judgement:
iminal Appeal No. 49 of 1973.
Appeal by special leave from the judgment and order dated August 22, 1972 of the Delhi High Court at New Delhi in Cr.
No. 93 of 1972.
L.M. Singhvi, section K. Dhingra, K. C. Sharma, section , Sengupta, O. C. Mathur and Ravinder Narain, for the appellant.
F. section Nariman, Additional Solicitor General of India, B. P. Maheshwari, Suresh Sethi, R. K. Maheshwari and N. K. Jain, for the respondent.
The Judgment of the Court was delivered by MATHEW, J.
The Municipal Corporation of Delhi filed a complaint on September 10, 1970, before the Judicial First Class Magistrate, Delhi against the appellants under section 7 read with section 16(f) of the , hereinafter called "the Act", alleging that they gave a false Waranty in respect of the curry powder manufactured by them.
In response to the summons, the appellants appeared and filed an application for quashing the proceedings on the ground that the complaint was incompetent.
The learned Magistrate dismissed the application.
The appellants filed a revision from the order to the Additional Sessions Judge.
That was dismissed.
The appellants then filed a revision against that order before the High Court.
The High Court also dismissed the revision.
It is against this order that the appellants are filed this appeal by special leave.
On November 28, 1968, the Food Inspector went to the shop of one Ram Prakash Oberoi and found that he was storing for sale curry powder.
The, Food Inspector purchase( three sealed tins of curry powder from him and after following the procedure enjoined by the Act, sent one sample to the Public Analyst, who, after examining it, sent his report that the sample was adulterated.
A complaint Was filed against Ram Prakash Oberoi by the Food Inspector alleging that he committed an offence under section 16 read with section 7 of the Act.
Parkash Oberoi, in his statement under section 342, stated that he had purchased the curry powder in sealed tins from the appellants under a warranty given by them and that he solo the curry powder in the same 159 condition in which he had purchased it from the appellants.
The first appellant was examined in the case.
He gave evidence that the curry powder was manufactured by the second appellant company and that it had been sold in tins to the concern of which Ram Prakash Oberoi was the proprietor.
He also admitted the issue of a warranty on behalf of the second appellant.
In the light of the evidence, Ram prakash Oberoi was acquitted, as, according to the Magistrate, he had discharged the onus which lay upon him in order to avail himself the defence under section 19(2) of the Act.
In the concluding portion of the judgment which was pronounced on October 25, 1969, the Magistrate observed that it is open to the Municipal Corporation of Delhi "to institute a complaint against the warrantor concerned for issuing a false warranty for the. sale of adulterated curry powder to M/s. T. D. Bhagwan Dass, the proprietor of which was accused, Ram Prakash Oberoi through bill exhibit DWI /A out of which a sample bearing No. DS.
2385 was taken by P.W. 2 from Ram Prakash Oberoi".
The contention of the appellants in the application before the Magistrate to quash the proceedings was that they ought to have been impleaded in the proceedings against Ram Prakash Oberoi and tried of the offence alleged to have been committed by them and, that not having been done, the, complaint was barred.
The High Court concurred with the conclusions of the, Courts below and held that the fact that the appellants were, not impleaded and tried along with Ram Prakash oberoi under section 20A was no bar to the prosecution of the appellants for the offence of giving false warranty and that the complaint was competent.
The appellants submitted before us that it was incumbent upon the Food Inspector to have filed a joint complaint against Ram Prakash Oberoi and the appellants as them Food Inspector had ever opportunity to know that the appellants, had given a warranty when the "articles which were found to be adulterated were) sold to Ram Prakash Oberoi. 'They submitted that under section 14A, the vendor is bound to disclose the name of the person who given the warranty to the Food Inspector and, as the Food Inspector had knowledge that the vendor was covered by a warranty issued by the appellants it wa s his duty to have joined the appellants as accused in the complaint filed by him against Ram Prakash Oberoi.
They also submitted that in was no duty upon the Food Inspector to have joined the also as accused, the learned Magistrate who tried Prakash Oberoi, in any event, ought to have impleaded the appellant in that case under section 20A of the Act and tried the appellants for the offence alleged to have been committee by them and that not having been done, the present complaint was barred.
We do not think that there is any substance in these contentions.
Section 14 provides that no manufacturer, article of food shall sell such article to any distributor or dealer of any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor.
Section 14A states that every vendor of an article of food shall, if so required, disclose to the Food Inspector the name, address and other particulars of the person from 16 0 whom he purchased the article of food.
In section 19(2) it is said that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food.
if he proves : (a) that he purchased the article of food (i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer; (ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and (b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.
We are not aware of any provision in the Act which obliged the Food Inspector to have joiner the appellants as parties to the complaint filed against Ram Prakash Oberoi.
Section 20 of the Act upon which the appellants relied 'has nothing to do with this matter.
That section only says that no prosecution for an offence under the Act shall be instituted except by, or with the written consent of, the Central Government or the State Government or a local authority or a person authorised in this behalf.
by general or special order, by the Central Government or the State Government or a local authority.
The proviso to the section makes an exception to the general rule.
in the case of a prosecution for an offence 'instituted by a purchaser referred to in section 1 2, if he _produces in Court a copy of the report of the public analyst along with the complaint.
On the other hand, section 19(3) seems to proceed on the assumption that it is.
not obligatory on the part of a Food Inspector to join the manufacturer, distributor or dealer in a complaint against a person for an offence alleged to have been committed under the Act That section says that any person by whom a warranty referred to in section 14 is alleged to have been given shall be entitled to appear it the hearing and give evidence.
It would be clear from this provision that if the Food Inspector is bound to join the person who gave the warranty as a party whenever a complaint is filed against the vendor for storing or selling adulterated articles of food, there was no reason why the legislature, should have made a provision enabling the person who gave the warranty to appear in Court and give evidence.
It is to be noted that section 19(3) only gives liberty to the person who gave the warranty to appear and give evidence and that by volunteering to appear and give evidence.
he does not become an accused.
The opportunity to appear and give evidence is to enable the person who gave the warranty to show that the vendor has not properly stored the article while in his possession.
or that he did not sell the article in the same state as he purchase I it and thus to avoid a prosecution against him on the basis of a false warranty.
The further question is whether the failure of the Magistrate who tried the complaint against Ram Prakasi Oberoi to implead the appellants under section 20A of the Act and try them also along with Ram Prakash Oberoi would in any way bar,the present complaint.
