Pratap Singh and Another vs State

J.N. Wazir, C.J.—Partap Singh and his son Inder Singh were convicted u/s 48 of the Excise Act by Sub-Judge Magistrate, First Class

Jammu and were sentenced to undergo three months rigorous imprisonment with a fine of Rs. 100/- and in default of payment of fine to undergo

one month's further rigorous imprisonment each. On appeal the learned Additional Sessions Judge maintained the conviction of the accused but

remitted the remaining portion of sentence in the case of Partap Singh who is an old man of nearly seventy years whereas the sentence passed on

Inder Singh was upheld. The accused have come up in revision to this Court against the order of the Additional Sessions Judge.

The prosecution case briefly stated is as follows. On 1-10-1957, Abdul Hamid Khan Excise Officer, Mr. Harbans Lal City Magistrate, Jammu

accompanied by a number of Police constables went to Bhor Camp at about 6 a.m. and houses belonging to some of the inhabitants of the Camp

were guarded by the Police. They entered the house of the accused and conducted search therein. There were two more ladies and a small child in

the house. From the room a Patila, four bottles, two half bottles, one Kupi of tin and one rubber tube, all full of illicit liquor weighing 3½ gallons

and one earthen pitcher and two tins full of Lahan were recovered from the search of the house. All these containers were seized and sealed there

and then the accused were challaned.

The defence of the accused was that their house was not searched and no recovery was made therefrom. The prosecution produced Mr.

Harbans Lal Magistrate who deposed that the accused admitted before him that the house belonged to them. From the evidence of Abdul Hamid

Khan Excise Officer and Mr. Hukam Chand it appears that the Patila, bottles, Kupi, a tin and a rubber tube contained illicit liquor. On the basis of

the recovery from the possession of Partap Singh and his son Inder Singh conviction u/s 48 of the Excise Act was recorded against them and they

were sentenced as stated above.

In this revision application the learned Counsel appearing on behalf of the accused has argued that the search was not conducted strictly in

accordance with the provisions of Section 103 of the Cr. P. Code; that the evidence of Mr. Harbans Lal Magistrate 1st class should not be relied

upon in view of the fact that he was a member of the party which had gone to search the houses in Bhor Camp; and that the house did not belong

to the accused and there is no evidence to substantiate the ownership of the house. Lastly it was argued that the utensils containing illicit liquor were

alleged to have been recovered from the possession of Partap Singh but as there is no proof that either Partap Singh or Inder Singh was in

possession of the liquor, therefore, neither of them can be held guilty u/s 48 of the Excise Act.

I shall deal with these arguments perseriatim.

As regards the search under the Excise Act, Section 32 provides that all searches under the provisions of this Act shall be made in accordance

with the law relating to Cr.P. Code for the time being in force in the State. Section 32 has been subsequently amended and the amended section

reads as under:

All searches under the provisions of this Act shall be made in accordance with the Criminal Procedure Code 1898 provided that for the purpose of

conducting searches under this Act for the words ""inhabitants of the locality in which the place to be searched is situate"" occurring in Section 103

of the said Code the words ""respectable persons"" shall be deemed to have been substituted.

It is, therefore, not necessary to conduct search in presence of the inhabitants of the locality as has been provided u/s 103, Cr.P.C. It is enough if

the search is conducted before respectable persons.

We have to see whether or not in the instant case the search was conducted in presence of respectable persons. There was the City Magistrate

present at the time the search was conducted and also there was an Excise Inspector Abdul Hamid Khan and Mr. Hukam Chand before whom

the search was conducted. All these persons are respectable persons and, therefore, it cannot be said that the search was not conducted in

accordance with the provisions of Section 32 of the Excise Act. In presence of respectable witnesses the search of the house in which Partap

Singh and his son Inder Singh were residing was conducted and certain recoveries were made. The question for consideration is whether the

articles recovered from the house were in possession of Partap Singh or his son Inder Singh or in the possession of both.

The learned Counsel for the Petitioners has argued that the prosecution has not proved that the incriminating articles were in possession of both

the accused persons; and therefore it cannot be said whether they were in possession of Partap Singh or in the possession of his son Inder Singh.

