ASARAM Vs. HYDERABAD GOVERNMENT

JUDGEMENT

(1.) THIS is a revision from the Order of the learned Sessions Judge, Aurangabad dated 31st May, 1951, upholding on appeal the order of conviction passed by the Magistrate at Jain a under Rule 72 of the Defence of Hyderabad Rules for non-compliance of the provisions of Section 3 (1) of the Government Notification 124 of 1355f. The sentence imposed being one month's rigorous imprisonment with a direction for forfeiture of wheat to the State and a fine of Rs. 700/- or in default a further term of one month's rigorous imprisonment.

(2.) THE facts leading to the prosecution lie in a short compass and may briefly be stated. It was on 7th May, 1950 the Tahsildar of Jalna had reason to believe that the firm of Sawaldas Madhudas managed by Thakurdas P. W. 1 was-in possession of undeclared food-stuffs. He consequently made a search under Section 4 (b) of the Notification and recovered six bags of wheat weighing 14 maunds and 20 seers from the go down in use and occupation of the firm, Thakurdas P. W. 1, The only material witness is the case deposed that the wheat recovered from his part of the godown was pledged with the firm by the applicant to secure payment of money which might become due in the result of certain transaction between the firm and the applicant. On this evidence the question arose whether the applicant can be fixed with any criminal liability. It was argued on his behalf m the Courts below that as he was not in actual possession of the wheat at the time when search' was made, he cannot in law be regarded a stock-holder and therefore there was no duty-east upon him to make the initial or periodical declaration as required by Section 3 (1) of the aforementioned Notification. This contention was repelled by both the learned Judges below on the theory of constructive possession. In the words of the learned Sessions Judge: The applicant's possession in this case may not be in fact but it does exist in law and as such it is his constructive possession and as the ultimate control and intent of appropriation to himself of the exclusive use of the thing rests with him only, he will be considered as the person in possession. Unfortunately the learned Judge has not referred to any authority in support of proposition propounded by him nor any authority has been, quoted before us by the respondent's advocate.

(3.) NOW constructive possession is a phrase that is often used but there are many different approaches to that expression. Salmond in hip Jurisprudence (9th Edn.) 366 treats constructive possession as covering those cases where the law grants possession to one who is not in actual physical control. Clerk and Lindsell, Tort (1937) 347n. , write that a person has constructive possession