ORDER I.A. Ansari, J. 1. In a complaint case, triable as a warrant case', when a Court frames a charge on the basis of the evidence adduced by the prosecution before the stage for framing of the charge was reached, whether such framing of the charge, in itself, would discharge the burden of proof, which, otherwise, rests on the prosecution and would the burden, in such a case, forthwith shift to the accused to disprove the charge if the statute, which creates the offence, makes provisions for raising of legal or statutory presumption against the accused as regards his guilt and, on the burden, being so shifted to the accused, whether it would be for the accused to adduce evidence in order to disprove the prosecution's case or whether the accused can. in such a case, discharge such a legal or statutory presumption by cross-examining the witnesses, who might have been examined by the prosecution before the stage for framing of the charge had reached, as well as those witnesses, whom prosecution may opt to examine after the charge is framed? To put it a little differently, whether the provisions, raising legal or statutory presumption, in a penal statute, would relieve the prosecution of its burden to adduce further evidence if a charge, in a case as indicated hereinbefore, is framed? These are the questions, which this Criminal Petition has raised. 2. The questions posed above bring us, in fact, to some vital, but elementary questions. The questions are: What is statutory or legal presumption? How does the statutory presumption differ from natural presumption or presumption of fact? How statutory or legal presumption can be discharged by an accused? What is the standard of proof required, in a criminal trial, to discharge a legal or statutory presumption? Can statutory or legal presumption be taken to have been discharged by an accused if the accused probabilities his defence by giving reasonable explanation as regards the evidence appearing against him? 3. Before answering the questions posed above, let me set out the material facts, in brief, which have given rise to this criminal petition made under Section 482, Code of Criminal Procedure. These material facts are: (i) A complaint, in writing, was made by the Forest Range Officer, Bhuyanpara Range, which falls under Manas National Park, against the accused-opposite party Nos. 1 to 5. These material facts are: (i) A complaint, in writing, was made by the Forest Range Officer, Bhuyanpara Range, which falls under Manas National Park, against the accused-opposite party Nos. 1 to 5. alleging, inter alia, thus: On the basis of the information received, on 21-3-2009, at about 12.30 a.m. that some persons were carrying 'trophies' with intention to sell, the complainant, along with some forest guards and police personnel, raided the house of one Sailen Talukdar and recovered six wild life 'trophies', namely, one Leopard skin, one Leopard Cub skin, two Bon Row, one Pigmy Hog Cub skin and one Claw Less (Otter). The questioning of the accused-opposite party revealed that the said 'trophies' had been collected by hunting the animals inside Manas National Park. This complaint case gave rise to CR Case No. 751 of 2009. (ii) At the trial, the prosecution examined three witnesses before framing of charge. On the basis of the evidence, so adduced, the learned Sub-Divisional Judicial Magistrate, Barpeta, framed a charge under Sections51(1) of the Wild Life (Protection) Act, 1972 (in short, 'the WL(P) Act') against the accused. The accused-opposite party pleaded not guilty to the charge so framed. Thereafter, the learned Sub-Divisional Judicial Magistrate, Baipeta, fixed the case, on 19.9.2009, for cross-examination of the said three prosecution witnesses (already examined before framing of charge) by the defence and for such further examination of the prosecution witnesses as the prosecution would decide. The accused-opposite party pleaded not guilty to the charge so framed. Thereafter, the learned Sub-Divisional Judicial Magistrate, Baipeta, fixed the case, on 19.9.2009, for cross-examination of the said three prosecution witnesses (already examined before framing of charge) by the defence and for such further examination of the prosecution witnesses as the prosecution would decide. (iii) On the date, so fixed, i.e., on 19.9.2009, which was meant for cross-examination of the said three prosecution witnesses, who had already been examined before charge, and for recording of further evidence, which were to be adduced by the prosecution, a petition was filed by the prosecution contending to the effect, inter alia, that Section 57 of the WL(P) Act lays down that when it is established, in any prosecution, for an offence, under the said Act, that a person is in possession, custody or control of any captive animal, article, meat (trophy, uncured trophy, specified plant or part or derivative thereof), it shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such captive animal, animal article, meat and, hence, when the Court has found that there is a prima facie case against the accused-opposite party and has accordingly framed the charge, the burden of proof that the accused were not in unlawful possession, custody or control of such captive animal, animal article, meat, is upon the accused and a direction be given to the accused-opposite party to adduce evidence to disprove the charge framed against them instead of asking the prosecution to offer its said three witnesses for cross-examination by defence and also for further evidence, if any, to be adduced by the prosecution. The petition, so filed by the complainant, was resisted by the accused by submitting their objection and by its order, dated 20-2-2010, the learned Court below has rejected the complainant's said petition and fixed the case for cross-examination of the prosecution witnesses and also for further evidence of the prosecution. 