of Sherras v. De Rutzen (1895 1 QB at p. 921) where he said. "There is a presumption that mens rea, an evil 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."

As I have already said, the Section is prohibitive: "No person shall have in his possession, custody or control." If qualifying words such as "knowingly" or "intentionally" were included, then the prosecution would have to prove knowledge or intention on the part of the accused.

Consequently, once the possession, custody or control of the chandu was proved (or as in this case, admitted), the onus of proof shifted, and it becomes the duty of the appellant to satisfy the learned District Judge that such possession was innocent. This was the only issue which he had to try. 1The chandu was found concealed under a lot of clothing in a box belonging to the Appellant. Her explanation was that her daughter (a child of about 13) had picked up a bundle which contained 15 packets of non-Government chandu from a dustbin, and that she (Appellant) never saw the parcel till the Revenue Officers found them in her box.

The child, in her evidence, said the tins of chandu were in one big bundle which she found in a dustbin. She untied the parcel, and saw a number of packages like Exhs. C1-15 and "thought the parcel might contain playthings." She told her mother she had found something in a dustbin, and her mother said: "Don't bring in rubbish." She took the parcel upstairs and put it in her mother's box.

In the child's statement to the Assistant Superintendent of Excise, made immediately after the raid, she said: "I took them (the packets) home and asked my mother what the packets contained, but my mother did not know. My mother told me to put the packets in the wooden box.

The District Judge in his Grounds of Decision dealt at great length with the improbabilities of this story, which I think are obvious to anyone reading the record.

The story sounds to me so improbable that even though I have not had the advantage of seeing the witnesses, I accept without any hesitation the District Judge's finding that the whole story was false. This was the best explanation the accused could offer, to account for the presence of this chandu in her box.

She failed completely to convince the District Judge that her possession was innocent; and, as I have said, this was a question of fact for the learned District Judge to decide, and one with which I can see no possible grounds for interfering. The appeal must, therefore, be dismissed.

As regards the sentence, since the penalty allowed by this Ordinance is three years rigorous imprisonment, it seems to me that the District Judge was lenient in imposing the imprisonment of eight months simple imprisonment only, having regard to the quantity and value of the chandu seized.

Appeal dismissed.