1.This order deals with criminal Revisions NOB. 290, 292, 293, 294 and 296 of 1949. The cases have been referred to a Division Bench by Kapur J. as he experienced some difficulty in deciding the nature of possession involved in these oases. The petitions have arisen out of five different exercise cases in which the allegation of the prosecution was that the accused person (in each case) was in possession of a quantity of lahan. In all' oases the lahan had been buried by the accused person. In two oases the lahan was buried out in the fields and in three cases the lahan was buried in a kotha. The point raised before Kapur J. was whether in any of these oases the accused person could be said to have been in possession of lahan which is a contraband article the possession of which is forbidden by law. Kapur J. referred to the definition of possession as given in Stroud's Judicial Dictionary and then concluded as follows:
I myself have acme doubt as to whether even where a man buries either an exisable article or some such. prohibited thing in the field of another he will still be in possession of that article within the meaning of that word in Section 61 (1). As this is a matter of some difficulty and is likely to arise in many other cases also at least it does in five connected cases now, I would refer this matter to a Division Bench.
It appears from this that only the question of possession was being referred to the Division Bench, but no specific question was formulated by Kapur J. and we decided that it was more proper to hear all the revision petitions on merits and decide them instead of laying down a somewhat vague principle of law defining the nature of possession in such cases and sending them back for decision to the Single Judge once again,
2. I find it difficult to lay down a cut and dry principle with regard to the question of possession. The definition of possession as quoted in the referring order of my learned brother Kapur J. is as follows:
A moveable thing is said to be in the possession of a person when he is so situated with respect to it that be has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.
It is clear that in some cases an article may be said to be in possession of another whether it is lying at his house or had been buried by him out in the fields. In other cases an article lying in a person's house without his knowledge may not be in his possession and the question whether a certain article is or is not in the possession of an individual will depend on not where it is lying, but on a number of other factors which will have to be proved in each individual case. To me it seems that the only safe guide is the definition of 'proved' as given in Section 3, Evidence Act:
A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
3. It is scarcely necessary to mention that there are many reported oases in which articles lying in a field have been held to be in possession of the accused person and as many cases in which such articles have been held not to be in possession of the accused person. The ultimate -decision of this issue must depend on a number of other factory which will go to show whether the article was under the dominion and control of the person concerned or was lying there beyond his control, Therefore, in order to decide whether a quantity of lahan or illicit liquor or illicit arm is or is not in possession of the accused person, the Court will have to consider not merely whether the article is lying at the house of the accused person or at a place accessible to others, but a number of other circumstances the proof of which will persuade the Court to come to the conclusion that the article was in fact under the control and absolute dominion of the person concerned. And it is only from this point of view that I propose to deal with the oases before me.
4. Considering first the case of Lachhman Singh (Criminal Revision No. 290 of 1949) the evidence is that Lachhman Singh made a statement to the effect that he had buried lahan in a field. He then took the raiding party to the spot near the boundary of his field. The spot itself does not lie in his own field but is situated in the field of some one else. Prom this spot two pitchers of lahan were recovered. In this case, therefore, we have the statement of Lachhman Singh that he had buried the lahan, together with the factum of the recovery of lahan from a field which doea not belong to him. Together with these facts we must also take into consideration the circumstance that in this particular village distillation of illicit liquor on a large scale was going on and many persons were alleged to be distilling liquor. An excise raiding party found many pitchers of lahan and the recoveries were made from various places. All the five petitioners before us belong to the same village and were apprehended on the same day. Therefore it is clear that in this village of Pholriwala several persona were distilling liquor and the fact was known to almost all the villagers. Therefore it is possible, nay probable, that Lachhman Singh also knew where the various pitchers of lahan had been concealed by the villagers and it may well be that he gave information relating to the pitchers of lahan belonging to some one else and in that view of the matter it cannot be said that Lachhman Singh was in possession of this lahan. Therefore it cannot be said that the charge under Section 61 (1) has been brought home to him. His petition, therefore, must be allowed and he must be acquitted.
