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TABLE OF CONTENTS
Contents
Table of Contents ............................................................................................................................ 1
Index of Authorities ........................................................................................................................ 2
Indian Cases ................................................................................................................................ 2
Table of Statutes ......................................................................................................................... 2
Introduction ..................................................................................................................................... 3
Aim ............................................................................................................................................. 3
Scheme ........................................................................................................................................ 3
I.
II.
Conclusion .................................................................................................................................... 12
Bibliography ................................................................................................................................. 14
Articles ...................................................................................................................................... 14
Books ........................................................................................................................................ 14
Annexure: Annotated Bibliography .............................................................................................. 15
Articles ...................................................................................................................................... 15
Indian Cases .............................................................................................................................. 16
Page 1
INDEX OF AUTHORITIES
Indian Cases
1. Badshah and Ors. v. State of U.P., (2008) 3 SCC 681
2. Bhoora v. State of Uttar Pradesh, 2009 INDLAW ALL 145
3. Bimla Devi v. Himachal Road Transport Corporation and Ors., 2009 (5) SCALE 706
4. Cholan Roadways Limited v. G. Thirugnanasambandam, AIR 2005 SC 570
5. Gobald Motor Service Ltd. and Anr. v. R.M.K. Veluswami and Ors., [1962] 1 SCR 929
6. Hiten P. Dalal v. Bratindranath Banerjee, AIR 2001 SC 3897
7. Murlidhar and Ors. v. State of Rajasthan, (2005) 11 SCC 133
8. Narendra v. State of Karnataka, AIR 2009 SC 1881
9. Nilamber v. State, AIR 1957 All 381
10. Parminder Kaur v. State of U.P., MANU/SC/1765/2009
11. Rabari Ramji Arjan v. State, 1953 INDLAW GUJ 61
12. Ram Ghulam Chaudhary and Ors. v. State of Bihar, AIR 2001 SC 2842
13. Sawal Das v. State of Bihar, AIR 1974 SC 778
14. Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404
15. State of Chhatisgarh and Ors. v. Dhirjo Kumar Sengar, AIR 2009 SC 2568
16. State of Maharashtra v. Wasudeo Ram Chandra Kaidalwar, (1981) 3 SCC 199
17. State of West Bengal v. Mir Mohammad Omar & Ors., AIR 2000 SC 2988
18. State v. Dhulaji Bavaji, AIR 1963 Guj 234
19. Sucha Singh v. State of Punjab, 2001 CriLJ 1734
20. Vijayee Singh & Ors. v. State of U.P., AIR 1990 SC 1459
21. Zahira Habibulla H. Sheikh and Anr. v. State of Gujrat, AIR 2004 SC 346
Table of Statutes
1. The Food Adulteration Act, 1954
2. The Indian Evidence Act, 1872
3. The Indian Penal Code, 1860
4. The Indian Railways Act, 1989
5. The Negotiable Instruments Act, 1881
Page 2
INTRODUCTION
The section 106 of the Indian Evidence Act, 1872 (hereinafter referred to as Evidence Act) deals
with sifting the onus of proving a particular fact on the accused or when that particular fact is
especially within his knowledge. This section is only applicable once the prosecution has proved
the prima facie case against the accused.1 Hence, it is clear that the section is just an exception
section 101 of the Evidence Act and its applicability does not extend into taking off the legal
burden from the shoulder of the prosecution. Hence the burden which is being talked about in
this section is the evidential burden the onus of proving which can be shifted to the accused. The
researcher shall thus, be proving these various issues and the consequential sub-issues which
may arise during the course of her arguments.
Aim
The aim of this research paper is thus, to examine the scope of section 106 of the Evidence Act
especially in light of its recent developments. The thesis statement which the researcher shall be
proving through this research paper will be that section 106 of the Evidence Act only puts the
evidential burden on the accused and it is not the legal burden which shifts from the prosecution.
Further, the researcher intends to prove that section 106 is just a mere tool to assist the
prosecution rather than a loophole in the law for the prosecution to shirk their responsibility of
proving a criminal case beyond reasonable doubt.
