Khusiram Maharaj vs Emperor

Das, J.—The petitioner has been convicted of an offence under Sec. 9(c) of the Opium Act, I of 1878, and has been sentenced, to pay a fine of Rs. 100. It is admitted that the opium was found on the roof of the petitioner''s cook-room. The question, therefore, arises, can it be said that the petitioner was in possession of the opium ?

Now on this point a passage from the judgment of Sir Lawrence Jenkins in the case of Jogjiban Ghosh v. Emperor (1909) 13 C. W. N. 861 = 2 I.C. 681 = 9 C. L. J. 663 has been cited.

"Now, on this evidence, can it be held consistently with legal principles, that it has been proved that Santosh was in possession of the bomb? It is well-established, and is an elementary rule founded on common sense, that where the place in which an article is found is one to which several persons have equal right of access, it cannot be said to be in the possession of any one of them."

It cannot, in my opinion, be said that the place in which the opium was found is not one to which several persons had equal right of access. If that be so, however the case may stand on law, it must be extremely difficult to convict the petitioner on facts.

I am of opinion that on the whole the conviction ought not to stand. I would set aside the conviction and direct that the fine if paid be refunded.