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SUPREME COURT OF INDIA
K.K. MATHEW AND I.D. DUA, JJ.
Inder Sain, Appellant
Versus
State of Punjab, Respondent.
Criminal Appeal No. 44 (N) of 1970, D/- 4-5-1973.
Opium Act, 1878 - Section 9 (a), 9 and 10 - Licensing Act, 1872 - Section 16 (2) - Opium - Possession of Opium - Appellant was charged by Chief Judicial Magistrate, with an offence under Section 9 (a) of the Opium Act - Whether conviction of appellant on basis of this finding for an offence under Section 9 (a) was justified - Whether there are sufficient grounds for inferring that Parliament intended to exclude general rule that mens rea is an essential element in every offence - Whether, as a matter of fact, legislature intended anything to be proved except possession of article as constituting element of offence - Whether possessor of a parcel is necessarily in possession of everything found in it - Whether appellant there was in unauthorised possession of a scheduled drug and it was held that it is not necessary to prove mens rea apart fromknowledge involved in possession of article - Whether appellant was in possession of opium – Held, It is only necessary for prosecution to establish that accused has some direct relationship with article or has otherwise dealt with it - If prosecution proves detention of article or physical custody of it, then burden of proving that accused was not knowingly in possession of article is upon him - A conviction under S. 9 (a) would involve some stigma and it is only proper then to presume that legislature intended that possession must be conscious possession - But it is a different thing to say that prosecution should prove that accused was knowingly in possession - It seems to Court that by virtue of S. 10, onus of proof is placed on accused when prosecution has shown by evidence that accused has dealt with article or has physical custody of same, or is directly concerned with it, to prove by preponderance of probability that he did not knowingly possess article - In view of fact that appellant has already undergone a part of sentence of rigorous imprisonment and was on bail, Court do not think it proper to send him to jail again - In circumstances Court think that period of imprisonment already undergone by him together with a fine of Rs. 2,500/- would be adequate sentence - If fine is not paid, appellant will be liable to imprisonment for a period of six months - Appeal allowed.
Judgment
MATHEW, J.:- The appellant was charged by the Chief Judicial Magistrate, Sangrur, with an offence under Section 9 (a) of the Opium Act. He was found guilty of the offence and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 2,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of six months.
2. The appellant appealed against the decision to the Sessions Judge, Sangrur. He dismissed the appeal.
3. The appellant filed a criminal revision before the High Court against the order of the Sessions Judge. The revision was also dismissed.
4. This appeal, by special leave, is from the judgment of the High Court.
5. The case against the appellant was as follows. The appellant presented Railway Receipt No. 641154 dated September 22, 1967, for consignment of a parcel of apples purporting to be from one Uchana Das of Solan to one Sham Lal of Dhuri and endorsed to him by the consignee, to the parcel clerk at the Railway Station, Dhuri and got delivery of he consignment. Head Constable Shiv Ram Singh got secret information at the Railway Station Dhuri that there was opium in the consignment. He organised a raid with the help of Pritam Singh and Mohinder Singh and stood in front of the parcel office under the bridge. While the accused was carrying the parcel, the Head Constable intervened and questioned him. The parcel was thereafter opened and it contained 4.350 gms. of opium along with apples. The opium was seized and its samples were put in separate containers and sealed with the seal of the Head Constable. When the report was received that the sample was opium, the appellant was challaned.
6. The prosecution examined Pritam Singh (PW-1), Bal Mukand, Parcel Clerk (PW-2). Mohindar Singh Luggage Porter (PW-3), Ramji Dass, Octroi Moharrir (PW-4) and Shiv Ram Singh Head Constable (PW-5). PW.-1, PW-3 and PW-4 did not support the prosecution case. But on the evidence of the parcel clerk (PW-2) and the Head Constable (PW-5), it was found by the Judicial Magistrate that the appellant was in actual possession of opium and has committed an offence under Section 9 of the Act. This finding was confirmed in appeal and also in revision.
7. The question is whether the conviction of the appellant on the basis of this finding for an offence under Section 9 (a) was justified.
8. Sections 9 and 10 of the Opium Act provide :
"9. Any person who, in contravention of this Act, or of rules made and notified under Section 5 or Section 8. (a) possesses opium or (b) transports opium, or (c) imports or exports opium or (d) sells opium, or (e) omits to warehouse opium, or removes or does any act in respect of warehoused opium, and any person who otherwise contravenes any such rule, shall on conviction before a magistrate, be punishable for each such offence with imprisonment which may extend to three years, with or without fine; and, where a fine is imposed, the convicting magistrate shall direct the offender to be imprisoned in default of payment of the fine for a term which may extend to six months, and such imprisonment shall be in excess of any other imprisonment to which he may have been sentenced.
"10. In prosecutions under S. 9, it shall be presumed, until the contrary is proved, that all opium for which the accused person is unable to account satisfactorily is opium in respect of which he has committed an offence under this Act."
9. It was argued that unless otherwise provided, it must be presumed that the legislature will not make an act an offence unless it is accompanied by mens rea.
10. In Brend v. Wood, (1946) 62 TLR 462 at p. 463 Lord Goddard, C. J. said:
"It is of the utmost importance for the protection of 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 constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unl
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