Shri Khagendra Saud vs The State of Assam

K. Lahiri, J.—This criminal revision is directed against the conviction of the accused u/s 4 read with Section 3(1) of the Assam Liquor Prohibition Act, 1952, for short ''the Act'' for possessing liquor and sentencing him to suffer S.I. for one month.

THE CRIME AND THE PUNISHMENT:

Section 3(1) of the Act spells out the offence which is extracted below:

Prohibition-No person shall-

(I) transport, Import, or possess liquor.

Section 4 of "the Act" postulates that whoever contravenes the provisions of Section 3 shall be punishable with imprisonment for a term which may extend to two years but not less than three months and also with fine which may extend to one thousand rupees but not less than one hundred rupees. The proviso is not relevant to the case. It is thus seen that imprisonment is compulsory if a person is found guilty and the punishment can not be less than 3 month with fine.

THE GENESIS OF THE PROSECUTION CASE:

On 20.11.75 the Excise stiff entered and searched the tea stall owned by the accused, and recovered five litres of illicitly distilled liquor and a few liquor smelling glasses in the kitchen of the stall. The accused, the owner of the tea stall and one Kumar Chetri, his employee were shown as accused in the offence report showing the latter as absconder, P.W. 1, Shri Bargohain, the Excise Inspector stated that on 20.11.75, in the evening, he along with the witnesses searched the tea stall, recovered five liters of illicitly distilled liquor in a jug and a few liquor-smelling glass from the kitchen, P.W. 2, Dharanidhar stated that the accused was the owner of the tea stall styled as "Lakhimi Cabin". The witness was not present during the search but be was told by the Excise Inspector that they had recovered liquor from the possession of the accused. He was asked to sign as a seizure witness which he did. P.W. 3 Biren Das stated that the Excise staff searched and recovered liquor from the ''cook shed'' i.e., the kitchen of the stall. He stated in cross-examination that customers also used to enter into the kitchen and pertook tea and snacks, It is thus seiz that the accused was the owner of the tea stall and be had a helper or employee named Kumar Chetri, who absconded after the incident, and the Excise staff recovered liquor from the kitchen or cook shed of the shop. There is no evidence 10 show that liquor was found in actual physical possession or the accused. He has been convicted on the ground that he had constructive possession. The basis of the conviction is that the accused being the owner of the tea stall and the kitchen had conscious possession of the illicit liquor kept in the kitchen. The concurrent findings of the courts below are that the prohibited liquor was found in the kitchen of the tea stall owned by the accused so he was in conscious possession of the incriminating article, bad the requisite mens rea and, therefore, he was convicted and sentenced. The kitchen was accessible to the customers and admittedly an employee was supposedly in charge of the kitchen.

CONTENTION OF THE PETITIONER : ''ACTUS REUS'' AND ''MENS REA'' ARE ESSENTIAL ELEMENTS OF THE CRIME:

Learned Counsel for the Petitioner has submitted that the prosecution has failed to establish that the accused was in conscious possession of the liquor. It is, therefore, necessary to consider whether the prosecution has proved the ''actus reus'' and tbe ''mens rea'' of the crime. Before an accused is convicted of a crime it is usually necessary for the prosecution to prove: (1) that certain event or certain state of affairs which is for bidden by criminal law, has been caused by his act or conduct, and, (2) that the act or conduct was accompanied by a prescribed state of mind. The event, or state of affairs, is usually termed as ''actus reus'' and, the state of mind is the ''mens red of the crime. The ''actus reus'' includes ail the elements in the definition of the crime except accused''s mental element. The ''actus reus'' is not merely an act of the accused but it may also consist in a state of affairs. The ''actus reus'' is made up, generally but not invariably, of conduct and sometimes its consequences and also of the circumstances in which the conduct takes place insofar as they are relevant.

THE CRIME AND INGREDIENTS THEREOF - MEANING OF THE TERM "POSSESSION":

In the case in hand the crime is "possession of liquor". The term ''possession'' has various shades of meaning. It may be interchangeably used to describe "actual possession'' or "constructive possession" which often so shade into one another that it is difficult to say where one ends and other begins. The detention and control or manual or ideal custody of anything either held personally or by another is possession of the property. The law ordinarily recognises two kinds of possession (1) actual possession and (2) constructive possession. A person who has direct physical control over a thing, at a given time, is then in actual possession of it. A person, who, though not in actual possession knowingly has both power and intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession. The law recognises that possession may be sole or joint. Shortly put, actual possession exists where the thing is in the immediate occupancy and control of the party.

