N.G. Shelat, J.
1. This appeal arises out of an order passed on 13-11-67 by Mr. D.C. Mehta, the Chief City Magistrate, Ahmedabad, in Summary Case No. 403 of 1967 whereby the appellant accused No. 1 came to be convicted and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/-, or in default, to suffer further rigorous imprisonment for one month for an offence under Section 66A of the Bombay Prohibition Act, hereinafter to be referred to as 'the Act'. The accused No. 2 happened to be the wife of accused No. 1 and she also came to be convicted and sentenced to imprisonment till the rising of the Court and to pay a fine of Rs. 50/-, or, in default to suffer rigorous imprisonment for seven days for the same offence.
2. While the appeal of accused No. 1 was being beard, a notice was directed by this Court to issue to the Government Pleader to show cause why the order of conviction and sentence passed against accused No. 2 should not be set aside. The learned Government Pleader has waived the notice and has also appeared in that matter. Since both the matters arise out of a common judgment, they have been heard together and a common judgment is recorded.
3. On receipt of some information by the Inspector of Police Shri Musabhai Umarji on 8-2-63 that there was some opium in the house of the accused No. 1 situated in Dariyapur, Dandiawad in Ahmedabad, he accompanied by his staff and two panchas proceeded to the house of accused No. 1. While the accused No. 1 was sitting in his verandah, his wife, accused No. 2, was inside the house. Musabhai asked the accused to produce the opium if they had in their possession. Both of them denied any knowledge whatever about their having any opium, in the house. That led Shri Musabhai to search the house. In that search be found a wooden box which contained gloss powder. Therein he also found two packets each containing 116 grams of opium. Since the accused were found to have no pass or permit for possessing the same, they attached those two packets. The necessary formalities of sealing the same were done and they were then sent to the Chemical Analyser at Baroda for analysis. The report Ex. 7 showed that those packets contained opium. After finishing the investigation of the case, the charge-sheet against the accused was sent up to the Court of the Chief City Magistrate.
4. Both the accused denied to have committed any offence and, according to them, the house from which the opium was found was not in their possession. According to them, it was in possession of two persons Maganlal Laljibhai and Jagjivandas Kalidas and that they were staying with them. As to the packets of opium found from the wooden box, they denied their knowledge. They led no evidence in defence.
5. After considering the effect of the evidence adduced in the case, the learned Magistrate found that both the accused were in possession of the house and that the two packets found from the wooden box contained opium. Since the accused had no pass or permit for possessing the same, they came to be convicted under Section 66A of the Bombay Prohibition Act and were sentenced as stated hereabove.
6. Mr. Israni, the learned Advocate appointed for the appellant, contends that the prosecution evidence falls far short of showing that the appellant was in conscious possession of the two packets of opium found from their house and that in absence of evidence so showing, no presumption arising under Section 103 of the Bombay Prohibition Act can arise to an extent that on his failure to give any satisfactory explanation, he can be convicted of the offence in question. In support thereof he relied upon two cases. One is of Cyril C. Baker v. Emperor : AIR1930Cal668 , and the other one is of Abdul All v. The State A.I.R. 1950 Assam 152.
7. From the evidence of Manilal Amtharam it appears clear that this accused No. 1 had taken the premises about seven years ago on a monthly rent of Rs.25/- from his father. His father died on 10-12-66 and be has been receiving rent in respect of those premises from accused No. 1. Thereafter his evidence further shows that 'two persons Maganlal and Jagjivan were also staying with the accused as their guests in the days of 'Utran' for one month and that they were also there at the time of this offence. 'It is, therefore, obvious that while accused No. 1 was the tenant in respect of the premises, the two other persons were also living with him since at any rate a month or so as his guests, and that they were present at the time when the two packets of opium were found from the wooden box lying in that house. The learned Chief City Magistrate while accepting the evidence of witness Manilal, has not chosen to consider the effect thereof in relation to the offence said to have been committed by both the accused. From the observations made in his judgment, it appeals that it was for the accused to show by leading evidence of those persons or the like that the opium was either brought by them or that they had something to do therewith, in support of their case. That approach does not appear to be so very proper for the simple reason that the prosecution evidence itself clearly establishes that three adult persons including accused No. 1 were in possession or occupation of those premises not only at the date of the offence but since at any rate a month prior to the same. It was thus in joint possession of all those three persons and in no way in exclusive possession of accused No. 1 in the case. The prosecution has not shown that the wooden box from which opium was found was exclusively under control of the accused. It was not locked. It was an open box lying in the house and no attempt was made to show that it was in his exclusive possession or control at the time. It can be said to be in joint possession of all of them.