5. The case of Bakhshish Singh (Criminal Revision No. 295 of 1949) is almost exactly similar. He made a statement to the excise party : 'I have buried four pitchers of lahan in my sugarcane field ' He then led the raiding party to a place in a sugarcane field and from this place four pitchers of lahan were recovered. Bakhshish Singh's plea was that the field did not belong to him and in fact belonged to one Charan Singh. Charan Singh appeared as a defence witness and stated that the field did belong to him. Kartar Singh Lambardar, who was cited by the prosecution stated : 'So far as I know the field fell to the share of the accused.' Kartar Singh, however, does not appear to be definite on this point and the plea of Bakhshish Singh is supported by the positive evidence of Charan Singh, D. W. 3. It is also to be observed that some more pitchers were recovered from this very field and these are not alleged to belong to Bakhshish Singh. In the circumstances, it cannot be said that the pitchers pointed out by Bakhshish Singh were under his control and dominion and his possession, therefore, has not been established. I would accordingly allow his petition also and acquit him. There is one other point in this case which deserves mention. The liquor recovered from these pitchers does not appear to have been tested by the Excise Sub-Inspector, for he says nothing about this matter. He says that the pitchers contained lahan and in the absence of some test or positive evidence it is difficult to hold that the contents of the pitcher were lahan.
6. I now come to the case of Nasib Singh (Criminal Revision no. 292 of 1949). The case against him is that he made a statement to the raiding party in the following terms: 'I have buried four pitchers of lahan in my kotha at the well.' He then led the raiding party to a kotha at the well and from this kotha four pitchers of lahan were recovered. The petitioner's plea was that he had not been allotted any land in Pholriwala. Kartar Singh lambardar said that the petitioner lives in Pholriwala and also in Jamshedpur which is a neighbouring village and that the petitioner's father bad been allotted land in Pholriwala. Kartar Singh further said that the petitioner lives with his father. The petitioner did not lead any evidence to show that the kotha did not belong to him. Indeed, he contented himself by trying to throw doubt on the prosecution story by suggesting that no land had been allotted to him and. therefore, there was no kotha in his possession. In view of the statement made by Kartar Singh and his own confessional statement, according to which the lahan was buried in his kotha, I must hold that the kotha was in possession of the petitioner. The pointing out of the lahan and its recovery from a place which is in the exclusive possession of the petitioner, in ray view, is sufficient to prove that the lahan was in possession of Nasib Singh. A kotha is not accessible to all and sundry and, therefore, is, different from a vacant land or an open space. The fact that a man buries an article in his own kotha shows that he retained control over it and, therefore, the article must be said to have continued in his possession. In the circumstances, I must hold that Nasib Singh has been proved guilty of having in his possession a quantity of lahan. His conviction must, therefore, be upheld. He has already undergone a part of the sentence awarded to him and as he has been on bail for a considerable time I am not willing to send him back to jail. I would, therefore, order that his sentence be reduced to that already undergone. [His Lordship then discussed the cases of Kirpal Singh (Cr.R. no. 239 of 1949) and Hari Singh (Cr. R. No. 294 of 1919). He upheld their convictions but reduced the sentence to that already undergone. The judgment then proceeded. Before taking leave of this case I wish to draw attention to the somewhat unsatisfactory definition of lahan given in Punjab Govt. Notifn. No. 5663 E & S dated 26-10-1932. This is to the effect:
The substance commonly known as lahan, of whatever ingredients such substance ma; be composed, whether it hag undergone a process of distillation or not, shall be 'liquor' for purposes of the Punjab Excise Act 1 of 1914.
This Notification has been issued under Section 3 (14) and Section 4, Punjab Excise Act (1 of 1914), and make3 the substance commonly known as lahan an excisable article. It is necessary, in my view, to have a little mote information about the subsatance known as lahan in any individual case. In four of the cases before us the Excise Sub-Inspector did make a test and say that the substance recovered was in fact lahan. In one of them no such test was made and I should say that unless such a test is made the article cannot be held to be lahan and it will be as well if the Excise Sub-Inspectors at the time of making a test give their reasons for coming to the conclusion that the substance recovered was in fact lahan. In many cases, which have come up before me, I have noticed that the matter was dealt with in a somewhat slipshod manner and it was taken for granted that the ipse dixit of the Excise officials on this point is sufficient to establish that the article recovered is an exciable or contraband article. A little more evidence-on this point is, in my view, necessary before a person can bo held guilty of a criminal charge.
7. I agree entirely.