THE BURDEN OF PROOF AND THE NECESSARY ''ACTUS REUS'' AND ''MENS REA'' TO ESTABLISHT THE PROSECUTION CASE:

In the instant case, we are concerned with possession of the contraband potable and it was the burden of prosecution to prove that the accused bad dominion and control over the contraband" drink. The expression "possession" used in Section 3 of ''the Act'' means actual possession or constructive possession. The incriminating liquor was not found in actual physical possession of the accused, that is it was not found in bit hand or body. It was found in the kitchen. The prosecution case is that the accused was in "constructive possession'' of the contraband potable. Is there any evidence that the accused brought the article, kept it in the kitchen, subject to his control and dominion. The recovery of contraband liquor from which guilt may be inferred is possession, that is, personal and conscious possession. There must be some material to show that the accused brought the liquor or caused it to be brought by someone and be was conscious that the potable was in the kitchen. There is no material to show that the accused brought the liquor or caused it to be brought by his servant, employee or any other person and kept the same in the kitchen. There is nothing to show that the accused bad knowledge that liquor was in the kitchen at the relevant time. The contraband article was sot found in physical possession that is, is actual custody or control, which be could physically bold at any moment. If the accused were the sole occupant of the tea stall and kitchen, one might have drawn an inference that be bad caused it to be brought and/or consciously aware about Its existence. However, that is not the case here. The kitchen was accessable to many, including his employee and the customers and any one of them could bring it. There is no material to show that the accused was in joint possession of the liquor. There is no material that it was brought and kept with his knowledge and consent. No act or conduct of the accused or even state of affairs, that is, actus reus, has been established by the prosecution to draw the inference that the accused was in "constructive possession" of the potable. Under these circumstance when the place of recovery was accessable to his employee, Kumar Chetri and/or the customers, who could, without his knowledge bring the incriminating article in the kitchen. It is well high impossible to hold that it was the accussed and the accused alone who brought or caused it to be brought and, therefore, bad constructive possession of the article. Before the accused could be convicted of the charge it was necessary for the prosecution to show that certain event or certain state of affairs which were forbidden by the Act'' bad been caused by the act or the conduct of the accused, I am constrained to hold that the prosecution has failed to establish the ''actus reus'' of the crime. The provisions of Section 3(1) of the Act punishes the wrong deed which renders the doer criminally liable. Where is the wrong deed, conduct or state of affairs from which it could be logically concluded that the accused was responsible for doing something which was forbidden by law? It is hardly possible to hold that the accused bad constructive possession merely on the score that the article was found in the kitchen of his tea such. There is no material to show that the accused had the state of mind termed as ''mens rea'' of the crime. The term ''mens rea'' in my opinion is sometime styled as "guilty mind" which may be misleading in various cases. In fact, the ''mens rea'' of the crime is intentional or actual possession of the liquor knowing it to be an offence to possess the article. A person may be in physical possession of an incriminating article without any knowledge that he was in possession of such article which is prohibited by law.

Shortly put, the offence is for "physical possession" of liquor. A person can be in physical possession only when he is in such a relation to the liquor that, so far as regards the contraband liquor, he could assume exercise or resume manual control of substance at pleasure, and so far as regards other persons, the liquor was under the protection of his personal presence, or in or on a house or land occupied by him, or in some receptacle belonging to him and under his control. Is there any material to show that it was the accused who brought the contraband liquor? Is there any material to show that so fat as regards the contraband liquor was concerned the accused could assume, exercise or resume manual control of, it at pleasure? Is there any material to show that the accused allowed some other person to keep the contraband liquor in the kitchen? All these questions must be answered in the negative. Under these circumstances it is well nigh Impossible to hold that the accused was even in constructive possession of the contraband liquor and/or had the requisite ''mens rea''. In Jawar Arjun v. state of Gujarat (1979) 4 SCC 299 a rickshaw puller was found in possession of illicit liquor but there were passengers. The passengers and the rickshaw puller ware convicted for carrying illicit liquor. Their Lordships considered the provisions of Section 66(1)(b)/181 of the Bombay Prohibition Act and held that the rickshaw puller had no conscious knowledge of the fact that the bags contained illicit liquor. The rickshaw puller could not be imputed with the knowledge of possession of the article merely because the passengers put those articles in the dicky of that rickshaw. It is thus seen that apart from ''actus reus'' ''mens rea'' is also a necessary ingredient of the offence. The case is an illustration that even where a person is in actual physical possession of illicit liquor the prosecution must establish by direct or circumstantial evidence that the accused had ''mens rea''. The expression ''mens rea'' is sometime loosely translated as "guilty mind'' but the meaning may be misleading. It does not mean that when a man knows that what he is doing is an offence but was actuated to do the thing to earn money and/or be might not have any remorse, regret or guilty mind he should be acquitted. A person committing an offence knowing it to be so can not be heard to say that he had no ''mens rea''. A person may be liable to be convicted u/s 3 read with Section 4 of ''the Act'' if he does the prohibited acts intentionally or knowingly that possession etc. of liquor are offences. However, a railway potter carrying a packet of the passenger containing contraband article without knowing that the articled are contraband and/or without knowing that the packet or luggage contained any contraband article can not have ''mens rea''. A person must consciously import, transport or possess liquor knowing that it was an offence and that what he was doing was forbidden by law. In the instant case, there was no material to show that the accused had conscious possession as there is No. material to show that he had knowledge about the storage of the illicit liquor in the kitchen. In Patel Jethabhai Chatur Vs. State of Gujarat, P.N. Bhagwati, J. (as his Lordship then was) laid down the law thus:

