GANESHI Vs. EMPEROR

JUDGEMENT

(1.) THIS is an application in revision of an order of the Sessions Judge of Agra upholding a conviction under Section 60 (a) of Act IV of 1910, and a sentence of one year's rigorous imprisonment and a fine of Rs. 50, the conviction and sentence being in regard to the joint possession by the two applicants of cocaine The only point that has been or can be seriously pressed, apart from the question of sentence, is the question whether the finding that both the applicants were in possession of the cocaine is justifiable in law, I have been referred to the case of Khushi Ram V/s. Emperor 67 Ind. Cas. 338 : 20 A.L.J. 162 : 4 U.P.L.R. (A.) 14 : (1922) A.I.R. (A.) 83 : 23 Cr.L.J. 388 and Alia V/s. Emperor 77 Ind. Cas. 447 : (1923) A.I.R. (L.) 513 : 25 Cr.L.J. 399, a case of the Lahore High Court; in the former case a man was acquitted against whom the only evidence was that certain stolen property had been found in a box of which his wife kept the key and the man was not in the house at the time. THIS is clearly distinguishable, In the Lahore case it was held that two persons living in the same house could not be convicted of the possession of a chhavi found somewhere in the joint house unless possession was brought home to either one or other or both of them. That case again is clearly distinguishable In the present case the cocaine was found in certain pots containing grain in a Bania's shop. It is proved that both the applicants, who are brothers, were serving habitually in the shop and the Magistrate concludes from this that they must have been daily handling the pots in question and that, therefore, the finding that both of them must have been aware of the existence of the cocaine there is justifiable. Every one of these cases must depend upon its own facts. Here it seems to me an obvious argument, in support of the finding of the Magistrate that both of these men had guilty knowledge, that if either of them was keeping the cocaine secretly intending to conceal and concealing the fact from his brother, it is inconceivable that he would keep it in a place in which sooner or later and most probably sooner his brother would be certain to find it. I think, therefore, the conclusion that both the men knew of the presence of the cocaine there is justifiable. Under the Amending Act IV of 1919 the maximum sentence of imprisonment is one year. It does not seem to me that it is necessary, grave though the offence is, to give that maximum in the case of the first offence. I reduce the sentence of one year to six months. In other respects the conviction and sentence will stand.