Scheme
Hence, the researcher shall be proving her thesis statement in light of the recent developments by
examining the nature of burden of proof as referred to under section 106 in the first segment of
the paper. Moving on to the micro level the paper examines the need for section 106 and its
correlation with section 101 of the Evidence Act. The first segment concludes by critically
analyzing the role of prosecution in light of section 106. The second segment of the paper
scrutinizes the implications of the term especially within the knowledge as mentioned in section
106 of the Evidence Act.
K. N. Chandrasekharan Pillai, Burden of Proof in Criminal Cases and the Supreme Court: New Trends 25(1-4)
Cochin University Law Review, 407-422 (2001) at 416.
Page 3
I.
In this section of the research paper, the researcher shall be examining case laws to give her
opinion on the type of burden of proof covered under section 106 of the Evidence Act and its
implications. One must first be able to understand section 101 to be able to draw inference of the
meaning of section 106. To be able to further this discussion the meaning of burden of proof
needs to be clarified first.
The burden of proof has two distinct meanings, the first being the burden of proof on pleadings
which and the second being the burden of adducing evidence. While, the first kind of burden
remains on one side throughout the case, the second on may shift as per the need. Hence, it is not
the burden of proof which shifts rather the onus of proof which shifts. 2 Thus, there lies a
distinction between the word burden and onus according to the researcher. The first kind of
burden is the legal burden while the second can be referred to as evidential burden. The legal
burden rests on the party which asserts the affirmative of an issue in the beginning of the trial.3
Evidential burden on the other hand, is the obligation to show, if called upon to do so, that there
is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue with
due regard being had to the standard of proof demanded by a party under such obligation. 4 The
object of placing the evidential burden on the defendant can be seen as a hidden force to make
the accused go into the witness box and give evidence.5
The burden of proof which has been envisaged in section 101 of the Evidence Act is the legal
burden which never shifts from the prosecution. Section 106 is not a proviso to the rule that
burden of proving the guilt of the accused is upon the prosecution but on the contrary, the section
Gopi Nath, Sir John Woodroffe and Syed Amir Alis Law of Evidence Vol.4 (16th edn., Allahabad: The Law Book
Company Pvt. Ltd., 1996) at 2166.
3
Pooja Garg, Shifting Trends in Burden of Proof and Standard of Proof: An Analysis of the Malimath Committee
Report 17 Student Advocate , 38-58 (2005) at 42
4
Cross and Tapper on Evidence (C. Tapper ed., 11th edn., Oxford: Oxford University Press, 2004) at 132.
5
Ibid, at 141.
Page 4
Presumption of Fact
The researcher in this segment will deal with the issue of presumption of fact and its relationship
with section 106 of the Evidence Act. This shall be examined by dealing with a series of cases
which with common factual situation of kidnapping followed by murder. These cases deal with
the core issue of onus of proving murder.11
The researcher after a study of a series of these cases believes that the common point where the
need for section 106 usually arises is when the deceased is kidnapped after which he is taken
away and believed to have been killed. The common thread running through most of these cases
examined involve the question of corpus delicti as a proof of murder. Thus, the two observations
which have been drawn by the researcher is that firstly, the court presumes the existence of
certain facts in such cases to fill the time gap between the kidnapping and the murder in any said
case.12 The role of section 106 in strengthening this presumption has been seen in the case of
Ram Ghulam Chaudhury and Ors. v. State of Bihar13 where it was held that if the prosecution
had succeeded in proving facts from which a reasonable inference could be drawn regarding
death, onus could be shifted on the accused under section 106 to fill the gaps. However in cases
6
Fields Commentary on Law of Evidence Volume IV (G.S. Chaturvedi ed., 12th edn., Delhi: Delhi Law House,
2001) at 3841.
7
Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404.
8
AIR 1963 Guj 234.
9
AIR 1981 SC 1186 at para 15.
10
Bimla Devi v. Himachal Road Transport Corporation and Ors., 2009 (5) SCALE 706 at para 15.
11
See generally, State of West Bengal v. Mir Mohammad Omar & Ors., AIR 2000 SC 2988; Sucha Singh v. State of
Punjab, 2001 CriLJ 1734; Ram Ghulam Chaudhary and Ors. v. State of Bihar, AIR 2001 SC 2842; Murlidhar and
Ors. v. State of Rajasthan, (2005) 11 SCC 133; Badshah and Ors. v. State of U.P., (2008) 3 SCC 681.
