G.D.Srivastava, J. - (1.) THIS is a revision by two persons, namely, Kedar and Krishna Prasad who were convicted by S. D. M. Handia, district Allahabad under Section 60 of the Excise Act and were sentenced to rigorous imprisonment for one year each. Their conviction and sentence were upheld by the 1st Additional Sessions Judge, Allahabad,
(2.) BRIEFLY speaking the prosecution case was that on receiving information that Kedar (Kedar Nath) applicant was keeping illicit Ganja and liquor at his house, R. A. Tripathi, Excise Inspector raided the premises on the morning of 24-7-1971 in presence of the witnesses. At the time of raid the two appellants were found sitting in a room and were negotiating sale of contraband .Ganja. The Ganja, which was found to be 14 Kg. in weight, was recovered and is marked Ext. 1. It was found to be of Illicit origin after examination and the report is marked Ext. Ka. 2. The prosecution started on a complaint filed by the Excise Inspector. The prosecution relied on the statements of Prem Shanker Tripathi (PW1), R. N. Tripathi Excise Inspector (PW2), Hari Narain Excise Inspector (PW 5), B. N. Mal Excise Superintendent (PW 5) and S. I. Muneshwar Singh (PW 7). The two witnesses of the public, namely, Nazir Khan (PW 3) and Ptool Chand (PW 4) did not support the prosecution case and were treated hostile. The rest of the oral evidence is of a formal nature. Both the appellants denied the search and recovery. Kedar appellant said that there was quarrel between him and the Excise Inspector and that is why he had been falsely implicated. Appellant Krishna Prasad said that he was a Salesman at the licensed shop of Kedar Nath and he had been implicated because he refused to be a witness as desired by the Excise Inspector. Both the courts below believed the recovery of the contraband Ganja from the said premises and it was concluded that the two appellants were in joint possession of the Ganja and therefore both of them were con victed and sentenced as mentioned above. The finding of fact regarding the recovery of the Ganja was not assailed before me and I therefore need not enter into this question of fact. The vital question which arises in this revision is as to whether this contraband Ganja was in possession of both the appellants and if not which applicant was really in possession thereof. The Magistrate did not touch this point and because the recovery was proved, he seems to have presumed that both the persons should be deemed to be in possession. The lower appellate court observed that because the incriminating article was lying at a place where both the appellants were sitting, it could not be said with certainty as to who was in actual possession. But in the opinion of the learned Sessions Judge, because both the appellants knew that this article was there, both of them should be deemed to be in possession of the same. To my mind this approach of the learned Sessions Judge is wrong on the very face of it. If the prosecution failed to estab lish which applicant was really in possession, there was no justification for holding that both of them should be deemed to be in possession. In this particular case, the evidence is to the effect that a talk about the sale of contraband Ganja was going on between these two persons. This being so, it is obvious that both of them could not be in possession of that article. Before the transaction of sale is complete, the article will be deemed to be in possession of the seller and after the completion of the transaction it will become the property of the purchaser. There was no justification for a finding that both the applicants were in possession of the said article only because they knew that this contraband article was there. Before coming to the legal position, I may say a few words atom the facts also. The lower appellate court has already recorded a finding that it was not certain which of the applicants was in possession. PW 1 deposed that both these persons were selling the Ganja which obviously appears to be an absurd statement and cannot lead to any conclusion. PW 2 said that Kedar was heard saying that he would not reduce the rate, but at the same time he also said that could not conclude whether the Ganja belonged to Krishna Prasad or not. Thus even PW 2 could not draw any inference from the talk between these two applicants. I was not referred to any other material on record from which it may be inferred that the Ganja was being sold by a particular applicant. This much is of course clear that a talk of sale was going on. Naturally therefore unless it be proved as to which person was really the seller it would not be possible to say which of the applicants was in actule possession. I have already observed that before sale is complete, possession will be that of the seller. If one of the applicants was the seller and the transaction was not complete, the other man cannot be held liable merely because he was present or because he was negotiating the transaction. It ii needless to say that the charge against the applicants is for possession of Ganja and not for trying to sell or purchase it. In fact attempting to sell or purchase is no offence.