4. The petition, so filed by the complainant, was resisted by the accused by submitting their objection and by its order, dated 20-2-2010, the learned Court below has rejected the complainant's said petition and fixed the case for cross-examination of the prosecution witnesses and also for further evidence of the prosecution. 4. Questioning the correctness of the finding, so reached on the complainant's said petition, as indicated above, and contending that the refusal by the learned Sub-Divisional Judicial Magistrate to direct, upon framing of the charge, the accused-opposite party to adduce evidence to disprove the charge is nothing, but refusal to exercise the jurisdiction, which stands vested in the learned Sub-Divisional Judicial Magistrate, and, hence, the order, dated 20-2-2010, aforementioned is illegal and may, therefore, be set aside, the complainant has come to this Court with this application made under Section 482, Code of Criminal Procedure 5. I have heard Mr. G. Uzir, learned Counsel for the complainant-Petitioner, and Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam. 6. While considering this criminal petition, it needs to be noted that a person, guilty of an offence under the WL(P) Act, is liable, under Section 51, to be punished with imprisonment for a term, which may extend to three years or with fine, which may extend to twenty-five thousand rupees or with both. In some specified circumstances, the punishment of imprisonment may even extend to seven years. As the offences, under the WL(P) Act, are punishable by imprisonment exceeding two years, a case, relating to commission of such an offence, is, as defined by Section 2(x), Code of Criminal Procedure a warrant case and when such a case arises, out of a complaint, it becomes a 'warrant case instituted otherwise than on police report'. 7. Thus, an offence, committed under Section 51 of the WL(P) Act, being punishable by imprisonment of three years and above, has to be tried, under the scheme of the Code of Criminal Procedure (in short, 'the Code'), by adopting the procedure, which is meant for the trial of a warrant case, instituted otherwise than on police report. The procedure, therefore, for trial of the offence, in question, falls under Chapter XIX of the Code. 8. The procedure, therefore, for trial of the offence, in question, falls under Chapter XIX of the Code. 8. It may, now, be noted that under Section 244(1) of the Code, when, in any warrant case, instituted otherwise than on a police report', the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Section 245(1) states that if, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out, which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. 9. Now, what would happen if the Magistrate considers that the evidence, so adduced by the prosecution, before framing of the charge, would not warrant discharge of the accused? The answer to this question is given by Section 246 of the Code, which lays down the procedure, to be adopted by a Court, when an accused, in a 'warrant case, which is instituted otherwise than on police report', is not 'discharged'. Section 246 of the Code lays down as follows: 246. Procedure where accused is not discharged. - (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. (3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon. (4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under Sub-section (3), he shall be required to be state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. (5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. (6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged. 10. A careful reading of Section 246 shows that if, on the basis of the evidence, which may be adduced by the prosecution 'before framing of the charge', the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX and that he can be adequately punished by the Magistrate, the Magistrate shall frame, in writing, a charge against the accused. 