Section 20A provides : "20A.
Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is 161 also concerned with that offence, then, the court may, notwithstanding anything contained in sub section (1) of s . 351 of the Code of Criminal Procedure, 1898, or in section 20 proceed, against him as though a prosecution had been instituted against.
him under s: 20.
" The section is an enabling one.
There is nothing mandatory about it.
It is left to the discretion of the Magistrate whether, in a particular case having regard to the evidence adduced, it is necessary, in the interest of justice, to implead the manufacturer, distributor or dealer as the case may be.
Even in a case where a Magistrate could properly have impleaded the manufacturer, distributor or dealer in a proceeding against a person alleged to have committed an offen ce under the Act but faded to do so, that would not in any way confer an immunity upon the manufacturer, distributor or dealer from a prosecution for any offence committed by him.
Counsel for the appellants argued that although the word used in section 20A is only 'may ', it imports an obligation on the part of the Magistrate to implead the manufacturer, distributor 'or dealer, as the power to implead is coupled with a duty, when it appears from the evidence that the manufacturer, distributor or dealer, as the case may be, has committed an offence under the Act.
The normal rule under the Criminal Procedure Code is to try each accused separately when the offence committed by him is distinct and separate.
The provisions of sections 233 to 239 would indicate that joint trial is the exception.
In State of Andhra Pradesh vs Cheemallapati Ganeswara Rao and Another() this Court said that separate, trial is the normal rule and joint trial is an exception when the accused have committed separate offences.
Section 5(2) of the Procedure Code provides that the provisions of that , Code will apply to trial of an offence under any law other than, the Indian Penal Code subject.
to any enactment for the time being in force regulating the manner or place.
of investigating, into, trying or (otherwise dealing with such offence.
If that be so, unless there is something in section 20A which creates an exception to the normal procedure r scribed by the Criminal Procedure Code, we would not be justified in importing into the section by implication an absolute obligation to implead the manufacturer, distributor or dealer and try, him also along with the person who is alleged to have committed an offence under the Act in the sense that and tried be.
In be implepded for an offence if the manufacturer, distributor or dealer is not impleaded under the provisions of section 20A, a separate trial would order that the manufacturers distributor or dealer may under.
20A, it is necessary that there should be a trial for an offence committed under the Act by a person and that the manufacturer, distributor or dealer must be concerned in the offence.
, When.
the manufacturer.
distributor or dealer is impleaded.
the trial proceeds as if he is also an accused in the case.
Thai is made clear by the closing word .
of the section.
As already Indicated, no prosecution for an offence under the Act can be instituted by a Food Inspector without the sanction specified in section 2O. When a manufacturer, distributor or (1) ; , 324.
944Sup./CI/73 162 dealer is impleaded, he becomes an accused in the case but no objection can be taken by him on the score that no sanction had been obtained for prosecuting him.
And, at the close of the trial, the Magistrate must pass an order either acquitting or convicting him.
It does not follow that the failure of the Magistrate to implead the manufacturer, distribute or dealer in a case in which he could be impleaded under section 20A would confer an immunity from a separate trial against him for the offence for which he could have been tried under section 20A.
There is also no likelihood of any prejudice being caused to him merely because he was not impleaded in the trial of an offence under the Act committed by any other person as, any evidence taken in that proceeding won d not be binding on him when he is tried separately.
In other words, if a separate prosecution is instituted against the manufacturer, distributor or dealer, the prosecution cannot rely on the evidence in the proceedings against the person who committed the offence as per se ,evidence against him.
It must adduce evidence in the case against the manufacturer, distributor or dealer to show that he is guilty.
of the offence complained of.
The acquittal, for instance, of the vendor who is covered by a warranty, would not prove that the manufacturer, distributor or dealer has given a false warranty or committed any other offence.
The prosecution must show by evidence adduced in the proceedings against the manufacturer, distributor or dealer and prove beyond doubt that he committed the offence charged.
Nor would the conviction of the vendor per se be ground for acquitting the manufacturer, distributor or dealer for giving false warranty, for, the vendor might have further adulterated the article after getting a false warranty.
The real purpose of enacting section 20A is to avoid, as far as possible, conflicting findings.
If, in the prosecution instituted against the vendor, it is found that the vendor has sold the article of food in the same state as he purchased it and that while it was in his possession it was property stored, and the vendor is acquitted, it would look rather ridiculous, if in the prosecution against the manufacturer, distributor or dealer, it is found on the evidence that he did not give a false warranty, but that the article was not stored properly while it was in the possession of the vendor or that be did not sell the article in the same state as he purchased it.
This being so, the object of the legislature in enacting the section will be frustrated if a Magistrate were to exercise his discretion improperly by failing to implead the manufac turer, distributor or dealer under section 20A in a me where he should be impleaded.
But that is no reason to hold that a separate prosecution against the manufacturer, distributor or dealer would be barred.
if he is not impleaded under section 20A, and tried along with the person who is alleged to have committed in offence under the Act.
In order to avoid multiplicity of proceedings and conflict of findings it is imperative that the Magistrate should implead these persons under section 20A whenever the conditions laid down in the section are satisfied.
As I said, it is a far cry from this to say that if this is not done, the manufacturer, distributor or dealer would get an immunity from a separate prosecution.
The appellants then contended that the, procedure in the joint trial will be more advantageous to the manufacturer, distributor or dealer, 163 as the case may be, than a separate trial and, therefore, there could be discrimination if unguided discretion is given to an authority to choose the one or the other.
The argument was that if the manufacturer, distributor or dealer is impleaded under section 20A, he could avail himself of the provisions of section 13(2) and request the Court to have the sample retained by the Food Inspector and production in Court sent to the Central Food Laboratory for analysis, but if he is tried separately he will be deprived of that advantage.
Read literally, section 13 (2) would not enable the manufacturer, distributor or dealer to pray the Court to have the sample sent for analysis by the Central Food Laboratory even if he is impleaded under section 20A and tried along with the vendor, for, that sub section gives the liberty to move the court for that purpose only to the accused vendor and the complainant.
But, even if it is assumed that the manufacturer, distributor or dealer is also entitled to take advantage of the section and move the court to have the sample analysed by the Central Food Laboratory, we see no reason why, when he is separately tried.
he should not have the sample retained by the Food Inspector and produced in Court sent for analysis by the Central Food Laboratory, if it is available and in a fit condition.
The Magistrate may, under section 20A, implead the manufacturer, distributor or dealer at any time in the course of the trial.
