1973 (5) TMI 96 - SC - Customs

whether the conviction of the appellant on basis of a finding for an offence under s. 9(a) was justified. mens rea an evil intention or a knowledge of the wrongfulness of the act is an essential ingredient in every offence;

Summary

Issues Involved:
1. Conviction under Section 9(a) of the Opium Act.
2. Mens rea (guilty mind) requirement for the offence.
3. Interpretation of "possession" under Section 9 of the Opium Act.
4. Burden of proof under Section 10 of the Opium Act.
5. Sentence appropriateness.

Detailed Analysis:

1. Conviction under Section 9(a) of the Opium Act:
The appellant was charged with an offence under Section 9(a) of the Opium Act and was found guilty by the Chief Judicial Magistrate, Sangrur. He was sentenced to rigorous imprisonment for one year and a fine of Rs. 2,000, with an additional six months of rigorous imprisonment in default of payment. The conviction was upheld by the Sessions Judge and the High Court. The Supreme Court was to determine whether the conviction was justified based on the evidence presented.

2. Mens rea Requirement for the Offence:
The appellant argued that mens rea is a necessary component for the offence, citing Lord Goddard, C.J. in Brend v. Wood and other cases, which emphasize the necessity of a guilty mind unless explicitly excluded by statute. The court acknowledged the general rule that mens rea is an essential element in every offence but noted exceptions where the statute or the subject matter indicates otherwise.

3. Interpretation of "Possession" under Section 9 of the Opium Act:
The court examined the meaning of "possession" within the context of Section 9. It was argued that possession implies some level of knowledge about the thing possessed. The court referred to various precedents, including Reg. v. Ashwell and Lockyer v. Gib, to conclude that possession requires some form of control and knowledge. However, the court also noted that the prosecution need not prove actual knowledge of the nature of the item possessed but must show that the accused was knowingly in control of the article.

4. Burden of Proof under Section 10 of the Opium Act:
Section 10 of the Opium Act presumes that any opium for which the accused cannot satisfactorily account is opium in respect of which an offence has been committed. The court held that once the prosecution proves physical custody of the opium, the burden shifts to the accused to prove by a preponderance of probability that he was not knowingly in possession of the opium. The court cited various rulings to support this interpretation, emphasizing that the practical difficulty for the prosecution to prove the accused's knowledge necessitates this burden shift.

5. Sentence Appropriateness:
The court considered the appropriateness of the sentence. Given that the appellant had already undergone part of the sentence and had been on bail since March 3, 1970, the court decided not to send him back to jail. Instead, the court modified the sentence to the period already undergone and imposed a fine of Rs. 2,500, with an additional six months of imprisonment in default of payment.

Conclusion:
The Supreme Court confirmed the conviction under Section 9(a) of the Opium Act, emphasizing that the prosecution need not prove conscious possession beyond establishing physical custody. The burden then shifts to the accused to disprove knowledge. The court modified the sentence to the period already served and a fine of Rs. 2,500, dismissing the appeal in all other respects.