# INDER SAIN v. STATE OF PUNJAB

- **Citation:** [1974] 1 S.C.R. 215
- **Court:** Supreme Court of India
- **Decided:** 1973-05-04
- **Case number:** Criminal Revision No. 612 of 1968
- **Bench:** K. K. Mathew, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/inder-sain-v-state-of-punjab-6662
- **Pages:** 7

## Headnote

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

## Text

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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 Ali v. Statt
[19671 Cr. L.J. 1727, rc(erred to.
(iii) la 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 pica that he did llot know about it. Accordingly the
conviction must be confirmed. [sentence altered] [221F]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No,
44
(N) of 1970.
Appeal by special leave from the judgment and order dated D~cem
ber 2, 1969 of the Punjab & Haryana High Court in Criminal Revision
No. 612 of 1968.
S. K. Dhingra, for the appellant.
llarbans Singh and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
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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 to undergo rigorous
imprisonment for a period of one yea{ and to pay a fine of Rs. 2,000/-
and in default of payment of fine, to undergo rigorous imorisonment
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for a further period of six months.
'
The appellant appealed against the decision to the Soosions 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 dhG
missed.
This appeal, by special leave, is frotn 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
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consignment of a parcel of apples purporting to be from one Uchar.a
Das of Solan to one Sham Lal of Dhuri and endorsed to him by the
consigne~, to the parcel clerk at the Railway Station, Dburi, and got
delivery of the consignment.
Head Constable Shiv Ram Singh got
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INDER SAIN v. PUNJAB (Mathew, J.)
217
secret information at the Railway Stlltion Dhuri that there was opium
in the consignment.
He organiied a raid with the help of Pritam
~ingh and Mohinder Singh and stood in front of the parcel office under
the bridge.
While the accused was carrying the parcel, the Head
Constable ir,tervened 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 appelant 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 lhe prosecution case.
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 the
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, 011 conviction before a magistrate, be punishable for
each such offence with imprisonment which may extend to
three wars, with or without fine; and, where a fine is imposed; 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
!Jave 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 unable to account satisfactorily is opium in
respect of which he 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.
Jn Brend v. Wood(!) Lord Goddard, C.J. said :
"It is of the utmost importance for the
protect10n of
the liberty of the subject that a court should always bear
in mind that, unless a statute, either
clearly or by neces-
(I) 62 T, L. R. 462-463.
,
218
&UPREME COURT REPORTS
[ 1974 J 1 s.c.a.
sary implication, rules out mens rea as a c~nstituent 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
11873) L.R. 8 C.P. 322".
See also the decision Sweet v. Paraley(').
Normally, it is true that the plain ordinary grammatical meaning
of the words of an enactinent affords the best guide. But in cases of
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this kind, the question is not what the words mean but w;1ether there
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are sufficient grounds for inferring that Parliament intend~d 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 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
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as constituting the element of the offence.
Even if it lJe
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.
F
A>l11rell(") it was held that a person
who
received
a
sovereign
·thinking it to be a shilling cannot be said to
possess the
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 tu show in
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fact that he had actual knowledge of that which he had (see the observations of Lord Morris in Reg. v. Warner(').
Lord Justice Parker said in Lockyer v. Gib ('):
"In my judgment it is quite clear that a person cannot
be said to be in possession of some article which he or she
(I) IQ. B.918.
(3) [1815116Q. B.D.190.
(2) [1969]2W. l.R.470.
(41 [1969] 2 A. C. 256, 289.
(51 [1967] 2 Q B. 24J. 248.
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INDER SAIN v. PUNJAB (Mathew, J.)
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."
219
In Reg. v. Warner('), 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 Mlirris of Borth-y-Gest said :
"Must the prosecution
prove that an
accused had u
guilty mind ?
.. . . . . It is a declared purpose of tlie Act to prevent the
misuse of drug.<;.
If actual possession of particular substances which are regarded as potentially damaging is not
controlled there will be danger of the misuse of 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 aloμe could
possess.
Ali 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 whother
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, :hen there must be proof that the nccused was·
knowingly in possession of the article.
S'ee the decisions in Emperor
v. Santa Singh('), Sahendra Singh v. Emperor(•), Abdul Ali v. The
State('), Pritam Singh and Others v. The State( 5 )
and Sub-Divisional Of]icer and Collector, Shivaragar
v.
Shri
Gopa/
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.
(I; [1969] 2 A. C. 256.
(2) A. l. R. ;944 Lo.hCic 3: 0 .
(3) A. I. R. 1948 Patna 222.
(4) A. I. R .1950 Assam 152.
(5) 1966 P. L. R. 200.
161 A. I. R. 1971 S. C. 1190.
220
SUPREME COURT REPORTS
[ 1974] 1 s.c.R.
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 1he 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
aecused. In other
words, when once it is proved in a prosecution under s. 9 of the Act
that the accus.ed was in physical custody of opium, it is
for
the
accused to prove catisfactorily 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 conce!ned 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 1ny 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(').
Gurdev Singh.
J.
speaking about s. 10 obServed :
"Section 10 of the Opium Act, in my opinion, implies
·that 11 person who is in a11y way concerned with opium lhat
forms the subject matter of prosecution or has
otherwise
dealt with it in any manner so as to render him accountable
for it will be presumed to have committed an offence under
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s. 9 of the Opium Act unless he can 'account satisfactorily'
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for it."
(I) I. L. R. (1971) I Punjab and Haryana 130.
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lNDER SAIN v. PUNJAB (Mathew, !.)
221
in Shea Raj Singh v. Emperor('), 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
Ali v.
State(").
In the last analysis, therefore, it is only necessary for the pros~
cution 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 maqe
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 knoweldge.
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 proper then to presume that the legislature intended that possession must
be c01;scious 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. 10, 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 co11cerned
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 denieu 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 arc, 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 pan of the sentence of rigorous imprisonmem and was cm pail from March 3, 1970, we do not think it
prnper to send him to jail again.
In the circumstances we think that
the period of imprisonme·nt already undergone by him together with a
fine of Rs. 2.500/- would be adequ1te 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.
(I) A.!. R.(31) 1944 Oudh 297.
( 2) ( 1967) Cr. L. J. 1727.