At the time he is impleaded, the sample produced in Court by the Food Inspector might not be in a fit condition to be sent for analysis to the Central Food Laboratory.
It is, therefore, impossible t ' predicate in the abstract whether a joint trial would be more advantageous to the manufacturer, distributor or dealer than a separate trial.
, The appellant relied on the decision of this Court in Northern India Gaterers Private Ltd. and Another vs State of Punjab and Another(1) and contended that where two procedures are, permissible, one a joint trial of the manufacturer, distributor or dealer with the vendor and the other a separate trial, and the one is more advantageous than the other, there will be scope for discrimination.
We fail to understand the logic of the argument.
In the above case the facts were : the State of Punjab leased its premises to the appellant for running a hotel and when the lease expired, the appellant was called upon to hand over vacant possession.
On the appellant failing to do so, the Collector issued a notice under section 4 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959 requiring the appellant to show cause why an order of eviction should not be passed under section 5.
The appellant thereupon filed a writ petition in the High Court contending that the Act violated article 14 of the Constitution in that it discriminated between the occupants of public premises and those of other premises and that it discriminated bet ween the occupants of public premises inter se as the State could arbitrarily proceed against an occupant either under the Act or by way of suit.
The High Court dismissed the petition holding that the proceeding under the Act is the exclusive remedy for eviction of unauthorised occupants of public premises, that there was a valid classification between the occupiers of public premises and those of private properties, and that as the Act was substitutive and not supplemental (1) [1967] 3 S.C.P,.
164 there was no question of discrimination between the occupiers of public premises inter se.
This Court held that section 5 of the Act violated article 14 by providing two alternative remedies to the government and in leaving it to the unguided discretion of the Collector to resort to one or the other and to pick and choose some of those in occupation of public properties and premises for the application of the more drastic procedure under section 5.
The Court further held that discrimination would result if there are two available procedures, one more drastic or prejudicial to the party concerned than the other and which can be applied at the arbitrary will of the authority.
The appellants have not challenged the vires of section 20A.
That apart, the principle of the ruling has no application here.
That principle can apply only when an unguided discretion is conferred upon an authority or person to choose between two procedures, one of which is more advantageous to the person concerned, than the other.
we do not think that any person has been vested with an unguided discretion to choose between two procedures, the one more advantageous to the appellants than the other.
We see no substance in this appeal and we dismiss It.
G.C. Appeal dismissed.

summary:
R who was tried for an offence under section 16 read with section 7 of the Prevention.
of Food Adulteration Act.
stated in Court that he had purchased the curry powder in question in sealed tins from the appellant under a warranty given by them and that he sold the curry powder in the same condition in which he had purchased it from the appellants.
The first appellant was examined in the case.
He gave evidence that the curry powder was manufactured by, the second appellant company and that it had been sold in tins to the concern of which R was the proprietor.
He also admitted the issue of a warranty on.
behalf of the second appellant.
In the light of this evidence R was acquitted.
Subsequently the appellants were sought to be tried for issuing a false warranty.
The appellants contended that the proceedings against them should be quashed, as according to the provisions of the Act, they ought to have been impleaded in the proceedings against R. The, High Court concurred with the conclusions.
of the Courts below and held that the fact that the appellants were not impleaded and tried along with R was no bar to the prosecution of the appellants.
In appeal by special leave, this Court had to consider the effect of Ss. 20 and 20A of the Act.
Dismissing the appeal, HELD: (1) There is no provision in the Act which obliged the Food Inspector to have joined the appellants as parties to the complaint filed, against R. Section 20 of the Act has nothing to do with the matter.
On the other hand,,, section 19(3) which says that any person by whom a warranty is alleged to have been given shall be entitled to appear at the hearing and give evidence, seems.
to proceed on the assumption that it is not obligatory on the part of the Food Inspector to join the manufacturer, distributor ;Or dealer in a complaint against a person for an offence alleged to have been committed underthe Act [160B L] (ii) Section 20A is an enabling one.
There is nothing mandatory about it.
It is left to the discretion of the Magistrate whether, ina particular case, having regard to the evidence adduced.
it is necessary, in theinterest of justice, to implead the manufacturer, distributor, dealer as the case may be.
[161B] The normal rule under the Criminal Procedure Code is to try each accused separately when the offence committed by him is distinct and separate.
The provisions of Ss. 233 to 239 would indicate hat joint trial is the exception.
Section 5(2) of the Criminal Procedure Code provides that the provision of that Code will apply to trial of an offence under any law other than the Indian, Penal Code subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offence.
If that be so.
unless there is something in section 20A which, creates an exception to the normal procedure prescribed by the Criminal Procedure Code.
there would be no justification for importing into the section by implication an absolute obligation to implead the manufacturer, distributor or dealer and try him also with the person who is alleged to have committed an offence under the Act.
in the sense that if the manufacturer, distributor or dealer is not impleaded and tried under the provisions of section 20A, a separate trial; would be barred.
[161D G] State of Andhra Pradesh vs Cheemalapati Ganeswara Rao and Another,. ; 324, referred to.
158 The real purpose of section 20A is to avoid, as far as possible, conflicting findings.
In order to avoid multiplicity of proceedings and conflict of findings it is imperative that the Magistrate should implead these persons under section 20A whenever the conditions laid down in the section are satisfied.
It is a far cry from this to say that if this is not done.
the manufacturer, distributor or dealer, would get an immunity from a separate prosecution.
[162E, G] (iii) It is impossible to predicate in the abstract whether a joint trial would be more advantageous to the manufacturer.
distributor or dealer than a separate trial.
Therefore the plea that there could be discrimination if unguided discretion is given to an authority to choose one or the other.
could not be accepted.
[163D] Northern India Caterers Private Ltd. and Another vs State of Punjab and Another, ; , referred to.


judgement:
minal Appeal No. 20 of 1970.
Appeal by special leave, from the, judgment and order dated September 11, 1969 of the Delhi High Court in Criminal Rev. No. 291 D of 1966.
I. M. Lall, section K. Mehta, K. R. Nagaraja and M. Qumaruddin, for the appellant '.
H. R. Khanna and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by DUA, J.
Jagdish Chander appellant has preferred this appeal by special leave from the judgment and order of the High Court of Delhi dated 'September 11, 1969 dismissing the appellant 's revision from the judgment and order of the learned Additional Sessions 205 Judge, Delhi dated September 7, 1966 dismissing his appeal against the order of a Magistrate 1st Class, New Delhi dated April 30, 1966 convicting him for an offence under section 304 A, I.P.C. and sentencing him to rigorous imprisonment for six months and a fine of Rs. 500/ .
