TABLE OF CONTENTS

Table of cases..................................................................................................................................3

Table of Statutes..............................................................................................................................4

Introduction......................................................................................................................................5

Chapter 1 - The legal effect of Burden of Proof..............................................................................6

The Concept of Evidential Burden in the Context of India.........................................................6

Reverse Onus Clauses Affect the Legal Burden of Proof...........................................................7

Chapter II– A Study of Indian Case-Law........................................................................................9

The Narcotic Drugs and Psychotropic Substances Act, 1985.....................................................9

The Prevention of Corruption Act, 1988...................................................................................13

Conclusion.....................................................................................................................................15

Bibliography..................................................................................................................................16

Table of casesINDIAN CASES

1. Abdul Rashid Ibrahim Mansuri v. State of Gujarat, AIR 2000 SC 821.

2. Arun v. State of Maharashtra, MANU/MH/1899/2002.

3. Dharam Pal v. State of Haryana, 2006 INDLAW PNH 644.

4. Goklaram Jerumparamji Dhaka (Vishonoi) v. State of Gujarat, MANU/GJ/0613/2003.

5. Hiten P. Dalal v. Bratindranath Banerjee, AIR 2001 SC 3897.

6. M. Narsinga Rao v. State of Andhra Pradesh, AIR 2001 SC 318.

7. Madan Lal v. State of Himachal Pradesh, AIR 2003 SC 3642.

8. Madhukar Bhaskarrao Joshi v. State of Maharashtra, AIR 2001 SC 147.

9. Malook Khan v. State of M.P., 1999 CriLJ 1147 (MP).

10. Mayil Vahanan v. Intelligence Officer, Narcotic Control Bureau, MANU/TN/8799/2006.

11. Megh Singh v. State of Punjab, AIR 2003 SC 3184.

12. Mohd. Akhtar v. State of M.P., MANU/MP/0234/1999.

13. Noor Aga v. State of Punjab, MANU/SC/2913/2008.

14. Om Parkash v. State of Haryana, AIR 2006 SC 894.

15. P.N. Krishna Lal v. Govt. of Kerala, 1995 Supp (2) SCC 187.

16. Parukutty v. Province of Madras, AIR 1962 Ker 93.

17. Pawan Mehta v. State, MANU/DE/1527/2001.

18. Pramod v. State of Madhya Pradesh, MANU/MP/0088/2008.

19. Ramjanam Singh v. State of Bihar, AIR 1956 SC 653.

20. S.S. Rajan v. State, 2008 CriLJ 639 (Mad).

21. Seema Silk and Sarees v. Directorate of Enforcement, (2008) 5 SCC 580.

22. State of Maharashtra v. Wasudeo Ram Chandra Kaidalwar, (1981) 3 SCC 199.

23. Union of India v. Purnandu Biswas, (2005) 1 SCC 576.

24. V. Venkata Subbarao v. State, AIR 2007 SC 489.

25. Yashpal Mahindrapal Sonik v. State, MANU/MH/0521/1987.

ENGLISH CASES

1. Regina v Director of Public Prosecutions, ex parte Kebilene, [2000] 2 AC 326.

2. Regina v. Edwards, [1974] 3 WLR 285.

3. Regina v. Hunt, [1987] AC 352.

4. Regina v. Lambert, [2002] 2 AC 545.

5. Woolmington v. Director of Public Prosecutions, [1935] AC 462.

Table of Statutes

1. Evidence Act, 1872

2. Narcotic Drugs and Psychotropic Substances Act, 1985.

3. Opium Act, 1878.

4. Prevention of Corruption Act, 1947.

5. Prevention of Corruption Act, 1988.

Introduction

The principle relating to the burden of proof in a criminal case has been established way back.