11. From a combined reading of the provisions, contained in Sub-section (1) of Sections 244, 245and 246, what clearly transpires is that in a warrant case, instituted otherwise than on police report, the Magistrate shall, on appearance of the accused and before the charge is framed, hear the prosecution and take all such evidence, as may be produced by the prosecution in support of its case, and, if, upon recording the evidence, so adduced, the Magistrate finds that even if the evidence, so adduced by the prosecution, remains unrebutted, it would not warrant conviction of the accused, the Magistrate shall discharge the accused. In short, thus, before the Magistrate decides as to whether any charge can be framed against the accused or not, the evidence, which the prosecution may seek to adduce in support of its case, has to be brought on record and the question, as to whether charge shall or shall not be framed, has to be decided on the basis of the evidence so adduced by the prosecution. If the evidence shows that the charge would stand proved if the evidence remains unrebutted, charge would be framed. If however, the Magistrate finds that even if the evidence remains unrebutted, the evidence (so adduced) would not warrant conviction of the accused, the Magistrate shall discharge the accused. 12. What, now. needs to be noted is that Section 246 shows that when the accused, in such a case, pleads guilty to the charge framed against him, the Magistrate shall record the plea and may, in his discretion, convict the accused thereon. 12. What, now. needs to be noted is that Section 246 shows that when the accused, in such a case, pleads guilty to the charge framed against him, the Magistrate shall record the plea and may, in his discretion, convict the accused thereon. If, however, the accused does not plead guilty, the Magistrate owes the duty to find out from the accused, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded, in writing, so thinks fit, forthwith, whether the accused wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution, whose evidence has been taken. If the accused says that he does so wish, the witnesses, named by the accused, shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. 13. When read together, what Sub-sections (4) and (5) of Section 246 of the Code lay down is that in a case, triable by the procedure meant for warrant cases instituted otherwise than on police report, when an accused, on framing of charge for an offence, does not plead guilty to the charge, which the Magistrate frames, the Magistrate has to find out from the accused, whether he wishes to cross-examine and if so, which of the prosecution witnesses, whose evidence have already been recorded, and the accused shall be allowed to cross-examine such witness or witnesses, whom he may wish to cross-examine, and such witnesses may even be reexamined by the prosecution if the prosecution so wishes and shall, then, be discharged. 14. After the witnesses, who might have already been examined before the charge and cross-examined after framing of the charge, as indicated above, the Magistrate has the duty to record the evidence of such remaining witnesses of the prosecution as the prosecution may offer and after cross-examination and re-examination, if any, of such witnesses, these witnesses too are to be discharged. On conclusion of the evidence, so adduced by the prosecution, the accused is required to be examined Under Section 313(1)(b) and, thereafter, the Magistrate shall call upon the accused to enter upon his defence and produce his evidence. On conclusion of the evidence, so adduced by the prosecution, the accused is required to be examined Under Section 313(1)(b) and, thereafter, the Magistrate shall call upon the accused to enter upon his defence and produce his evidence. If the accused adduces evidence, such evidence has to be recorded and, then, the Magistrate, upon hearing both sides, has to give his finding by pronouncing his judgment, which would contain both his decision in the case and also the reasons therefore. If, on the basis of the evidence, which may have so come on record or such other evidence as the Magistrate, in exercise of his powers under Section 311 of the Code, may bring on record, the Magistrate finds the accused guilty, the trial would end in conviction. If, however, the Magistrate finds the accused not guilty of the charge(s) framed against him, the trial would end in acquittal. 15. From the procedure as depicted above, what becomes transparent is that in the trial of warrant cases, instituted otherwise than on police report, the Magistrate cannot ask the accused to enter upon his defence and adduce his evidence until the time the witnesses, who may have been examined, before framing of charge, by the prosecution, in support of its accusations made against the accused are allowed to be cross-examined by the accused if the accused, so requires, and also those witnesses, who may be examined by the prosecution after framing of the charge. Thus, it is only after the prosecution closes its case that the Magistrate examines the accused, as is mandated by Section 313(1)(b), and, then, the Magistrate can call upon the accused to enter upon his defence. 16. What is, however, contended, in this criminal petition, on behalf of the complainant-Petitioner, is that once a charge, in a complaint case, triable as a warrant case, is framed, the burden would, at once, shift to the accused to disprove the charge if the statute, which creates the offence, raises a legal or statutory presumption against the accused as regards his guilt and, on the burden having been so shifted to the defence, it is the defence, which has to discharge such legal or statutory presumption by necessarily entering upon his defence and adducing, consequently, his evidence. 