By: Kajal Jamdare
Introduction
The recent flux of headlines about celebrities and star kids being found in possession of drugs prohibited by law has brought the issue of possession offences to limelight in India. Another, often ignored case of possession offences in India is the detention of individuals for possession of fire-arms and ammunitions. Many individuals are put into prisons for several years for committing such offences and thus, possession offences ultimately impact the lives of large number of families in India. It thus becomes important to understand the nature of such offences and look at the trail of cases on the same. This article is an analysis of possession offences in India and the strict liability pathway used in the interpretation of such cases. Through this piece, the author seeks to look at the judicial attitude in cases of possession offences and subsequently argue that the mens rea element should be given preference while judging cases of possession.
The Concept of Possession Offences
The term ‘possession’ can be found quite often in everyday conversations, advertisements, and newspaper headlines. The dictionary defines the term ‘possession’ as the condition of having or owning something. However, the term takes on a slightly different meaning when used in the legal paradigm. In law, the state of being in possession of something implies that the individual has control, with or without custody, over some prohibited item.[1] In the United Kingdom, Section 3 of the Criminal Damage Act, 1971 deals with possession offences. According to this section, any individual who has custody of anything or has the control over anything intending without lawful excuse to use it for damaging one self’s or someone else’s property knowing that it is likely to endanger the life of some other person shall be held to be guilty of a possession offence. Interestingly, the Indian Penal Code does not provide any definition or explanation as to what constitutes possession offences in India. The Code, however, mentions the term ‘possession’ several times, particularly in sections dealing with counterfeit coins and forged documents. A probable explanation can be that in India, distinct special statutes deal with possession offences related to different substances and objects. These special statutes are discussed in the next section of the article. A comparative study of possession offences in the UK and Indian jurisprudence reveals that the definition of possession offences in the former mentions terms like “intending”, “knowing” etc. Thus, the first important factor when it comes to possession offences under UK’s Criminal Damage Act is that the statute itself calls for element of knowledge and intention or mens rea. Further, when we talk about possession offences, the nature of things that are in such possession is immaterial. The said statute imports no restriction on the object which is to be possessed in order to constitute the offence.[2] This is also indicated by use of the term “anything” in Section 3 of the Criminal Damage Act. When it comes to possession offences in India, the Special Statutes prohibit and criminalize the possession of substances defined under these statutes.
What Do the Indian Statutes Say ?
Various special statutes are in place to deal with the wide area of possession offences in India. These include but are not limited to statutes like the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”); The Arms Act, 1959 (“Arms Act”); Wildlife Protection Act, 1972 etc. These Acts, respectively, deal with illegal possession of drugs and psychotropic substances; weapons, firearms and ammunitions; and the animal species listed under Schedule I to IV of the Wildlife Act. The object of the legislature behind most of these special legislations criminalizing possession of certain substances is to protect the larger societal interest and ensure public welfare. However, mere resolve of the legislature to ensure public welfare is not enough either for imposing strict liability or exclusion of the element of mens rea because ultimately interpretation of the law is left to the judiciary.[3] It is usually seen that the legislature takes the easy pathway by leaving the implied exclusion matter to be dealt with by the judiciary on a case-to- case basis. A study of the trail of cases pertaining to this issue reveals that the Indian Courts have taken either of the two courses. First is taking the route of presumption of no liability without the proof of mens rea and second accepting the course of strict liability without any proof of mens rea. It is pertinent to note at this point that both the major statutes dealing with possession offences in India i.e., the NDPS Act and the Arms Act mention terms like “intent” and “knowledge”. For example, Section 35 of the NDPS Act particularly talks about the presumption of culpable mental state. The explanation to this section provides that the phrase “culpable mental state” includes element of intention, motive knowledge and belief. Thus, when it comes to the issue of possession offences under special statutes in India, the terminology used itself provides window for the Courts to look into the mens rea element. The next section analyses the judicial attitude on the point as it delves into whether or not the Courts have used this window effectively to take into consideration mens rea of the accused.
Possession Offences and The Strict Liability Approach
The understanding of the concept of strict liability is different in different jurisdictions. Generally, strict liability refers to the liability imposed in cases of regulatory nature where the element of mens rea is not needed with regard to one or multiple elements of actus reus in commission of the offence.[4] Lord Reid pointed out in the case of Warner v. MPC that imposition of strict liability in a particular case is dependent on several factors like the subject of the statute, wording of the statute, stigma attached, the punishment and even the parliamentary intention. While deterrence is one of the primary objectives of the criminal code, another important facet and goal is to ensure that the disgrace of criminality is not inflicted upon innocent individuals. The latter becomes all the more relevant in the context of present-day India when thousands lurk in dark chambers of prison cells even without adequate proof of their offence. Keeping this in mind, it is important to analyze whether the strict liability pathway should be taken in cases of possession offences in India. For this, we look at the very nature of possession offences and the judicial understanding and attitude on the issue so far.
