iminal Appeal
No 44 N of 1970
Appeal by special leave from the judgment and order dated December 2 1969 of the Punjab  Haryana High Court in Criminal Revision No 612 of 1968
section K Dhingra for the appellant
Harbans Singh and R N Sachthey for the respondent
The Judgment of the Court was delivered by MATHEW J
The appellant was charged by the Chief Judicial Magistrate Sangrur with an offence under section 9a 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 2000and in default of payment of fine to undergo rigorous imprisonment for a further period of six months
The appellant appealed against the decision to the Sessions Judge Sangrur
He dismissed the appeal
The appellant filed a criminal revision before the High Court against the order of the Sessions Judge
The revision was also dismissed
This appeal by special leave is from the judgment of the High Court
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 Uchara 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 the consignment
Head Constable Shiv Ram Singh got 217 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 4350 gms of opium along the 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
The prosecution examined Pritam Singh PW 1 Bal Mukand Parcel Clerk PW 2 Mohinder 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 c se
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
The question is whether the conviction of the appellant on basis of this finding for an offence under section 9a was justified
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 warehouse opium and any person who otherwise contravenes any such rule shall oil conviction before a magistrate be Punishable for each such offence with imprisonment which may extend to three bears with or without fine and where a fine is im posed 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
In prosecutions under section 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 be has committed an offence under this Act
 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
In Brend vs Wood1 Lord Goddard CJ 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 neces 1 218 sary 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 unless he has a guilty mind In Sherras vs De Rutzen1 it was held that section 162 of the Licensing Act 1872 which prohibits the supplying by a licensed person of liquor to a constable on duty did not apply where the licensed person bona fide believed that the constable was off duty
Wright J said at p 921  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  Nichols vs Hall See also the decision Sweet vs Paraley2 Normally it is true that the plain ordinary grammatical meaning of the words of an enactment affords the best guide
But in cases of this kind the question is not what the words mean but whether there are sufficient grounds for inferring that Parliament intended to exclude the general rule that mens rea is an essential element in every offence
And the authorities show that it is generally necessary to co behind the words of the enactment and take other factors into consideration
So in the context it is permissible to look into the object of the legislature and find out whether as a matter of fact the legislature intended anything to be proved except the possession of the article as constituting the element of the offence
Even if it be assumed that the offence is absolute the word possess  in section 9 connotes some sort of knowledge about the thing possessed
So we have to determine what is meant by the word possess  in the section
The question is whether the possessor of a parcel is necessarily in possession of everything found in it
The word possess  is not crystal clear
There is no clear rule as to the mental element required
In Reg
vs Ashwell3 it was held that a person who received a sovereign thinking it to be a shilling cannot be said to possess he sovereign until the mistake was discovered
It is necessary to show that the accused had the article which turned out to be opium
In other words the prosecution must prove that the accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it
It is not necessary to show in fact that he had actual knowledge of that which he had see the observations of Lord Morris in Reg
vs Warner  4 
Lord Justice Parker said in Lockyer vs Gib 5 In my judgment it is quite clear that a person cannot be said to be in possession of some article which he or she 1IQ
B 918
2 3 4  289
5  248
219 does not realise is for example in her handbag in her room or in some other place over which she has control
That I should have thought is elementary if something were slipped into your basket and you had not the vaguest notion it was there at all you could not possibly be said to be in possession of it In Reg
vs Warner1 the House of Lords was concerned with the question whether the appellant there was in unauthorised possession of a scheduled drug and it was held that it is not necessary to prove mens rea apart from the knowledge involved in the possession of the article
Lord Reid dissented
