Mens rea and Burden of Proof:

Presumption: Generally mens rea is required for a criminal act unless contrary is provided either
expressly or by necessary implications.
There are three different instances through which clear operation of this presumption could be
demonstrated. Those provisions in which knowledge and intention are clearly set out in the
provisions, this presumption goes through unabated. In such situations burden of proof lies on
the prosecution to establish that guilty mind exists which may be contested by the defense later.
This defines the first instance. In the second instance, knowledge or intention are clearly made
inoperative and are severed from the commission of the offence. In such situations, this general
presumption of existence of mens rea has no say and thus none of the parties have to prove or
disprove the existence of a guilty mind. To demonstrate this, lets take the example of Andhra
Pradesh Grain and Seed Merchant Association v. Union of India
1
, the petitioners who are a
bunch of wholesale traders of food grains and other items of food challenged few provisions of
Prevention of Food Adulteration Act of 1954. Merchants contended that the Act presumes every
trader charged with an offence under S. 16(1) (a) to be guilty and imposes upon him the burden
of proving that he is not guilty of the offence charged, by establishing facts which are not within
his knowledge, or which without great expense wholly incommensurate with his means and the
facility available to him, he cannot establish.
2
S. 16(1) (a) reads:
If any person (a) whether by himself or by any other person on his behalf imports into India or
manufactures for sale, or stores, sells or distributes any article of food-
(i) Which is adulterated or misbranded or the sale of which is prohibited by the Food (Health)
authority in the interest of public health; or
(ii) Other than an article of food referred to in Sub-clause (i), in contravention of any of the provisions
of this Act or of any rule made thereunder; or
(iii) Whether by himself or by any other person on his behalf gives to the vendor a false warranty in
writing in respect of any article of food sold by him, he shall in addition to the penalty to which he
may be liable under the provisions of Section 6 be punishable with imprisonment for a term which
shall not be less than six months but which may extend to six years, and with fine which shall not
be less than one thousand rupees.

1
AIR 1971 SC 2346
2
Id at Para 2
Provided that- (i) It shall be no defence in a prosecution for an offence pertaining to the sale of any
adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature,
substance or quality of the food sold by him or that the purchaser having purchased any article for analysis
was not prejudiced by the sale.
Proviso dispenses with the requirement of establishing knowledge or intention in establishing an
offence under this statute.
The position is clearly set out in Halsburys Laws of England
3
wherein it is stated:
A statutory crime may or may not contain an express definition of the necessary state of mind. A statute
may require a specific intention, malice, knowledge, willfulness, or recklessness. On the other hand, it may
be silent as to any requirement of mens rea, and in such a case in order to determine whether or not mens
rea is an essential element of the offence, it is necessary to look at the objects and terms of the statute. In
some cases, the courts have concluded that despite the absence of express language the intention of the
legislature was that mens rea was a necessary ingredient of the offence. In others, the statute has been
interpreted as creating a strict liability irrespective of mens rea. Instances of this strict liability have arisen
on the legislation concerning food and drugs, liquor licensing, and many other matters.
Balancing the competing values of individual rights and public health, Court on paragraph 7
observed that in certain specific situations especially the one envisaging public health,
requirement of proof of guilty mind is done away with. It observed:
It is true that for the protection of the liberty of the citizen, in the definition of offences, blameworthy
mental condition is ordinarily an ingredient either by express enactment or clear implication: but in Acts
enacted to deal with a grave social evil, or for ensuring public welfare, especially in offences against public
health, e.g., statutes regulating storage or sale of articles of food and drink, sale of drugs, sale of controlled
or scare commodities, it is often found necessary in the larger public interest to provide for imposition of
liability without proof of a guilty mind.
This case is on a point that when the requirement of mens rea has been entirely dispensed with
then its existence is not presumed by the Court and hence there is no requirement for the
prosecution to prove its existence before moving on with the case.
Distinguishing the second instance from the third one under the third instance statute is open to
two constructions one in which mens rea could be read and the other in which its not.
Elaborating further, if an offence conspicuously doesnt set out the existence of mens rea then as

3
Vol. 10
th
, 3
rd
Edition at page 273
far as burden of proving such guilty mind by the prosecution is concerned, could be done away
with. The burden of proof shifts from the prosecution to the defense unlike the first and the
second one wherein in former it was to be proved by the prosecution while in later it was not to
be proved at all, by either of them. Lets try to understand this nuance through the example of
Inder Sain v. State of Punjab
4
, in which appellant was convicted under the Opium Act of 1909
for an imprisonment of 1 year and a fine of 2000. Appellant was asked by Mr. A to collect the
consignment sent to him by one Mr. B. Appellant went to the Railway Station, showed the
receipt and collected the consignment from the Railway authorities. Police got the information
that assignment contains opium and on raid 4350 grams of opium was recovered from the
consignment. Appellant took the defence that he was merely a receiver and had no knowledge
about the opium being there in the consignment. Trail court didnt pay heed to his argument
stating that guilty mind is not a requirement under the Opium Act and therefore the defence
which he is trying to avail of, is futile. High Court also dismissed his writ and the matter went in
appeal before the Supreme Court wherein the question arose if the guilty mind is a requirement
under the Opium Act or not.
S. 9 of the Opium Act provide:
Any person who, in contravention of this Act, or of rules made and notified under Section 5 or Section 8,
(a) possess opium, or (b) transports opium, or (c) imports or exports opium, or (d) sells opium, or (e) omits
to warehouse opium
S. 10 further provide:
In prosecution 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 he has committed an
offence under this Act.
The issue identified by the court was set out in Para 14 of the judgment which provides:
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.
Further on Para 15 it was observed that:

4
AIR 1973 SC 2309
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. There is, strictly speaking, no evidence that the
appellant was aware that the parcel contained any contraband substance, much less opium.
In the absence of a clear provision setting out for establishing guilty mind, onus on the
prosecution is merely to prove that the appellant was in the possession of opium and not whether
he was knowingly in possession of it. The provisions under this Act doesnt provide for a strict
liability as under the previous case of Andhra Pradesh Merchants Association which if it were
the case here then the question of knowingly in possession of opium wouldnt have mattered
only. What would have mattered is, if the appellant is in the possession of opium and if yes then
he is guilty under the provision. Thus presumption of mens rea existed in this instance just like
the first one with the only difference being that the onus to rebut it was on the defence and not on
the prosecution to prove it before the Court.