MADHAVI Vs. STATE OF KERALA

JUDGEMENT

(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.

(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,