The occurrence giving rise to these criminal proceedings against the appellant took place on April 20, 1965 at about 8.50 a.m.
According to the prosecution version, the appellant was driving hi& auto scooter rickshaw No. DLR 5614 and was proceeding from the side of Yusaf Sarai when near the D.T.U. Bus Stand Engineering College Hauz Khas I.I.T. he suddenly turned to his right towards Mehrauli Road.
Apparently, he wanted to turn back and reverse, his direction.
A truck No. DLG 8468 driven by one Labh Singh was coming from the opposite direction, that is, from Mehrauli Side.
It is said that the appellant turned to his right suddenly without giving any signal and without paying any heed to the traffic on the right.
The result was the accident giving rise to the present criminal proceedings.
; The front bumper on the left side of the truck struck the rear left side of the body of the appellant 's scooter rickshaw. ' As a result of this impact the appellant lost control of his scooter rickshaw and swerved.
to the right and.
after crossing the edge of the road, crashed into a tree Under which Smt.
Vidya Sharma was standing with her baby in her arms and her brother Sat Pal standing by her side.
On being hit by the appellant 's scooter rickshaw, Smt.
Vidya Sharma could not keep control over her baby who fell down on the ground and received injuries.
Vidya Sharma and Sat Pal also sustained simple hurts but the injuries suffered, by the baby were serious and indeed they proved fatal resulting in the child 's death, in the hospital soon after the occurrence in question.
Both, Labh Singh, driver of the truck and the appellant, were challaned and convicted by the learned Magistrate under section 304A, I. P. C.
The trial court sentenced both of them to rigorous imprisonment for 6 months each and also to a fine of Rs. 500/each and in default of payment of fine they were both directed to undergo further rigorous imprisonment for 2 months each.
Out of the fine, if realised, Rs. 500/ were directed to be paid to the parents of the deceased child.
Both the convicted drivers appealed to the Sessions Court.
The learned Additional Sessions Judge, somewhat surprisingly, allowed the appeal of Labh Singh holding that he was not in a position to stop the truck instantaneously with a view to avoid the collision of the two vehicles because the appellant had all of a sudden brought his vehicle in front of the truck after taking a turn, at a high speed.
The Addl.
Sessions Judge also observed that the back portion of the appellant 's scooter rickshaw was not seriously damaged by the impact with the truck and the vehicle remained in a normal functioning condition.
On this premise, the appellate Judge took the view that it 'Was in order to save himself that the appellant took his vehicle towards the kacha side of the road in a state of utter con 206 fusion, his vehicle having got out of his control.
spite of this, however, according to the appellate Court, Jagdish Chander was in a position to avoid hitting Smt.
Vidya Sharma.
The scooter rickshaw, to use the words of the Addl.
Sessions Judge, 'was not thrown towards the tree because of the violent push given by the truck but. it was actually driven by the accused Jagadish Chander towards the direction where Smt.
Vidya Sharma and here brother were standing".
The entire occurrence in this case, according to the Sessions Judge, had taken place as a result of the rashness or negligence of the appellant because he had decided to take a turn in a, sudden manner at a high speed in the middle of the road and that in spite of the fact, that he had seen the truck of the accused coming towards him from a distance of less than 30 yards.
The driver of the truck was considered by the Addl.
Sessions Judge to be within his right to drive the vehicle on Mehrauli Road at the speed of 30 to 40 miles per hour.
At the time of the occurrence in question when driving his truck at this speed,.
Labh Singh was considered not to be in a position to avoid the collision.
The sentence on the appellant was upheld by the appellate Court and it was directed that the fine, if paid by him, should be paid by way of compensation to the parents of the. deceased child.
On revision, a learned single judge of the High Court referred to the evidence of Asa Nand, P.W. 3, Vidya Sharma P.W. 1 1 and Sat Pal, P.W. 12, the three witnesses on whom the two courts below had placed reliance.
After referring to the relevant version given by these three witnesses and also after noticing what the Motor Vehicles Inspector had said about the damage done to the appellant 's auto rickshaw and to the truck in question, the High Court observed that the road between Yusaf Sarai & Mehrauli had not much traffic, particularly in the early hours of the morning.
Vehicles could therefore, be expected to be driven on that road at a fairly high speed.
The appellant 's act in taking a sudden turn on that road without ensuring that there was.
no vehicle coming from the opposite direction, was however, considered to be a rash or negligent act and it was this act which resulted in the impact between the truck and, the appellant 's auto rickshaw and this impact was the direct and proximate cause of the death of Smt.
Vidya Sharma 's child and of the injouries caused to her and to her brother Sat Pal.
So holding, the appellant 's conviction and sentence were confirmed by the High Court.
In this Court it was streously contended that the courts below had approached the case from an erroneous point of view and had not read the evidence correctly.
The appellate court and the High Court, according to the submission, also erroneously absolved the driver of the truck who had no justification for driving at a fast speed, even if it be in the early hours of the morning.
According to the appellant 's learned counsel, 8.50 a.m. in the month of April cannot be described as early hours.
of the morning, it being added that there is no evidence on the record showing that at that time there was not much traffic on Mehrauli Road.
The High Court was also not right in observing that vehicles could be expected to be 207 driven at a fairly fast speed, argued the counsel, adding that if the vehicles could be expected to be driven at a fast speed, then the appellant should also have been held justified in driving his auto rickshaw at a fast speed.
The appellant 's case should in that event have also been considered with leniency.
Particular stress was laid on the contention that the unfortunate death of the child could on no rational or logical reasoning be considered to be the direct and natural result of the collision between% the truck and the rickshaw; in other words this collision was not the proximate and immediate cause of the unfortunate death of the child.
Our attention was also invited by the appellant 's counsel to the evidence for showing that it was the truck driver and not the appellant who was to blame for this accidental collision.
After going through the record to which our attention was drawn, we cannot help observing that the investigation into the officers in question was not conducted on scientific lines and it leaves much to be desired.
Our attention was not drawn to any material on the record showing if the tyre marks of the two vehicles on the road were carefully examined with the object of finding out the approximate speed an& the manner of application of brakes at the time of the collision.
Nor were photographs taken of the position of the site soon after the unfortunate occurrence which is usually done in the course of efficient investigations.
