1. This revision application is against the judgment of the learned Sessions Judge, Buldhana, confirming in appeal the conviction of the appellant under Section 66(b) of the Bombay Prohibition Act for having been found in possession of about 210 tolas of ganja. The prosecution case was that this ganja was found buried at various places in the kotha admittedly proved to be of the applicant. The defence case was that the kotha was accessible to many persons and was in charge of the servant of the applicant. The learned Sessions Judge referred to the evidence as regards the accessibility of the kotha as well as the possibility of ganja being planted and also observed that in view of Section 103 of the Bombay Prohibition Act there was a presumption against the accused. He, therefore, confirmed the conviction.
2. In a case like this the first question that arises is whether the contraband articles were in the possession of the applicant. The mere fact that the articles were found in the kotha belonging to the applicant does not necessarily prove that the articles were in his possession. But this fact was used by the learned Sessions Judge along with the evidence relating to the inaccessibility of the kotha, the improbability of the ganja having been planted and the presumption under Section 103 of the Bombay Prohibition Act. There is no finding of the learned Sessions Judge that the contraband article viz. ganja was in the possession of the accused. The presumption contained in Section 103 of the Bombay Prohibition Act comes into operation only after a person is found to be in possession of an intoxicant of which he is unable to account satisfactorily. Sub-section (1) of Section 103 of the Bombay Prohibition Act runs as follows:-
In prosecutions under any of the provisions of this Act, it shall be presumed without further evidence, until the contrary is proved, that the accused person has committed an offence under this Act in respect of any intoxicant, hemp, mhowra flowers or molasses or any still, utensil, implement or apparatus, whatsoever for the manufacture of any intoxicant as are ordinarily used in the manufacture of such intoxicant or any materials which have undergone any process towards the manufacture of any intoicant or from which an intoxicant has been manufactured, for the possession of which he is unable to account satisfactorily.
The presumption arises only after two conditions are satisfied, namely, (i) the accused must be found to have been in possession of the article described in Section 103, and (ii) the accused must be unable to account satisfactorily for the possession. The presumption contained in this section cannot be used to infer the fact of possession. The learned Sessions Judge is, therefore, wrong in utilizing the presumption contained in this section to hold possession proved.
3. The application for revision is, therefore, allowed, the conviction of the applicant and the sentence passed on him are set aside and the learned Sessions Judge is directed to redecide the appeal in the light of the observations made in this judgment. The fine, if paid, shall be refunded.