Possession again must be distinguished from custody and it must be conscious possession. If a bottle of liquor is kept by soma one in the car or house of a person without his knowledge, he cannot be said to be in possession of the bottle of liquor.

As such, recovery of liquor from the kitchen of the stall by itself did not establish that the accused owner was in possession of the contraband article. There required some material to show that he caused it to be brought and allowed to keep in the custody of some one else in respect of which he could assume exercise or resume manual control over it. In Abdul Ali v. State of Assam 1965 SCN 389 luggage containing opium was found in "the luggage boot" of the taxi driver who was in possession of the key of the dicky. It was held by their Lordships that it was not proved that the taxi driver was in conscious possession of the contraband opium. In Pabitar Singh Vs. State of Bihar, the facts of the case are that a gun was recovered from a kitchen which was in joint occupation of the Appellant and one Ramashray Sharma. At the time of raid Ramashray was not present but the Appellant was present. Their Lordship held that the circumstance was not enough to show than the Appellant was aware of the existence of the gun in the premises. It is, therefore, seen that possession of illicit liquor must be conscious possession and knowledge is an essential ingredient of the offence. The accused must be conscious of the existence of the article in his possession or be must have actual control over it vide Chaganraju Vs. State of Andhra Pradesh, The offence u/s 3 of ''the Act'' is not an absolute offence and as such, the criminal intention or knowledge of the wrongfulness of the act is an essential ingredient of the crime. The general rule ''actus non facit reum nisi mens sit rea is directly applicable in respect of the offence. 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 necessary implication, ruler out ''mens rea'' as a constituent part of the crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.

Though possession of prohibited drugs is an Important contemporary concern of the criminal law even in absolute offences under the Drugs (Prevention of Misuse) Act, 1964. The House of Lords has imported the mental element into possession where the statute ruled out mens rea as a constituent part of the Crime.

In Warner v. Metropolitan Pallet Commissioner (1969) 2 AC 256 : (1969) 2 All ER 356 the House of Lords had to deal with an absolute offence under the Drugs (Prevention of Misuse) Act, 1964 where ''mens rea'' has been ruled out by the Statute as constituent part of crime. Even under such circumstances their Lordships in effect mitigated the severity of the offence by importing a mental element into possession in the context of this particular branch of the Law. Approval was given to the dicta of Lord Parker, C.J. in Lockyer v. Gibb (1967) 2 QB 243 (248) : (1966) 2 All ER 653;

a person cannot be said to be in possession of some article which be or she does not realise is, or may be 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 tipped into one''s basket and one had not the vaguest notion it was there at all, one could not possibly be said to be in possession of it.

Although the crime relating to dangerous drugs is directed against a grave social evil and the enactment expressly rules out mens rea yet the House of Lords has imported the mental element into possession not to deprive an innocent accused of all rights to show by way of defence that he bad no knowledge, or reason to suspect, that the prohibited article or substance was in his possession and/or be bad no knowledge or reason to suspect that the article that he carried was dangerous drugs or prohibited drugs.

In the instant case, the prosecution has totally failed to establish by direct or circumstantial evidence that the prohibited potable was found in actual or constructive possession of the accused and/or the accused bad the requisite ''mens rea'' or conscious possession. The courts below have totally failed to consider the essential ingredients of the offence; the nature of proof required to bring home the charges and based the conviction on surmises and conjectures which have resulted in a failure of justice. Accordingly, the conviction and sentences of the accused are set aside and the petition is allowed.