1. The accused in this case was convicted by the Stationary Sub-Magistrate of Pennagaram under Section 4(1)(a) and (g) of the Madras Prohibition Act and sentenced to four months rigorous imprisonment. In appeal, the conviction and sentence were set aside on the ground that the prosecution had not satisfactorily proved that the accused was in possession. The Crown has preferred this appeal against the order of acquittal.
2. A pot containing 4 1/2 gallons of fermented wash, a bottle containing four drams of illicit distilled arrack, and a number of vessels used for illicit distillation were found in a hut owned by the accused and his three younger brothers. The accused and his brothers also owned a house in the village. His brothers were tried and convicted; but the present accused has been tried since because he was then absconding. The Sub-Divisional Magistrate acquitted the accused on the ground that he had a house in the village and was admittedly not present when the articles of distillation were recovered.
3. It would appear from the evidence of P. W. 2, the village Magistrate of the village, and of D. W. 1, that not only is the accused the eldest member, and therefore the manager, of the undivided family consisting of himself and his three brothers and was the owner of the hut in which the articles were, found; but that he also lived there. He was not present at the time when the search was made as he was then with his sheep in a pen at some distance off; but the evidence leads one to conclude that he lived in the hut as much as his brothers and was therefore in possession of the articles found in the hut, unless there is some reason to think that the articles recovered may have been introduced into the hut during his temporary absence. If the offence had been committed with regard to some smaller article such as a packet of opium or a jewel that could be easily introduced in a very short space of time without the knowledge of a person living in the house, then undoubtedly the Sub-Divisional Magistrate would have been right. But it is clear that all the paraphernalia of distillation could not have been introduced within a short space of time. It seems most unlikely that the younger brothers were waiting for their eldest brother to go out to attend to the sheep in order to introduce into the hut in his absence material for distillation and then to have the process well advanced by the time that the police came to search the hut. I have no doubt in the circumstances that the accused was in possession of the articles found and which were the subject of the charge. The order of acquittal is therefore set aside and the accused convicted and sentenced as he was by the Stationary Sub-Magistrate.