Skip to content


In Re: Lazar Fernando and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1931)61MLJ854
AppellantIn Re: Lazar Fernando and anr.
Cases Referred and Weston v. Peary Mohan Dass I.L.R.
Excerpt:
.....17 tolas of opium was seized from a gramophone box placed on a safe in the western room in their house at tuticorin on the night of 4th june, 1929. both the courts have found that search was properly conducted and that the opium was in fact seized as alleged by the prosecution. 957.] where the facts proved leave it uncertain whether the accused or some one else was the person who had the knowledge and control necessary to constitute possession of the article seized, the prosecution has failed to prove its case and must fail. his attempt to prove that he was at colombo not only failed but as the appellate magistrate says throws suspicion on his conduct. if he was, as it is found he was, at tuticorin on the day of the search, he could halve left the house only for some temporary purpose..........17 tolas of opium was seized from a gramophone box placed on a safe in the western room in their house at tuticorin on the night of 4th june, 1929. both the courts have found that search was properly conducted and that the opium was in fact seized as alleged by the prosecution.2. two lines of defence were adopted: one that the 1st petitioner could not be said to be in possession of the opium, as he had left tuticorin for colombo on 29th may and was at colombo on the 4th june and therefore knew nothing of the opium; second, that the 2nd petitioner who with her two children aged 18 and 20 was in the house at the time of the search was not in sole occupation of the house but that 1st petitioner's elder brother and his family were also residing in the house and that there was nothing in.....
Judgment:
ORDER

Krishnan Pandalai, J.

1. The petitioners, husband and wife, were convicted under the Opium Act (I of 1878) of illicit possession of 17 tolas of opium. The evidence against them was that at a search conducted by the Excise Assistant Inspector assisted by the local Police a packet of 17 tolas of opium was seized from a gramophone box placed on a safe in the western room in their house at Tuticorin on the night of 4th June, 1929. Both the Courts have found that search was properly conducted and that the opium was in fact seized as alleged by the prosecution.

2. Two lines of defence were adopted: one that the 1st petitioner could not be said to be in possession of the opium, as he had left Tuticorin for Colombo on 29th May and was at Colombo on the 4th June and therefore knew nothing of the opium; second, that the 2nd petitioner who with her two children aged 18 and 20 was in the house at the time of the search was not in sole occupation of the house but that 1st petitioner's elder brother and his family were also residing in the house and that there was nothing in the evidence to show that she could personally be charged with possession of the opium. It was found by the Lower Courts that though 1st petitioner had left Tuticorin for Colombo on 29th May he left Colombo on 31st May so that he could have been in Tuticorin on 4th June, though he was not present in the house at the time it was searched. It was also found that the 1st petitioner's brother and his family were not living in the house at the time of the search though they occasionally lived there.

3. On these facts the Courts found both petitioners to have been in possession of the opium. As the appellate Magistrate put it:

Accused 1 is the owner of the house and lives there. Accused 2 is his wife. Although it may be difficult to say which of them actually put it there it cannot possibly be said that it is not in their possession. They must therefore both have been in possession of the opium. ... If they (the children) had been charged and had been convicted on the same evidence I should have found that they too were in possession of the opium.

4. When this petition came on for hearing it was again pressed that 1st petitioner was at Colombo on the 4th June, 1929. 1 have had the whole evidence translated and examined it. The evidence of Court 1st witness which there is nothing to discredit shows that the 1st petitioner who was in Colombo on 31st May informed the witness who is the clerk in the Port Surgeon's Office that he was returning to Tuticorin on which a reporting card Ex. X was issued to the 1st petitioner. This was necessary because he having arrived in Colombo on 30th May had according to the quarantine rules bound himself by a bond Ex. to present himself daily for 12 days for examination by the Port Surgeon. The object of the reporting card was to excuse further attendance as the person concerned was leaving Ceylon. The production of the card by the Port Surgeon's clerk shows that it was used after issue and that 1st petitioner left Colombo accordingly on 31st May. The other evidence produced by 1st petitioner to show that he was at Colombo on 4th June is worthless. I agree with the Lower Courts that it is not shown that 1st petitioner was not at Tuticorin on 4th June and that in all probability he was there on that day though not present in the house at the time when the officers went to search it.

5. On the above facts I think the inference that 1st petitioner was in possession of the opium found in his house is justified. A large number of cases were cited to show that where property is found in a place to which several persons other than the accused have access, it is wrong to infer that the accused is the person in possession: Jayarmulu Naidu v. Emperor A.I.R. 1923 Mad. 50, Emperor v. Ram Autar I.L.R. (1925) A. 511 Khusiram Maharaj v. The King-Emperor : AIR1922Pat387 and jogjiban v. King-Emperor (1909) 13 C.W.N. 861. It was also argued that possession implies knowledge (Shwe Kyo v. Emperor I.L.R. (1928) Rule 11) and that in the circumstances the knowledge necessary to uphold a conviction cannot be imputed to 1st petitioner. It is not necessary to examine the above decisions as they are all applications to particular facts of the rule that in such cases it is the duty of the prosecution to prove against the accused that he or they were in actual possession of the things recovered whether they be stolen property under the Penal Code or arms under the Arms Act or bombs under the Explosive Substances Act or opium under the Opium Act. Possession implies both animus or knowledge and control [Amrita Lal Hazra v. Emperor (1915) I.L.R. 42 C. 957.] Where the facts proved leave it uncertain whether the accused or some one else was the person who had the knowledge and control necessary to constitute possession of the article seized, the prosecution has failed to prove its case and must fail. The inferences appropriate to facts arising in different cases are not necessarily valuable as guides in other cases.

6. In this case the 1st petitioner was the master of the house. His attempt to prove that he was at Colombo not only failed but as the appellate Magistrate says throws suspicion on his conduct. If he was, as it is found he was, at Tuticorin on the day of the search, he could halve left the house only for some temporary purpose a short time before the search and it is not at all unreasonable to infer that he must have known of the presence of this large quantity of opium in his safe room, to which only his wife and children had access. If he knew of it, being the master of the house, he must be held to be the person in control and therefore in possession--see Queen-Empress v. Sangam Lal I.L.R. (1893) A. 129. It is not necessary to consider whether the same inference would have been justified if it had been proved that he had not returned after he left Tuticorin on 29th May.

7. But as against the 2nd petitioner, the wife, there is no such inference available. The appellate Magistrate erred in thinking that a wife must be held to be in joint possession with her husband of everything found in the house. The error of this is apparent from the result to which it leads that if the children were charged they would according to the Magistrate have been equally liable to be convicted. This is opposed to common sense and to law. See Queen-Empress v. Sangam Lal I.L.R. (1893) All 129 approved in Jogjiban v. King-Emperor (1909) 13 C.W.N. 861 and Weston v. Peary Mohan Dass I.L.R. (1912) Cal. 898.

8. The petition of the 1st petitioner is dismissed. The conviction of the 2nd petitioner is set aside and the fine if paid by her will be refunded.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //