054-NLR-NLR-V-18-CASIE-CHETTY-v.-AHAMADU.pdf
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1*15.
Present: De Sainpayo A.J.
CA3IE CHETTY v. AHAMADU.
199—P. C. Colombo, 51,260
Medicine containing a trace of yanja—Is it an excisable article t—Posses-sion of excisablearticle—1$ mens rea necessary for conviction
tender section 48 of Ordinance No. 8 of 19121
A medicine imported from India containing " a trace of ganja"was bold to be an excisable article within the meaning of the ExciseOrdinance, No. 8 of 1912.
In respect of the acts made punishable by section 43 of OrdinanceNol 8 of 1912, the absence of knowledge (mens rea) is no ground ofdefence.
rpHE facts are set out in the judgment.
Tisseverasinghe, for accused, appellant.—Mens rea is an essentialingredient in every offence.. Actual knowledge need not in everycase be proved. Proof of constructive knowledge may be sufficient.The mere absence of the words “ knowingly,” /' wilfully,” orintentionally,” or words to that effect in the clause of a statuteoreating an offence does not prevent knowledge being necessary.Such absence may and does affect the burden of proofr but not.in all classes of cases. See Regina v. Sleep. 1 The offence was
* (1861) 30 L. J. M. C. 170.
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possession oi Government naval stores marked with toe Abroad arrow, 1915.in breach of section 2 of Acts 0 and 10, ,WiUL 8, o. 41. The juryfound they had not sufficient evidence before them to show that «• Ahamadutoe prisoner knew that toe stores wen sojaartod, though he hadreasonable means of knowledge. It was held that In toe oiroum-stances no conviction could be had. In reply to counsel’^ argument.that the Legtalatuxe, on grounds of public policy, had thought fit tomate tiie bare possession primd facie an offence without proof ofknowledge, Cockbum C.J. observed, “ Does not thpt passage assumethat tiie person who was possessed of the Government stores knewthat they were Government stores?’’ See also Hearns v. Gortonet of., 1 Nicholas v. Home. *
The presumption of the necessity of mens tea in tiie case of everyoffence may, however, be displaced by the words of the statutecreating the offence or by the subject-matter with which it deals,as in the case of tiie Bevenue Statutes, Adulteration Acts, GameActs, Ac. But even in these oases tiie absence of the word “ know-ingly ” -does not prevent knowledge being neoessary. Hie onlydifference tiie presence or absence of that word makes is thatknowledge must be proved by the prosecution in the one case andneed not bo proved in the other. Sheriaa v. De Rutaen,3 Townsendv. Arnold.*
Section 50 of the Exoise Ordinance goes no further than is indi-cated by these decisions. The accused has satisfactorily accountedfor the possession of the artiole, and bas thereby shifted the burdenof proving “ knowledge ” on to toe proseoution. The. attempt toprove constructive knowledge on the part of the accused basfailed.
Ganja under Notification 24 includes every part of the hempplant, and therefore under section 8 “ any preparation and ad-mixture of the same." " A trace of ganja " cannot by any stretchof interpretation be said to include any part of the hemp plant orany “ preparation or admixture " of toe same.'
Counsel also referred to 14 N. L. R. $49, 428: 1.5 N. L. R, 197;
Our. L. R. 225.
V. Grenier, C.C., for respondent, not called upon.
Cur. adv. vult. _
February 23, 1915. Db Sampato A.J.—
This is a prosecution under section 43 (a) of the Exoise Ordinance,
No. 8 of 1912, for possessing an excisable artiole, viz., ganja, incontravention of section 16 (8) of the Ordinance and the Notifica-tion No. 26 issued thereunder. Section 16 (8) empowers tiieGovernor by notification to prohibit the supply to or possessionby any person of any excisable artiole either absolutely or subject
» as L. J. Rep. (V. 8.) W. C. 910.3 (1895) 1 Q. B. 918. .