17. 17. Is the above proposition of law, which is sought to be advanced, in the present case, tenable in law, is the moot question in this criminal petition? Any attempt to answer this vital question would necessarily require this Court to determine as to what really a legal or statutory presumption is and how and when a legal or statutory presumption can be raised against an accused and how in such a case, the accused can discharge his burden of disproving such a presumption? 18. It may be noted that the statutory presumption, which Section 57 of the WL(P) Act raises, and which forms the subject-matter of controversy in the present case, reads as under: Section 57. Presumption to be made in certain cases. - Where, in any prosecution for an offence against this Act, it is established that a person is in possession, custody or control of any captive animal, animal article, meat, (trophy, uncured trophy, specified plant, or part or derivative thereof) it shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such captive animal, animal article, meat (trophy, uncured trophy, specified plant, or part or derivative thereof). 19. From a patient reading of Section 57, what becomes clear is that where it is established, in any prosecution, for an offence, under the WL(P) Act, that a person is in possession, custody or control of any captive animal, animal article, meat, (trophy, uncured trophy, specified plant, or part or derivative thereof), it shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such captive animal, animal article, meat (trophy, uncured trophy, specified plant, or part or derivative thereof). When a statute provides for raising of presumption as is the case at hand and places the burden of proving the contrary on the accused, how such a presumption would differ from a natural presumption or a presumption of fact and when such a presumption can be taken to have been discharged and what is the mode of discharging the presumption, now, need to be addressed. 20. 20. We need to bear in mind that there is indeed, a difference between the expressions "may presume", on the one hand, and "shall presume" or "It shall be presumed", on the other. When the legislature uses the expression "may presume", such a presumption is called a natural presumption or presumption of fact, which a Court is entitled to raise if the facts of a given case so require. However, when the statute uses the expression "shall presume" or "it shall be presumed", such a presumption is a presumption of law as distinguished from the presumption of fact. In a given case, when the facts established make it a case for raising a presumption of law, it becomes obligatory for the Court to raise such a presumption. Clarified the Supreme Court succinctly this position of the law of presumption, in State of Madras v. A. Vaidyanatha Iyer AIR 1958 SC 61 ), in the following words: 14. ...It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. It may here be mentioned that the legislature has chosen to use the words 'shall presume' and not 'may presume', the former a presumption of law and latter of fact. Both these phrases have been defined in the Indian Evidence Act, no doubt for the purpose of that Act, but Section 4 of the Prevention of Corruption Act is in pari materia with the Evidence Act because it deals with a branch of law of evidence e.g. presumptions, and therefore, should have the same meaning, "shall presume" has been defined in the Evidence Act as follows: 'whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved until and unless it is disproved'. It is a presumption of law and therefore it is obligatory on the Court to raise this presumption in every case brought under Section 4 of the Prevention of Corruption Act because unlike the case of presumption of fact, presumption of law constitute a branch of jurisprudence. 21. It is a presumption of law and therefore it is obligatory on the Court to raise this presumption in every case brought under Section 4 of the Prevention of Corruption Act because unlike the case of presumption of fact, presumption of law constitute a branch of jurisprudence. 21. Thus, while under Section 114 of the Evidence Act, which uses the expression, 'the Court may presume', it is open to the Court to draw or not to draw a presumption as to the existence of a fact from the proof of another fact, the Court, under Section 57 of the UA(P) Act, is obliged to raise the presumption that the accused person's custody, possession, control of the captive animal, etc., is unlawful. In other words, in a case of present nature, the Court has no option, but to raise presumption if the facts, required for raising such a presumption, exist. 22. Coming to the expression, 'unless the contrary is proved", which appears in Section 57 of the WL(P) Act, it needs to be noted that the expression, 'unless contrary is proved', occurring in a penal statute, which makes provisions for raising of legal or statutory presumption, came to be interpreted by the Supreme Court, in Dhanwantrai Balwantrai Desai v. State of Maharashtra, reported in 1964 Cri LJ 437 (SC), and the Supreme Court has pointed out, in this regard, that since the expression used is, 'unless the contrary is proved', what it postulates is that presumption has to be rebutted by proof and not by bare explanation, which may be plausible. 