M. Fazl Ali, J.
1. The petitioner has been convicted under Section 48 of the Excise Act and has been sentenced to pay a fine of Rs. 50/- by the Subordinate Magistrate, Jammu. The appeal before the Sessions Judge against the conviction and sentence was dismissed by him.
2. The prosecution case was that the petitioner owned a tea and soda water shop. The shop was raided by the Inspector of Excise Order 17-6-1957 in the course of which two bottles of liquor were recovered from the shop. According to the prosecution one bottle containing three-fourth liquor was recovered from a door way leading into the inner apartment of the house of the petitioner and a bottle containing same liquor was recovered from inside a tumbler kept under a chowki in the shop. The petitioner in his statement under Section 342, Cr. P.C. stated that so far as the bottle which contained three-fourth liquor and which was recovered from the door way did not contain liquor at all whereas the bottle which was recovered from beneath the chowki was placed there without the knowledge of the petitioner.
From the evidence of the expert it appears that the bottle which was recovered from beneath the chowki contained liquor whereas the expert was not certain the other bottle contained liquor but it smelt like liquor. The definite case of the petitioner was that this bottle contained some medicine and no liquor. Having regard to the evidence of the expert so far as the bottle which was recovered from the door way is concerned it cannot be said that the prosecution has proved that it contained liquor. The petitioner must, therefore, be absolved of the charge with respect to that bottle.
3. Coming now to the bottle which was recovered from beneath the chowki the Sessions Judge has observed that the onus was on the petitioner to prove that it was kept beneath the chowki without his knowledge and its possession having been proved there would be a presumption under Section 57 of the Excise Act that the petitioner had committed the offence charged.
4. Mr. Sharma has contended that the learned Sessions Judge was in error in placing the onus on the petitioner to show that the bottle in question was in his conscious and exclusive possession. Possession in order to be punishable or incriminating must necessarily be conscious and exclusive. It is well settled that it cannot be presumed that a statute excludes mens rea unless such an intention has been mentioned in the statute in express words. In the Jammu and Kashmir Excise Act there is nothing to show that the Legislature intended to exclude mens rea while intending to prosecute the persons who are found in possession of excisable articles. The word 'possession' as mentioned in Section 48 of the Excise Act must necessarily imply that the accused is in conscious possession before he can be convicted.
It follows, therefore, that the prosecution has got to prove affirmatively not merely the fact that the articles were recovered from the shop of the petitioner but also that the place from which the bottle was recovered was in conscious and exclusive possession of the petitioner. The learned Sessions Judge was in error in misplacing this onus on the petitioner. On the other hand, I find that the petitioner has clearly stated that the chowki underneath which the bottle was recovered was kept in the shop and all kinds of customers used to come and sit there. The Inspector P. W. 1 has merely said that he does not know whether the customers sit on the chowki or not.
Thus the prosecution does not rule out the possibility that the incriminating article may have been placed beneath the chowki by somebody else without the knowledge of the petitioner, Under such circumstances it must be held that the prosecution has failed to prove conscious and exclusive possession of the petitioner over the article in question,. My view that possession in order to be incriminating must be exclusive is fully supported by several decisions of the High Courts in India. This view was expressed in the case Emperor v. Santa Singh AIR 1944 Lahore 339 where their Lordships of the Lahore High Court observed as follows:
In my view, possession and control mean something more than mere constructive or legal possession and control. Can it be said for the purposes of Criminal Law that a man in fact possesses or has under his control something, the existence of which he has no knowledge? It may be said that he possesses it but only on the assumption that a man possesses everything in the house which he possesses. In my view, however, possession and control required to constitute offences under the Explosive Substances Act and Arms Act, must mean conscious possession and actual control. A man must know of the existence of something before he can be said to control it or have it under his control. It must be remembered that under these sections of Explosive Substances Act and Arms Act, mere possession of incriminating articles constitutes serious criminal offences and there must be in my view mens rea of guilty knowledge before a person can be convicted of such possession.
In another case reported in Mohan Lahiri v. The king : AIR1950Pat243 a Division Bench of the Patna High Court while relying on the Lahore High Court observed as follows:
On the other hand, there is no finding that the petitioner was personally and consciously in possession of the weapons. He has been convicted merely on the view that being admittedly the Karta of the family, he must be held responsible for the possession of the unlicensed weapons. That principle of the responsibility, however, is not enough in cases under the Arms Act.