Even after the fact that primarily ‘possession’ implies an act and thus reflects the actus reus element, a concomitant mental ingredient is typically imported in the legal understanding of the term.[5] One of the earliest possession offence cases in which strict liability was used is R v. Woodrow. In this case the accused was convicted for the possession of adulterated tobacco even after the contention that he had no knowledge of the tobacco being adulterated. Another important case on the matter is Warner v. MPC.[6] In this case, a man was accused of unauthorized possession of 20,000 amphetamine tablets. The accused claimed that he thought that the box contained scent and not a prohibited drug. In what is a highly critiqued judgement, the House of Lords upheld the conviction on the ground that knowledge of precise nature of the material in possession is not required. It is sufficient to prove that the accused had the knowledge that he was in possession of something. As pointed out by the critiques, this judgement, in effect, equates knowledge of possession of scent to the knowledge of possession of drugs, which is blatantly illogical. A landmark Indian case on the subject is the case of State of Maharashtra v. Mayer Hans Georgeinwhich a man was convicted for the offence of smuggling gold. The man, a habitual smuggler, intended to smuggle gold in his jacket pockets from Zurich to Manila through Bombay. The accused in this case, had no knowledge about the notification (due to reasons beyond his control) that changed the law in India on subject of declaration of gold brought in by individuals as communicated by an official notification dated 24th November, 1962. The accused left Zurich on 27th November, 1962 and landed at the Bombay airport on the next day i.e., 28th November, 1962. Interestingly, the Court in this case seems to completely ignore the element of mens rea and convict the accused only based on the fact that he was a habitual smuggler even if such a conviction was unreasonable. Highlighting this lacuna, Justice Subba Rao gives a strong dissent which later went on to become the majority verdict in the case of Nathulal v. State of M. P. The principle that comes out from this case is that even if there is a presumption of mens rea, it can be rebutted by looking at the object of the statute applicable in the case. In another case titled Noor Aga v. State of Punjab, the SC allowed the appeal against the decision of the HC where the HC had upheld the conviction of the accused for allegedly carrying contraband drugs. In this case, the SC went on to say that the judgement in such cases need to ensure not only those individual liberties are safeguarded but also that public confidence in the legal system is maintained. In addition to this line of cases, the Supreme Court itself in State of Gujarat v. Acharya D. Pandey ruled that unless and until there is an express or implied exclusion of mens rea based on the wording of the statute, the general rule that there can be no commission of crime without mens rea will hold good. A similar stance was again taken by the Supreme Court in PUCL v. Union of India, wherein the apex court reiterated the requirement of mens rea element for commission of an offence.
Summing Up
Thus, it can be seen from the aforementioned judgements that the Indian judiciary has been in favor of imposing liability only if adequate mens rea element can be proved in such cases. The Courts in India have taken the strict liability pathway only in cases of grave social evil or where express prohibition type language is used in the statute. However, neither of these criteria is satisfied by the class of possession offences. When it comes to possession offences in India, the statutes themselves, by way of including terms like “knowledge” and “intent” portray the requirement for the element of mens rea for commission of offence. In the realm of legal philosophy, such commitment to the element of intention is purported by the famous philosopher H.L.A. Hart. According to Hart, it cannot be in the spirit of justice to deprive an individual of his/her liberties and rights merely to benefit the society, unless the person acted voluntarily.[7] In the context of modern-day India, with increasing instances of depriving individuals of their fundamental rights in the name of safeguarding the ‘public order’, it becomes all the more important to give Hart’s proposition its due credit.
[1] A.P. Simester and Others, ‘Simester and Sullivan’s Criminal Law’ (6th edn, 2016) 127.
[2] David Ormerod, ‘Smith and Hogan Criminal Law’ (11th edn, 2005) 921.
[3] B. B. Pande, ‘The Hart/Wootton Debate About Criminal Responsibility Without Mens Rea: Implications for the Common Law Offences in the United Kingdom and Penal Code and Statutory Law Offences in India’ (2020) 1 SCC J-8.
[4] A.P. Simester and Others, ‘Simester and Sullivan’s Criminal Law’ (6th edn, 2016), 181.
[5] A.P. Simester and Others, ‘Simester and Sullivan’s Criminal Law’ (6th edn, 2016), 170.
[6] Warner v. Metropolitan Police Commissioner, [1969] 2 AC 256.
[7] B. B. Pande (n 3) 11.
[The author is a 2nd Year B.A. LL. B. (Hons.) student at National Law School of India University, Bangalore.]
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