1. The applicant in this case one Appa Rama Mali, has been convicted by the First Class Magistrate, Malshiras, under Section 43(1)(a) and (h) of the Abkari Act, V of 1878, and sentenced to rigorous imprisonment for four months and a fine of Rs. 50. The conviction and sentence have been confirmed in appeal by the Sessions Judge of Sholapur.
2. The facts found by the lower Courts, which, according to our usual practice, we shall assume to be correct for the purposes of this revision application, are briefly these. The accused lives jointly with his two brothers in a vasti, that is a clump of huts, in the neighbourhood of the village of Borgaon. There are three huts. The middle one is occupied by the accused with his family, the two adjoining huts by his two brothers and their families. At the back of the huts there are some fields jointly cultivated by the brothers in which various crops are grown. For about two years past the Excise Inspector of the Pandharpur Range, who is the complainant, has had information that people of Borgaon including the accused were in the habit of preparing illicit liquor and selling it in the neighbouring villages. Several raids had been made without success, but on February 17, 1933, definite information was obtained that the accused was preparing liquor from jaggery for the Shimga holidays. Accordingly the Inspector with his staff proceeded first of all to the village of Mahalung, where there is a Criminal Tribes Settlement, and at day-break on February 20 he proceeded to the huts occupied by the accused and his brothers. Two panchas were taken from the settlement and two residents of Borgaon were called after arrival at the vasti, and in their presence a search was made of the premises. In the first room occupied by one of the accused's brothers was found an empty kerosene tin smelling of liquor. In the middle room, which is the one occupied by the accused himself, two empty bottles were found which, according to the evidence of all the witnesses except one panch, were also smelling of liquor. In the third room two bottles containing a very small quantity of liquor were found. In a crop of barley behind the huts the search party found a kerosene tin full of jaggery wash and in a crop of maize another kerosene tin full of jaggery wash and three bottles containing illicit liquor. Also by the side of a well, which is close to the huts, they found a bundle of hivra bark. A panchanama was made of these various things and the accused was sent up for trial.
3. The learned counsel who appears for the applicant in this case has argued four points, viz., (1) that the burden of proof has been wrongly thrown on the accused, (2) that possession of the excisable articles has not been proved within the meaning of Section 43(1)(a) and (h) of the Act, (3) that the search was not made in accordance with Section 38 of the Abkari Act and Section 103 of the Criminal Procedure Code, and (4) that the sentence on the accused is under the circumstances excessive.
4. In my opinion there is really only one point in the case of any real substance, and that is whether in the circumstances appearing in evidence it can properly be said that the accused was in possession of these excisable articles. In that connection we have been very much pressed with a decision of the Allahabad High Court in Emperor v. Kaul Ahir I.L.R. (1932) All. 112 The facts in that case were that in the course of a search two loaded cartridges were found in a corn bin in the house of the accused Kaul among ghee, butter and other articles. Kaul and his son were prosecuted for an offence under the Arms Act and the Magistrate convicted Kaul on the ground that he was the head of the family and should therefore be held responsible for the arms recovered from his house. In the course of the judgment the learned Judges said (p. 113) :-
There are many cases of this Court in which it has been laid down that it is improper to convict each and every member of a Hindu joint family because some illicit article has been recovered from the house, and the principle that the head of the family is responsible where there are other adult male members who had equal facilities of access to the article in question has never been affirmed as far as we are aware by any High Court in India.
After referring to a previous decision of the Allahabad High Court in Emperor v. Sikhdar ((sic) 31) I.L.R. 54 All. 411 the learned Judges went on to say (p. 113):-
We believe that in all such cases it is necessary to prove not only the presence of the article in the house, but the possession of some particular person over that article in order to justify a conviction. In a case such as the present it cannot be said that the head of the house or any individual male member of his family was aware of the presence of these cartridges. For all we know they might have been dropped by some sportsman, picked up by a child and handed over to the child's mother. It is the women of the house and not the men who look after the grain bin and the ghee and the butter and other articles, and the possession of these cartridges may have been entirely innocent.
