Decided on June 23,1950

THE STATE Respondents


Khosla, J. - (1.) THIS order deals with criminal Revisions Nos. 290, 292, 293, 294 and 296 of 1949. The cases have been referred to a Division Bench by Kapur J. as he experienced some difficulty in deciding the nature of possession involved in these cases. The petitions have arisen out of five different exercise cases in which the allegation of the prosecution was that the accused person (in each case) was in possession of a quantity of lahan. In all' cases the lahan had been buried by the accused person. In two cases the lahan was buried out in the fields and in three cases the lahan was buried in a kotha. The point raised before Kapur J. was whether in any of these cases the accused person could be said to have been in possession of lahan which is a contraband article the possession of which is forbidden by law. Kapur J. referred to the definition of possession as given in Stroud's Judicial Dictionary and then concluded as follows: I myself have acme doubt as to whether even where a man buries either an excisable article or some such. prohibited thing in the field of another he will still be in possession of that article within the meaning of that word in Section 61 (1). As this is a matter of some difficulty and is likely to arise in many other cases also at least it does in five connected cases now, I would refer this matter to a Division Bench. It appears from this that only the question of possession was being referred to the Division Bench, but no specific question was formulated by Kapur J. and we decided that it was more proper to hear all the revision petitions on merits and decide them instead of laying down a somewhat vague principle of law defining the nature of possession in such cases and sending them back for decision to the Single Judge once again,
(2.) I find it difficult to lay down a cut and dry principle with regard to the question of possession. The definition of possession as quoted in the referring order of my learned brother Kapur J. is as follows: A moveable thing is said to be in the possession of a person when he is so situated with respect to it that be has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. It is clear that in some cases an article may be said to be in possession of another whether it is lying at his house or had been buried by him out in the fields. In other cases an article lying in a person's house without his knowledge may not be in his possession and the question whether a certain article is or is not in the possession of an individual will depend on not where it is lying, but on a number of other factors which will have to be proved in each individual case. To me it seems that the only safe guide is the definition of 'proved' as given in Section 3, Evidence Act: A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. It is scarcely necessary to mention that there are many reported cases in which articles lying in a field have been held to be in possession of the accused person and as many cases in which such articles have been held not to be in possession of the accused person. The ultimate -decision of this issue must depend on a number of other factory which will go to show whether the article was under the dominion and control of the person concerned or was lying there beyond his control, Therefore, in order to decide whether a quantity of lahan or illicit liquor or illicit arm is or is not in possession of the accused person, the Court will have to consider not merely whether the article is lying at the house of the accused person or at a place accessible to others, but a number of other circumstances the proof of which will persuade the Court to come to the conclusion that the article was in fact under the control and absolute dominion of the person concerned. And it is only from this point of view that I propose to deal with the cases before me.
(3.) CONSIDERING first the case of Lachhman Singh (Criminal Revision No. 290 of 1949) the evidence is that Lachhman Singh made a statement to the effect that he had buried lahan in a field. He then took the raiding party to the spot near the boundary of his field. The spot itself does not lie in his own field but is situated in the field of some one else. From this spot two pitchers of lahan were recovered. In this case, therefore, we have the statement of Lachhman Singh that he had buried the lahan, together with the factum of the recovery of lahan from a field which does not belong to him. Together with these facts we must also take into consideration the circumstance that in this particular village distillation of illicit liquor on a large scale was going on and many persons were alleged to be distilling liquor. An excise raiding party found many pitchers of lahan and the recoveries were made from various places. All the five petitioners before us belong to the same village and were apprehended on the same day. Therefore it is clear that in this village of Pholriwala several persona were distilling liquor and the fact was known to almost all the villagers. Therefore it is possible, nay probable, that Lachhman Singh also knew where the various pitchers of lahan had been concealed by the villagers and it may well be that he gave information relating to the pitchers of lahan belonging to some one else and in that view of the matter it cannot be said that Lachhman Singh was in possession of this lahan. Therefore it cannot be said that the charge under Section 61 (1) has been brought home to him. His petition, therefore, must be allowed and he must be acquitted.;

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