The principle was well enunciated in the English case of Woolmington v. DPP. 1 The rule is that

prosecution has to establish the guilt of the accused beyond reasonable doubt.2 This rule is

subject to certain exceptions, some of them are statutory, few expressed and the other implied.3

The researcher deals with express statutory exceptions to the general rule of presumption of

innocence in this paper. Reverse onus clauses are clauses which put on the accused the onus of

disproving an element related to the offence, instead of putting the burden, per usual, on the

prosecution of proving such element. In India, the constitutionality of such provisions has been

questioned and upheld in Seema Silk and Sarees v. Directorate of Enforcement.4

The Law Commission of India in its forty-seventh report, discussed the need of inserting such

provisions in context of economic offences.5 Accordingly, it discussed, the nature of such crimes

and their effect on the entire community, the difficulty in establishing the intention as a whole

and suggested that the accused be burdened with disproving mens rea. In P.N. Krishna Lal v.

Govt. of Kerala6 the difference between general offences and other offences which relate to

public expenditure and public morality was discussed. From the case mentioned above the

researcher gathered that the SC also recognizes the need to shift the burden onto the accused in

certain cases.

The researcher, in this paper, discusses the concept of burden of proof in the context of India and

examines the dichotomy of legal burden and evidential burden in Chapter 1. The effect of reverse

onus clauses on burden of proof and the theoretical understating of this concept would be dealt 1 [1935] AC 462.2 In the case of Regina v. Hunt, [1987] AC 352, in an offence which made the possession of a preparation which contained more than 0.2 percent morphine a crime, the court held that having less than 0.2 percent morphine is not an exception to the offence but instead having 0.2 percent is an essential ingredient of an offence and that has to be proved by the prosecution beyond reasonable doubt.3 Ian Dennis, The Law of Evidence (3rd edn., 2007, London: Sweet and Maxwell) at 446. 4 (2008) 5 SCC 580 , “A legal provision does not become unconstitutional only because it provides for a reverse burden”.5 LAW COMMISSION OF INDIA, 47th Report on the Trial and Punishment of Social and Economic Offences (1972), Chapters 3 and 7.6 1995 Supp (2) SCC 187.

here. In the next Chapter, the researcher will examine with case laws, two Statutes and study

reserve onus clauses (provisions for the reverse onus clause) mentioned in the Acts - the Narcotic

Drugs and Psychotropic Substances Act, 1985 [hereinafter “NDPS Act”] and the Prevention of

Corruption Act, 1988 [hereinafter “PCA”].

Research methodology Aims and Objectives

The aim of the paper is analyze the concept of reversal of burden of proof and the objective is to

state why this position is taken.

Scope and limitation

The scope of this paper is to understand the reverse onus clauses, and to undergo a detailed study

of the Acts that deal with the same. The researcher and researcher was constrained by spatial

limitations.

Research questions

1) What is burden of proof and on who does it lie?

2) What is reverse burden of proof?

3) Why is the burden of proof reversed for certain offences?

Mode of citation

A uniform mode of citation has been followed in this paper

Style of wiring

The researcher has followed analytical and descriptive style of writing

Source of data

Various books, cases, article from journals, reports and internet material have been used in make this paper.

Chapterization.

Chapter I - examines the dichotomy of legal burden and evidential burden. It studies the

effect of reverse onus clauses on burden of proof and attempts to understand such

provisions from a theoretical perspective.

Chapter II - Undertakes a study of case-law in India related to two statutes which have

reverse onus clauses – the Narcotic Drugs and Psychotropic Substances Act, 1985

[hereinafter “NDPS Act”] and the Prevention of Corruption Act, 1988 [hereinafter

“PCA”].

Chapter 1 - The legal effect of Burden of Proof

“Burden of proof’ as a phrase can refer to one of two concepts – the legal burden of proof and

the evidential burden of proof. A fact can be proved by meeting a certain standard of proof, the

obligation of a party to a suit to prove or disprove a fact by meeting the required standard of

proof is the legal burden of proof.7 The evidential burden is the obligation of party to adduce

adequate evidence for the issue to go before the tribunal of fact.8 It is the submission of the

researcher that the concept of evidential burden has no significance in India, keeping in mind the

prevailing criminal legal system. On the second level, the researcher analyses what Indian legal

authorities take evidential burden to mean and concludes that even if the view taken by those

authorities is correct, reverse onus clauses affect the legal burden of proof directly.