We are not in any way concerned to dispute the principles laid down in that case, and with respect I entirely agree that it would be unreasonable to make any general presumption that the head of a joint family is necessarily in possession of anything found on the premises jointly occupied by him and the rest of the family. But the observations of the learned Judges must be considered with the context and in relation to the facts of that particular case. As far as I can see there is no real similarity between the facts of that case and the present. There it was quite possible that no person except the person who had actually placed the cartridges in the corn bin was aware of their presence there. In the circumstances pointed out by the learned Judges it would have been absurd, without any other evidence, to hold that the head of the family or any member of it was in possession of the cartridges. The facts in the present case are that the accused and his two brothers are members of a joint family living side by side in adjacent huts close to the fields which they cultivate together. In each of the three huts articles were found suggesting that the inhabitants were or had been in possession of illicit liquor, and in the crops within a stone's throw of the huts were found some bottles actually containing illicit liquor and two tins of jaggery wash, which we may fairly say was obviously intended for the manufacture of illicit liquor. Under these circumstances it seems to me that the only reasonable conclusion is that all the occupants of these huts and joint cultivators of these fields were aware of the existence of these things and were in fact jointly in possession of them. According to the evidence of one of the witnesses in the case, one of the panchas, the accused stated, when the search party went there, that all the huts belonged to him. Without laying any particular stress on that, however, it is reasonable to hold that all three of the brothers were jointly in possession of the articles found in the huts and in the field. At the trial the usual defence was suggested, viz., that the things may have been introduced upon the accused's premises by some enemy of his. This suggestion was considered by the trial Magistrate and also by the Sessions Judge, and they came to the conclusion, after considering the evidence, that this defence was false and that there was not the slightest reason to suppose that the things had been introduced by any stranger. With that finding I can see no reason whatever to disagree. If, as the lower Courts have found, the brothers were living together and if, as the circumstances suggest, they were all jointly in possession of these things, all three of them no doubt might have been prosecuted for the offence. The reason why the accused alone was prosecuted appears to have been that the Excise Inspector had information against him and not against his brothers. But the fact that the evidence of possession would tell with almost equal force against the brothers of the accused is no ground for holding that possession has not been proved against the accused himself. If the evidence as to possession is adequate in the case of the accused, it does not assist him at all to say that on the same evidence other persons might have been tried and convicted along with him. Possession of an illicit article, to justify a conviction under the Abkari Act; need not necessarily be exclusive possession.
5. The point taken by the learned counsel as to burden of proof does not, in my opinion, really arise at all. The burden of proof has not been thrown upon the accused. The lower Courts have considered the evidence and all the circumstances of the case and found that the accused was in possession of these articles. I can see nothing contrary to law in that finding, and, in my opinion, it is perfectly justified.
6. For the purposes of Section 43(1)(a) possession of any excisable article is sufficient without anything more, and the accused in this case has been given a single sentence under both the clauses of Section 48(1) which he might have been given under either. Section 43(1)(h) deals with the possession of any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing any excisable article other than toddy. It has been urged that there is no evidence to show that these tins containing jaggery wash and bottles of liquor were possessed by the accused for the purpose of manufacturing an excisable article. There is in fact no evidence, but in my opinion no evidence is necessary. The only reasonable inference which can be drawn from the possession of these articles would seem to be that the accused or the accused and his brothers were manufacturing illicit liquor, and that the possession of these articles, which cannot be explained on any other hypothesis, was for the purpose required by Clause (h).
7. Then there is the point as to the search. Section 38 of the Akbari Act merely says that all searches are to be made in accordance with the provisions of the Criminal Procedure Code. The relevant provisions of the Code is Section 103. In that connection learned counsel for the applicant has argued, first, that the panchas were not respectable and independent people, and, secondly, that the accused was not present when the search was made. It appears that there were four panchas. Two were brought by the Excise Inspector from the Settlement at Mahalunga, the other two, who were examined as witnesses in the case, were from the village of Borgaon. It is not suggested that the two latter, Kulkarni and Deshmukh, are not respectable persona of the locality. The suggestion is that the other two persons who were brought by the Excise Inspector were not respectable. But there is no evidence whatever on the record to show who and what these persons were, for although several points in connection with the search and the panchnama were taken in the trial Court, this point that the panchas, or some of them, were not respectable does not appear Co have been taken at all. In the absence of any evidence on the point it cannot be said that there is any reason for holding that any of the four panchas was not a respectable person of the locality within the meaning of Section 103.