Our attention was no doubt drawn to the site plan, Ext.
P.W. 9A which purports to show that the two vehicles in question which were coming from opposite directions, started swerving to their right presumably on seeing each other and that the collision took place at point 'A ' from where the truck drove straight on the. road, while the auto rickshaw was driven towards its right to the point 'B ' where Smt.
Vidya Sharma was standing with her baby in her arms and her brother by her side, This plan, however, seems to be a rough plan.
Our attention was not invited to any statement of the witnesses explaining at whose instance various nothings.
were made on this plan.
So far as the witnesses deposing as having seen the occurrence in question are concerned, their evidence has always to be carefully scrutinised because such witnesses only observe accidents after their attention is drawn to the impact resulting from the collision.
Their statement about the events immediately preceding the occurrence are generally and to a very large extent influenced by what they imagine must have happened.
After looking at the plan and going through the evidence to which our attention was drawn, one forms an impression that both the truck driver and the appellant were equally guilty of rash and negligent driving.
But since the driver of the truck has been acquitted by the learned Addl.
Sessions Judge and no appeal was preferred against his acquittal, we have to take his acquittal to be final.
According to the findings of the three courts below the appellant suddenly turned to the right without paying proper heed to the truck coming from the opposite direction and in doing so be was both rash and negligent.
Under Article 136 of the Constitution we should not like to appraise the evidence for ourselves to see bow 208 far the concurrent conclusion of the three courts below upholding the appellant 's act as rash and negligent is justified.
The argument raised before us on behalf of the appellant on this 'point relates only to the appreciation of evidence and no serious legal infirmity was brought to our notice.
The question, however, remains if the death of the baby in Smt.
Vidya Sharma 's arms was the proximate, direct and immediate consequence of the appellant 's rash and negligent driving.
Looking at Exht.
P.W. 9A, it does appear that after the impact between ,the heavy vehicle like a truck and a very much lighter auto rickshaw, the latter must in all probability, have been so pushed as to make its ,driver lose all control of the rickshaw.
In such circumstances it could, no doubt, have been contended with a certain amount of ,reason that the death of the child was a remote and indirect result of the rash and negligent driving on the part of the appellant and not an immediate direct, natural and proximate consequence.
But the three courts having so held, we do not think this Court will be justified in appraising the evidence for itself on this part of the case on the peculiar facts and circumstances disclosed on the printed record.
The appellant 's conviction must, therefore, be upheld in agreement with the conclusions of the three courts below.
The more difficult question seems to be one of sentence in the present case.
The accident took place on April 20, 1965, the trial Court convicted the appellant on April 30, 1966 sentencing him to rigorous imprisonment for 6 months and to a fine of Rs. 500/ .
His appeal was dismissed by the Addl.
Sessions Judge on September 7, 1966 and his revision was disallowed on September 11, 1969.
He was ordered to be released on bail by this Court on February 2, 1970.
We are now in May 1973.
The criminal proceedings against the appellant have thus gone on since April 1965 which means a little more than 8 years.
The circumstances in which the collision between the truck and the appellant 's scooter occurred seems prima facie to suggest that they (their drivers) were both to blame.
Penalties designed to deter crime should be gauged so far as possible to the degree of social danger that is represented by the crime and its repetition.
To send the appellant back to Jail to serve the sentence of 6 months after 8 years seems to us to be highly unjust for the kind of offence which has been upheld against him by the three courts below.
It is unlikely to have any reformatory effect on him.
Harassment of a criminal trial for more than 8 years and the expense which he must have incurred, in our opinion, can legitimately be taken into account when considering the question of sentence to be imposed by this Court at this point of time.
The appellant is stated to have served out only three weeks of imprisonment but on a consideration of all the relevant circumstances of the case we think it would be just and proper to reduce the sentence of imprisonment to that already undergone but to increase the sentence of fine from Rs. 500/ to Rs. 700/ .
Out of the fine, if realised, Rs. 500/ should be paid to the mother of the deceased child.
We, however, cannot help expressing our grave con 209 cern over the inordinate delay in the disposal of criminal cases including appeals and revisions.
If our criminal justice is to achieve its real purpose and if it is to inspire the confidence of the people generally, causes for such delays should be eliminated as early as practicable.
Law 's delays tend to turn justice sour.
The appeal is allowed in part in the terms stated above.
G.C. Appeal allowed in part.

dataset_name: IN-Abs

summary:
The appellant was driving his auto scooter rikshaw which on account of a sudden turn taken by the appellant struck a truck.
After the impact the appellant lost control of his scooter rickshaw and crashed into a tree.
As a result a man and a woman received simple in juries and the child whom the woman was holding in her arms received fatal injuries.
The appellant and the truck driver were charged under section 304A of the Indian Penal Code and were convicted by the trial court.
The Additional Sessions Judge allowed the appeal of the truck driver but held the appellant guilty.
On revision a single Judge of the High Court confirmed the conviction of the appellant.
In appeal to this Court by special leave.
HELD : (i) According to the findings of the three courts below the appellant suddenly turned to the right without paying proper heed to the truck coming from the opposite direction and in doing so he was both rash and negligent.
Under article 136 of the Constitution this Court would not like to appraise the evidence again for determining how far the concurrent conclusion of the three ,court below upholding the appellant 's act as rash and negligent was justified.
[207H] (ii) The criminal proceeding against the appellant had gone on for a little more than 8 years.
The circumstances in which the collision between the truck and the appellant 's scooter occurred seemed prima facie to suggest that both the drivers were to blame.
Harassment of a criminal trial for more than 8 years and the expense which the appellant must have incurred could legitimately be taken into account when considering the question of sentence to be imposed by this Court at this point of time.
[208F] [Sentence of imprisonment reduced to period already undergone.
The Court also observed that the investigation of the case was not conducted on scientific lines and that the undue delay in the disposal of the case was a matter of concern.]


judgement:
Appeal No. 208 of 1952.
Appeal by Special Leave from the Judgment and Order dated the 28th day of September 1951 of the Authority under the , Bombay in Application No. 500 of 1951.
M. C. Setalvad, Attorney General for India (G. N. Joshi, PorUs A. Mehta and P. G. Gokhale, with him), for the appellant.
J. B. Dadachanji, M. V. Jayakar and Rajinder Narain, for respondent No. 1. 1955.
March 2.
The Judgment of the Court was delivered by 1347 SINHA J.