2 L. R. 8 C. P. 88S.' *■ 75 J. P. 418.
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to such conditions ae ha may prescribe. By Notification No. 2ftIteSjwjnsa dated Febrawy 18, 1^14, the Governor prohibited absolutely theAJ* possession by any person of ganja, bhang, and every preparationCWs Cftrftyand admixture of the epe, and by the combined operation of theV* Akomodu definitions of 44 intoxicating drugs " and “ excisable article**" insection 8*of the Ordinance any preparation and admixture of ganjais an excisable article, the possession of which under section 48 (a)is an offence. Now, the article in question in this case is a certainpaste, and the Public .Analyst detected in it " a trace of ganja/'It was thereupon argued that this, was not an excisable article.An article sbowisig on analysis a trace of ganja, though it maycontain but little of the drug, is still a " preparation and admixtureof the some ** within the meaning of the Ordinance and tho notifi-cation issued, thereunder. The argument on this point cannot,therefore, be sustained.
There is more substance in the next ground of appeal. The'accused,stated that he was a native medical practitioner, and had importedxthis medicine from Indio. He produced a catalogue of the pernicioustmd of Indian medicines so widely advertised in Ceylon, and statedthat this was the Cathur Jatha B&eayan mentioned there, and thathe did not know th&t it contained ganja. Upon this it is arguedfor the accused that as there was no mem rea he could not be heldto have committed the offence. It is undoubtedly true, as a general'proposition, that a .guilty mind is a necessary element in the consti-tution of a criminal offence. But there are many branches ofsocial and municipal legislation in which an act is made criminaleven without any mem ren. Many illustrations of this may befurnished from the English Public Health Act, the Food and DrugAct, and the> Idcensing Act. The principle underlying such legisla-tion is that public health is paramount, and that any individualinconvenience must give way to it. Thus, in Blal'fir v. TiihUmo, 1which was a prosecution under the Public Health Act, 1875, forpossessing unwhoJegosuo meat, it was decided iliac it was notnecessary to prove knowledge of the condition of the meat on thepart of the accused, as the object of the statute was to save thepeopler from the danger of eating poison.* The Excise Ordinance,under which the present prosecution is brought: has n similar objectm view m prohibiting the possession of such deleterious drugs mopium, bhang, and ganja. The intention of any .statute to ignoreor exclude the element of mem rm in respect of breaches of certainof its /provisions may also be gathered from" the fact that knowledgeor intention is expressly required in respect of breaches of other provi-sions of tho same statute {Derbyshire v, HoaUeion *). Nqw sections45 and 46 of the Excise Ordinance penalize certain acts when com-mitted " wilfully, '* and under section 47 a person may be guiltyof an omission when ,f intentional. *’ I am of opinion that,» aa») i q. b, m.* urn) i $. b. m.
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in respsat of the acts jm « panilShabi» by section 48, which involves *8*8.
do oal-^Iug cation, ho ohsemo of knowledge is no ground of Dh Bampayo
is" aioO. Mom 70V, *or«& 89 of f .e Osdinance expressly enacts A.J.
th; : in picseoc 'acss us-lar section ^3 it shall be presumed, until C|Wfo
the contrary is proved, fhal the etc msed person hats committed an *■ AAemodu
ofhnce underin s«ape«s of any excisable article for the
possession of w. SijIt, or far Mb «o»f Jot In connection with which, he
Is mights to ao ou ii flf Maetorily. Now, the conduct of the accused
in this case his h use was searched was, as the Police Magistrate
rijhily «h6e***«s, susp vkm and F$My unsatisfactory, and I think
thki tbs circumstance' give rise to '^e presumption created by section
SO, l may add th&4 ha aeetu&d says that he imported this medicine
for the purpose of supplying his clients, and that he did actually
sell some of it to them, and I do not think that be as a medical
practitioner ought to be heard to gay, or to be believed when he says,
that he did not know the nature of the drug with which he was
dosing hie clients.
In my. opinion the conviction is right-, and I dismiss the appeal.
Appeal dismissed*