The Concept of Evidential Burden in the Context of India

The seeming dichotomy of burden of proof into the legal and evidential is a product of the

concept of trial by jury.9 Evidential burden is essentially that evidence which is sufficient to raise

a question regarding the existence or non-existence of a fact in issue. Evidential burden is

discharged when sufficient evidence is produced to try a fact in issue. It means that the evidence

is enough to pass the filtering power of the judge and for the judge to direct the jury to decide the

fact in issue and to possibly justify a favourable finding for one of the parties.10 So when a

statutory provision affects only this evidential burden and places it on the accused, it means that

the accused must show enough evidence to raise this issue in front of the jury but the prosecution

will still have to satisfy the jury on this matter.11

7 Morgan cited from Colin Tapper, Cross and Tapper on Evidence (9th edn., 1999, London: Butterworths) at 1088 Adrian Keane, The Law of Evidence (6th edn., 2006, New York: Oxford University Press) at 84. 9 Supra note 7, at 111.10 So, for instance, if the defence must adduce X amount of evidence to make the defence of provocation an issue in a case relating to murder, then X will mark the point at which the evidential burden is discharged and the judge will ask the jury to decide whether the accused was actually provoked. However, the discharge of this evidential burden does not mean that the jury will now decide in favour of the accused with respect to the defence of provocation. 11 R v. Lambert, [2002] 2 AC 545. In the United Kingdom, to make reverse onus clauses with the European Convention of Human Rights, the courts have sometimes read down the provisions so as to only impose an evidential burden.

When it comes to India, any burden of proof – going by these well-accepted definitions of legal

and evidential seen above – has to be legal since the determination of issues as well as the

decision as to whether the fact has been proved or not lies with the same body, i.e. the judge. The

researcher submits that, the decision of the Supreme Court in State of Maharashtra v. Wasudeo

Ram Chandra Kaidalwar12, is an incorrect understanding of the dichotomy between legal and

evidential burdens of proof as it said that s. 5(1)(e) of the Prevention of Corruption Act, 1947

(which requires the accused to satisfactorily account for disproportionate assets on a

preponderance of probabilities) only places an evidential burden on the accused.

The above paragraph shows that understanding of evidential burden is not very clear in India.

One understanding is that, it means the obligation of introducing evidence relating to a particular

fact by the party which asserts it.13 This is based on the principle that the party which asserts a

fact has the onus of proving it.14 Alternatively, it has also been taken to mean what Cross calls

the ‘tactical’ burden of proof.15 This tactical burden of proof rests, at a particular point of time,

on the party against whom the case would lie if no further evidence was given related to the

case.16

Reverse Onus Clauses Affect the Legal Burden of Proof

One of characteristic features of the legal burden is that it does not shift,17 since it refers to the

burden of establishing the facts and contentions of a party’s case and, if at the end of the suit, the

party has failed to establish this, the decision will go against that party. However, a legal burden

can be said to ‘shift’ on the operation of a rebuttable presumption of law.18

When on the proof or admission of a primary fact, another fact – called the presumed fact – must

be presumed, this is how a rebuttable presumption of law operates. Once the party relying on the 12 (1981) 3 SCC 199.13 Vepa P. Sarathi, Law of Evidence (6th edn., 2006, Lucknow: Eastern Book Co.) at 244. 14 Muhammed Monir, Principles and Digest of the Law of Evidence (12th edn., 1999, Allahabad: The University Book Agency) at 1004.15 Supra note 1, at 107.16 Gopi Nath, Sir John Woodroffe and Syed Amir Ali’s Law of Evidence Vol. 3 (16th edn., 1996, Allahabad: The Law Book Company (P) Ltd.) at 2163; Parukutty v. Province of Madras, AIR 1962 Ker 93. 17 Yeshwant V. Chandrachud and Alladi Kuppuswami, Ratanlal and Dhirajlal’s Law of Evidence (20th edn., 2004, New Delhi: Wadhwa and Co.) at 861. 18 Supra note 9, at 83.

presumption has adduced enough evidence to prove the primary fact, the other party bears the

legal burden of disproving the presumed fact.19 A reverse onus clause is no more than a

rebuttable presumption of law. For instance, s. 20(1) of the PCA attributes to the accused, on the

proof of him having accepted or agreed to accept or obtain or attempted to obtain gratification,

the motive of him having received such gratification for doing a favour or any service to the

party giving him the gratification. The accused can, however, provide evidence to establish the

contrary.