(3.) THE legal point which was raised by the learned counsel for the State was that because from the evidence it was established that this Ganja was recovered from the house of the applicant Kedar Nath, the burden lay on him to explain, how this Ganja happened to be present in his house and if he had not offered any explanation, this mere recovery from his house should be sufficient to prove his possession. In this connection he drew my attention to the provisions of Sections 7 and 71 of the U. P. Excise Act. Section 7 says that if an intoxicant is in passession of a persons' wife, clerk or servant, it shall be deemed to be in possession of that person. Under Section 71, if the prosecution has proved possession, it shall be presumed unless the contrary is proved that the accused has committed the offence if he is unable to account for its pos session satisfactorily. In my opinion Section 7 is wholly inapplicable because it is not a case of possession by any body's wife, clerk or servant Regarding Section 71 I think that this section comes into operation only when the prosecution has succeeded in proving possession. This brings me to the question as to what meaning should really be given to the word 'possession'. This word has not been defined any where and has been the subject to a number of comments in various cases. Possession my be defect to that is to say, when a person is in actual physical possession of a thing. Possession may then be legal and constructive, A person is deemed to be in possession in the eye of law in certain circumstances, although he may not be in actual physical possession of an article. THE instant case, it is not one of actual physical possession, simply because it is not said that the contraband Ganja was in the hands of any of the applicants. It is a case of only constructive possession. Now therefore the question is whether the mere fact that the article was recovered from the house of Kedar Nath, should alone be sufficient to lead to the conclusion that this article was in possession of Kedar Nath unless he proves the contrary. I have given my anxious consideration to this aspect of the matter. I think this question should be answered only with reference to circumstances. Constructive possession has to be inferred from the various circumstances and it is ne cessarily a matter of inference. If an article is recovered from the house of any body and it is shown that no body could have any access to that house, mere recovery of an article from that house should lead to an inference that the article belongs to the person who owns the house. Such a person will be deemed to be in possession of that article constructively, though he may or may not be present at the time of actual recovery. But in the instant case, the possession is different. It is in evidence that at the time of recovery, not only the owner of the house but an outsider was also present. Obviously therefore a possibility arises that the contraband article might have been brought by that outsider. In my opinion, therefore, it would not be fair and proper to raise a presumption of constructive possession in such a case. If for instance, A is sitting in his house, his friend or acquaintance B brings some contraband article and puts the same before A, and the article is recovered in a raid in these circumstances, can it be said that A should be presumed to be in possession of that article? THE obvious answer to this question will be in the negative. A similar situation can be conceived of in the instant case also. In other words, it is quite likely that while Kedar Nath was inside his house, the contraband article might have been brought by the other applicant for sale. This possibility has of course not been excluded by the prosecution as noted above. THE learned counsel for the State argued that in such a situation it was not possible for the prosecution to prove possession. In the first place, the accused cannot be made to suffer if the prosecution is unable to produce such evidence. Secondly, I do not think that it was impossible for the prosecution to prove which person was really the seller. THE raiding party would have waited for some time more to hear the talk and the prosecution could have also attempted to collect such other evidence to show which of the applicants was really the seller. THE learned counsel for the State cited before me a case reported as Subedar v. State, (1). That was a case in which some recovery of an incriminating article was made from the house of the husband, who was away and only the wife was present. In the said case, the husband kept silent and therefore it was held that in view of the provi sions of the Section 7 the husband should be deemed to be in possession of the article. I have already pointed out that this is not a case of possession by wife, clerk or servant. THE silence on the two applicants, therefore, cannot be of any help to the prosecution in accordance with the principles laid down in the case (supra). Reliance was also placed on the case C. S. D. Swami v. State (2). That was a case under the Prevention of Corrup tion Act and there also, a finding of possession was recorded. Once a finding of possession is given, the burden will naturally shift on to the accused as provided by the said Act. THEre is a similar provision found in the Excise Act in Section 71, noted above. But, as I have already pointed out, this section presupposes a finding of fact regarding possession. It is only after this finding that the burden can shift. Having thus considered all the facts and circumstances I think that the conviction of neither of the applicants can be upheld, simply because the prosecution has failed to show which of the applicants was really in possession of the contraband article. In the absence of such evidence, it will be wholly wrong to convict both of them.;