The presumption of responsibility for incriminating articles is rebuttable, and the burden of proving guilt rests on the prosecution. The accused cannot be called upon to explain possession unless it is proved that the illicit liquor was in his possession with his knowledge.

1. The two accused persons. Sukumaran and his wife Nandini were tried by the Kottarakara First Class Magistrate for the offence punishable under S.8 [1] [a] of the Travancore-Cochin Prohibition Act [Act XIII of 950] for being in possession of illicit liquor. The wife was acquitted and the husband was convicted and sentenced to undergo rigorous imprisonment for two months. The convicted person did not succeed in his appeal to the Quilon Sessions Court and has approached this Court in revision.

2. On 15-3-1960 at about 7 a. m. illicit liquor contained in glass and clay jars kept in Vijayavilasam house belonging to the petitioner was recovered on a surprise search by the flying squad Inspector, Pw.1. The contraband article was seized by the Inspector and the accused were arrested and charge-sheeted. The prosecution witnesses are definite that the jars containing the illicit liquor were taken from a wooden box kept in one of the rooms. The key of the box was with the wife who handed it over to the Inspector for opening it. The facts of the case are not seriously challenged.

3. The main point urged by Shri T. K. Narayana Pillai on behalf of the revision petitioner is that as the contraband articles were found in the possession of the wife, the conviction of the husband was illegal. There is no dispute that the key of the box was with the wife and that it was with that key the box was opened. The learned Sessions Judge brushed aside the argument regarding the wife's possession and held that the possession of the wife was that of the husband as he is the master of the house.

4. The presumption that the head of the family or the husband is responsible for the incriminating articles recovered from the house occupied jointly by him and others is not an absolute or unconditional one. The presumption is rebuttable and the weight attached to it must vary according to the circumstance of each case. It can be easily rebutted in this case. It is also of little avail to call in aid S.27 of the IPC. The section only says that when property is in the possession of a person's wife, clerk or servant "on account of that person" it is in that person's possession within the meaning of the Code. It cannot be applied to a case where the possession is not proved to be "on account" of the accused and especially so in a case where possession itself is a crime and the article is such that the accused might well have been in ignorance that it was in his wife's possession. The fiction that the husband and wife are one and the same person cannot also be extended to say that the wife's crimes are the husband's and vice versa. A mental element such as intention or consciousness or knowledge must be established before the possession of illicit liquor can be said to constitute an offence under the Prohibition Act. Possession must be a conscious one and not one to be inferred from the proximity of accused to the article in question. No man can be said to "possess" a thing without his knowledge. In other words to make the possession culpable the accused must have the "mens rea". Else many a virtuous and innocent husband should spend his days behind bars if he is unfortunate enough to be married to a woman who has a fancy for contraband articles and think nothing of storing them in the house. Whatever was the position in the past or among the orthodox, in the present set up it is not uncommon for both husbands and wives to have separate boxes where things are locked up without the knowledge of the other spouse. So the inference that the possession by the wife is possession by the husband is a dangerous one which if drawn invariably without regard to the attendant circumstances can lead to unfortunate results.

5. An objection was raised before the lower court and here as well by the State that as the accused had not put forward the plea that the articles found inside the box the key of which was handed over by his

wife, were not in his possession, he is bound