146-NLR-NLR-V-40-PERUMAL-v.-ARUMOGAM.pdf
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SOERTSZ A.C.J.—Perumal v. Arumogam.
1939Present: Soertsz A.C.J.
PERUMAL v. ARUMOGAM.
50—M. C. Badulla-Haldummulla, 9,990.
Mens rea—Charge of ^unlawful possession of ganja—Elements of offence—Poisons, Opium, and Dangerous Drugs Ordinance, s. 28 {Cap. 172.1Where a person is charged under section 28 of the Poisons, Opium,and Dangerous Drugs Ordinance, with having in his possession, withouta licence from the Governor, a preparation or extract from the hempplant commonly known as ganja or a resin obtained from the hempplant.
Held, that mens rea was not an essential element of the offence.Burah v. Mohamadu Sally (2. C. L. W. 381) and Casie Chetty v.Ahamadu (18 N. L. R. 186) referred to.
^^PPEAL from an acquittal by the Magistrate of Badulla-Haldummulla.
M.T. de S. Ameresekera, K.C., S.-G. (with him D. Jansze, C.C.), forthe complainant, appellant.
T.'K. Curtis, for the accused, resppndent.
Cur. adv. vult.
July 25, 1939. Soertsz A.C.J.—
The accused in this case was charged with having had in his possession,without a licence from the Governor, a preparation of, or extract from, thehemp plant commonly known as ganja, or a resin obtained from thehemp plant, ah offence against section 28 of the Poisons, Opium, andDangerous Drugs Ordinance.
The Magistrate found that the accused was in possession of the impeachedpreparations. The Analyst’s report proves that “ ganja ” was identifiedin $11 the brands of the legium found in the possession of this accused.But the Magistrate acquitted the accused because “ on the facts it is clearthat the accused never knew that the preparation contained ganja
The Magistrate took the view that mens rea is necessary for theconstitution of this offence, and that on a person being found in possessionof such a preparation as this, there is a presumption of mens rea whichhe must rebut. He relied on the judgment of Burah v. Mohamadu Sally1 inwhich Garvin J. concluded his judgment with the observation “ uponproof of the fact of possession the onus lay on the appellant to show thathis possession was innocent”. The learned Magistrate seems to think
1 2 Gey. Law Weekly 381.
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SOERTSZ A.C.J.—Perumal v. Arumogam.
that this view is in conflict with the view taken by de Sampayo J. inCasie Chetty v. Ahamadu1 but, in reality, it is not, for when de Sampayo J.said, “ I am of opinion that in respect of the acts made punishable bysection 43 which involves no qualifying condition, the absence of know-ledge is no ground of defence ”, he was speaking with reference to section43 alone, and he went on to consider section 50 of the Ordinance in itsbearing on section 43 and said, “ I think the circumstances give rise tothe presumption created by section 50” . . . . “I do' not thinkthat he as a medical practitioner ought to be heard to say, or to be believedwhen he says, that he did not know the nature of the drug with whichhe was dosing his clients Perhaps it was not quite correct to say that" in the circumstances ” of that case the presumption under section 50arose, the circumstances being the “ suspicious and highly unsatisfactory ”conduct of the accused when his house was searched. In my view, thepresumption arose on the mere faqt of possession being established,apart from and independent of the circumstances of that possession.The “ circumstances ” is something to consider when examining thequestion whether the presumption has been rebutted or not.
In the present case, the position is quite different from the cases thatarose before de Sampayo and Garvin JJ. The position here is what theposition would have been in those cases if section 43 of the ExciseOrdinance stood without the mitigation offered by section 50. Section 28states that no person shall have in his possession any such preparationwithout a licence, and section 76 penalizes such a possession, withoutqualification or reservation, and does not merely create a pre-sumption of guilt. This is one of those statutory crimes in whichit is unnecessary to show anything more than that the accusedcommitted the act forbidden by the statute under which he is charged.The Legislature tends to create such offences when in its view, the damagecaused to the public by the offence is great and the offence is such thatthere would usually be great difficulty in proving mens rea, if that degreeof guilt was required. Halsbury (Vol. IX. of the Hailsham Editionat pages 11 and 12) puts the matter thus : “In a limited class of offences,mens rea is not an essential element. This class consists, for the mostpart, of statutory offences of a minor and only quasi-criminal characterand, in order to determine whether mens rea is an essential element ofan offence, it is necessary to look at the object and terms of the Statutewhich creates it ”. There are many English cases on this point. For•example, in Reg. v. Bisluip * it was held that keeping two lunatics withouta licence was an offence although the accused did not know that the twomien were lunatics; in Hobbs v. Corporation of Winchester * it was heldthat possessing unsound meat for sale was an offence despite the factthat the butcher was not aware that it was unsound; in Betts v. Arms-rteadGoulder v. Rook5 Laird v. Dobell", it was held that selling anadultered article of food was an offence although the accused didnot known it was adulterated. For other instances, see. Horton v. Guiynne ’.
1 18 N. L. R. 186.* (1888)20 Q. B. D. 771.
(1879) 5 Q. B. D. 239.s (1901)2 K. B. 290.
(1910) 2 K. B. 471.« (1906)1 K. B. 131.
7 (1921) 2 K. B. 661.
534
Police Sergeant, Hambantota v. Simon Silva.
As pointed out by de Sampayo J. on the authority of Derbyshire v.Houlistonx, if the Legislature in legislation of this character does notintend to create an absolute liability, it introduces such words as“ knowingly ”, “ intentionally ”, &c. The only defence in a case likethis appears to b.e a successful denial of the fact of physical possessionon the part of the accused.
As regards Common law offences, which so far as we are concerned,have been made statutory to the extent, that they have been codified inour Penal Code, mens rea is necessary as section 72 of the Penal Codeindicates. Section 38 makes section 72 applicable to offences punishableunder “any law other than this Code” as well, but in my opinion, thisdoes not mean that it.necessarily applies to'all offences outside thePenal Code. It is not an inflexible rule. Whether it applies or notmust as I have pointed out on the authority of the cases I have referredto depend on the particular Legislative Enactment. If I may repeatmyself and use the words of de Sampayo J. “ there are many branchesof social and municipal legislation in which an act is made criminaleven without any mens rea The Poisons, Opium, and DangerousDrugs Ordinance is such an Ordinance.
For these reasons I am of opinion that- the order of acquittal waswrong and I set it aside and enter conviction. In regard to the sentenceto be imposed, I am of opinion that the absence of mens rea can properlybe taken into account in that connection, and as the Magistrate tookthe view in this case that the accused was not aware of the compositionof this preparation, I think a nominal sentence will suffice.. I sentencethe accused to pay a fine of Rs. 5 in default 5 days’ simple imprisonment.
Set aside.
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