23. It needs to be borne in mind that a fact is said to be proved, according to Section 3 of the Evidence Act. when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In other words, Under Section 3 of the Evidence Act, a fact is said to be proved, when its existence is directly established, or, when the Court, upon perusal of the materials placed before it, finds its existence to be so probable that a reasonable man would act on the supposition that it exists. 24. Thus, by merely offering a plausible explanation, a legal or statutory presumption cannot be discharged. 24. Thus, by merely offering a plausible explanation, a legal or statutory presumption cannot be discharged. The explanation, which an accused offers, can be taken to have discharged a statutory or legal presumption only when the explanation is proved to be true meaning thereby that the Court either believes the explanation as true or finds the explanation so probable that a reasonable man would act on the supposition that the explanation is true. 25. What crystallizes from the above discussion is that while a presumption of fact can be rebutted by an accused by offering an explanation, which is reasonable and plausible, a presumption of law cannot be discharged by explanation alone. What must also be proved is that the explanation, offered by the accused person, is true. 26. Explaining as to what legal or statutory presumption is, and how the explanation, 'until the contrary is proved', has to be understood, the Constitution Bench, in Dhanwantrai Balwantrai Desai 1964 Cri LJ 437 (SC) (supra), observed thus: 12. ...It is well to bear in mind that whereas Under Section 114 of the Evidence Act it is open to the Court to draw or not to draw a presumption as to the existence of one fact from the proof of another fact and it is not obligatory upon the Court to draw such presumption, under Sub-section (1) of Section 4, however, if a certain fact is proved, that is, where any gratification (other than legal gratification) or any valuable thing is proved to have been received by an accused person the Court is required to draw a presumption that the person received that thing as a motive of reward such as is mentioned in Section 161, IPC. Therefore, the Court has no choice in the matter, once it is established that the accused person has received a sum of money, which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration it was legally due to him in some other manner or that he had received it under a transaction or an arrangement, which was lawful. Of course, it is open to that person to show that though that money was not due to him as legal remuneration it was legally due to him in some other manner or that he had received it under a transaction or an arrangement, which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. 27. Presumptions, let us bear in mind, are rules of evidence and do not conflict with the presumption of innocence of the accused, for, the burden, on the prosecution, to prove its case, beyond all reasonable doubt, still remains intact. When the facts give rise to a presumption of law, the prosecution shall be taken to have discharged its obligation to prove its case beyond reasonable doubt. In such a case, the onus shifts to the accused to prove the contrary. 28. When the facts give rise to a presumption of law, the prosecution shall be taken to have discharged its obligation to prove its case beyond reasonable doubt. In such a case, the onus shifts to the accused to prove the contrary. 28. To sum up, when the evidence, adduced in a case under Section 57 of the WL(P) Act, satisfy the Court that the facts, which have been proved by such evidence, are sufficient to hold that the prosecution has proved, beyond reasonable doubt, that the accused had been found in the possession, custody or control of captive animal, etc., the Court must presume that such possession, custody or control of such captive animal, etc., by the accused was unlawful and this presumption can be discharged by the accused not by offering a plausible explanation, but he must also prove that the explanation, offered by him, is true, though it is not required for discharging such presumption that the accused proves his explanation to be true beyond reasonable doubt. 29. The question, now, is as to how an accused can, when charged under Section 51 of the WL(P) Act, discharge his burden that his possession, custody, control of the captive animal, etc., was lawful. This can be done either by eliciting materials from the cross-examination of the complainant and his witnesses or by adducing defence evidence, for, in a given case, the defence may be able to succeed in eliciting, during the course of cross-examination of the prosecution witnesses, sufficient evidence, on record, showing that the explanation offered by the accused is such that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. 