The presumption of innocence and the burden of proof in criminal cases.

Dr. Couto, J. : - On 23rd July, 1985, the Excise Inspector Afonso conducted a raid on the house No. 597 situate at Badem, Assagao and recovered from a room of that house 47.50 kgs. of charas. A criminal case under S.30(a) of the Goa, Daman and Diu Excise Duty Act, 1964 was thereafter filed against the present respondent and two others in the Court of the Judicial Magistrate First Class, Mapusa.

2. The three accused had been enlarged on bail, but the original accused 1 and 2 absconded during the trial and, therefore, the case proceeded under S.299 Cr. P.C. against them. Finally, the trial ended and by judgement dt. 25th Sept. 1987, the learned Judicial Magistrate First Class, Mapusa, acquitted the respondent herein giving him the benefit of doubt. It is against this judgement of acquittal that this appeal was filed with the leave of the Court.

3. Mr. Bhobe, the learned Public Prosecutor, contends that the impugned judgement is not sustainable and is bound to be set aside as not only against the evidence on record, but also as contradictory in terms. He submitted that the impugned judgement is, therefore, perverse and this Court should interfere with it and convict the respondent for an offence punishable under S.30(a) 1 of the Goa, Daman and Diu Excise Duty Act, 1964. According to the learned Prosecutor, there are glaring errors in the impugned judgement, for the learned Magistrate has started to proceed on the wrong footing that the Excise Inspector has acted with undue haste in breaking open the room from where the charas had been recovered, because the raiding party broke open the door of the room although the respondent had stated that the said room was in possession of the owner of the house, P.W. 1 Rosy Dias. The learned Magistrate observed that in view of the said statement made by the respondent, it was incumbent upon the Excise Inspector to secure the presence of P.W. 1 in order to ascertain whether or not the room had been rented to the respondent and whether the keys of the said room were with him. These observations of the learned Magistrate however, are not justified, according to the learned Prosecutor, because the evidence of P.W. 4 clearly shows that he had made an attempt to secure the presence of the said witness, but had not succeeded in locating her. Secondly, according to the learned Prosecutor, the learned Magistrate recorded a clear finding in para 14 of the impugned judgement that the respondent was in possession of the house, but he added that he was not in possession of the charas. This finding of the learned Judge is entirely unreasonable and unjustified, for once the possession of the house by the respondent was established, it necessarily followed that the Charas which were found inside the same house were also in his possession. Thirdly, the learned Magistrate assumed in the evidence, facts which are not at all brought on record and wrongly applied the rulings of the Supreme Court cited by him. For all these reasons, according to the learned Prosecutor, a case exists for the interference by this Court with the impugned judgement. He contended that the evidence on record clearly establishes beyond any reasonable doubt that the whole house had been leased by P.W. 1, to the respondent; that he was staying in the house along with the other two accused and that 47.50 kgs. of charas had been recovered from the said room by the raiding party. The defence of the respondent throughout the trial has not been that there was no lease agreement but that it was with one of the accused with the difference that the lease instead of being with the respondent was with the accused 2. Further, the defence was that the charas had not been recovered from the room but from some bushes existing outside the house. The evidence clearly established that the charas had been recovered from the said room and further the evidence of P.W. 1 which stood the test of cross-examination clearly showed that the whole house had b