1. This is a Government appeal against the acquittal of one Zawar Hussain, on a charge tried by a First Class Magistrate of Saharanpur, for 'possessing cocaine' without lawful justification. No lawful ground for the possession, if any, was suggested.
2. The case presents another example of the sort of travesty of justice of which this Court has had too much reason to complain of late in magisterial proceedings. The case lies in a small compass. The first witness was called on the 27th of March, within eight days of the date of the alleged office. The last witness was not called till about the 7th of July, and the judgment was delivered on the 31st of July, after what must have been an enormous expenditure of money and magisterial time. We have been compelled to go through amass of irrelevant matter, and a judgment consisting of twelve closely printed pages of wearisome discussion of superfluous detail, and laborious reflections on side issues, of no importance to any one, in which the real issue has been almost total obscured.
2. The prosecution made the initial error of trying to establish that Zawar Hniain lived on the premises; an issue which was bound to fail and which undoubtedly accounts for much of the waste of time for which the Magistrate was not responsible. The Magistrate, in the end, decided that Zawar Hussain did not live on the premises, and that he had no knowlege of the cocaine which was seized. As to the former of there issues, it is clear that he was right. Act to the latter, we differ from the decision. We think that it is clearly established that Zawar Hussain used the house for concealing cocaine, and that if he had been charged under Section 60A, as amended by Act IV of 1919, he must have been convicted. The Government Advocate asked for a conviction under this section, but the accused was not charged under it, nor was this Court asked in the notice of appeal to alter the charge. Mr. Dillon, who represented the accused and argued his case with great force and fairness, objected on substantial grounds of hardship to this course. We are of opinion that we ought not now to try the accused on a fresh charge.
3. The question, therefore, which we have in decide is, whether the finding that Zawar Hussain was not in possession of the cocaine seized was one at which the Magistrate has arrived against the weight of the evidence. 1
4. The material facts are simple, and clear. On his own showing, Zawar Hussain is a notorious trafficer in cocaine. He has already been in prison for illicit dealing. He would have us believe that he is now a reformed character, and has teen helping the authorities to catch other offenders. It may be so. The fact is not inconsistent, either with his guilt, or with his innocence in this case. He is a prominent, if not the leading member of his family, which live, either in, or around, the house raided. He is the owner, either in whole or in part, of the house which he had let on an agreement in writing- to his brother-in-law, from year to year and went through the quite unnecessary formality of getting it registered. He lived in another house close behind, a few yards away, and was naturally an occasional, if not a frequent visitor to his borther-in-law. The unusual course htiw a near relative and neighbour, was taken of putting the agreement of tenancy into precise terms in writing, and by it Zawar Hussain reserved to himself a kicked apartment containing some of his goods. Bashir Hussain, the tenant, was called for the defence, and swore that he and his borther-in-law were not on visiting terms. This is quite incredible.
5. One Gopal Narain, whom the Magistrate has criticised severely, and who was responsible for the allegation that the accused lived in the house, had reported that cocaine was hidden in the house which he believed to be the residence of Zawar Hussain. Mr. Young, Superintendent of Police, went on the 20th of March, with a large body of officials and constables, and raided the house. As he approached the place is a motor car Gopal Narain pointed out to Mr. Young that Zawar Hussain was seated at a mosque situated in one of the angles of the sort of square which included the house to be raided, and the house of the accused. Mr. Young's attention was distracted by the traffic, and he was not able to look in the direct on indicated. But it is inconceivable that Gopal Narain would have risked an idle falsehood, having no reason to know that accused was not at the house to be visited, or had not made off, as he afterwards, disguised as a woman, tried to do. It is, therefore, certain that the accused was sitting near by.