30. The Supreme Court happened to consider, in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, reported in (2000) 2 SCC 513 : AIR 2000 SC 821 ) the ambit of Section35 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which raises presumption of culpable mental state. Section 35 reads: 35. 30. The Supreme Court happened to consider, in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, reported in (2000) 2 SCC 513 : AIR 2000 SC 821 ) the ambit of Section35 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which raises presumption of culpable mental state. Section 35 reads: 35. Presumption of culpable mental state - (1) If 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 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 the prosecution. Explanation: In this section "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by preponderance of probability. 31. In Abdul Rashid Ibrahim Mansuri (supra), the Apex Court observed, at para 22, thus: 22. The burden of proof cast on the accused under Section 35 can be discharged through different modes. One is that he can rely on the materials available in the prosecution evidence. Next is, in addition to that, he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in the prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that the Appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence. 32. 32. From a careful reading of what has been observed, in Abdul Rashid Ibrahim Mansuri AIR 2000 SC 821 ) (supra), it becomes transparent that even in the case, where the statute provides for raising of presumption of a culpable mental state, the accused can discharge the presumption by even pointing out, from the evidence of the prosecution itself, that he did not have such culpable mental state as the law requires, or he may elicit answers from the prosecution witnesses by cross-examining them to dispel the prosecution case. Besides these two options, which the accused has, he may even, when called upon to enter his defence, adduce his evidence to prove that his possession was lawful. 33. In the light of the decision, in Abdul Rashid Ibrahim Mansuri (supra), it becomes clear that if the prosecution adduces evidence to show that an accused has been in possession, custody or control of captive animal, etc. the accused may, on the basis of the evidence. 34-35. It has been contended by Mr. G. Uzir, learned Counsel for the complainant-Petitioner, that under the Foreigners Act, Section 9 places burden of proof on the prosecution and requires the proceeded to adduce evidence if the accused denies that he is a foreigner and/or asserts that he is an Indian citizen and that Section 57 of the WL(P) Act shall be treated similarly as Section 9 of the Foreigners Act. 36. A Division Bench of this Court, in Moslem Mondal v. Union of India, reported in 2010 (2) GLT 1, has explained the application and ambit of Section 9. It may be pointed out that a 'foreigner' is defined by Section 2(a) of the Foreigners Act, 1946, to mean a person, who is not a citizen of India. The definition of 'foreigner' is, thus, couched in a negative language. Since it is not possible to prove a negative factor, the legislature, realizing that it would be difficult for the State to prove that a person is not an Indian citizen, has placed the onus on the proceedee to prove that he is an Indian citizen. No wonder, therefore, that Section 9specifically places burden of proof on the person, who is proceeded against on the ground that he is a 'foreigner'. No wonder, therefore, that Section 9specifically places burden of proof on the person, who is proceeded against on the ground that he is a 'foreigner'. There is no provision, in the WL(P) Act, similar to Section 9 of the Foreigners Act and there is justification too, because it is the State, who alleges, in the case of an offence under the WL(P)Act, that the accused has been found in unlawful possession of captive animals, etc., and, hence, it is for the State to prove, beyond reasonable doubt, that the accused was found in possession, custody or control of any of the materials aforementioned. 37. By virtue of Section 57 of WL(P) Act, what the legislature has done is that it has, to some extent, lessened the prosecution's burden in the sense that if the State succeeds in proving beyond reasonable doubt that the accused has been found in possession, custody or control of the captive animals, etc., the Court would presume that such possession, custody or control of the accused was unlawful and it would be, then, for the accused to prove that his possession, custody or control was lawful. How the accused would discharge this burden is the real subject of controversy in this criminal petition. The burden of proof or persuasive burden, in a criminal case, rests on the prosecution. However, when the prosecution proves that the accused has been found to be in possession, custody or control of such captive animal, animal article, meat (trophy, uncured trophy, specified plant, or part or derivative thereof), the Court has no option but to presume that such possession of the accused is unlawful. When such a presumption arises, the onus shifts to the accused to prove that he has been in lawful possession, custody or control of such captive animal, animal