In Re: Muniammal

Natesan, J.—The accused in this case has been convicted for possession of contraband materials and arrack under S. 4 (1) (a) of the

Madras Prohibition Act, and sentenced to three months rigorous imprisonment and Rs. 15 fine. The case for the prosecution is rested on the

statement of the accused to the police, which resulted in the discovery of pots containing arrack and was relied on under S. 27 of the Evidence

Act. The relevant and admissible portion of the statement is to the effect that the accused would produce the key of the house where the materials

were kept. She did in fact produce the key with which the house in question was opened and the contraband materials discovered. The accused is

not an occupant of the house in question. P.W. 1, the Sub-Inspector of Police, who conducted the prohibition raid, states in his evidence that he

was not aware of who the inhabitants of the house in question were. According to him, the accused went inside her house a different one and

produced the keys. The witness did not know from whom and from where she brought the keys. To the same effect is the evidence of P. W. 2. He

states that the contraband was recovered in the house bearing No. 5/116 and that nobody was residing in the house and that he did not know the

occupants of the house. He had not noticed whether the backside doors of the house were locked in the outside. No doubt the search was made

in the presence of the accused and it is her statement that led to the discovery of the contraband in the house in question. S. 4 (1) (a) under which

the accused is charged runs thus:

Whoever (a) imports, exports, transports, or possesses liquor or any intoxicating drug...shall be punished...

The point for consideration is whether on the evidence set out above, it could be said that the accused was in possession of the contraband. The

learned District Magistrate on the evidence no doubt concludes that the circumstances would show that the appellant was intelligent and conscious

of possession of the large quantity of arrack. The question is whether the offence of possessing arrack has been made out beyond reasonable

doubt and from the facts established, the only reasonable inference is that the accused was in possession of the articles in question. As admittedly

the accused is not the owner of the house and it is not known who are the occupants of the house and as admittedly the accused is not even an

occupant of the house, all that the production of the key can show is that she had access to the house. It can also be said that she had knowledge

of the storing of the contraband there. As regards the knowledge of the presence of contraband, it is not a necessary inference from such

knowledge that she had possession of it. Possession connotes something more than mere knowledge of the presence of the articles there. It may

be that in certain circumstances knowledge of the storage of contraband may lead to an inference of its possession. The question of possession has

to be inferred from all the circumstances of the case.

In Pollock and Wright on Possession in the Common Law at page 64 with reference to passing of keys as transferring possession this is how the

matter is set out:

It is possible that a person may have perfectly real possession (both legal and physical) of things which art in a building that does not belong to him.

If the goods are his and the owner of the building has delivered to him the key with the intention that he shall take the goods when be likes, then he

may have sufficient power over the goods to allow of our saying that he has possession of them...

In Ancona v. Rogers (1876) 1. Ex. Div. 285 Mellish L. J. observes thus:

The delivery of a key is an ordinary symbol used to notify a change in the possession of the premises to which the key gives means of entrance.

The possession i.e., legal possession of premises cannot be changed solely by the delivery of a key, but where the delivery of a key is

accompanied by an act which may amount to a change in possession of the premises, the delivery of the key is strong evidence that it was the

intention of the parties that the possession of the premises to which the key gives the means of entrance should be changed.

On the facts of this case it cannot be inferred that the accused has possession in the light of the principle deducible from the above. The

prosecution witnesses admit that they do not know in what circumstances and from whom the accused got the key. She might have simply to spite

a neighbour of hers to whom the contraband belonged stolen the key, or it may be that she has been put forward by somebody else, to pass on the

key with a view to mislead. They would not pass on to her the possession of the goods, Nothing is shown except her production of the key of the

house where the contraband was stored to connect the contraband with her. On the face of the evidence of the prosecution witnesses that she is

not an occupant there and that they do not know who the occupants of the house are, from the mere production of the key by the accused and her

knowledge of the presence of the contraband in that house it cannot be said that the prosecution has established beyond reasonable doubt that that

she was in legal possession of the contraband. The evidence it consistent with possession being with somebody else.

To warrant a conviction for possession it must be found that she had that possession of it which law could take cognizance of. In my view the

evidence does not warrant such an inference. In the result, the revision succeeds and the accused is acquitted. The fine if paid will be refunded.