Insofar as the reverse onus clause operates to place on the accused the burden of disproving an

element of the offence such as knowledge or intention, it affects the extent of the legal burden

placed on the prosecution.20 The prosecution does not need to prove this particular element

anymore and a reverse burden is instead placed on the accused, who must now disprove the fact

of that element or ingredient. If he does not do so, he will be presumed to fulfill that element or

ingredient.

Irrespective of the standard of proof which is required to disprove the presumed fact, the

rebuttable presumption of law has the effect of shifting the legal burden of proof.21 The presumed

fact is taken to be proved, unless the fact is disproved (to the appropriate standard) and therefore,

it is the legal burden which is affected.22 In other words, there rests on the defendant a legal

burden of proof to show that he was, in fact, entitled to do the prohibited act.23

Therefore, it is neither the burden relating to the assertion of a particular fact nor the tactical or

shifting burden of proof which is affected by reverse onus clauses. It is the extent of the legal

burden on the prosecution which is affected.

19 Supra note 9, at 685; Hiten P. Dalal v. Bratindranath Banerjee, AIR 2001 SC 3897.20 Pooja Garg, “Shifting Trends in Burden of Proof and Standard of Proof” 17 Student Advocate 38, 45 (2005). 21 Peter Murphy, Murphy on Evidence (9th edn., 2005, New York: Oxford University Press) at 70. 22 Supra note 1, at 122. 23 Regina v. Edwards, [1974] 3 WLR 285.

Chapter II– A Study of Indian Case-Law

Reverse onus clauses are basically presumptions of fact which have been recognized by statutes

and have become presumptions of law. For instance, s. 114 of the Evidence Act, 1872 allows the

court to presume the existence of facts which the court thinks can be inferred from the facts of a

particular case. Illustration (a) provides that “The Court may presume – That a man who is in

possession of stolen goods soon after the theft is either the thief or has received the goods

knowing them to be stolen, unless he can account for his possession”. This is basically what s. 54

of the NDPS Act makes into a presumption of law, one which now becomes mandatory for the

court to make.

This part of the paper examines ss. 35 and 54 of the NDPS Act and s. 20 of the PCA to test the

hypothesis of the first part of the paper i.e. their effect on the legal burden of proof. The

researcher also attempts to understand the effect of these provisions on the presumption of

innocence. While it is accepted that reverse onus clauses differ widely according to how they

have been framed, it is believed that this study with respect to specific statutes will help to draw

a few general conclusions in this regard.

The Narcotic Drugs and Psychotropic Substances Act, 1985

S. 35(1) of the NDPS Act provides that “In any prosecution for an offence under this Act which

requires a culpable mental state of the accused, the court shall presume the existence of such

mental state but it shall be a defence for the accused to prove the fact that he had no such mental

state with respect to the act charged as an offence in that prosecution”. This culpable mental

state includes intention, motive, knowledge, belief and reason to believe in a fact24 and a fact is

said to be proved only when it is proved beyond reasonable doubt.25 S. 54 provides that “In trials

under this Act, it may be presumed, unless and until the contrary is proved, that the accused has

committed an offence under Chapter IV in respect of (a) any narcotic drug or psychotropic

substance... for the possession of which he fails to account satisfactorily”.

