http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: INDER SAIN

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT04/05/1973

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN DUA, I.D.

CITATION:  1973 AIR 2309            1974 SCR  (1) 215  1973 SCC  (2) 372  CITATOR INFO :  F          1985 SC1672  (3,4,6)

ACT: Opium  Act  1 of 1878, Ss. 9(a) and 10-Possession  of  opium when  an offence under s. 9(a)-Mens rea whether a  necessary ingredient-Presumption  under  s. 10,  scope  of-Presumption when displaced.

HEADNOTE: 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 s. 9(a) 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  s. 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.  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. [218D]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

Brend  v. Wood, 62 T.L.R. 462-463, Sherras v. De  Rutzen,  I 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  not 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 any  manner, must be presumed to have committed  an  offence under s. 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] 373SupCI/74 216 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  v. Gibb, [1967] 2 Q.B. 243, 246, Emperor  v.  Santa Singh,  A.I.R. 1944 Lahore 339, Sahetzdra Singh v.  Emperor, A.I.R.  1948 Patna 222, Abdul Ali v. The State, A.I.R.  1950 Assam 152, Pritam Singh and Others v. The State, 1966 P.L.R. 200, Sub-Divisional Officer and Collecor Shivasagar v.  Shri Gopal  Chandra Khaund and Another.  A.I.R. 1971  S.C.  1190, State v. Slzam Singh and Others, I.L.R. [1971] 1 Punjab  and Haryana,  130, Sheo Rai Singh v. Emperor, A.I.R.  (31)  1944 Oudh  297  and Syed Mehaboob Ali v. State [1967]  Cr.   L.J. 1727, referred to. (iii)     In  his  statement  under  s.  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]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal 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. S. 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 s. 9(a)  of  the Opium Act.  He was found guilty of the offence and sentenced

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

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. 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 4,350 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 s.  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  s.  9(a)  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 s.  5               or   s.  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.               "10.  In prosecutions under s. 9, it shall  be               presumed,  until the contrary is proved,  that               all  opium  for which the  accused  person  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

             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 v. Wood(1) 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 neces-               (1)   62 T. L. R. 462-463.               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 v. De Rutzen(1) it was held that s. 16(2) 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 v. Hall (1873)  L.R.  8               C.P. 322". See also the decision Sweet v. Paraley(2) 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 s.  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. v. Ashwell(3)  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. v. Warner ( 4 ). Lord Justice Parker said in Lockyer v. Gib (5):

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

             "In  my  judgment  it is quite  clear  that  a               person  cannot be said to be in possession  of               some article which he or she               (1)IQ. B. 918.               (2) [1969] 2 W. I. R. 470.               (3) [1835] 16 Q.  B. D. 190.               (4) [1969] 2 A. C. 256, 289.               (5)   [1967] 2 Q. B. 243, 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. v. Warner(1), 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  v.  Santa Singh(2),  Sahendra  Singh v. Emperor(3), Abdul Ali  v.  The State(4),  Pritam Singh and Others v. The State(5) and  Sub- Divisional  Officer and Collector, Shivasagar v. Shri  Gopal Chandra Khaund and Another(6). 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) [1969] 2 A. C. 256.  (2) A. I. R. 1944 Lahore 339. (3) A. I. R. 1948 Patna 222.(4) A. I. R.1950 Assam 152. (5) 1966 P. L. R. 200.   (6) A. I. R. 1971 S. C. 1190. 22 0

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

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  s. 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 s. 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 S. 10  would arise.   We  do not think that the language of s.  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 s. 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 s. 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  v.  Sham Singh and Others(1),  Gurdev  Singh,  J. speaking about s. 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 S. 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 v. Emperor(1), 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 v. State(2). 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

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 s. 9 does  not  connote conscious possession.   Knowledge  is  an essential  ingredient of the offence as the  word  ’possess’ connotes, in the context of s. 9, possession with knowledge. The  legislature  could  not  have  intended  to  make  mere physical custody without knowledge an offence.  A conviction under s. 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 s. 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 s. 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. 2,500/- 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. G.C. (1)  A. I. R.(31) 1944 Oudh 297. (2)  ( 1967) Cr.  L. J. 1727. 222