8. If, however, it was in such joint possession of the accused along with other adult members living in the house, the possession must be shown to be a conscious one on the part of the accused or at any rate he must have guilty knowledge in respect thereof, before raising presumption under Section 103 of the Bombay Prohibition Act. That fact has got to be established by the prosecution beyond any reasonable doubt. That initial onus of proof does not shift, and the effect of such presumption on that account as contemplated under Section 103 of the Act, can arise only thereafter viz. on establishing the ingredients of the offence for which he is charged. Any suggestion about absence of any words such as 'conscious' or 'exclusive' either under Section 66A or Section 103 of the Act and that way saying that once the possession of the premises is established as of the accused, he must show that the article in respect of which he is sought to be charged was not in his conscious or exclusive possession, can hardly he a correct position in law. The term 'possession' used is in respect of the article found in respect of which an offence is said to have been committed, and that can be said to have been found if he is in exclusive possession or that he has conscious possession thereof so as to say that he was in possession of that article. Those words are implicit in the use of word 'possession' under the provisions of the Act. It is hardly necessary to say that possession implies control over the article and therefore it contemplates exclusive or conscious possession before he can be called upon to explain the same under the Act. The two cases cited by Mr. Israni before me support the conclusion reached by me as above.
9. In the case of Abdul Ali v. The State A.I.R. 1950 Assam 152, the house from which the opium was found was in occupation of one Abdul Ali and his two brothers Abdul Suvan and Abdul Mannan. One of them Abdul Suvan had absconded and two others came to be prosecuted for possession of opium within the meaning of Section 5(a) of the Assam Opium Prohibition Act. In the appeal before the Sessions Judge Abdul Mannan was given the benefit of doubt and the conviction of Abdul Ali came to be maintained. In appeal before the High Court that was set aside on the ground that the possession to be punishable under the provisions of the Prohibition Act was necessarily required to be conscious possession making some kind of control possible, or, in other words, there must be mens rea or guilty knowledge before he can be convicted of such an offence. It was further observed that mere recovery of opium from a house in which he lives along with other persons, would not be sufficient to show that he was in possession with knowledge of its existence. In that case, Section 28 which raised a presumption of the kind that is contemplated under Section 103 of the Bombay Prohibition Act was raised and the contention was negatived by saying that unless conscious possession on the part of the accused has been proved, no presumption under Section 288 arises in favour of the prosecution, holding further that the burden of proving conscious possession on the part of the accused remains on the prosecution and that burden is not shifted to the accused by anything that is contained in Section 28. In the other case of Cyril C. Baker v. Emperor : AIR1930Cal668 , referred to by Mr. Israni, it was held that possession implies knowledge, and possession without knowledge can hardly have been meant since in that case the element of criminal intention or knowledge would be entirely wanting. That onus of proving the necessary knowledge in respect of the article would be obviously on the prosecution. It follows, therefore, that before any aid of Section 103 of the Act is invoked by the prosecution, the prosecution must have discharged its burden in showing that the possession of the articles in question was the conscious possession of accused No. 1 or, at any rate, he had guilty knowledge in respect of those articles before he can be called upon to satisfactorily explain his possession in that respect. That onus does not shift till conscious possession is properly established, and as already pointed out, in the present case the prosecution has made no attempt whatever to show that the packets in question were in exclusive possession of the accused No. 1 or that he was in conscious possession thereof so as to infer any mens rea in respect of those articles. Till then Section 103 of the Act cannot help the prosecution. It is only when the conscious possession-of the accused No. 1 is established, that his non-explaining satisfactorily to that Court about possession thereof would result in his conviction. Since the evidence led by the prosecution shows neither the exclusive possession of the accused No. 1 nor the conscious possession thereof, he cannot be held liable in respect of the offence with which he came to be charged. The learned Magistrate was, therefore, not correct in convicting him for the offence in question.
10. The accused No. 2 happened to be the wife of accused No. 1 and she was living with her husband at the time when the offence is said to have taken place. For the same reasons she also cannot be said to be in exclusive possession or conscious possession of the packets of opium said to have been attached from the house of accused No. 1. Apart from that position, under Section 27 of the Indian Penal Code, anything found even from the possession of the wife is ordinarily to be taken to be on account of her husband and it is her husband who can be deemed to have been in possession of those articles. Unless, therefore, any clearly evidence is there to connect her with the incriminating articles found from the house, she cannot be held liable for the offence in question. The learned Magistrate was, therefore, wrong in convicting her for the said offence.
11. In the result, therefore, the appeal is allowed and the order of conviction and sentence passed against the accused No, 1 appellant is set aside. He is acquited and directed to be set at liberty forthwith. The fine, if paid, is directed to be refunded to him. The order of conviction and sentence passed against the accused No. 2, the wife of accused No. 1, is also set aside. The fine if paid by her, is directed to be refunded to her.