LexINDER SAIN versus STATE OF PUNJAB
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• A B c D E F G 215 INDER SAIN. v. STATE OF PUNJAB May 4, 1973 [K. K. MATHEW AND I. D. DUA, JJ.] Opium Act 1 of 1878, Ss. 9 (a) ar.d lO-Possessio11 of opium when an offence under s. 9(a)-Me11s rea whether a necessary ingredient-Presuntption under s. 10, scope of-Presumption when displaced. Th~. appellant obtained possession of a parcel purporting to contain apples after presentin~ before the railway authorities a railway receipt endorsed in his fa"·our by the consignee. The parcel on being opened was found to Contain a considerable quantity of opium besides apple-s. At his trial for an offence under s. 9(a) of the Opium Act 1878 he however denied tbat he had anythin~ to do with the parcel. There was ·no evidence that the appellant was aware that the parcel contained opium. He was convicted by ~he trial court and the conviction was upheld on appeal by the Sessions Judge and on revision by the High Court. In appeal by special leave, this Court had to consider the effect of s. 10 of the Act which provide that in a prosecution under s. 9, "i~ shall be presumed until the contrary is proved, that all the opiun1 for Which the accused is unable to account satisfactorily is opiun1 in respect of which he has cornmitted an offence under this Act." The appellant contended that unless otherwise provided, it must be presumed that the legislature will not make an act an offence unless it is aceompanied by 1nens rea. HELD : ( 1) Normally, it is true that the plain ordinary grammatical mean .. ing of tl}.e words of an enactment affords the best guide. But in cases like the present, ,tiie,, question is not what the words mean but whether these 1re sufficient gfounds for inferring that Parliament intended lt.o exclude the general rule that mens rea is an essential element in every offence. The authorities show that it is generally 1!.ecessary to go behind the words of the enactn1ent and .. take other factors into consideration. So. in the context it is permissible to look into the obiect of the legislature and find out whether. as a matter of fact. the le1?:islature intended anything to be proved exceot the possession of the article as constituting the element of the offence. [21801 Brend v, Wood, 62 T.L.R. 462-463, 5lherras v. De Rutzen, l Q.B. 918 and Sweet v. Parsley, [1969] 2 W.L.R. 470, referred to. Even if it be assumed that the offence is absolute. the word 'possess' in s. 9 connotes some sort of knowledge about the thing possessed. It is necessary to show that the accused had the article which turned out to be opium. It is ·nqt necessary to show in fact that he had actual knowledge of that which he had. [218E-F] Reg. v. Ashwell, [1885] 16 Q.B.D. 190 and Reg. v. Warner, [1969] 2 A.C. 256, 289, relied on. (ii) Section 10 proceeds on the assumption that a person who is in any way concerned with opium or has dealt with it in anv manner must be H presumed to have committed an offence undel' s. 9 of -the Act, 'unless the ·petson can satisfactorily prove by preponderance of probability either that he was not knowingly in· possession or other circumstances which exonerate him. The burden to account will arise onlv when the accused is in some manner found to be concerned with opium or has otherwise dealt with it, [22001 2-L373S:i;CI/74 216 SUPREME COURT REPORTS [ 1974] 1 s.c.11. Jn the last analysis it is only necessary for the prosecution to establish that the accused has some direct relationship with the article or has otherwise dealt with it. If the prosecution proves detention of the article or physical custody of it. then the burden of proving that the accused was not knowingly in possession of the article is upon him. The practical difficulty of the prosecu· tion to prove something within the exclusive knowledge of the accused must have made the le~islature think that if the onus is placed on lhe prosecution, the object of the Act would be frustrated. [221C} Lockyer v. Gibb. [1967] 2 Q.B. 243, 246, Emperor v. Santa SiliRh. A.I.R. 1944 Lahore 339, Sahendra Singh v. Emperor, A.LR. 1948 Patna 222, Abdul Ali v. The State, A.LR. 1950 Assam 152, Pritani Singh and Others v. The State, 1966 P. L. R. 200, Suh-Divisional Officer and Collccor Shh•asagar v. Shri Copa/ Chandra Khaund and Another, A.LR. 1971 S.C. 1190, State v. Sham Singh ond Others, I.L.R. [1971] 1 Punjab and Haryana, 130, Sileo Rai Singh v. Emperor, A.LR. (31) 1944 Oudh 297 and Syed Mehaboob
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