1915. Present  : De Sampayo A.J.

CASIE CHETTY v. AHAMADU.

129-P. C. Colombo, 51,260

Medicine containing a trace of ganja-Is it an excitable article-Possession of excisable article-Is mens rea necessary for conviction under section 48 of Ordinance No. 8 of 1918 ?

A medicine imported from India containing " a trace of ganja" was held to be an excisable article within the meaning of the Excise Ordinance, No. 8 of 1912.

In respect of the acts made punishable by section 48 of Ordinance No. 8 of 1912, the absence of knowledge (mens rea) is no ground of defence.

THE facts are set out in the judgment.

Tisseverasinghe, for accused, appellant.-Mens rea is an essential ingredient in every offence. Actual knowledge need not in every case be proved. Proof of constructive knowledge may be sufficient. The mere absence of the words " knowingly," " wilfully," or "intentionally," or words to that effect in the clause of a statute creating an offence does not prevent knowledge being necessary. Such absence may and does affect the burden of proof, but not. in all classes of cases. See Regina v. Sleep.1[(1861) 30 L. J. M. C. 170.] The offence was

possession of Government naval stores marked with the broad arrow, in breach of section 2 of Acts 9 and 10, Will. 3, c. 41. The jury found they had not sufficient evidence before them to show that the prisoner knew that the stores were so marked, though he had reasonable means of knowledge. It was held that in the circum-stances no conviction could be had. In reply to counsel's argument that the Legislature, on grounds of public policy, had thought fit to make the bare possession prima facie an offence without proof of knowledge, Cockburn C.J. observed, " Does not that passage assume that the person who was possessed of the Government stores knew that they were Government stores ?" See also Hearne v. Garton et al.,1[28 L. J. Rep (N. S.) W. C. 216.] Nicholas v. Harne.2[L. R. 8 C. P. 322.]

The presumption of the necessity of mens rea in the case of every offence may, however, be displaced by the words of the statute creating the offence or by the subject-matter with which it deals, as in the case of the Revenue Statutes, Adulteration Acts, Game Acts, &c. But even in these oases the absence of the word " knowingly " does not prevent knowledge being necessary. The only difference the presence or absence of that word makes is that knowledge must be proved by the prosecution in the one case and need not be proved in the other. Sherias v. De Rutsen,3[(1895) 1 Q. B. 918.] Townsend v. Arnold.4[75 J. P. 413.]

Section 60 of the Excise Ordinance goes no further than is indicated by these decisions. The accused has satisfactorily accounted for the possession of the article, and has thereby shifted the burden of proving " knowledge " on to the prosecution. The attempt to prove constructive knowledge on the part of the accused has failed.

Ganja under Notification 24 includes every part of the hemp plant, and therefore under section 3 " any preparation and admixture of the same." " A trace of ganja " cannot by any stretch of interpretation be said to include any part of the hemp plant or any " preparation or admixture " of the same.

Counsel also referred to 14 N. L. R. 349, 428: 15 N. L. R. 197; 2 Cur. L. R. 225.

V. Grenier, C.C., for respondent, not called upon.

Cur. adv. vult.

February 23, 1915. DE SAMPAYO A.J.-

This is a prosecution under section 43 (a) of the Excise Ordinance, No. 8 of 1912, for possessing an excisable article, viz., ganja, in contravention of section 16 (3) of the Ordinance and the Notification No. 26 issued thereunder. Section 16 (3) empowers the Governor by notification to prohibit the supply to or possession by any person of any excisable article either absolutely or subject

to such conditions as he may prescribe. By Notification No. 26 dated February 13, 1914, the Governor prohibited absolutely the possessi