This is an appeal by special leave from the orders dated the 28th September 1951 passed by the 2nd respondent, the Authority appointed under section 15(1) of the (IV of 1936), (which hereinafter will be referred to as the Act) allowing the 1st respondent 's claim for house rent allowance as part of his wages.
In this case the facts are not in dispute and may shortly be stated as follows: The 1st respondent is a gangman in the employ of the Central Railway (which previously used to be known as the G.I.P. Rly.), since April 1945.
At that time his wages were Rs. 18 per month plus dearness allowance.
With effect from the 1st November 1947 the Railway Board under the Ministry of Railways of the Government of India introduced a scheme of grant of compensatory (city) allowance and house rent allowance at rates specified in their memorandum No. E47 CPC/14.
This scheme was modified by the Railway Board 's letter No. E47 CPC/14 dated 1st December 1947.
As a result of this scheme certain railway employees stationed at specified headquarters were eligible for the allowance aforesaid at certain specified rates.
The 1st respondent thus became entitled to the allowance of Rs. 10 per month.
This allowance the 1st respondent drew along with his salary until the 18th August 1948 when he was offered by the Government, quarters suitable to his post, but he refused to occupy the same.
On his refusal to occupy the quarters offered by the Government, the house rent allowance was stopped with effect from the 19th August 1948.
On the 8th June 1951 the 1st respondent put in his claim before the Authority for Rs. 290 on the ground that the appellant, the Divisional Engineer, G.I.P. Ry., who was the authority responsible under section 4 of the Act for payment of wages, had stopped payment of house rent allowance to him from the 19th August 1948.
The claim covered the period the 19th August 1948 to the 18th January 1951 at the rate of Rs. 10 per month.
The appellant appeared before the Authority and by his written statement contested the claim on the ground that the house rent allowance which was 1348 the subject matter of the claim was not "wages" within the meaning of section 2(vi) of the Act.
It was, therefore, submitted by the appellant who was the opposite party before the Authority that it had no jurisdiction to entertain the claim which should be dismissed in limine.
It was further pleaded that the claim was inadmissible on the ground that there had been no illegal deduction from the respondent 's wages inasmuch as the respondent had been allotted railway quarters of a suitable type and as he had refused to occupy those quarters he was not entitled under the rules to any house rent allowance.
Alternatively, it was further pleaded by the appellant that so much of the claim as, related to a period preceding six months immediately before the date of the application was time barred under the first proviso to section 15(2) of the Act. ' The Authority condoned the delay and that part of the order condoning the delay is not in controversy before us.
On the issues thus joined between the parties the Authority came to the conclusion that the house rent allowance was "wages" as defined in the Act that as a matter of fact, accommodation was offered to the 1st respondent and he refused it; but that even so, the appellant was not entitled to withhold the house rent allowance.
Accordingly the claim for Rs. 290 was allowed by the Authority.
The short point to be decided in this case is whether the house rent allowance claimed by the 1st respondent came within the purview of the definition of "wages" contained in the Act.
There being no difference on questions of fact between the parties, the answer to the question raised must depend upon the construction to be placed upon the following material portion of the definition of "wages" in section 2(vi) of the Act: 'Wages ' means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed or other 1349 wise, to a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment, but does not include (a)the value of any house accommodation, supply of light, water, medical Attendance or other amenity, or of any service excluded by general or special order of the State Government. . .
Shorn of all verbiage, "wages" are remuneration payable by an employer to his employee for services rendered according to the terms of the contract between them.
The question then arises, what are the terms of the contract between the parties.
When the 1st respondent 's employment under the railway administration represented by the appellant began, admittedly be was not entitled to any such house rent allowance.
As already indicated, the scheme for payment of house rent allowance was introduced with effect from the 1st November 1947 when the rules were framed, admittedly under sub section (2) of section 241 of the Government of India Act, 1935, by the Governor General.
Those rules were amended subsequently.
We are here concerned with the amendment made by the Railway Board by its letter No. E47CPC/ 14 dated the 1st December 1947, particularly rule 3(i) which is in these terms: "The house rent allowance will not be admissible to those who occupy accommodation provided by Government or those to whom accommodation has been offered by Government but who have refused it".
It has been argued on behalf of the appellant that the terms of the contract between the parties include the rule quoted above and that therefore the position in law is that there is no absolute right in the 1st respondent to claim the house rent allowance; in other words, it is contended that there is a condition precedent to the claim for house rent allowance being admissible, namely, that the employee should be posted at one of those places, like Bombay, Calcutta, 1350 Madras ' etc., before the claim for house rent allowance could arise and that there is a condition subsequent, namely, that the employee posted at any one of those places will cease to be entitled to the allowance if either the Government provides accommodation to the employee in question or the employee refuses to occupy the accommodation so offered to him.
On the other hand, it has been argued on behalf of the 1st respondent that the employee 's right to the allowance accrues as soon as he has fulfilled the terms of the contract of employment including regular attendance, good work or conduct and his other behaviour in terms of the definition of "wages" as contained in the Act.
It was also argued on behalf of the 1st respondent that the terms of the definition have to be construed consistently with the provisions of sections 7 and 11 of the Act; that rule 3(i) quoted above is inconsistent with some of the terms of the definition of "wages" and the provisions of sections 7 and 11 and that in any event, if rule 3(i) aforesaid were to be considered as a part of the terms of the contract between the parties, section 23 of the Act prohibits an employee from entering into such a contract as has the effect of depriving him of his vested rights.
It should be noted at the outset that the learned Attorney General appearing on behalf of the appellant has not pressed the argument which appears to have been raised in the written statement of the appellant and also before the Authority as would appear from the orders passed by him, that clause (a) excluding "the value of any house accommodation" clearly showed that house rent allowance was not included in "wages" as defined in section 2(vi) of the Act.
As will presently appear, this argument proceeds on the unwarranted assumption that house rent allowance is synonymous with the value of any house accommodation referred to in the definition of "wages" and in section 7(2)(b) and section 11 of the Act.
The answer to the question whether house rent allowance is "wages" may be in the affirmative if the rules framed by the department relating to the grant of house rent allowance make it compulsory for the 1351 employer to grant house rent allowance without anything more: in other words, if the house rent allowed had been granted without any conditions or with conditions, if any, which were unenforceable in law.
But the statutory rules framed by the Government governing the grant of house rent allowance do not make it unconditional and absolute in terms.
The house rent allowance in the first instance is not admissible to all the employees of a particular class.