The majority decision would show that in a case of this nature it is not necessary for the prosecution to prove that the accused had consciousness of the quality or the nature of the thing possessed and that it would be sufficient if it is proved that a person was knowingly in possession of the article
Lord Morris of Borth y Gest said  Must the prosecution prove that an accused had a guilty mind  It is a declared purpose of the Act to prevent the misuse of drugs
If actual possession of particular substances which are regarded as potentially damaging is not controlled there will be danger of the misuse if Them by those who possess them
They might be harmfully used they might be sold in most undesirable ways
Parliament set out therefore to penalise  possession
That was a strong thing to do
Parliament proceeded to define and limit the classes and descriptions of people who alone could possess
All the indications are that save in the case of such persons Parliament decided to forbid possession absolutely
We think that the only question for consideration here is whether the appellant was in possession of opium
It was held in a number of rulings of the various High Courts that if possession of an article is made an offence then there must be proof that the accused was knowingly in possession of the article
gee the decisions in Emperor vs Santa Singh2 Sahendra Singh vs Emperor3 Abdul Ali vs The State4 Pritam Singh and Others vs The State5 and Sub Divisional Officer and Collector Shivasagar vs Shri Gopal Chandra Khaund and Another6
It is true that prosecution has not adduced any evidence to show that the appellant was knowingly in possession of opium
The appellant took the endorsement of the Railway Receipt from the consignee and presented it before the parcel clerk and obtained the parcel
1 2 A I R 1944 Lahore 339
3 A I R 1948 Patna 2224 A I R1950 Assam 152
5 6 A I R 22 0 There is strictly speaking no evidence that the appellant was aware that the parcel contained any contraband substance much less opium
But it is said on behalf of the prosecution that in most cases of unauthorised possession of opium the prosecution will never  be able to prove that the accused was knowingly in possession of the article and that the burden to prove that he was not in conscious possession is upon the accused by virtue of section 10 of the Act
That section seems to proceed on the assumption if it is proved that the accused had something to do with opium then the burden of proof that he has not committed an offence will be upon the accused
In other words when once it is proved in a  prosecution under section 9 of the Act that the accused was in physical custody of opium it is for the accused to prove satisfactorily that he has not committed an offence by showing that he was not knowingly in possession of opium
It would therefore appear that the prosecution need only show that the accused was directly concerned in dealing with opium
If the prosecution shows that the accused had physical custody of opium then unless the accused proves by preponderance of probability that he was not in conscious possession of the article the presumption under section 10 would arise
We do not think that the language of section 10 would warrant the proposition that for the presumption mentioned in the section to arise it is necessary for the prosecution to establish conscious possession
In our opinion section 10 would become otiose if it were held that prosecution must prove conscious possession before it can resort to the presumption envisaged in the section
As we said Section 10 proceeds on the assumption that a person who is in any way concerned with opium or has dealt with it in any manner must be presumed to have committed an offence under section 9 of the Act unless the person can satisfactorily prove by Preponderance of probability either that he was not knowingly in possession or other circumstances which will exonerate him
The burden to account Will arise only when the accused is in some manner found to be concerned with opium or has otherwise dealt with it
In State vs Sham Singh and Others1 Gurdev Singh J speaking about section 10 observed Section 10 of the Opium Act in my opinion implies that a person who is in any way concerned with opium that forms the subject matte r of prosecution or has otherwise dealt with it in any manner go as to render him accountable for it will be presumed to have committed an offence under section 9 of the Opium Act unless he can account satisfactorily for it 1 I L R 1971 1 Punjab and Haryana 130
221 in Sheo Raj Singh vs Emperor1 it was held Section 10 expressly throws upon the accused the burden to account for opium in respect of which he is alleged to have committed an offence Practically the same view was taken in Syed Mehaboob All vs State2
In the last analysis therefore 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 prosecution to prove something within the exclusive knowledge of the accused must have made the legislature think that if the onus is placed on the prosecution the object of the Act would be frustrated
It does not follow from this that the word possess  in section 9 does not connote conscious possession
Knowledge is an essential ingredient of the offence as the word possess  connotes in the context of section 9 possession with knowledge