article, meat (trophy, uncured trophy, specified plant, or part or derivative thereof), as the case may be. 38. When such a presumption arises, the onus shifts to the accused to prove that he has been in lawful possession, custody or control of such captive animal, animal article, meat (trophy, uncured trophy, specified plant, or part or derivative thereof), as the case may be. 38. Thus, when the prosecution discharges its burden of proving that the accused has been found in the possession, custody or control of such captive animal, animal, article, meat (trophy, uncured trophy, specified plant, or part or derivative thereof), the onus to prove that he was not in unlawful possession of such captive animal, animal article, meat (trophy, uncured trophy, specified plant, or part or derivative thereof), would lie on the accused and this burden can be discharged by the accused by either cross-examining the prosecution witnesses or by adducing evidence in his defence. 39. In both civil as well as criminal cases, the general rule is, as Phipson points out, in 'Phipson on Evidence' (Sixteenth Edition), at page 127, that the party, bearing persuasive burden, will also bear the evidential burden. While persuasive burden does not shift and remains on the party, who asserts in affirmative, evidential burden can keep shifting during trial and may be discharged by the person, who has the evidential burden, by either cross-examining the witnesses of his adverse party or by examining his own witnesses. 40. In the backdrop of the law indicated above, when I revert to the present case, what attract the eyes, most prominently, is that in the case at hand, the prosecution adduced evidence, before framing of charge, by examining as many as three witnesses. On finding that the case calls for framing of the charge, a charge was framed. Once the charge was framed, Sub-section (4) read with Sub-section (5) of Section 246 of the Code obliged the Magistrate to find out from the accused if he wishes to cross-examine any, and, if so, which of the witnesses for prosecution, whose evidence has been taken. As the accused-opposite party sought to cross-examine the witnesses, whom the prosecution had already examined before framing of the charge, the learned Magistrate fixed the case for cross-examination of the said three witnesses and also for examination of such further witnesses, whom the prosecution would like to examine. 41. As the accused-opposite party sought to cross-examine the witnesses, whom the prosecution had already examined before framing of the charge, the learned Magistrate fixed the case for cross-examination of the said three witnesses and also for examination of such further witnesses, whom the prosecution would like to examine. 41. The order, dated 20-2-2010, which stands impugned in this criminal petition, was, thus, in tune with, and in complete compliance of, the letter and spirit of the procedure, which has been prescribed for trial of warrant cases, instituted otherwise than on police report, such as, the present complaint case. 42. Would it have been permissible for the learned Magistrate to order the accused (as the prosecution wanted) to adduce his evidence to disprove the presumption, which, according to the prosecution, ought to have been raised on framing of the charge? The answer to this question has to be an emphatic 'no'. The reason is very simple and the reason is that presumption falls within the arena of appreciation of evidence in order to enable a Court to determine if the prosecution has or has not proved the accusations, which it had made against the accused. The provisions, as embodied in Section 57, requiring the Court to raise a legal or statutory presumption, if certain facts are proved, do not amount to obliterating the procedure meant for trial of warrant cases instituted otherwise than on police report. The statutory provisions, as regards legal or statutory presumption, which Section57 embodies, are merely to help the prosecution prove a case against an accused by laying down that if it is established on the basis of the evidence, which the prosecution adduces, that a person is in possession, custody or control of such captive animal, animal article, meat (trophy, uncured trophy, specified plant, or part or derivative thereof), the Court shall presume that such person is in unlawful possession, custody or control of such captive animal, animal article, meat (trophy, uncured trophy, specified plant, or part of derivative thereof), and this presumption, which, being a statutory or legal presumption, has to be raised by the Court, can be discharged only when the accused proves to the contrary. On raising of the legal presumption as warranted by Section 57 of the UA(P) Act, the burden, which would come to rest on the accused to prove to the contrary can be discharged by the accused, as already indicated above, either by cross-examining the prosecution witnesses, whom prosecution may have examined, before the charge was framed and also by cross-examining those witnesses, whom the prosecution may choose to examine after the charge is framed, or by examining those witnesses, whom the accused may opt to examine, when he is called upon to enter into his defence. 