12
State of West Bengal v. Mir Mohammad Omar & Ors., AIR 2000 SC 2988 at para 32.
13
2001 CriLJ 4632.
Page 5
Page 6
19
Mir Mohammad case, AIR 2000 SC 2988, para 37 and Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC
404.
20
R.V. Khelkar, Criminal Procedure, (5th edn., Lucknow: Eastern Book Company, 2008) at 337.
21
Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC
22
2009 INDLAW ALL 145
23
See generally, Rabari Ramji Arjan v. State, 1953 INDLAW GUJ 61 and State v. Dhulaji Bavaji, AIR 1963 Guj
234
Page 7
Page 8
II.
The researcher in this segment will via various illustrations in various statutes examine the
phrase especially within the knowledge. In Shambu Nath Mehra v. The State of Ajmer32, the
Supreme Court examined the phrase microscopically further by stating that the word especially
would mean that the prosecution would not be able to know those facts even after exercising due
diligence.33
The other issue which according to the researcher which comes up is whether mens rea of the
accused would fall under his special knowledge. If it is taken to fall under the special
knowledge of the accused then the burden which essentially would be shifting would be legal
burden and not the evidential burden. Since, mens rea forms an essential ingredient in any
criminal offence. Hence, according to the researcher the inability of the prosecution to prove
mens rea and shifting of the burden on the accused under section 106 would clearly be wrong as
the prerequisite of establishment of prima facie case would not have been satisfied.34 Hence,
when similar issue came up before Supreme Court in Parminder Kaur v. State of U.P., it was
30
See generally, Harish B.N., Burden of Proof vis--vis General Exceptions- A Burden on the Prosecution? 6(1)
Student Bar Review, 122-126 (1994).
31
Zahira Habibulla H. Sheikh and Anr. v. State of Gujrat, AIR 2004 SC 346. Justice Pasayat in para 38 of the
judgment: Since the object of the criminal trial is to mete out justice and to convict the guilty and protect the
innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted
under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond
reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and
not by an isolated scrutiny.
32
AIR 1956 SC 404
33
AIR 1956 SC 404
34
See generally, Parminder Kaur v. State of U.P., MANU/SC/1765/2009
Page 9
Bimla Devi v. Himachal Road Transport Corporation and Ors., 2009 (5) SCALE 706.
See generally, Priyadershini Narayanan, The Burden of Proof on the Prosecution: An Excuse for Acquittal
14(4) Central India Law Quarterly, 548-553 (2001).
37
AIR 1957 All 381.
38
AIR 1990 SC 1459.
36
Page 10
39
Page 11
Alibi
The plea of alibi means the physical impossibility of presence of the accused at the scene of
offence by reason of his presence at another place.48 Circumstances leading to alibi are believed
to be within the knowledge of the accused. Thus, he has to prove the same satisfactorily under
section 106.49
In the case of Narendra50 where the husband was accused of murdering his wife he contended
that he had gone to buy milk at the time the murder was committed. The onus of proof under
section 106 is on him to prove the same. Since, his act of being outside the house at that time is
only within his special knowledge.
CONCLUSION
In conclusion, it is submitted that section 106 is not to shift the burden of proving the case but
the shift is only of onus to prove evidence. Section 106 is just a device in the hands of the
prosecution to make ensure that an innocent is not convicted. It may have been tried to be used
by the prosecution to shirk their responsibility is some form but this has not been encouraged by
the courts.
45
It means things speak for themselves. It is a tort law principle used in cases of negligence. The maxim evolved
because in cases of trial by jury the judge could not leave the case to the jury if there was no evidence of negligence.
Hence, in such cases if the plaintiff raised the plea of res ipsa loquitur implying that plaintiff could raise a prima
facie case by using circumstantial evidence, the defendant could not raise the defence before the judge that there was
no evidence. However the plea of res ipsa loquitur can be rebutted by the defendant if he is able to bring sufficient
evidence to do so. Thus, the onus of proof shifts on the defendant in this way. As per Winfield and Jolowicz on Tort
(9th edn., Delhi: Eastern Law House Pvt. Ltd., 1984) at 113.