It is admissible only to such railway employees as are posted at specified places in order "to compensate railway servants in certain costlier cities for excessive rents paid by them over and above what they might normally be expected to pay"; nor is such an allowance "intended to be a source of profit" or to be "an allowance in lieu of free quarters", as specifically stated in the preamble to the letter No. E47CPC/14, dated 1st December 1947, issued by the Railway Board.
The argument on behalf of the 1st respondent would have been valid if the rules in terms contemplated the grant of house rent allowance to every employee of a particular category but the rules do not make the grant in such absolute terms.
The house rent allowance is admissible only so long as an employee is stationed at one of the specified places and has not been offered Government quarters.
The rules distinctly provide that the allowance will not be ad raissible to those who occupy Government quarters or to those to whom such quarters have been offered but who have refused to take advantage of the offer.
Once an employee of the description given above has been offered suitable house accommodation and he has refused it, he ceases to be entitled to the house rent allowance and that allowance thus ceases to be "wages" within the meaning of the definition in the Act, because it is no more payable under the terms of the contract.
In our opinion, it is clear beyond all reasonable doubt that the rules which must be included in the terms of contract between the employer and the employee contemplate that an employee posted at one 173 1352 of the specified places would be entitled to house rent allowance; but that as soon as he is offered Government quarters for his accommodation, he ceases ' to be so entitled., whether he actually occupies or does not occupy the quarters offered to him.
Hence the grant of house rent allowance does not create an indefeasible right in the employee at all places wherever he may be posted and in all circumstances, irrespective of whether or not he has been offered Government quarters.
But it has been argued on behalf of the respondent that such a conclusion would be inconsistent with the provisions of sections 7 and 1 1 of the Act.
We do not see any such inconsistency.
Section 7 of the Act deals with such deductions as may be made from the wages as defined in the Act, of an employee.
Subsection (2) of section 7 categorically specifies the heads under which deductions may lawfully be made from wages.
Clause (d) of this sub section has reference to "deductions for house accommodation sup plied by the employer", and section 11 provides that such a deduction shall not be made unless the house accommodation has been accepted by the employee and shall not exceed the amount equivalent to the value of such accommodation.
The definition of "wages" in the Act also excludes from its operation the value of house accommodation referred to in sections 7 and II as aforesaid.
The legislature has used the expression "value of any house accommodation" in the definition of "wages" as denoting something which can be deducted from "wages".
The one excludes the other.
It is thus clear that the definition of "wages" under the Act cannot include the value of any house accommodation supplied by the employer to the employee; otherwise it would not be a legally permissible deduction from wages.
It Is equally clear that house rent allowance which may in certain circumstances as aforesaid be included in "wages" is not the same thing as the value of any house accommodation referred to in the Act.
That being so, there is no validity in the argument advanced on behalf of the 1st respondent that rule 3(i) aforesaid is 1353 inconsistent with the provisions of sections 7 and 11 of the Act.
It remains to consider the last argument advanced on behalf of the 1st respondent that section 23 of the Act prohibits an employee from relinquishing such a right as is the subject matter of rule 3(i) quoted above.
This argument proceeds on the assumption that house rent allowance which is a right conferred on the employee is an absolute right.
It has already been held above that the Act read along with the rules which constitute the terms of the contract between the employer and the employee does not create any absolute right in the employee to the house rent allowance.
That being so, there is no question of the employee relinquishing any such right as is contemplated by section 23.
For the reasons aforesaid, the appeal succeeds.
The orders passed by the Authority are set aside.
In the special circumstances of this case there will be no order as to costs.
Appeal allowed.

summary:
The Railway Board under the Ministry of Railways of the Gov ernment of India introduced a scheme with effect from the 1st 1346 November 1947 granting compensatory (city) allowance and house rent allowances at certain rates to certain Railway employees (including the 1st respondent who was a railway employee since 1945) stationed at specified head quarters.
The first respondent drew this ' allowance along with his salary up to the 18th August 1948, when he was offered by the Government, quarters 'suitable to his post, but he refused to occupy the same and the house rent allowance was stopped from the date of his refusal to occupy the quarter offered to him.
Rule 3(i) of the Statutory Rules framed by the Government and put into effect on 1st November 1947 runs as follows: "The house rent allowance will not be admissible to those who occupy accommodation provided by Government or those to whom accommodation has been offered by Government but who have refused".
Held, that the house rent allowance is admissible only so long as an employee is stationed at one of the specified places and has not been offered Government quarters.
The rules distinctly provide that the allowance will not be admissible to those who occupy Government quarters or those to whom such quarters have been offered but who have refused to take advantage of the offer.
Once an employee of the description given above has been offered suitable house accommodation and he has refused it, he ceases to be entitled to the house rent allowance and that allowance ceases to be "wages" within the meaning of the definition in section 2(vi) of the Act because it is no more payable under the terms of the contract.
The grant of house rent allowance does not create an indefeasible right in the employee at all places wherever he may be posted and in all circumstances, irrespective of whether or not he has been offered Government quarters.


judgement:
iminal Appeal.
No. 44 (N) of 1970.
Appeal by special leave from the judgment and order dated December 2, 1969 of the Punjab & Haryana High Court in Criminal Revision No. 612 of 1968.
section K. Dhingra, for the appellant.
Harbans Singh and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by MATHEW, J.
The appellant was charged by the Chief Judicial Magistrate, Sangrur, with an offence under section 9(a) of the Opium Act.
He was found guilty of the offence and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 2,000/and in default of payment of fine, to undergo rigorous imprisonment for a further period of six months.
The appellant appealed against the decision to the Sessions 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 dismissed.
This appeal, by special leave, is from 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 consignment of a parcel of apples purporting to be from one Uchara Das of Solan to one Sham Lal of Dhuri and endorsed to him by the consignee, to the parcel clerk at the Railway Station, Dhuri, and got delivery of the consignment.
Head Constable Shiv Ram Singh got 217 secret information at the Railway Station Dhuri that there was opium in the consignment.
He organised a raid with the help of Pritam Singh and Mohinder Singh and stood in front of the parcel office under the bridge.
While the accused was carrying the parcel, the Head Constable intervened 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 appellant 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 the prosecution c se.
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 section 9 of the Act.
This finding was confirmed in.
appeal and also in revision.
The question is whether the conviction of the appellant on basis of this finding for an offence under section 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 section 5 or section 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, oil conviction before a magistrate, be Punishable for each such offence with imprisonment which may extend to three bears, with or without fine; and, where a fine is im posed, 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 have been sentenced.