24 Explanation to s. 35(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985.25 S. 35(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The interpretation given to s. 54 has revolved around three concepts related to possession –

conscious possession, constructive possession and physical possession. In Yashpal Mahindrapal

Sonik v. State,26 the Bombay High Court held that proof of physical possession is enough to

invoke the presumption under s. 54. However, in the case of Natibabu Khadka v. State of Goa,27

the court held that to invoke the presumption under s. 54, conscious possession of the contraband

is necessary. This means that not only does it need to be proved that the accused was in physical

possession of the contraband but also that he had knowledge of such possession. The court also

observed that for s. 35 to be used, culpable mental state has to be listed out as an ingredient of

the offence.

The Madhya Pradesh High Court, in 1999, compared the provisions of the NDPS Act to the

Opium Act, 1878 and held that the language of s. 35 of the NDPS Act was much stronger than

the analogous provision of the Opium Act.28 The court held that while possession in the NDPS

Act refers to conscious possession i.e. act as well as knowledge, once physical possession is

established, the presumption under s. 35 would kick in and knowledge on behalf of the accused

could be presumed. This case goes against the case of Natibabu which said that s. 35 would

operate only when culpable mental state was listed out as an ingredient in the offence. The High

Court also went on to observe that the onus had been placed on the accused under the NDPS Act

because it was almost impossible for the prosecution to prove such knowledge. In the case of

Pawan Mehta v. State,29 the Delhi High Court was faced with a situation where the owner of a

car was charged under s. 25 of the NDPS Act for knowingly permitting the use of his car for this

offence. The court held that, once the fact of a bag of opium being found from the car had been

established, it was for the accused to rebut the presumption of his knowledge and that he had

failed to do so in this case. Subsequently, in 2003, the Supreme Court also upheld the view that

conscious possession needed to be proved, and that the presumption under s. 35 is used to

presume knowledge (one of the elements of conscious possession).30 Therefore, in effect, what

needs to be proved to hold a person guilty of possession is only physical possession.

26 MANU/MH/0521/1987.27 MANU/MH/0578/1995.28 Mohd. Akhtar v. State of M.P., MANU/MP/0234/1999.29 MANU/DE/1527/2001.30 Madan Lal v. State of Himachal Pradesh, AIR 2003 SC 3642.

The presumptions under the NDPS Act have led to decisions completely against the accused. For

instance, in the case of Goklaram Jerumparamji Dhaka (Vishonoi) v. State of Gujarat,31 the

driver of a vehicle, whose passenger had cotton bags containing opium, was convicted of an

offence under s. 18 of the NDPS Act. The court held that it was for the accused to show, beyond

reasonable doubt, that he did not have knowledge of what was contained in the cotton bags. This

leads to absurd consequences. For example – if X and Y are travelling together and X’s bag is

found to contain contraband substances, this possession can be adduced to Y as well and the

burden of proof is on Y to prove beyond reasonable doubt that he had no knowledge whatsoever

of X’s bag containing the same. The Gujarat High Court read the intention of the Parliament to

mean that if a group of persons are sitting in a circle around a contraband material, then it has to

be shown by the persons that they had knowledge of the contraband material being there. The

most glaring example of how the NDPS Act can be abused is the Supreme Court case of Megh

Singh v. State of Punjab.32 The accused was found sitting on a gunny bag which contained poppy

husk and was charged under s. 15 of the NDPS Act. The Supreme Court said that in this case

physical possession and therefore, conscious possession, had (by the operation of statutory

presumptions) also been established.

These two cases portray what the presumptions under the NDPS Act can lead to. It is submitted

that had the onus been on the prosecution to prove the knowledge on part of the accused, the

likelihood of the accused being convicted would have been low. The Prosecution would have to

prove a certain fact which the accused denies. But with the reverse onus clause the initial burden

to prove or disprove a certain fact is on the accused. Now the accused has to prove that he had no

knowledge of the contraband. It was my submission earlier that the reverse onus clauses are

eroding the presumption of innocence until proven guilty, since the initial burden is on the

accused to prove a certain fact. This was pointed out to be a wrong understanding. It was pointed

out to the researcher that it is easier for the accused to prove that he had no knowledge of the

contraband. There is some truth in this statement since it would be easier for him to account his

possession. Nevertheless he is now burdened to prove that he did not have knowledge and if he is

unsuccessful in his attempt he would be convicted of that offence. If the prosecution were to

prove that the accused is the real owner or the person incharge of the contraband, it will whittle

31 MANU/GJ/0613/2003. 32 AIR 2003 SC 3184.

down the burden on the accused, since the prosecution has to make a case now and the accused

deny/defend himself.