In order to prove that the utensils containing illicit liquor were in possession of both the accused it was necessary for the prosecution to establish

that Inder Singh was conscious of the fact that the utensils contained illicit liquor and that he had control over those utensils. Similarly it should have

been proved that Partap Singh was conscious of the fact that the utensils contained illicit liquor and also he had physical control over those utensils.

Then alone it can be said that Inder Singh as well as Partap Singh had possession of the utensils containing illicit liquor.

The learned Advocate General has argued that in the present case the father and son together with two ladies were sleeping in the same room

wherefrom certain utensils containing illicit liquor were recovered and, therefore, u/s 57, of the Excise Act it should be presumed that both the

father and the son were jointly in possession of the incriminating articles and it was for them to give a satisfactory account of their innocence.

u/s 57 of the Excise Act it is necessary for the prosecution first to establish that the incriminating articles have been recovered from the

possession of the persons who have been charged with an offence u/s 48 and after having proved that the possession of the incriminating articles

was of the persons charged it is for the accused persons to show satisfactorily that they are not liable u/s 48.

In the present case the possession of these articles is in dispute. It is not clear whether Partap Singh alone was in possession or his son was in

possession of the articles or whether both of them were in possession of the articles which were recovered from the room. The probability that

Inder Singh was completely unaware of the contents of the tin and other containers found in the room cannot be excluded and therefore, it cannot

be said that he was in possession of the illicit liquor. Similarly it may be that Inder Singh or any one of the ladies may have kept these utensils

containing illicit liquor in the room. Partap Singh may not have known about it. Therefore it is difficult to say whether the possession of the

incriminating articles was that of Partap Singh or of Inder Singh.

Reliance has been placed by the Advocate General on certain rulings of Indian High Courts to show that if incriminating articles have been

recovered from a room in which members of the family are residing, then the Karta of the family is held to be in possession of those incriminating

articles He has referred to Hirdey Ram Vs. Emperor, in which it is laid down that in case of unlicensed arms found at a place belonging to the

family but not in use or occupation of a particular individual of the family the possession or control must be deemed to. be with the manager and

not with other members of the family. Another case relied upon by the learned Jwala Vs. Emperor in which a twelve inch pistol was found in a

Kothri occupied by the accused and his sons and their wives and it was hold that all the accused must have been aware of the presence of the

pistol and therefore in possession of that pistol.

In these cases it is clearly laid down that every case must be decided on its own facts. It may be that in these cases there may be some

evidence to show that all the persons occupying the kothri had knowledge and control over the article recovered from the Kothri and therefore the

recovered article was held to be in the possession of all the persons present in the Kothri. But in the present case there is no evidence to show that

Inder Singh was aware of the contents of the tin and other containers recovered from the room and that he had exclusive control over those

articles. In the absence of any such evidence it cannot be said that Inder Singh who may be a casual visitor to the house of his father was in

possession of the incriminating articles. In these circumstances the rulings relied upon by the Advocate General have no application to the present

case.

The evidence produced by the prosecution in this case does not satisfactorily and without any manner of doubt prove that the accused were

jointly and consciously aware of the possession of the incriminating articles. Unless it was proved that both the accused persons were conscious of

the fact that the tins and other containers contained illicit liquor and also they had physical control over these articles they cannot be held to be in

possession of the incriminating articles.

Reliance may be placed on State v. Vora Sarafalli Allibhai AIR 1953 Sau. 155 in which it is laid down that in order to sustain a conviction u/s

19(f) of the Arms Act on the ground that the accused was in possession of unlicensed arms or ammunition, it must be shown that his possession

was a conscious possession accompanied by the necessary mens rea or intention to possess them and with intent to protect them against others.

There must be 'mens rea' and 'animus' accompanying possession. If the conviction of the accused is based on the ground that the unlicensed arms

or ammunition were under his control it must be shown that he had such power over them that he could direct their custody, production, use or

disposal in some manner though he may not be in actual possession.

In the instant case the prosecution had failed to show that the accused were in conscious and exclusive possession of the incriminating articles.

In these circumstances I allow this revision application and giving the benefit of doubt to the accused acquit them u/s 48. Inder Singh accused is on

bail. His bail bonds shall stand cancelled. The fines, if paid, shall be refunded to the accused.