The legislature could not have intended to make mere physical custody without knowledge an offence
A conviction under section 9 a would involve some stigma and it is only pro per then to presume that the legislature intended that possession must be conscious possession
But it is a different thing to say that the prosecution should prove that the accused was knowingly in possession
It seems to us that by virtue of section 1 0 the onus of proof is placed on the accused when the prosecution has shown by evidence that the accused has dealt with the article or has physical custody of the same or is directly concerned with it to prove by preponderance of probability that he did not knowingly possess the article
In his statement under section 342 the appellant totally denied having anything to do with the parcel
He had no case that to his knowledge the parcel contained anything other than apples
He never put forward the case that he bone fide believed that the parcel contained only apples
He was in physical custody of opium
He had no plea that he did not know about it
We are therefore inclined to confirm the conviction and we do so
As regards the question of sentence in view of the fact that the appellant has already undergone a part of the sentence of rigorous imprisonment and was on bail from March 3 1970 we do not think it proper to send him to jail again
In the circumstances we think that the period of imprisonment already undergone by him together with a fine of Rs 2500 would be adequate sentence
If the fine is not paid the appellant will be liable to imprisonment for a period of six months
The appeal is allowed only to the extent indicated but dismissed in all other respects
GC 1 A I R31 1944 Oudh 297


Summary:
The appellant obtained possession of a parcel purporting to contain apples after presenting before the railway authorities a railway receipt endorsed in his favour by the consignee
The parcel on being opened was found to contain a considerable quantity of opium besides apples
At his trial for an offence under section 9a of the Opium Act 1878 he however denied that he had anything to do with the parcel
There was no evidence that the appellant was aware that the parcel contained opium
He was convicted by the 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 section 10 of the Act which provide that in a prosecution under s 9 it shall be presumed until the contrary is proved that all the opium for which the accused is unable to account satisfactorily is opium in respect of which he has committed 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 accompanied by mens rea
HELD  1 Normally it is true that the plain ordinary grammatical meaning of the words of an enactment affords the best guide
But in cases like the present the question is not what the words mean but whether these are sufficient grounds for inferring that Parliament intended to exclude the general rule that mens rea is an essential element in every offence
The authorities show that it is generally necessary to go behind the words of the enactment and take other factors into consideration
in the context it is permissible to look into the object of the legislature and find out whether
as a matter of fact
the legislature intended anything to be proved except the possession of the article as constituting the element of the offence
218D Brend vs Wood  Sherras vs De Rutzen I QB 918 and Sweet vs Parsley   referred to
Even if it be assumed that the offence is absolute the word possess  in section 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 not necessary to show in fact that he had actual knowledge of that which he had
218E F Reg V Ashwell and Reg
vs Warner  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 any manner must be presumed to have committed an offence under section 9 of the Act unless the person 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 only when the accused is in some manner found to be concerned with opium or has otherwise dealt with it 220D 373SupCI74 216 In 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 prosecution to prove something within the exclusive knowledge of the accused must have made the legislature think that if the onus is placed on he prosecution the object of the Act would be frustrated
221C Lockyer vs Gibb  246 Emperor vs Santa Singh AIR 1944 Lahore 339 Sahetzdra Singh vs Emperor AIR 1948 Patna 222 Abdul Ali vs The State AIR 1950 Assam 152 Pritam Singh and Others vs The State 1966 PLR 200 Sub Divisional Officer and Collecor Shivasagar vs Shri Gopal Chandra Khaund and Another  State vs Slzam Singh and Others ILR 1971 1 Punjab and Haryana 130 Sheo Rai Singh vs Emperor AIR 31 1944 Oudh 297 and Syed Mehaboob Ali vs State 1967 Cr LJ 1727 referred to
iii In his statement under section 342 the appellant totally denied having anything to do with the parcel
He never put forward the case that he bona fide believed that the parcel contained only apples
He was in physical custody of opium
He had no Plea that he did not know about it
Accordingly the conviction must be confirmed
sentence altered 221F