43. In the present case, the learned Magistrate, as already indicated above, was within the ambit of his powers and, in fact, discharged his legal obligation by allowing the accused to cross-examine the prosecution's witnesses, whom the prosecution had already examined before the stage of framing of charge was reached, and after such cross-examination takes place, it would be for the prosecution to decide if it would adduce any further evidence or rest its case for decision and if the prosecution chooses to examine further witnesses, the accused would have the right to cross-examine such witnesses too. Thus, the learned Magistrate acted within his jurisdiction in directing the prosecution not only to produce those witnesses, whom the prosecution had already examined before the stage for framing of charge was reached, but also those witnesses, whom the prosecution may opt to examine (after the charge) in order to sustain the charge framed against the accused. 44. Referring to the case of Jagat Singh Kishor Singh Darbar v. State of Gujarat, reported in (1979) 4 SCC 307 : AIR 1979 SC 857 ) Mr. Uzir has contended, in support of his case, that upon having found that there is prima facie case, made out under Section51 of WL(P), the learned Magistrate, in the present case, ought to have raised the presumption, as provided under Section 57, and ought to have asked the accused-opposite party to disprove the prosecution's case by discharging the presumption. 45. While considering the case of Jagat Singh Kishor Singh Darbar (supra), it needs to be noted that the said case arose out of the prosecution of persons under the Bombay Prevention of Gambling Act, 1887. 45. While considering the case of Jagat Singh Kishor Singh Darbar (supra), it needs to be noted that the said case arose out of the prosecution of persons under the Bombay Prevention of Gambling Act, 1887. The question, before the Supreme Court, was as to whether the prosecution had proved that there was a 'common gaming house' within the meaning of the expression, 'common gaming house' as defined in Section 3. The specific finding of the Courts below, and concurred by the Supreme Court, was that the house, where the betting slips, etc., were found, was a 'common gaming house'. In such circumstances, the case of the prosecution stood proved, because there was no contrary evidence to show otherwise nor had anything been elicited by the defence, from the prosecution witnesses, to show that the said house was not a 'common gaming house' and/or that betting slips, etc., had not been found there. As the instruments of betting had been seized from the 'common gaming house' as aforesaid, the Apex Court pointed out that as Section 7 of the said Act raised presumption that when instruments of gaming were seized at any house, it shall be presumed, until the contrary is proved, that such house, room or place was used as a 'common gaming house' and the persons, found therein, were present there for the purpose of gaming, although no gambling was actually seen taking place either by the Magistrate or by the police or by any person, acting on their behalf or with the authority by them. In the case of Jagat Singh Kishor Singh Darbar (supra), since this presumption, which had arisen against the accused, was not discharged by proving to the contrary, the Supreme Court pointed out that when it is not disputed that instruments of gambling were seized from the premises, in question, and the statutory presumption, having not been discharged by the accused, the accused was liable to be convicted. 46. The decision, in Jagat Singh Kishor Singh Darbar AIR 1979 SC 857 ) (supra), thus, does not lay down the procedure for conduct of trial. What the decision, in Jagat Singh Kishor Singh Darbar (supra), lays down is the fall out of failure of an accused, in a given case, to discharge the statutory presumption. 46. The decision, in Jagat Singh Kishor Singh Darbar AIR 1979 SC 857 ) (supra), thus, does not lay down the procedure for conduct of trial. What the decision, in Jagat Singh Kishor Singh Darbar (supra), lays down is the fall out of failure of an accused, in a given case, to discharge the statutory presumption. The case at hand, therefore, is not akin to the facts of the case, in Jagat Singh Kishor Singh Darbar (supra), where, in terms of the provisions prescribed for trial of warrant cases, cross-examination of the prosecution witnesses had taken place and the Courts had determined, on such cross-examination, the truth, veracity and/or correctness of what they had deposed. In the present case, the prosecution witnesses have not yet been cross-examined, though cross-examination is the most valuable tool in the hands of an accused to prove his innocence in a criminal trial and to discharge the statutory presumption, when such presumption arises. Thus, when cross-examination of the prosecution witnesses is not yet complete, no case for raising the presumption, as envisaged under Section 57, cannot be said to have been made out. 47. In the result and for the reasons discussed above, this criminal petition fails and the same shall accordingly stand dismissed. Petition dismissed.