APPUKUTTAN KASABA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE two revision petitioners (accused 1 and 3), husband and wife together with the father of the husband (accused 9) were convicted by the Principal Sub Magistrate, Kozhikode under S. 8 (1) (a) of the prohibition Act and sentenced to pay a fine of Rs. 500/-eaoh or in default to undergo rigorous imprisonment for three months. On appeal to the District magistrate, Kozhikode the conviction and sentence of the petitioners were upheld while the other accused whose conviction also was upheld, was released after admonition under S. 3 of Probation of Offenders Act.

(2.) THE prosecution case is that at about 11 a. m. on 2411963 Pw. l, the Sub-Inspector of Police, Kasha, Kozhikode acting on information received raided the house of accused I and recovered from there a large quantity of fermented toddy. All the three accused were present in the house at the time and were arrested on the spot. THE defence plea was one of simple denial.

(3.) IT was further contended by the learned counsel that the conviction of the wife merely on the ground that she was present in the house at the time of recovery, cannot be sustained. This argument, we think has to be accepted. The prosecution case is that when the house was searched she was found in one of the rooms from where a portion of the liquor was recovered. As the jars and bottles containing the liquor were kept quite openly she must have had knowledge of their presence. The question before us therefore is whether these facts would justify the presumption that she was in possession of these articles. The presumption that articles in a person's house are in his possession is a presumption under S. 114 of the Evidence Act which permits a court "to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case". We presume that the head of the family is responsible for the contraband found in the house because according to common course of human conduct the bead of the family can, if he does not desire its presence in his house, secure its removal irrespective of the wishes of the other members of the household. Would it also be likely, according to the common course of human conduct, that the woman of the house can prevent the contraband from being kept in the house if her husband insists that it should be. In most cases the answer must be in the negative. If that be so a court will not be justified in presuming that everything found in a house is invariably in the joint possession of the householder and his wife. Knowing that the contraband is present in the house is not the same thing as possessing it. Or as the learned author Salmond puts it: "i may be alone in a room with money that does not belong to me lying ready to my hand on the table. I have absolute physical power over this money; I can take it away with me, if I please; but I have no possession of it, for I have no such purpose with respect to it". (Vide jurisprudence by Sir John Salmond 10th Edition page 290)" If the contraband was recovered from a room under her custody or from a box containing her own things then there might have been some justification in calling upon the wife to explain its presence. as it is, the mere knowledge of the presence in the house of the offending article is insufficient to raise the presumption against her.