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TMI Blog1973 (5) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, Judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 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([1969] 2 W. I. R. 470.) 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old 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(A. I. R. 1944 Lahore 339), Sahendra 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) and Sub- Divisional Officer and Collector, Shivasagar v. Shri Gopal Chandra Khaund and Another(A. I. R. 1971 S. C. 1190.). 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 in Sheo Raj Singh v. Emperor(A. I. R.(31) 1944 Oudh 297), 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((1967) Cr. L. J. 1727.). 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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