In prosecutions under section 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 be 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.
In Brend vs Wood(1) Lord Goddard, C.J. said "It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind, that, unless a statute, either clearly or by neces (1) 218 sary implication, rules out mens rea as a constituent 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 vs De Rutzen(1) it was held that section 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 vs Hall See also the decision Sweet vs Paraley(2) Normally, it is true that the plain ordinary grammatical meaning of the words of an enactment affords the best guide.
But in cases of ,this kind, the question is not what the words mean but whether there are sufficient grounds for inferring that Parliament intended 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 co 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 as constituting the element of the offence.
Even if it be assumed that the offence is absolute, the word 'possess ' in section 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.
vs Ashwell(3) it was held that a person who received a sovereign thinking it to be a shilling cannot be said to possess 'he 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 to show in fact that he had actual knowledge of that which he had (see the observations of Lord Morris in Reg.
vs Warner ( 4 ).
Lord Justice Parker said in Lockyer vs Gib (5): "In my judgment it is quite clear that a person cannot be said to be in possession of some article which he or she (1)IQ.
B. 918.
(2) (3) (4) , 289.
(5) , 248.
219 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." In Reg.
vs Warner(1), 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 Morris of Borth y Gest said : "Must the prosecution prove that an accused had a guilty mind ? It is a declared purpose of the Act to prevent the misuse of drugs.
If actual possession of particular substances which are regarded as potentially damaging is not controlled there will be danger of the misuse if 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 alone could possess.
All 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 whether 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, then there must be proof that the accused was knowingly in possession of the article.
gee the decisions in Emperor vs Santa Singh(2), Sahendra Singh vs Emperor(3), Abdul Ali vs The State(4), Pritam Singh and Others vs The State(5) and Sub Divisional Officer and Collector, Shivasagar vs Shri Gopal 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.
(1) (2) A. I. R. 1944 Lahore 339.
(3) A. I. R. 1948 Patna 222.(4) A. I. R.1950 Assam 152.
(5) (6) A. I. R. 22 0 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 the article and that the burden to prove that he was not in conscious possession is upon the accused by virtue of section 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 accused.
In other words, when once it is proved in a ' prosecution under section 9 of the Act that the accused was in physical custody of opium, it is for the accused to prove satisfactorily 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 concerned 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 section 10 would arise.
We do not think that the language of section 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 section 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 any manner, must be presumed to have committed an offence under section 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 vs Sham Singh and Others(1), Gurdev Singh, J. speaking about section 10 observed "Section 10 of the Opium Act, in my opinion, implies that a person who is in any way concerned with opium that forms the subject matte r of prosecution or has otherwise dealt with it in any manner go as to render him accountable for it will be presumed to have committed an offence under section 9 of the Opium Act unless he can 'account satisfactorily" for it." (1) I. L. R. (1971) 1 Punjab and Haryana 130.
221 in Sheo Raj Singh vs Emperor(1), 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 All vs State(2).
In the last analysis, therefore, 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 prosecution to prove something within the exclusive knowledge of the accused must have made, 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 section 9 does not connote conscious possession.
Knowledge is an essential ingredient of the offence as the word 'possess ' connotes, in the context of section 9, possession with knowledge.
The legislature could not have intended to make mere physical custody without knowledge an offence.
A conviction under section 9 (a) would involve some stigma and it is only pro per then to presume that the legislature intended that possession must be conscious 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 section 1 0, 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 concerned with it, to prove by preponderance of probability that he did not knowingly possess the article.
In his statement under section 342, the appellant totally denied 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 are, 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 part of the sentence of rigorous imprisonment and was on bail from March 3, 1970, we do not think it proper to send him to jail again.
In the circumstances we think that the period of imprisonment already undergone by him together with a fine of Rs. 2,500/ would be adequate 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. (1) A. I. R.(31) 1944 Oudh 297.

summary:
The appellant obtained possession of a parcel purporting to contain apples after presenting before the railway authorities a railway receipt endorsed in his favour by the consignee.
The parcel on being opened was found to contain a considerable quantity of opium besides apples.
At his trial for an offence under section 9(a) of the Opium Act 1878 he however denied that he had anything to do with the parcel.
There was no evidence that the appellant was aware that the parcel contained opium.
He was convicted by the 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 section 10 of the Act which provide that in a prosecution under s 9 "it shall be presumed until the contrary is proved, that all the opium for which the accused is unable to account satisfactorily is opium in respect of which he has committed 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 accompanied by mens rea.
HELD : (1) Normally, it is true that the plain ordinary grammatical meaning of the words of an enactment affords the best guide.
But in cases like the present, the question is not what the words mean but whether these are sufficient grounds for inferring that Parliament intended to exclude the general rule that mens rea is an essential element in every offence.
The authorities show that it is generally necessary to go behind the words of the enactment and take other factors into consideration.
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 as constituting the element of the offence.
[218D] Brend vs Wood, , Sherras vs De Rutzen, I Q.B. 918 and Sweet vs Parsley, ; , referred to.
Even if it be assumed that the offence is absolute, the word possess ' in section 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 not necessary to show in fact that he had actual knowledge of that which he had.
[218E F] Reg. V. Ashwell, and Reg.
vs Warner, , 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 any manner, must be presumed to have committed an offence under section 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 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, [220D] 373SupCI/74 216 In 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 prosecution to prove something within the exclusive knowledge of the accused must have made the legislature think that if the onus is placed on ',he prosecution, the object of the Act would be frustrated.
[221C] Lockyer vs Gibb, , 246, Emperor vs Santa Singh, A.I.R. 1944 Lahore 339, Sahetzdra Singh vs Emperor, A.I.R. 1948 Patna 222, Abdul Ali vs The State, A.I.R. 1950 Assam 152, Pritam Singh and Others vs The State, 1966 P.L.R. 200, Sub Divisional Officer and Collecor Shivasagar vs Shri Gopal Chandra Khaund and Another. , State vs Slzam Singh and Others, I.L.R. [1971] 1 Punjab and Haryana, 130, Sheo Rai Singh vs Emperor, A.I.R. (31) 1944 Oudh 297 and Syed Mehaboob Ali vs State [1967] Cr. L.J. 1727, referred to.
(iii) In his statement under section 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 Plea that he did not know about it.
Accordingly the conviction must be confirmed.
[sentence altered [221F]