Babuchand Teli vs Emperor

Rowland, J.—The petitioner has been convicted u/s 47(a), Bihar and Orissa Excise Act, and sentenced to three months'' rigorous imprisonment and a fine of Rs. 50. His appeal to the Sessions Judge has been dismissed and he has moved this Court in revision. The offence alleged was possession of one bottle of illicitly distilled liquor; one labni (earthen pot having a hole at its bottom) and one basket smelling of liquor. They were found not in the residential house of the accused which is a two storeyed building, but in his khand or out-house which is at a little distance from the residential house. It comprises three rooms, so called, but none of them is provided with door-planks and the compound wall of the khand is only breast high.

The defence consisted not in denying the fact that the articles were recovered from the place alleged, but in denying that they were there with the knowledge of the accused and suggesting that they might have been put there by his enemies Bajrangi Kahar and Sitwa Kahar.

The Magistrate was not satisfied apparently that the basket and labni were implements for distillation of liquor and therefore did not convict him in respect of these, but recorded a conviction in respect of the possession of one bottle of illicitly distilled liquor. He rejected the defence on the ground that there was no evidence to show that the exhibits were introduced by Bajrangi and Sitwa.

Of this however it was, in the nature of things, impossible that the accused should be able to adduce direct evidence if they were introduced, as he says, without his knowledge. All that it was possible for an innocent accused to prove was that the articles could have been introduced without his knowledge and that there was a motive for their introduction. The accused gave defence evidence and proved hand-notes executed in his favour by Bajrangi Kahar and by the father of Sitwa and that there had been an altercation between accused and Bajrangi and Sitwa over these debts. Of this part of the defence the Magistrate has not expressed disbelief. One of the witnesses tried to go further and told an unconvincing story about the production of the exhibits before the Sub-Inspector which the Magistrate rejected, no doubt rightly; but he observed:

The onus lies heavily on the accused to prove that he was not in possession of the liquor etc.

In short his view seems to have been that in the circumstances, although it was proved that there was motive and although it was proved that there might have been opportunity for planting, the onus still remained on the accused to prove the actual planting. Some expressions in the judgment suggest that he might have accepted the defence had the room in question been found unoccupied, and that he considered the fact that some articles of the accused were found in the room confirms the prosecution case. This fact in my opinion is not sufficient to negative the defence contention that the articles might have been placed there by an enemy. In Amrit Sonar v. Emperor AIR 1919 Pat 330 the conviction for dishonest possession of counterfeit coins and implements of counterfeiting was set aside where the prosecution had failed to establish that the articles in question could not have been put at the place where they were found by some person other than the accused.

The onus has been I think, misplaced by the Magistrate. It was for the prosecution to prove beyond reasonable doubt or at any rate up to a high degree of probability that the articles had been kept, where they were found, by the accused or with his knowledge. The appellate Court wrongly observed that the recovery of the articles from the accused''s house being admitted the onus was upon him to explain the possession thereof u/s 48, Excise Act. No doubt Section 48 indicates that in prosecutions u/s 47 it may be presumed that the accused has committed an offence in respect of any excisable article etc., for the possession of which he fails to account satisfactorily; but before the presumption can arise procession itself must be proved.

The section does not say and does not mean that possession is to be presumed, and I think it would be wrong to presume accused''s possession in the present case where both motive and opportunity for planting appear to exist. The application is allowed, the conviction and sentence set aside and accused acquitted. The fine, if paid, will be refunded.