[1945] EACA 56

## APPELLATE CRIMINAL

## Before SIR JOSEPH SHERIDAN, C. J., and BARTLEY, J.

## REX, Respondent

#### $\mathbf{v}$

# **BASHIR AHMED, Appellant**

## Criminal Appeal No. 22 of 1945

Criminal law—Native Liquor (Amendment) Ordinance, 1941, S. 4—Possession of native spirituous liquor-Nature of onus on accused to prove absence of knowledge.

The appellant appealed from a conviction of being in possession of native spirituous liquor contra section 4 (1) of the Native Liquor (Amendment) Ordinance, 1941. His possession was amply proved and the only question was whether it had been proved to the satisfaction of the trial judge that the liquor was in his possession without his knowledge.

Held $(6-4-45)$ .—(1) The onus of proving absence of knowledge is laid on the accused by the Ordinance.

(2) The onus on the accused is not as heavy as that resting on the Crown in ordinary criminal cases and would be sufficiently discharged if the evidence taken as a whole established that the lack of knowledge on the part of the accused was so probable that a prudent man ought under the circumstances to believe that fact.

Burke for Appellant.

Phillips, Crown Counsel, for the Crown.

JUDGMENT.—The accused was convicted by the learned Resident Magistrate, Nakuru, of being in possession of native spirituous liquor contra the provisions of section 3 (1) of the Native Liquor (Amendment) Ordinance, 1941. His possession was amply proved and the question in the appeal is whether the evidence in the case was such as should have satisfied the magistrate that he had no knowledge that the tin which was found in his store contained Nubian gin. The onus of proving absence of knowledge is laid on the accused by the Ordinance and as has been frequently stated that onus is not as heavy as the onus resting on the Crown in ordinary criminal cases where the evidence must be such as to establish the guilt of an accused person beyond reasonable doubt. The accused in a case of this kind is called on to prove his lack of knowledge of the contents of the tin to the extent that he must establish by the evidence in the case whether the prosecution or defence evidence or both that his lack of knowledge was so probable that a prudent man ought under the circumstances of the case to believe that fact (section 3 Indian Evidence Act). The witness Rashid said that on the 16th October, 1944, he purchased a bottle of Nubian gin from the accused at the request of one Rajab who had been asked by P. C. Alexander to obtain gin for him. Rashid's evidence was treated as that of an accomplice by the magistrate and with this finding we are not disposed to disagree in so far as that transaction is concerned. The story told by the accused as to how he came to be in possession of the Nubian gin did not convince the magistrate. He said that the tin was left with him by Rashid on the 16th October, Rashid asking him to keep it for him and that he would fetch it later in the evening when he was coming from work. According to the accused Rashid said that the tin contained kerosene and he, accused, took it and put it on the floor in the store. It does seem a little strange that the accused should have there and then put it in the store rather than saying to Rashid "You may leave it there." The same day the tin, according to Inspector Abdulla Said, was found on the shelf in the store with other articles. We have said that the story told by the accused as to how he came into possession of the tin of Nubian gin did not strike the magistrate as convincing and we must say that it does not strike us as such although we have not had the advantage of hearing and seeing the witnesses. Why should Rashid not have left the tin in his room which was only 100 yards from the accused's house? Against that story there was the denial by Rashid of his having given the tin for temporary keeping to the accused as also his denials that he used to shop for the accused's wife in his absence and obtain small loans from the accused. Notwithstanding that Rashid with regard to the alleged earlier purchase of a bottle of Nubian gin would have been an accomplice, there was no reason whatever why the magistrate should not accept his denials of the deposit of the tin and his obligations to the accused in preference to the accused's assertions as to these matters, and it is all important in considering these matters to keep in mind that the onus of establishing his innocence to the extent we have stated rests on the accused throughout once he is found to be in possession of the tin of Nubian gin. Then there is the evidence of the finding of the Sh. 5 and Sh. 1 notes in the accused's bedroom by Inspector Abdulla Said. This fits in with the evidence of the prosecution witnesses that a purchase of a bottle of Nubian gin had been made earlier in the day from the accused by Rashid. The presence of these notes is sought to be explained by the accused stating that there was a sum of Sh. 8 lying on the table, representing the refund of a loan by Rashid on the same day that the tin was alleged to have been deposited. But Abdulla Said denied that there was a sum of Sh. 8 there. We should have thought that had Sh. 8 and not Sh. 6 been there, he would have taken it away. One point particularly stressed by Mr. Burke for the appellant was that the tin which was discovered in the appellants store was full, that consequently a bottle full could not have been taken from it to supply Rashid's demand and that nothing else was found to indicate that the appellant dealt in Nubian gin. This matter was considered by the learned Resident Magistrate who evidently did not consider that these facts should turn the scales in favour of the appellant and we do not consider ourselves entitled to differ from his view. Had this been a case where the onus of proving knowledge rested on the Crown it is quite possible that we should not have disagreed with the Magistrate had he found that the Crown had discharged that onus but where the onus of disproving knowledge is cast by law on the accused, it would be unreasonable for this Court to differ from the Magistrate and say that the accused had discharged the onus.

The appeal was dismissed.