46
Gobald Motor Service Ltd. and Anr. v. R.M.K. Veluswami and Ors., [1962] 1 SCR 929
47
Cholan Roadways Limited, AIR 2005 SC 570, para 21
48
Supra note 6, at 3872
49
Vijayee Singh & Ors. v. State of U.P., AIR 1990 SC 1459
50
Narendra v. State of Karnataka, AIR 2009 SC 1881
Page 12
Page 13
BIBLIOGRAPHY
Articles
1. Harish B.N., Burden of Proof vis--vis General Exceptions- A Burden on the
Prosecution? 6(1) Student Bar Review 122-126 (1994).
2. K. N. Chandrasekharan Pillai, Burden of Proof in Criminal Cases and the Supreme
Court: New Trends 25(1-4) Cochin University Law Review 407-422 (2001).
3. Peter Lewis, The Human Rights Act 1998: Shifting the Burden (8) Criminal Law
Review 667-673 (2000).
4. Pooja Garg, Shifting Trends in Burden of Proof and Standard of Proof: An Analysis of
the Malimath Committee Report 17 Student Advocate 38-58 (2005).
5. Priyadershini Narayanan, The Burden of Proof on the Prosecution: An Excuse for
Acquittal 14(4) Central India Law Quarterly 548-553 (2001).
Books
1. Bhashyam and Adiga, The Negotiable Instruments Act with Exhaustive Case Law on
Dishonour of Cheques Including Specimen Notices and Complaints (17th edn., New
Delhi: Bharat Law House, 2006).
2. Cross and Tapper on Evidence (C. Tapper ed., 11th edn., Oxford: Oxford University
Press, 2004).
3. Fields Commentary on Law of Evidence Volume IV (G.S. Chaturvedi ed., 12th edn.,
Delhi: Delhi Law House, 2001).
4. Gopi Nath, Sir John Woodroffe and Syed Amir Alis Law of Evidence Vol.4 (16th edn.,
Allahabad: The Law Book Company Pvt. Ltd., 1996)
5. R.V. Khelkar, Criminal Procedure, (5th edn., Lucknow: Eastern Book Company, 2008).
6. Winfield and Jolowicz on Tort (9th edn., Delhi: Eastern Law House Pvt. Ltd., 1984).
Page 14
Indian Cases
Zahira Habibulla H. Sheikh and Anr. v. State of Gujrat, AIR 2004 SC 346
This case has been used to illustrate the fact that purpose of criminal trial is to bring out the
truth and must be conducted under such rules as will protect the innocent and punish the
guilty as per Pasayat J. The issue in this was of improper conduct of trial by the public
prosecutor by not examining the crucial witnesses and acting like a counsel for the accused
and the wrong statement being taken as the FIR. Hence, it was also held that the proof of
charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the
totality of the evidence, oral and circumstantial and not by an isolated scrutiny.
Parminder Kaur v. State of U.P., MANU/SC/1765/2009
This case has been cited in this paper to bring up and examine the issue as to whether section
106 of the Evidence Act can be used by a party to put the burden on the accused to prove the
element of mens rea. This case came up before Supreme Court as a special leave petition.
The issue was with regard to property dispute between two family members, of which one of
them is under section 464 IPC created a false document to acquire the said property.
However, the element of mens rea showing the objective of the accused for such offence
cannot be concluded by the respondent. Thus, the respondent in his submission has put the
onus of proving such objective on the accused Parminder Kaur under section 106.
Narendra v. State of Karnataka, AIR 2009 SC 1881
The appeal before Supreme Court lies on the judgment of High Court holding the accused
guilty of murder under section 498A and 302 IPC. The deceased in this case was the wife of
the accused who was found dead in the bedroom of the matrimonial home. On the statements
given by the family members it was inferred that the couple were not on very good terms.
Pasayat J. in this case held that it is very difficult for the prosecution to prove guilt of the
accused with regard to offences taking place inside the private household if they go by the
strict principle of circumstantial evidence. Hence, in such cases section 106 of the Evidence
Act can be invoked. Since, the accused had filed an appeal stating his alibi that he had gone
to purchase milk and was not in anyway involved with the crime. This case has been cited in
the paper to draw a link between alibi and special knowledge as mentioned in section 106
of Evidence Act.
