[1945] EACA 52

## APPELLATE CRIMINAL

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

REX, Appellant (Original Prosecutor)

## HUSSAN JIVRAJ MAWJI, Respondent (Original Accused)

## Criminal Appeal No. 230 of 1944 (Case Stated)

Criminal law—Case stated—Dangerous Drugs Ordinance, 1932, S. 8-Mens rea-Burden of proof.

The case stated appears sufficiently from the judgment.

Held $(11-5-45)$ .—(1) That mens rea is a necessary ingredient of the offence of having in one's possession prepared opium *contra* section 8 of the Dangerous Drugs Ordinance, 1932.

(2) That the burden of proving knowledge rests on the Crown.

Cases referred to: Pearks, Gunston & Tee Lmited v. Ward; Hennen v. Southern<br>Counties Daries Company, Limited, (1902) 2 K. B. D. 1; Mousell Bros. v. London & North Western Railway, (1917) 2 K. B. 836.

Phillips, Crown Counsel, for the Crown.

Khanna for the Respondent.

JUDGMENT.—This is a case stated by the learned Resident Magistrate. Mombasa, at the request of the Crown.

The questions submitted for decision are: $-$

(1) Whether the magistrate was correct in holding that the issue before the court was whether the accused knew that there was opium in the bag;

(2) If so, whether the burden of proving knowledge was on the prosecution.

The facts of the case were that on a search of the accused's shop a bag containing 2 lb. of prepared opium was found on a shelf in a space forming part of the shop which space was used as a store. The defence was that the bag had been left by a customer to be collected later and that the accused was ignorant of its contents. The learned magistrate acquitted the accused on the ground that having carefully considered all the evidence he was not satisfied beyond reasonable doubt that the accused knew that the parcel contained prepared opium.

The offence with which the accused was charged is contained in section $8$ of the Dangerous Drugs Ordinance, 1932, the relevant portion of which reads: -

"8. If any person $\ldots$

(b) has in his possession any prepared opium $\ldots$ he shall be guilty of an offence against this Ordinance."

That section does not contain an absolute prohibition such as is contained in sections 6, 7 and 9 of that Ordinance.

- Section 6 reads, "No person shall cultivate the opium poppy... or the coca plant . . . - Section 7 reads, "No person shall import or bring into or export from the Colony any prepared opium." - Section 9 reads, "No person shall import or bring into or export from the Colony any Indian Hemp ...."

In dealing with section 6 of the Sale of Food and Drugs Act, 1875, which enacts that no person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance and quality of the article demanded by such purchaser under a penalty not exceeding £20. Channel, J. at p. 11 of Pearks Gunston & Tee v. Ward; Hennen v. Southern Counties Dairies Company Ltd. (1902) 2 K. B. D. wrote, "By the general principles of the criminal law, if a matter is made a criminal offence, it is essential that there should be something in the nature of *mens rea*... But there are exceptions to this rule in the case of quasi-criminal offences, as they may be termed, that is to say, where certain acts are forbidden by law under a penalty, possibly even under a personal penalty, such as imprisonment, at any rate in default of payment of a fine; and the reason for this is, that the Legislature has thought it so important to prevent the particular act from being committed that it absolutely forbids it to be done; and if it is done the offender is liable to a penalty whether he had any mens rea or not and whether or not he intended to commit a breach of the law."

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In Mousell Bros, v. London & North Western Railway. (1917) 2 K. B. 836. Viscount Reading, C. J., in dealing with a penalty incurred under section 98 of the Railway Clauses Consolidation Act, 1875, after citing the above extract from Channel, J.s. judgment as being the true principle of law, went on to cite other cases and then stated, "so that, where the language of an Act is not so plain as to leave no room for doubt, the court may bear in mind the avowed purpose of the Act and consider whether a particular construction will render the Act effective or ineffective for that purpose." Viscount Reading then went on to point out that the forbidden acts under section 98 of the Railway Clauses Consolidation Act were of a kind which would in most cases be done by servants and yet the penalty is imposed upon "every person being the owner or having the care of any carriage or goods" etc., and he went on to say, "I think, looking at the language and the purpose of this Act, that the Legislature intended to fix the responsibility of this quasi criminal act upon the principal if the forbidden acts were done by his servant within the scope of his employment."

It will be seen that both Viscount Reading and Channel, J. referred categorically to quasi criminal offences. The penalty incurred under section 98 of the Railway Clauses Consolidation Act was £10 for every ton of goods and under section 6 of the Sale of Food and Drugs Act, £20.

Sections 3 and 4 of the Food and Drugs Act, 1875, also contain absolute prohibition, offences against which are punishable by a fine of £50 on a first conviction but every offence after a conviction for a first offence is a misdemeanour punishable with six months imprisonment.

Section 5 of the Act, however, contained the following proviso: -

"Provided that no person shall be liable to be convicted under either of the two last foregoing sections of this Act in respect of the sale of any article of food, or of any drug, if he shows to the satisfaction of the justice or court before whom he is charged that he did not know of the article of food or drug sold by him being so mixed, coloured, stained, or powdered as in either of these sections mentioned and that he could not with reasonable diligence have obtained that knowledge."

It will be noticed that when a prohibited act is made punishable by more severe penalties the legislature took care to safeguard the person committing the forbidden act innocently.

We have referred to the Food and Drugs Act, 1875, as that was the Act referred to in *Pearks Gunston & Tee v. Ward (supra)*. That Act was repealed by the Food and Drugs (Adulteration) Act, 1928, which in turn was repealed by the Food and Drugs Act, 1938, which consolidated enactments relating to food and drugs. It is worth noting that by section 83 of the 1938 Act a person accused of an offence under the Act if he duly lays information as to the person whose act or default he alleges that the contravention of the provisions of the Act in question was due, can escape liability if he proves that the contravention was due to the act or default of the other person, and if he also proves that he used all due diligence to secure that the provisions in question were complied with.

An offence against section 8 of the Dangerous Drugs Ordinance, 1932, is punishable on conviction by the Supreme Court with a fine of $£1,000$ or 10 years' imprisonment or both or on conviction by a subordinate court of the first or second class with a fine of £250 or one year's imprisonment or both. The offence can hardly be regarded as quasi criminal.

Whatever might be argued in favour of the view that sections 6, 7 and 9 of the Ordinance contain absolute prohibitions is could not be argued that section 8 contains an absolute prohibition and as the offences against that section are not quasi criminal we have no doubt that *mens rea* is a necessary ingredient of the offence against that section.

We are also of the view that the burden of proving knowledge rests on the Crown. It is only in the case of legislation on the lines contained in sections 3, 4 and 5 of the Food and Drugs Act, 1875, that the burden of proof is shifted.

We accordingly answer both questions submitted to us in the affirmative.