MADHAVI Vs. STATE OF KERALA
LAWS(KER)-1963-6-22
HIGH COURT OF KERALA
Decided on June 28,1963

MADHAVI Appellant
VERSUS
STATE OF KERALA Respondents




JUDGEMENT

Anna Chandy, J. - (1.)THIS revision petition is against the order of the District Magistrate, Tellicherry dismissing an appeal filed by the petitioner against the conviction and sentence passed on her by the Sub -Magistrate, Cannanore for offences under the Madras Prohibition Act. The case against her was that on 20 -8 -1961 the police recovered from the house where she and her husband were residing, materials and apparatus used in distilling arrack as well as considerable quantities of arrack and fermented toddy. Both the wife and the husband were charged with the offences punishable under Sections 4 (1) (a) and 4(1) (g) of the Madras Prohibition Act. The learned Subordinate Magistrate of Cannanore convicted and sentenced them each to a concurrent term of two months' rigorous imprisonment and a fine of Rs. 200/ -. On appeal the learned District Magistrate, Tellicherry, while upholding the conviction against the petitioner acquitted her husband accused 2 on the ground that as he was not present it the house at the time of the search and as he has two wives and there is no evidence to show with which one of these he was permanently living he cannot be held to have been in constructive possession of the contraband found in the house owned by the petitioner.
(2.)THE evidence that the petitioner permanently resides in the house from where the articles were recovered and that her husband has another wife living in another house has been accepted by the lower courts. It is also not disputed that the petitioner's husband was not present in the house at the time of the search. The only question is whether the recovery of the contraband articles from the house would make her liable for possession of those articles.
The learned defense counsel most strongly urged that it is not the petitioner, but her husband who as the head of the family should be considered to have been in possession of the articles recovered from the house. A number of cases were cited before us both for and against this position. Most of the case law on the subject of constructive possession has been considered in the case reported in In Re Wahib Basha (A. I. R. 1961 Madras 162). After analyzing the various cases referred to the learned Judge observes that:

Where an incriminating article is recovered from a house jointly occupied by several persons, three views have been taken by various courts on the question of its possession. (1) If several persons jointly occupy a house all of them are liable for conviction for incriminating articles recovered from that house; (2) if several persons jointly occupy a house and it cannot be shown in whose exclusive possession the incriminating articles were, none of those persons is liable; and (3) if several persons occupy a house then the head of the house is responsible for incriminating articles recovered from it unless it is shown that one of the other occupants had exclusive possession of them.

The difficulty in reconciling the various views on presumptive possession would be reduced somewhat, if we consider why it is that such a presumption is made. The reason is simply that normally it is the will of the head of the family that must prevail in the house. It is common experience that if the head of the family desires that a certain article should not remain in the house he will see to it that it is removed, that if he desires that it should remain it will remain even if other members of the family protest against its presence. In other words the head of the family could wield his authority to see that the article either remains in his house or is removed from there according to his will. So if prohibited articles are found in the house one could justifiably assume that the head of the household was responsible for their presence. Thus responsibility is the concomitant of authority. If authority be the criterion, then it is clear that the presumptive possession of the articles found in a house should attach itself to the person who wields effective control over the household not merely to the nominal head of the family. As an illustration we may take the case of an old man of no independent source of income living with his adult son who looks after his needs. Now if this son brings contraband into the house against the wishes of his father he latter will have no real power to have them removed. In such a case it would not be proper to raise the presumption of possession against the father and call upon him to rebut the presumption for no reason other than that he is in theory he head of the family while the son escapes all liability for no reason other than that his father is living with him. Again, if in the above instance the father had his own source of income and was in a position to exert his will it is unlikely that he would meekly submit to his son's wishes. Without speculating on the probable outcome of such a clash of will we think it will be reasonable to say that if the contraband still remain in the house the presumption of possession may with justification be raised against both of them., So it seems to us in cases where the facts warrant it, a presumption of possession of the article recovered from a house may be raised against such members of the household as are in a position to control its affairs provided they were aware of the presence of the offending article.

(3.)IN the present case we feel there is enough evidence to justify the learned Magistrate's view that the petitioner should be presumed to be in possession of offending articles recovered from her house. Though she is not proved to be the owner of the house, there is no dispute that she was permanently residing there and was present at the time of the recovery. Her husband has also another wife living in another house and he could at best be only a frequent visitor to the petitioner's house. He was also not present at the time of recovery. Under these circumstances we feel that her control over the household is such that the presumption of possession could be raised against her. The question whether it should have been raised as regards her husband also need not be considered here as his acquittal has not been questioned before us. However we would like to point out that the decision of this Court reported in Sukumaran v. State of Kerala (1961 K. L. T. 584) on which the learned Magistrate seems to have relied in support of his order of acquittal has no application to the facts of this case. In Sukumaran v. State of Kerala the husband was acquitted as he could not be presumed to have had knowledge of the contraband recovered from a locked box the key of which was with his wife. The petitioner cannot claim to have been unaware of the presence of the offending articles in her house as a good portion of the articles (5 bottles and two gallon jar of arrack) was recovered from inside the central room, a place she could not have overlooked. Indeed her only defense was that the articles were recovered not from the house, but from near the compound fence where they were secreted by her enemies. This claim has been found against and rightly so by both the courts. In the result the conviction and sentence are confirmed and the revision petition is dismissed,
Govinda Menon, J.

: -I agree with the judgment prepared by my learned brother, but wish to add a few words.

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