Reverse Burden of Proof: Rebutting Presumptions in Criminal Law

The Author, Gaurav Thote is a Advocate practising in the Bombay High Court.

INTRODUCTION

“Presumption of Innocence” (hereinafter referred to as “the principle”) is one of the fundamental principles of criminal jurisprudence which axiomatically enunciates that an accused is presumed to be innocent until proven guilty. This fundamental principle is underpinned by the maxim ‘semper necessitas probandi incumbit ei qui agit’ : the necessity of proof lies with the person who levels the charges.

The Principle, by default, applies to general and special statutes unless a provision stating otherwise exists in the statute. For instance, exceptions to the principle are contemplated in general statutes like the Indian Penal Code, 1860 by virtue of Sections 111A, 113A & B, 114A etc. of the Indian Evidence Act, 1872. Similarly, certain provisions in special statutes like the Prevention of Corruption Act, Maharashtra Control of Organised Crime Act, Narcotic Drugs and Psychotropic Substances Act, Protection of Children from Sexual Offences Act etc. require the Courts to presume the existence of certain circumstances which point towards the guilt of the accused, thereby carving out an exception to the principle.

For example, Section 35 of the Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS Act) deals with presumption of culpable mental state of an accused requiring the Court to presume the existence of such mental state for a prosecution under the Act. Furthermore, an explanation is provided in the provision which states-

“In this section “culpable mental state” includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact.”

This essentially means that a person charged with an offence under the NDPS Act would have to rebut the presumption against him and the burden of proof would lie on him to show that he has not committed the act constituting an offence.

MERE CHARGE UNDER THE STATUTE ENOUGH FOR THE REVERSE BURDEN/PRESUMPTION TO APPLY?

As I have taken an example of NDPS Act, let us examine, in the backdrop of a past precedent, whether a mere charge under the Act would be enough for the presumption to apply.

In Naresh Kumar v. State of Himachal Pradesh[i], the Supreme Court set aside the conviction imposed by the High Court against the accused who was charged under Sections 20 and 61 of the NDPS Act wherein the allegation against the Appellant was that two kilograms of charas was recovered from a bag in his possession. The Apex Court observed-

“9. The presumption against the accused of culpability under Section 35 and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt….

That the right of the accused to a fair trial could not be whittled down under the Act was considered in Noor Aga v. State of Punjab, (2008) 16 SCC 417, observing:-

“58……An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.

59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.”

10. In the facts of the present case, and the nature of evidence as discussed, the prosecution had failed to establish the foundational facts beyond all reasonable doubt.”

Furthermore, in M/s Seema Silk and Sarees v. Directorate of Enforcement[ii] it was observed-

“Reverse burden as also statutory presumptions can be raised in several statutes as, for example, the Negotiable Instruments Act, Prevention of Corruption Act, TADA, etc. Presumption is raised only when certain foundational facts are established by the prosecution. The accused in such an event would be entitled to show that he has not violated the provisions of the Act.”

Thus, it is pellucid that unless the foundational facts are not established by the prosecution, a mere charge under a statute would not be enough for the presumption to apply.

LEVEL OF PROOF : BEYOND REASONABLE DOUBT?

It is a settled position of law that the prosecution must prove its case beyond reasonable doubt to establish the guilt of the accused. Would this apply to an accused for the purpose of rebutting presumptions?

It would be apposite to refer to the decision of the Supreme Court in Noor Aga’s case which has been referenced in the above-mentioned judgment of Naresh Kumar v. State of Himachal Pradesh along-with the ratio rendered in V.D.Jhingan v. State of Uttar Pradesh[iii] wherein the Supreme Court held-

“It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability.”

In Sachin Kakde v. State of Maharashtra[iv] the Bombay High Court (Aurangabad Bench) set aside the conviction of the Accused charged under provisions of the Protection of Children from Sexual Offences Act observing-

“18. …when a person is prosecuted for commission of the offence specified in the said section, the Court is required to presume that the said person has committed the said offence unless the contrary is proved.

19. The presumption, however, cannot be said to be irrebuttable. Infact, no presumption is irrebuttable in law, as this cannot be equated with conclusive proof. The provisions of section 29 of the POCSO Act mandates the Court to draw the presumption unless contrary is proved.

20. One has to keep in mind, as expressed by an eminent jurist that presumptions are bats in law; they fly in a twilight but vanish in the light of facts.

21. Here, the prosecution case of stupefying the victim is belied by the very video clip. Further, the presumption also stands rebutted in view of the medical examination of the prosecutrix, as detailed supra.”

The above-mentioned decisions are referenced for the sole purpose of manifesting the level of reverse burden of proof imposed on an accused to rebut the presumption.

CONCLUSION

It is often a pre-ordained notion, albeit misconceived, that the aspect of presumption comes into picture merely upon a charge being levelled against a person under a Statute expressly providing for such a presumption. The cumulative effect of past precedents, however, require the prosecution to lay down the foundation and bring sufficient material on record to make out a case against the accused for the presumption to apply. Once the foundational facts are established, the burden of proof shifts on the accused to rebut the presumption. This presumption could be rebutted by various means.

Moreover, the severity of the burden of proof on the accused is not as high as compared to the prosecution. The accused may rebut the presumption by bringing on record sufficient material to establish his case based on preponderance of probabilities.