1. This is an appeal against an order passed by the First Class Magistrate, Bantwa, acquitting the respondent Puranmal Bhagatdas of an offence under Section 66(b) of the Prohibition Act. A Police constable, on suspicion, detained the accused who was seen carrying a tin on the head and he got the tin opened in the presence of Panchas when it was found to contain three and a half seers of 'bhang'. The accused having been prosecuted for being in illegal possession of the 'bhang' he admitted carrying the tin, but stated that he was working as a coolie, that someone had hired him to take the tin to the railway station on payment of two annas as coolie charges, and that he was not aware of the contents of the tin. The learned (Magistrate accepted this explanation and held that the accused did not know that the tin contained 'bhang' and was not in conscious possession of the offending article and he therefore acquitted him giving him the benefit of the doubt.
2. In this appeal, the learned Advocate General has urged that the accused having been found in possession of 'bhang', it was for him to prove that he was in innocent possession of the same. In principle, this may be right, but here in view of the facts of the casa the mere carrying of the tin will not constitute possession of the offending article. Possession made punishable under Section 66(b) must be conscious and intelligent possession. It implies knowledge and there can be no possession when there is no knowledge on the part of the accused that he was carrying a contraband article. The accused is a young boy aged about 11 or 12 years, and he engages himself in stray labour such as working as a coolie. He was carrying the tin on his head and his explanation that he was engaged by a person to take it to the railway station on payment of two annas is not at all improbable. It is for the prosecution to show that the accused was conscious that the tin contained 'bhang' and it is only then that the accused can be considered to be in possession of an offending article. If that is proved, then it will be for the accused to explain his possession of such an article. The learned Magistrate has been impressed by the statement of the accused and has accepted it as a satisfactory explanation of his conduct, and we do not see any reason to hold otherwise. There is no evidence that the accused was aware that he was carrying 'bhang'; in any event, there is scope for a reasonable doubt regarding the accused having the necessary knowledge. In the circumstances, the learned Magistrate's order of acquittal is correct and must be confirmed. The appeal fails and is dismissed.
3. I agree.