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 (a) when he had lost possession and no one else has acquired it; (b) when his servant is in charge of res.
4. Pollock (Pollock and Wright: Possession 25-7) confined it to cases where there is a mere right to recover possession. Constructive possession as explained by Clerk and Lindsell cannot be attributed to the applicant because in this case the property was not lost without some one else acquiring its possession and because the pledged firm was not in charge of the wheat as the servant of the applicant. A mere right to recover possession for want of a better word may be termed constructive possession but it seems difficult to concede that such a right was within the contemplation of the authority promulgating Notification 124 of 1355 F., when it defined stock-holder to mean a person who irrespective of his capacity hat in his possession food-stuffs or food-stuff weighing 10 maunds or more. In the same way the mere intent of appropriation to one's use of the res, pledged cannot be deemed to be 'possesion' entailing the liability to make periodic declaration of stocks under Section 3(1) of the Notification. In order to apply the test laid down by Salmond we must have before us some provision of law granting possession to one who has no actual physical control. An apt allocation of what Salmond means is to be found in Section 27, Indian Penal Code. That section presides that when the property is in the possession of a person's wife, clerk or servant on account of that person it is in that person's possession within the meaning of the Code. Here though the property is in actual possession and control of the wife, servant or clerk but the law ordains that the husband or master will he presumed to be in possession and that is what is called constructive possession.
5. Pledge is a special class of bailment. Bailment is denned in Section 143, Indian Contract Act, as the delivery of goods by one person to another for some purpose upon a contract that they shall when the purpose is accomplished be returned or otherwise disposed of according to the direction of the person delivering them. From this definition it is obvious that there must be, in order to constitute a bailment, a change of possession. Indian law like the English law takes the view that a person in de facto control is normally to be treated as possessor. What is the nature of pledge's possession would be apparent from illustration (k) to Section 379, Indian Penal Code which is as below:
Again if A having pawned his watch to Z takes it out of Z's possession without Z's consent not having paid what he borrowed on the watch he commits theft.
It it were postulated that the pledgor is to be deemed in constructive possession of what was In de facto possession & control of the pledgee, then we will have to face the untenable position that no theft was committed. Thus in the absence of a statutory indication that constructive possession is to be attributed to the pledgor the test laid down by Salmond would not help us to conclude that the applicant was constructively bound to make the periodical declarations. As pointed out by Best C.J. in Re Anon (1825) 3 Bing 193, the law will not allow of constructive offence; no man incurs a penalty unless the Act which subjects him to It is clearly within the spirit and letter of the statute imposing such a penalty.
6. It is contended on behalf of the State that the Notification should be so interpreted as to suppress the mischief and advance the scheme of equal distribution of food-grains. But here we are concerned with a penal Statute. We must not only look on the one side, at the object Intended to be gained but also on the other side. We must consider that persons are not to be made subject to penalties unless the offence charged is clearly brought within the purview of the Statute or statutory rule.
7. In our judgment no case has legally been made out against the applicant. We would therefore, allow the revision, set aside the order of conviction and sentence passed upon the applicant, and acquit him.
8. The applicant is on bail and need not surrender. The grain forfeited be restored to the possession of the person from whom It had been recovered.