In both the cases if the accused is not able to account for the possession he would be held guilty.

That does not necessarily mean that there is no extra burden on the accused, since he has to now

prove, the contraband does not belong to him and the role of the prosecution has reduced to

proving that he was in possession of the same. Proving that contraband belonged to a person in

not very difficult, it just has to be shown that he was in possession of the same, by asking few

respected people of that society to be witnesses to the fact that he was in possession of

contraband. So it is the submission of the researcher that the accused has to do more than he has

to if it were a criminal case under the IPC.

The judiciary also has hesitated in making the presumptions strictly applicable. The Madhya

Pradesh High Court has interpreted s. 35(2) of the NDPS Act to mean that the prosecution is

obliged to prove, beyond reasonable doubt, knowledge on the part of the accused.33 In the case of

Abdul Rashid Ibrahim Mansuri v. State of Gujarat,34 the court said “however, if the court

entertains strong doubt regarding the accused's awareness about the nature of the substance in

the gunny bags, it would be a miscarriage of criminal justice to convict him of the offence

keeping such strong doubt undispelled”. If the standard of proof required of the accused is

beyond reasonable doubt, then, irrespective of how strong the doubt in the mind of the court, the

accused has to be convicted if he fails to prove beyond reasonable doubt that he did not have

knowledge or intention. Clearly, the court was hesitant in adopting this standard and had trouble

in reconciling itself with placing such a strict burden of proof on the accused. This was also

followed in the case of Dharam Pal v. State of Haryana.35 The shows that the sentiments of the

judiciary are similar to those of the researcher.

A new trend which has emerged through decisions of the judiciary relates to the establishment of

additional primary facts before invoking the presumption in s. 35 of the NDPS Act.36 Although s.

35 only requires a prosecution under the NDPS Act for an offence which requires a culpable

mental state to be invoked, the court has observed “(t)he presumption of culpable mental state 33 Malook Khan v. State of M.P., 1999 CriLJ 1147 (MP).34 AIR 2000 SC 821.35 2006 INDLAW PNH 644.36 Mayil Vahanan v. Intelligence Officer, Narcotic Control Bureau, MANU/TN/8799/2006; Pramod v. State of Madhya Pradesh, MANU/MP/0088/2008; S.S. Rajan v. State, 2008 CriLJ 639 (Mad).

without any iota of material as against a person will be a very dangerous trend”.37 Therefore, the

requirement of a certain circumstantial evidence that increases the probability of guilt has been

read into the section to make it less dangerous and establish a safeguard.

The effect of the reverse onus clauses in ss. 35 and 54 can clearly be seen on the legal burden of

proof.38 The extent of the burden on the prosecution decreases to a great extent and the intention

of the accused does not need to be proved at all.

Therefore, the observations of the researcher in Part I of this paper hold true insofar as the NDPS

Act is concerned. Further the case revolves around the ability of the accused to prove that the

contraband did not belong to him. There is no question of mens rea (whether the accused had the

intention of possessing it), in any criminal case both actus reas and mens rea have to be proved

to hold an accused guilty. Mens Rea is done away with to a great extent.

The presumption of innocence, which is observed to be a very important part of criminal

jurisprudence, is also eroded to an extent. As observed by Peter Lewis, “[p]lacing burdens on the

accused makes them presumptive criminals”.39 In the case of s. 35 of the NDPS Act which places

the burden of proof on the accused beyond reasonable doubt to show that he did not have the

culpable mental state necessary, even if there is a doubt in the mind of the court as to the guilt of

the accused, the benefit of this doubt will go to the prosecution and not to the defence. There is

no presumption of innocence, as is observed in the criminal jurisprudence. Hence it can be said

that presumption of innocence has been eroded to a certain extent.