State of Chhatisgarh and Ors. v. Dhirjo Kumar Sengar, AIR 2009 SC 2568
Page 16
This is a civil appeal. The issue here is with regard to the succession certificate obtained by
an adopted son. This case has been used to show that the burden of proving the fact that he
was adopted was on the respondent as the records were contrary to it.
Bimla Devi v. Himachal Road Transport Corporation and Ors., AIR 2009 SC 2819
In this appeal from the High Court of Himachal Pradesh, the issue was whether the bus
which is said to have killed the deceased constable was indeed involved in the accident or
not. Since, the driver of the bus contended that before he started the bus only he found the
deceased wrapped dead in a blanket. Hence, the court put the onus on the driver and the
conductor under section 106 to prove the same. Thus, this case is one of the cases used by the
researcher to examine what refers to special knowledge under section 106 of Evidence Act.
Badshah and Ors. v. State of U.P., (2008) 3 SCC 681
The accused in this case was charged for commission of kidnapping and murder under
section 364 IPC. There existed old enmity between the accused and the victim and the
deceased while taking the victim away had stated that he would kill him. The issue before the
court was on whom the onus lies to prove the murder as a result, section 106 of the Evidence
Act was examined. Since there were no dead body found the court was of the view that an
inference of a murder of the abducted person could be drawn without having to prove the
murder with the corpus delicti This case has been cited to show the line of recent
developments of cases with regard to use of section 106 of Evidence Act in cases of
kidnapping along with murder.
Ram Ghulam Chaudhary and Ors. v. State of Bihar, AIR 2001 SC 2842
In this case, the appellant was convicted for murder under section 302. The appellant in this
case had brutally assaulted the victim and given chhura blow on the chest after which he
carried him away. The appellants contended that there was no sufficient evidence to prove
murder as the corpus delicti had not been found as a result, there was no proof that the victim
had actually died. However, the state argued that dead body of an individual was not an
essential prerequisite to prove murder. The state then consequentially used section 106 of the
Evidence Act as an argument to contend that no body knew what happened to the victim after
they took him away, thus inferring that it was within appellants special knowledge. Hence,
this case has been used in the paper to reflect upon the necessity for section 106 of the
Evidence Act in light of presumption of fact.
Murlidhar and Ors. v. State of Rajasthan, (2005) 11 SCC 133
This appeal deals with the issue of abduction and murder. The appellants have been
convicted of charges under section 364 and 302 read with 34 of the Indian Penal Code. The
Supreme Court in this appeal has critiqued the decision of High Court for the misuse of
section 106 of the Evidence Act in reaching its decision. This case has been used to show the
true applicability of section 106 lies in the words within special knowledge of the accused
and cannot just be used to fill the gap in the chain of events.
State of West Bengal v. Mir Mohammad Omar & Ors., AIR 2000 SC 2988
Page 17
The issue in this case was of abduction followed by murder. There arose a small gap in the
chain of events.. The abductors were given an opportunity to fill the gap however, on failing
to do so. The court thus drew inference to cover the gap. This case has been used in the paper
to examine the issue of presumption of fact under section 114 along with section 106 of the
Evidence Act.
Sucha Singh v. State of Punjab, 2001 CriLJ 1734
The issue in this case is of kidnapping followed by murder of two boys by a 4 people. There
was no dispute that the deceased were shot dead by somebody on that particular night with
AK-47 rifles. Hence the only point was whether the appellant was one of the murderers. The
case has been used to examine the role of section 106 of the Evidence Act in filling up the
gap in prosecution evidence. Also, it has been used to examine the burden of proof on the
prosecution in that light.
Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404
The accused in this case had obtained Rs.32.12 from the Government as T.A. for two
journeys. He was charged for not travelling at all or if he did, for travelling without a railway
ticket for two journeys. The court in this case examined section 106 illustration (b) as the
state contended that the burden of proving the payment for ticket was on the accused.