6. Outside the house raided eight persons were found seated. These included the tenant and brother-in-law of the accused, two of his brothers, one of whom lived also at the house, and, significantly enough, the accused's karinda. Inside the house were certain female members of the family. Much time has been wasted over the question whether one was the wife, or mistress of the accused, and over the identity of one who was shortly afterwards delivered of a child. These questions only bear on the issue whether the house was the residence of the accused. But, after a long and elaborate search, a considerable quantity of cocaine 9 oz. 6 grs., said to be worth abort Rs. 1800, was discovered in the fake bottom of a large box, in a room chained from the inside, and occupied, at the moment, by one of the females. Zawar Hussain had been sent for, but he, deliberately kept away. He was in the immediate neighbourhood, and his conduct shows that he knew there was good reason for dissociating himself from the results of the search. An innocent man would naturally be anxious to assist the authorities, and to satisfy them of his bona fides. Letters addressed to the accused were found in the house.
7. The box in which the cocaine was secreted was a very large and heavy one, the presence of which in the house must have been known to the occupants. It was designed to prevent the discovery of its secret contents and not to promote it. This destroys the feeble suggestion of the defence that it had been planted on the people of the house by their enemies; enemies would scheme that cocaine should be found, and not a box which almost defied discovery of its contents. The box had not even the tempting attractions of the Wooden Horse of Troy and the conduct of the tenants in concealing and guarding it is inconsistent with its suggested character of an unwelcome intruder. The enemies of Zawar Hussain would hardly plant a box in a house which; according to him, every one except Gopal Narain knew was not his residence. The time, moreover, to acquaint the authorities with the wicked trick which had been played upon there was when Mr. Young and his party arrived to search. The box, carefully housed and guarded, was indeed surrounded by the family and agents of the accused. It is n t suggested that any of them was able to obtain and trade, the cocaine to this extent; Bashir was paying a rent, if he paid any, of Rs. 5 per month; and the inference from all these circumstances is irresistible that the box was being kept for Zawar Hussain in the house of his borther-in-law, in whose actual pyhsical possession it was.
8. We have perused the mass of defence evidence without finding anything satisfactorily established, which is inconsistent with this view. It is not possible to say that Zawar Hussain was the sole owner, or the true owner. Bashir Hussain, the tenant and borther-in-law, swore to a new and startling story that one Buddhoo had suddenly deposited the box there the night, before, as part of his luggage. This mysterious individual was expected to follow up this advance guard by arriving in force with the rest of his, luggage 'later on'. But nothing more seems to have been heard of him. The notion that a man would abandon nearly Rs. 2,000 worth of cocaine to its fate in this way, requires more evidence than this to satisfy us of its truth. The onus was clearly thrown on the accused to prove the true ownership or at least to account for its presence in the custody of his relative and tenant, and he has failed to do either.
9. Mr. Dillon's view of the law applicable is perfectly sound. A man is not ordinarily liable for the criminal acts of his agent, except in those cases where, being authorized to traffic in prohibited goods under a license, and subject to restrictions, he puts a servant in to carry on the business for him, and his servant acts outside the restrictions. If mens rea is relevant, it must be shown that the principal had knowledge. But there may be, and often is, in commercial dealings, possession other than that which may be called strict legal possession, for the purposes of a preventive Statute such as this. Control, or dominion, may amount to criminal possession, although actual legal possession, such as that of a bailee, or an agent, may be in another. In Emperor v. Gajadhar 25 A. 262 : A.W.N. (1903) 29 opium found in the house of a neighbour of the owner, who had left it with the neighbour for the night for safe keeping, was held to be in the possession of the owner. In Emperor v. Ghulam Hussain 44 Ind. Cas. 975 : 40 A. 420 : 16 A.L.J. 323 : 19 Cr. L.J. 447 the owner of fire-arms, who held a license to carry arms, had died. His wdow and his minor son continued to live in the house where the fire-arms were kept. The mother was the legal owner, and the manager of the house. There was ground for holding that the youth had cleaned, and looked after them, if he had not actually used them. It was field that the son was rightly convicted of being in possession of them without a license.
10. We, therefore allow the appeal, and convict Zawar Hussain of having been in unlawful possession of these 9 oz. of cocaine.
11. It is a bad case, not merely because of the amount seized, and on account of the previous conviction, but also on account of the nature of the defence set up. We, therefore, sentence Zawar Hussain to two years' rigorous imprisonment from the date of his surrender to his bail, or arrest, in the event of his failing to surrender, whichever happens first.