The Prevention of Corruption Act, 1988

S. 20 of the PCA deals with presumption to be raised if it can be shown that “an accused person

has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any

other person, any gratification (other than legal remuneration) or any valuable thing from any

person……”. The presumption arises of an element which is found in s. 7 and runs through most

of the offences in the Act. The courts have held that for this presumption to arise what needs to

37 Mayil Vahanan v. Intelligence Officer, Narcotic Control Bureau, MANU/TN/8799/2006.38 Even in the case of Noor Aga v. State of Punjab, MANU/SC/2913/2008, the Supreme Court observed that ss. 35 and 54 of the NDPS Act had an effect on the legal burden of proof. It, however, held that this effect was justified. 39 Peter Lewis, “The Human Rights Act 1998: Shifting the Burden” 08 Criminal Law Review 667, 667 (2000).

be shown is the acceptance by the accused of the gratification and that such gratification did not

amount to legal remuneration.40 The presumption is a mandatory presumption which means that

if the primary fact is proved, the court does not have discretion to decide whether the secondary

fact should be presumed or not.41 The standard of proof required under s. 20 of the PCA is

preponderance of probabilities.42

Even in the case of the PCA, the judiciary has tried to make the presumption fairer to the accused

by increasing the primary facts which have to be proved by the prosecution.43 It is submitted that

the judiciary has followed a wrong interpretation in this. The decision which is relied on for

saying that demand and acceptance of gratification are also to be proved, beyond proof of

recovery of such gratification from the possession of the accused, is the case of Ramjanam Singh

v. State of Bihar44, which did not make any reference to any presumption. Subsequently, in

Union of India v. Purnandu Biswas45, where the appellant was charged under s. 13(1) (d) read

with s. 13(2) of POCA and therefore, s. 20 was not attracted at all, court (relying on Ramjanam

Singh wrongly) unnecessarily observed that demand of illegal gratification has not been proved.

This was taken to be authority for this point in the case of Om Parkash v. State of Haryana46,

where the court otherwise held that s. 20 was not attracted at all. The right interpretation of s. 20

is for the prosecution to have to prove somehow, through proof of possession or recovery of the

gratification from the accused, the acceptance of such gratification and then for the accused to

rebut such presumption by raising reasonable doubt about the demand and acceptance of such

40 Mohmoodkhan Mahboobkhan Pathan v. State of Maharashtra, AIR 1998 SC 2360; Madhukar Bhaskarrao Joshi v. State of Maharashtra, AIR 2001 SC 14741 M. Narsinga Rao v. State of Andhra Pradesh, AIR 2001 SC 318.42 Arun v. State of Maharashtra, MANU/MH/1899/2002.43 It is submitted that the judiciary has followed a wrong interpretation in this. The decision which is relied on for saying that demand and acceptance of gratification are also to be proved, beyond proof of recovery of such gratification from the possession of the accused, is the case of Ramjanam Singh v. State of Bihar, AIR 1956 SC 653, which did not make any reference to any presumption. Subsequently, in Union of India v. Purnandu Biswas, (2005) 1 SCC 576 where the appellant was charged under s. 13(1)(d) read with s. 13(2) of POCA and therefore, s. 20 was not attracted at all, court (relying on Ramjanam Singh wrongly) unnecessarily observed that demand of illegal gratification has not been proved. This was taken to be authority for this point in the case of Om Parkash v. State of Haryana, AIR 2006 SC 894, where the court otherwise held that s. 20 was not attracted at all. The right interpretation of s. 20 is for the prosecution to have to prove somehow, through proof of possession or recovery of the gratification from the accused, the acceptance of such gratification and then for the accused to rebut such presumption by raising reasonable doubt about the demand and acceptance of such gratification. Then, it would be incumbent upon the prosecution to show such demand and acceptance.44 AIR 1956 SC 653.45 (2005) 1 SCC 576. 46 AIR 2006 SC 894.

gratification. Then, it would be incumbent upon the prosecution to show such demand and

acceptance.

