Kamali Begum vs The State of Assam

K.N. Saikia, J.—The Petitioner impugns the judgment and order convicting her u/s 4 of the Assam Liquor Prohibition Act and sentencing her to rigorous imprisonment for three months and a fine of Rs. 100/-, in default, for further period of ten days.

Mr. J.M. Choudhury, the learned Counsel for the Petitioner, submits that the learned Courts below erred in holding that the Petitioner was in possession of the liquor seized in as much as the Petitioner was not in conscious possession of the liquor seized. Mr. P.C. Gayan, the learned Public Prosecutor refutes the submission pointing out that P.Ws. 2 and 3 deposed that the Petitioner was found selling liquor.

At the trial court the prosecution examined four witnesses while the defense did not examine any witness and her plea was that she was caught while she was going out for a walk with her children.

P.W. 4 is the S.I. of Police who detected the case and submitted the offence report. In the offence report it was stated that the Petitioner was caught red banded while selling illicit country liquor. In the F.I.R. lodged by him it was stated that the Petitioner was found selling illicit country liquor in front of a railway quarter. Before the Court he deposed that when he, with four constables including two C.I.D. constables approached the place, the persons who were taking liquor field away and the neighboring people told him that the Petitioner was selling liquor; but none of those neighboring people has been examined. P.W. 1, Subhas Chandra Mallik, is a resident of the Railway colony. He deposed before the Court that he saw a number of people assembling at the residence of the Petitioner and on being called by police ho went there and there he saw outside the Petitioner house a tube and some bottles lying on the ground, the police seized those articles and he signed the seizure list. He did not implicate the Petitioner with any sale of liquor. P.Ws. 2 and 3 are the two C.I.D. constables. P.W. 2 deposed that while going to the Petitioner''s residence with P.W. 4 he saw the Petitioner selling liquor. P.W. 3 also deposed to the same effect, But curiously enough the version of P.W. 2 and 3 materially differed from that of P.W. 4 who was the officer leading the party. They also differed from P.W. 1 who was a resident of the Railway colony to be called as a witness. Though these two witnesses deposed to have been the Petitioner selling liquor none of the persons purchasing liquid could be caught and there is no mention of any money being recovered from the person of the Petitioner. On the other hand P.W. 4 clearly stated that the Petitioner was found standing in front of her house and a tube, the bottles and the glasses were lying about 4/5 steps'' away which would come to about 7/8 feet. It is not the evidence that she was seen running away from the place where the tube and the bottles were lying, nor is there any evidence to show that she was sitting or standing at any other place. Under such circumstances the question whether the liquor was in her conscious possession or not would be a very pertinent question. It has been held in Patel Jethabhai Chatur Vs. State of Gujarat, that whether a person is in possession or not must depend on the facts and circumstances of each case. Their Lordships observed that it cannot be gainsaid that even a person who participates in a drinking party can in conceivable cases be guilty of the offence of the possession of liquor. Suppose a person is found at a drinking party and he has a glass with him with liquor in it at the time when the raid is carried out, it would be correct to say that he was at the relevant time in possession of liquor. The liquor in his glass would be liquor in his possession. But at the same time it would not be correct to say that merely because a participant in a drinking party can stretch his hand and take liquor for his use and consumption, he can be held to be in possession of liquor. The question is not whether a participant in a drinking party can place himself in possession of liquor by stretching his hand and taking it but whether he is actually in possession of it. Possession again must be distinguished from custody and it must be conscious possession. If, for example, a bottle of liquor is kept by some one in the car or house of a person without his knowledge, be cannot be said to be in possession if the bottle of liquor. It cannot, therefore, be laid down as an absolute proposition that whoever is present at a drinking party must necessarily be guilty of the offence of possession of liquor and much be charged for such offence. Whether an accused is in possession of liquor or not must depend on the facts and circumstances of each case, Similarly in Ram Rattan Vs. State of Punjab, their Lordships stressed that possession means conscious possession, and when the opium was recovered the Appellant was not present even in the vicinity of the house much in the house itself be could not be held guilty and his conviction was not aside.

In the instant case the evidence of P.Ws. 2 and 3 was contradictory to that of P.W. 4 who was the officer leading the party and also P.W. 1. When the people who were taking liquor ran away if the Petitioner was selling liquor she would also have seen running away, but there is no evidence to that effect nor she was found holding any bottle or glass. She was found standing 4/5 steps away and the glasses and the tube were not within her arms length. There is evidence to show that the place of selling was in front of her house and she was standing in front of her house. This being the evidence on possession, though both the learned courts below concurrently held that the Petitioner was found in possession the finding is not sustainable because she should not be held to be in possession but also in conscious possession thereof. Under these circumstances she could not be held to have been in conscious possession of the liquor sewed by P.W. 4. This being the position when the courts below have erred in drawing inference from the facts as to whether the Petitioner was in conscious possession or not and when the inference has been wrongly drawn it would be amenable to revision and it would be with in jurisdiction of the revision Court to set aside the rending and hold that the Petitioner was, under the above circumstance not in conscious possession and, as such, not liable under Section. 4 of the Assam Liquor Prohibition Act. For the above reasons the Petitioner''s conviction and sentence must be set aside which I hereby do. She 13 acquitted of the charge. The Petitioner is stated to be on bail. She is discharged from the bail bond. The Petitioner is allowed and the Rule made absolute.