1. This appeal is filed by the State Government of Madhya Pradesh under Section 417, Criminal P.C. against the order of acquittal passed by the Magistrate First Class, Nagpur, in Criminal Case No. 1753 of 1951.
2. The respondents Vithi wife of Ganpat and Ambi mother of Ganpat were prosecuted under Section 6(1)(a) and (g) of the Prohibition Act for being in possession of illicitly distilled liquor and also apparatus for its manufacture.
3. On 29.8.19S1, head constable Nasir Ahmed (P.W. 1) along with constable Jadish Singh (P.W. 2) and Zongdu (P.W. 4) raided and searched the house of the respondents in their presence. A mobil oil tin containing illicitly 'distilled liquor about 1 bottles, a tin containing boiled 'mahua' and an earthen pot smelling of fermented 'mahua' were seized from their house as per seizure memo (Exhibit P. 1). The respondents were tried summarily for the above offences. Both of them denied that the articles were found in their house. Respondent Vithi stated that these articles-were implanted in their house.
4. The trial Court, while accepting the prosecution evidence that the incriminating articles were found in the house, acquitted the-respondents on the ground that the house belongs to Ganpat and these articles must have been kept by him there, besides there was no evidence to show that they abetted Ganpat in manufacturing the illicit liquor.
5. The only question for consideration is whether this is a fit case in which the High. Court should interfere in an appeal against the order of acquittal. The learned Government Pleader argued that the evidence on record clearly showed that the respondents were in possession of the incriminating articles when the house was searched. They did not contend that these articles belonged to Ganpat, but pleaded that they were implanted from outside which plea was negatived. Under the circumstances, they cannot escape the liability even though Ganpat was absent from the house at the time of the search.
6. The learned Counsel for the respondents argued that Ganpat being the adult male member of the family was the proper person to answer the charge & not the respondents. Reliance was placed on - Harbans Singh v. Emperor AIR 1941 Nag 296; - Emperor v. Santa Singh AIR 1944 Lah. 339 and - Wazir v. Emperor AIR 1935 Posh 68.
7. The first two cases were under Section 19(f) of the Arms Act. The third case was under Section 9 of the Opium Act. In the last mentioned case, six tolas of contraband opium were discovered on a search being made in the house in which the husband and wife lived. Both were convicted under Section 9 of the Opium Act, In appeal, the wife was acquitted as it was held that the husband was alone liable under Section 9 and it cannot be presumed that the wife also was jointly in possession with him. The principle laid down in the Lahore case is:
In cases where incriminating articles are recovered from a place in the occupation or possession of more persons than one and it is not possible to fix the liability on any particular individual, it would not be legally permissible to call upon all the occupants of the place to account for the presence of the incriminating articles in their premises and in the absence of any satisfactory explanation on their part to hold all of them to be in possession or control of the same. Mere proof that an incriminating article is found in premises occupied by a number of persons does not in itself establish 'prima facie the guilt of any particular person or all of them jointly. That being so they cannot be called upon after such evidence to establish their innocence.
The above principles are also applicable to cases under Section 6(1)(a) and (g) of the Prohibition Act where the charge is for possession of the incriminating articles.
8. Too much stress seems to be easily laid upon the remedy available under Section 417, Criminal P.C. in petty cases. An appeal against an acquittal is a special weapon which the State Government judicially reserves for exceptional occasions and which is to be used after most anxious consideration and in cases which are themselves of great public importance or in which a principle is involved. It cannot be expected that the State Government would dull the edge of that salutary provision by utilizing it freely in cases which are of little general interest. In - Emperor v. Baldeo Koeri : AIR1931All712 , Young and Sen JJ. laid down as follows:
In considering an appeal by Government against an order of acquittal, it is not for the High Court to say whether, if it had been trying the case it might have taken a view opposed to that of the lower Court. That is not the test to be applied to determine such an appeal. While the High Court recognizes the necessity for the existence of such powers in the Local Government in this country, it is equally clear that those powers should be most sparingly enforced; and in respect to pure question of fact only in those cases where, through the incompetence, stupidity or perversity of a subordinate tribunal, such unreasonable or distorted conclusions have been drawn from evidence as to produce a positive miscarriage of justice.
9. The trial Court found that the house from which the incriminating articles were seized belongs to Ganpat. The inference of the trial Court that Ganpat may have kept them there does not appear to be unreasonable. There is no evidence that the respondents were brewing the liquor. Under the circumstances, we do not consider this to be a fit case in which the extraordinary power of the High Court is to be invoked under Section 417, Criminal P.C.
10. The appeal is, therefore, dismissed.