In fact, the Supreme Court, going against all prior precedent, held in the case of V. Venkata

Subbarao v. State,47 that even though recovery of money from the possession of the accused had

been established, since the demand had not been established, the presumption could not be

invoked.

The researcher believes that in the case of the PCA, the reverse onus is much more reasonable

than that placed by the NDPS Act. One reason for this is the lesser standard of proof of

preponderance of probabilities. Further, in this case, it is reasonable for the legislature to have

put this reverse onus since the offence of corruption eventually comes down to the word of the

complainant against that of the accused and the prosecution does not have much material to show

who should be trusted. In such a scenario, the accused can be asked to prove that he did not

receive such gratification for any of the reasons listed out in s. 7 of the PCA. However, in the

case of NDPS, there are other parties involved from who the contraband would have been

procured or who would be involved in the transaction; there is existence of other circumstances

which can be used to show the intention of the accused.

47 AIR 2007 SC 489.

Conclusion

The researcher believes that there is no going back in including reverse onus in the criminal

jurisprudence of the country. However, efforts should be made to ensure that any erosion of the

presumption of innocence is kept to a bare minimum and there are reasons which justify the

insertion of such clauses in economic offences. While it is true that economic offences affect the

society as a whole, this alone cannot be a reason to impose blanket-burdens on the accused

which are sometimes trying for accused.

One way of ensuring this is to keep the doctrine of proportionality, which has been implemented

in the United Kingdom, in consideration. The gravity of the offence, the urgency to curtail it,

quantum of punishment, whether the presumption relates to an essential element of the crime,

whether the facts are within the peculiar knowledge of the accused,48 the role of the prosecution

and whether such facts can be proved by the prosecution49 are factors which should be

considered by the legislature while inserting a reverse onus clause in a statute. Further, the

researcher believes that any clause which puts the burden of beyond reasonable doubt on the

accused cannot be justified as it leaves not even a trace of the presumption of the innocence,

which is so sacrosanct in criminal jurisprudence. The burden might not be totally shifted to the

accused but the burden is more on him when compared with other criminal cases. The gravity of

the offence might justify such shift, but it should not result in completely shifting the burden on

the accused.

While, reverse onus clauses cannot be ignored and though no mathematical equation is possible

to see whether they should be present and to what extent, relevant considerations should be kept

in mind by the Legislature when such clauses are inserted.

48 Supra note 22, at 93.49 Supra note 9, at 97.

Bibliography

ARTICLES

1. Peter Lewis, “The Human Rights Act 1998: Shifting the Burden” 08 Criminal Law Review 667 (2000).

2. Pooja Garg, “Shifting Trends in Burden of Proof and Standard of Proof” 17 Student Advocate 38 (2005).

BOOKS

1. Adrian Keane, The Law of Evidence (6th edn., 2006, New York: Oxford University Press).

2. Colin Tapper, Cross and Tapper on Evidence (9th edn., 1999, London: Butterworths).

3. Gopi Nath, Sir John Woodroffe and Syed Amir Ali’s Law of Evidence Vol. 3 (16th edn., 1996, Allahabad: The Law Book Company (P) Ltd.).

4. Ian Dennis, The Law of Evidence (3rd edn., 2007, London: Sweet and Maxwell).

5. Muhammad Monir, Principles and Digest of the Law of Evidence (12th edn., 1999, Allahabad: The University Book Agency).

6. Peter Murphy, Murphy on Evidence (9th edn., 2005, New York: Oxford University Press).

7. Vepa P. Sarathi, Law of Evidence (6th edn., 2006, Lucknow: Eastern Book Co.).

8. Yeshwant V. Chandrachud and Alladi Kuppuswami, Ratanlal and Dhirajlal’s Law of Evidence (20th edn., 2004, New Delhi: Wadhwa and Co.).

MISCELLANEOUS

1. Law Commission of India, 47th Report on the Trial and Punishment of Social and Economic Offences (1972).