8. As to the accused not being present, according to the evidence of the Excise Inspector, the panch witness Deshmukh, Mr, Nirde the Inspector of the Settlement at Mahalunga, and another witness Dhondi, the accused was present throughout the search. The argument on behalf of the applicant is really based entirely on certain statements made by one of the panchas Ramchandra Kulkarni. He has stated that the accused and his brothers were not present when the search party went into the field, though he says that the accused was present when the panchnama was written. He has also stated that some of the panchas were not present the whole of the time, that is to say, he says that he himself only entered one of the huts, viz., the third one, and the other panch Deshmukh went into the first and second. According to him also the two bottles found in the accused's hut were not smelling of liquor, although he admits that the other panchas were of a different opinion. We have been taken through the evidence of all the witnesses in the case, and my personal impression is that this panch Ramchandra Kulkarni is not a reliable witness. I am inclined to think that his evidence is coloured by a desire to help the defence. However that may be, there is no reason whatever why we should differ from the lower Courts and accept the evidence of this one panch, who after all wrote and signed the panchnama in which among other things it was stated that the two bottles found in the accused's hut were smelling of liquor, in preference to the evidence of the other panch Deshmukh and that of the other witnesses whom I have named. I am satisfied that the accused not only had an opportunity of being present throughout the search but actually was so.
9. Another argument put forward was that all four of the panchas ought to have been present before the police approached the vasti at all. The evidence is that two panchas were with the raiding party and two others were sent for from the village of Borgaon. But the evidence makes it clear that all four of the panchas were present there before the search began, and, that being so, the provisions of Section 103, have, in my opinion, been sufficiently complied with.
10. As regards the suggestion that the sentence is excessive, both the trial Magistrate and the Sessions Judge have given reasons for imposing a sentence of four months' imprisonment in this case, and I can see no reason for interfering in revision.
11. The application fails and must be dismissed.
12. J agree. I only desire to say this that the case of Emperor v. Kaul Ahir I.L.R. (1932) All. 112 relied upon by the learned counsel on behalf of the applicant, does not support the contention which he has urged that his client was not in possession of this property. That case is decided on the facts proved there that the members of the family were not at all aware of the presence of the articles in the house, viz., cartridges, and it was on account of this finding on the evidence that it was held that it cannot be said that either the manager or the other male members of the family could be said to have been in possession of these articles which were found in a corn bin in the house, and I do not think it was intended to be laid down in that case that the members of a joint Hindu family would not be liable at all for articles found in the house unless there was separate and specific evidence with regard to the connection of the articles with each particular member. Here in this case there is evidence, which has been believed by both the Courts, which goes to show that the accused himself stated that the three huts in the field were in his possession, and therefore, it cannot be said that the findings of the lower Courts, viz., that this accused was in possession of these articles, are erroneous. Even assuming for the sake of argument that the accused was not in exclusive possession of those articles, on the ground that he was one of the members of the joint family and the other members of the joint family should also be said to be in possession of the property, it does not follow therefore that this accused was not in possession. It only means this that all the members of the joint family were jointly in possession and therefore this accused was also in possession, and if on the evidence this accused, who being in possession of these articles, intended to manufacture illicit liquor, it cannot be said that the conviction of the accused for the offence with which he is charged is erroneous.
13. Then as to the search, the argument is that one of the panchas has stated that he was of opinion that the bottles contained in the second hut did not smell of liquor and that the accused was not there at the the time when the search was going to be made. It does not follow, however, that the search is vitiated by any of the irregularities which go to vitiate the conduct of the search under Section 103 of the Criminal Procedure Code. The other panch who comes from the same village says definitely that the accused was present throughout and he also says that the bottles did smell of liquor. But apart from that we have in evidence here that outside the huts in the maize crop and also in the barley crop in the field two kerosene oil tins full of jaggery wash have been found and three bottles of illicit liquor have also been found. Now here also the bare suggestion that somebody else might have come and put them there is not at all proved and in fact it is not possible that these two tins full of jaggery wash and three bottles full of liquor would be thrown by somebody from outside the road into the maize crop and barley crop, and I think the only inference that could be drawn from this is that they were put there by the accused. Therefore, the search that was made there in the presence of the accused throughout cannot be said to be made irregularly and there is no point of law in this aspect of the case also. I, therefore, agree that the rule should be discharged.