Judgment

DUA, J.: - This appeal by special leave is directed against the judgment and order of the Patna High Court dated January 31, 1967 summarily rejecting the appellant s revision from the order of the Additional Sessions Judge, Monghyr, dated January 9, 1967 dismissing his appeal from the order of a Munsiff-Magistrate, I Class, Khagaria dated June 2, 1966 convicting him of an offence under S. 47 (a) of the Bihar and Orissa Excise Act 2 of 1915 (hereinafter called the Excise Act). The appellant was sentenced to rigorous imprisonment for one year and a fine of Rs. 1,000/-; in default of payment of fine the appellant has to undergo further rigorous imprisonment for three months.

2. According to the prosecution story on October 9, 1963 a Sub-Inspector of Excise (Special) organised a raid party for going to Mathar village, police station Khagaria, District Monghyr. The raid party included a Magistrate and some members of the armed police force. In that village a house alleged to belong to the appellant is said to have been searched and six bags of non-duty paid ganja recovered from one of the rooms. As a result the appellant was prosecuted for an offence under S. 47 (a) of the Excise Act. The appellant denied that his house was searched or any non duty paid ganja was recovered from his house. According to him, the house alleged to have born searched from which the ganja in dispute was recovered did not belong to him. The prosecution in support of its case examined in all eight witnesses out of whom four witnesses were non-official and the remaining four official witnesses were a Magistrate, a Sub-Inspector and an Assistant Sub-Inspector of Excise and a peon of the Excise Department. The Magistrate trying the case has observed in his order that all the non-official prosecution witnesses (nos. 1, 2, 3 and 5) had tried to help the accused though they were not declared hostile. The official witnesses, according to the Magistrate, had deposed that the house of the accused was searched after observing all formalities and six bags of NDP ganja were recovered from the room facing south. On the question of ownership of the house alleged to have been searched the trial court relied on the testimony of the Magistrate (P. W. 8) and of Ram Krishan Yadav (P. W. 3) and convicted the appellant as already mentioned. The Additional Sessions Judge, on appeal, has observed in his judgment that the accused had not specifically stated either in his examination under Section 342, Cr. P. C or in his written statement that the house actually searched did not belong to him and that without evidence showing that the accused had some other house in the village it could not be held that the house searched did not belong to him. According to the Judge, to quote his own words: "The knowledge regarding residence of a person in a house must not necessarily be personal and in all cases that can be imagined such a knowledge is only derivative and not direct." On this view the evidence of the Magistrate (P. W. 8) and of the Sub-Inspector, Excise (P. W. 6) was held to establish that the house from which non-duty paid ganja was recovered belonged to the appellant and to none else. It was next argued there that the house searched was lying vacant and the appellant was not even present at the time of the search. On seeing the big raid party some of the villagers had started running away carrying with them some bags of ganja, and it was suggested that some of such fleeing villagers might well have thrown some of those bags in the vacant house from where those bags are alleged to have been recovered during the search. The appellate court did not accept this contention as there was no evidence to support this theory. That court, relying on the testimony of P. W. 4 and P. W. 6 felt that the recovery of the bags from a room inside the house and the fact that the house was closed on all sides, ruled out this possibility. After expressing this view the court said:

"The appell