The same view was taken in a previous decision of the Patna High Court reported in Sahendra Singh v. Emperor AIR 1948 Patna 222 wherein their Lordships of the Patna High Court pointed out that the words 'possession' and control as appearing in Section 19(f) of the Arms Act mean something more that mere constructive or legal possession and control. To the same effect is a decision in a case reported in Abdul Rahim Khan v. King Emperor AIR 1949 Nag 289. In the case of Trimbak v. State of Madhya Pradesh : AIR1954SC39 their Lordships of the Supreme Court have observed as follows:
When the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstances of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles.
It is pointed out by their Lordships of the Supreme Court that the prosecution must exclude the possibility that the circumstances in which the articles are recovered are compatible with the fact that somebody may have placed the articles there. Having regard to the decisions mentioned above I think it must be held in this case that the prosecution has not been able to prove conscious and exclusive possession of the petitioner over the bottle in question.
5. Mr. Advocate General, however, contended that since the bottle was found from the shop of the petitioner he could be convicted on the basis of the presumption as contained in Section 57 of the Jammu and Kashmir Excise Act. I am not however, in a position to accept this contention. The relevant portion of Section 57 reads thus:
In prosecutions under Section 48, it shall be presumed until the contrary is proved, that the accused person has committed an offence under that section in respect of any liquor or intoxicating drug, or any still utensil implement, or apparatus whatsoever for the manufacture of liquor, or any intoxicating drug, or any such materials as are ordinarily used in the manufacture of liquor, or any intoxicating drug, for the possession of which he is unable to account satisfactorily....
A perusal of this section clearly shows that before a presumption under Section 57 can arise the prosecution must first prove affirmatively that the article was in possession or rather conscious possession of the accused. As the prosecution has failed to prove this fact in the present case the question of presumption under Section 57 will not arise at all. Even assuming that a presumption under Section 57 does arise by virtue of the fact that the bottle was found in the shop of the petitioner, in my opinion, the presumption ceases to exist the moment the petitioner gives a reasonahle explanation for his possession, because once he has done so he has fulfilled the conditions aid down by the section and he has satisfactorily accounted for the possession of the articles concerned. Once this is done unless the Court disbelieves the explanation of the accused there can be no question of the accused being convicted on the presumption.
It is, however, not necessary for the accused to prove affirmatively the explanation given by him by leading direct evidence. Once the Court finds that the explanation given by the accused is reasonable and probable the onus shifts back to the prosecution to prove affirmatively that such an explanation is false. In my opinion Section 57 of the Excise Act embodies the same statutory rule of presumption which is to be found in Section 114 of the evidence Act. There are decisions under Section 114, Evidence Act, which lay down that the moment the accused give a reasonable explanation the effect of presumption comes to an end. In this connection I find myself fortified by the observations of a Division Bench of the Patna High Court in the case Rajendra Nath v. Emperor AIR 1937 Pat. 191. Their Lordships of the Patna High Court while considering the effect of Section 114, Evidence Act, have observed as follows:.the learned Assistant Sessions Judge ought to have told the jury that the onus which might have been cast on the defence by a failure to explain how the property came into the possession of Rajendra had been discharged and that it was for the prosecution to prove substantially by direct or circumstantial evidence that he had guilty knowledge.... If the jury had been applying the presumption permitted by Section 114, Evidence Act, that is to say, if the only evidence available had been that Rajendra was in possession of stolen property and that he had been unable to account for his possession, it would have been highly necessary to prove that this chain actually found in his possession was stolen property because unless he was found in possession of property actually identified as stolen property, the presumption could not be applied. But when he had satisfactorily accounted for his possession, so that the question of the application of Section 114, Evidence Act no longer arose, then it was necessary to show by evidence, direct or circumstantial, that there was some collusion between the thief and the receiver or that the receiver had real reason to believe that the property which he had purchased was stolen'. In other words, once the accused gives an explanation which is plausible the presumption which arises under such sections is fully discharged. In this case none of the Courts below has given any finding as to whether the explanation of the petitioner was reasonable. The learned Sessions Judge seems to have ignored that explanation merely on an erroneous view of law that the onus was on the petitioner to prove guilty knowledge. The Courts below have not considered the fact that the explanation given by the petitioner was not merely reasonable but was one which was not even negatived by the Inspector when he said that he was not in a position to controvert the fact that customers sit on the chowki.
6. After a full consideration of the circumstances of the case I think that the explanation given by the petitioner is a reasonable one because it is not disputed that he was running a shop which was visited by all kinds of customers and hence the possibility that some one of the customers might have put the tumbler beneath the chowki cannot be ruled out.
7. For the reasons given above the conviction and the sentence of the petitioner cannot be sustained and must be set aside. The petitioner is accordingly acquitted of the charges framed against him and the application is allowed. The fine, if paid, shall be refunded.