1939 Present: Soertsz A. C. J.

PERUMAL v. ARUMOGAM.

50-M. C. Badulla-Haldummulla, 9,990.

 Mens rea-Charge of unlawful possession of ganja-Elements of offence-Poisons, Opium, and Dangerous Drugs Ordinance, s. 28 (Cap. 172.)

Where a person is charged under section 28 of the Poisons, Opium, and Dangerous Drugs Ordinance, with having in his possession, without a licence from the Governor, a preparation or extract from the hemp plant commonly known as ganja or a resin obtained from the hemp plant.
 
Held, that mens rea was not an essential element of the offence.

Burah v. Mohamadu Sally (2. C. L. W. 381) and Casie Chetty v. Ahamadu (18 N. L. R. 186) referred to.
 
APPEAL from an acquittal by the Magistrate of Badulla-Haldummulla.
 
M. T. de S. Ameresekera, K. C., S. -G. (with him D. Jansze, C. C.), for the complainant, appellant.
 
T. K. Curtis, for the accused, respondent.

Cur. adv. vult.

July 25, 1939. SOERTSZ A. C. J. -

The accused in this case was charged with having had in his possession, without a licence from the Governor, a preparation of, or extract from, the hemp plant commonly known as ganja, or a resin obtained from the hemp plant, an offence against section 28 of the Poisons, Opium, and Dangerous Drugs Ordinance.

The Magistrate found that the accused was in possession of the impeached, preparations. The Analyst's report proves that ?ganja? was identified in all the brands of the legium found in the possession of this accused. But the Magistrate acquitted the accused because ?on the facts it is clear that the accused never knew that the preparation contained ganja?.

The Magistrate took the view that mens rea is necessary for the constitution of this offence, and that on a person being found in possession of such a preparation as this, there is a presumption of mens rea which he must rebut. He relied on the judgment of Burah v. Mohamadu Sally 1 in which Garvin J. concluded his judgment with the observation ?upon proof of the fact of possession the onus lay on the appellant to show that his possession was innocent". The learned Magistrate seems to think

1 2 Cey. Law Weekly 381.

that this view is in conflict with the view taken by de Sampayo J. in Caste Chetty v. Ahamadu 1 but, in reality, it is not, for when de Sampayo J. said, ?I am of opinion that in respect of the acts made punishable by section 43 which involves no qualifying condition, the absence of knowledge is no ground of defence?, he was speaking with reference to section 43 alone, and he went on to consider section 50 of the Ordinance in its bearing on section 43 and said, ?I think the circumstances give rise to the presumption created by section 50?. . . .?I do not think that he as a medical practitioner ought to be heard to say, or to be believed -when he says, that he did not know the nature of the drug with which he was dosing his clients?. Perhaps it was riot quite correct to say that ?in the circumstances? of that case the presumption under section 50 arose, the circumstances being the ?suspicious and highly unsatisfactory? conduct of the accused when his house was searched. In my view, the presumption arose on the mere fact of possession being established, apart from and independent of the circumstances of that possession. The ?circumstances? is something to consider when examining the question whether the presumption has been rebutted or not.

In the present case, the position is quite different from the cases that arose before de Sampayo and Garvin JJ. The position here is what the position would have been in those cases if section 43 of the Excise Ordinance stood without the mitigation offered by section 50. Section 28 states that no person shall have in his possession any such preparation without a licence, and section 76 penalizes such a possession, without qualification or reservation, and does not merely create a presumption of guilt. This is one of those statutory