BALADIN AND ANOTHER Vs. STATE

JUDGEMENT

(1.) This revision application by the applicants is directed against their conviction under Sec. 16(a) and (f) of the U.P. Excise Act, and sentence of fine of Rs. 25/-, in default rigorous imprisonment for 15 days, for the first mentioned offence, and one month's rigorous imprisonment for the latter offence.

(2.) On the 1st Oct., 1960 Sri L.N. Sharma, Excise Inspector, Orai raided the house of the applicants and recovered illicit liquor and apparatus for the preparation and distillation of the said liquor from inside a kotha of the house. The liquor in question was found to be of illicit origin. At the time of the search and the recovery of the incriminating material the applicants were not present in the house. Two ladies of the house, Smt. Tulsa, mother of Baladin applicant, and Smt. Teja, wife of Phussu applicant, were however, found present. The two applicants along with the two ladies were prosecuted for being in possession of illicit liquor as also for being in possession of apparatus for the purpose of manufacturing intoxicating liquor. The Magistrate convicted and sentenced the two applicants as aforesaid. He also convicted the two ladies under Sec. 60 (a) and (f) of the U.P. Excise Act but released them on admonition.

(3.) This revision application came on for hearing before our brother Mathur. It was contended before him that the applicants were not liable to be convicted as it had not been proved that they were aware of the existence of illicit liquor and apparatus for manufacturing liquor inside their house at the time of the raid; that the recovery of the incriminating material from inside the house was made in their absence and it could not, therefore be presumed that they had knowledge about the existence of the said material. The learned single Judge referred the case for consideration to a Division Bench as he was of the view that there was considerable divergence of opinion in this Court as to whether the prosecution would be justified in drawing a presumption that the applicants had knowledge of the existence of the incriminating material as they were members of the same family and were in joint occupation of the house from which recovery was made. Admittedly the applicants were absent when the police party raided the house and recovered illicit liquor and apparatus used for the manufacture of liquor. The question as to whether the applicants were liable to be convicted on the mere presumption that they were in joint occupation of the house along with their women folk has therefore a direct bearing on the point involved.