However, the court finally did uphold the accuseds argument regarding the impossibility to
remember due to lapse of time. This case has been used to examine the scope and ambit of
section 106 as an exception to section 101 of the Evidence Act as well as link the same with
Railways Act. The case also brings forth the issue of time lapse when examining special
knowledge under section 106 of the Evidence Act.
Nilamber v. State, AIR 1957 All 381
The postman in this case was convicted under section 409 IPC for dishonestly
misappropriating Rs. 30, which he was supposed to disburse. The payee in this case denied
the delivery of the amount. However, the postman stated that he had given the money order
to a boy in the house who had gone inside and got the form duly signed. The prosecution in
this case had proved before the Allahabad High Court that the money order was not given to
Mohan Singh or to the other tenants living with him. Hence, this case has been used to show
the burden on the accused to prove who that boy was since it was within his special
knowledge.
State of Maharashtra v. Wasudeo Ram Chandra Kaidalwar, (1981) 3 SCC 199
The issue in this case is regarding disproportionate assets under section 5(2) read with section
5(1)(e), PCA, 1947. Since the High Court in this case had misinterpreted the burden on
prosecution. The State preferred an appeal against the acquittal of the accused by the
Bombay High Court. This case has been cited to examine the distinction between legal and
evidential burden in light of section 106 of Evidence Act. Further, the case has been used to
examine the extent of burden on the accused which is to only bring out the preponderance of
probability.
Cholan Roadways Limited v. G. Thirugnanasambandam, AIR 2005 SC 570
Page 18
The respondent in this case who was a bus driver met with an accident resulting in the death
of 7 passengers. The appellants contended that the bus was being driven in a rash and
negligent manner. In this case thus, the principle of res ipsa loquitur was held to be
applicable which was not correctly applied by the Industrial Tribunal. As a result, Industrial
Tribunal further failed to apply the correct standard of proof in relation to a domestic
enquiry, which is preponderance of probability and applied the standard of proof required
for a criminal trial. This case has been cited to draw an automatic shift in the burden of proof
on the accused on the applicability of res ipsa loquitur.
Gobald Motor Service Ltd. and Anr. v. R.M.K. Veluswami and Ors., [1962] 1 SCR 929
The bus accident was caused in this case was presumed to be caused due to the negligence of
the driver. But in this case, the driver had rebutted the presumption stating that the accident
was due to the breakage of the rear central bolt of the bus. The High Courts decision in this
case that the accident was not caused by the break in the bolt was upheld by the Supreme
Court. This case has been cited to show how onus of proof shifts on the defendant in the
cases of res ipsa loquitur.
Bhoora v. State of Uttar Pradesh, 2009 INDLAW ALL 145
This case came before the Allahabad High Court as an appeal from the additional Sessions
judge court. In this case, the dead body of the wife and daughter of the accused were found
in his fields. The accused when examined under section 313 Cr.P.C. could not provide a
satisfactory explanation as to his not informing the police on the disappearance of his wife.
The researcher has cited this case to examine the contentions raised by the state with regard
to section 106 of the Evidence Act. This case has been used to examine the shirking of the
responsibility by the prosecution due to insufficient evidence and only circumstantial
evidence.
Rabari Ramji Arjan v. State, 1953 INDLAW GUJ 61
The case which has come before the Gujrat High Court is that the accused was found drunk
and was alleged of behaving in a disorderly manner at Rajkot for which he had been
sentenced to 3 months rigorous imprisonment and a fine of Rs. 500. The accused contended
that the prosecution had not established that the accused had consumed liquor at any place
within the jurisdiction of the Magistrates Court. Hence, the state on the other hand, argued
that the jurisdictional issue need not be proved by the prosecution since it was within the
special knowledge of the accused thus, it would be covered by section 106 of the Evidence
Act. This case has been cited to show the possible misuse of section 106 and prosecutions
attempt to fill lacunae with it.
State v. Dhulaji Bavaji, AIR 1963 Guj 234
The accused in this case was found drunk on the road unable to take care of himself. It was
contended that they presume under section 114 of the Evidence Act that the accused must
have consumed liquor at the very place where he was found by the police, regard being had
to the common course of natural events. The court in this case, held that the Prohibition Act
under which he was charged did not put any burden on the accused to show that he was
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