The presumption of possession in the case of a joint family is rebuttable, and the weight to be attached to it must vary according to the circumstances.

This is a criminal revision case which has been filed against the-conviction and sentence of the learned District Magistrate, Visakhapatnam, in C.A.No. 30 of 1951, confirming the conviction and modifying the sentence in C.C.No. 1046 of 1950, Sub-Magistrate, Visakhapatnam.

2. The facts are: The petitioner-accused before us was the Head Establishment Clerk, D.T.O.‘s office, Bengal-Nagpur Railway. He is an elderly man who is suffering from heart trouble and is also said to be otherwise sickly. This accused has got a grown up son who has been examined as D.W. 4 in this case and that son’s wife is one Jayalakshmi, who has not been examined. The accused and his son and daughter-in-law all lived in the same house and the evidence is that they are undivided and the accused is the tenant of that house. It is in these circumstances that the following incident took place.

3. P.W. 1, Sri G.N. Brahma, who is the Inspector of the Special Police Establishment of the Government of India with heardquarters at Puri on information received in regard to certain other matters, with which we are not concerned here and which might well be guessed, obtained a search warrant from the District Magistrate, Visakbapatnam, on 4th December, 1949, and searched the house of the accused.

4. In the course of the search on 5th December, 1949, in the presence of the then Stationary Sub-Magistrate, who has been examined as P.W.5, Mr.S.N. Singh, Section Controller of B.N. Railway, Waltair, who was residing close to the house of the accused and who has been examined as P.W.3, the local Sub-Inspector Mr.C.V. Naidu and the Railway Sectional Officer, Mr. S.J. Naidu, attached to the Special Police Establishment with headquarters at Puri and who has been examined as P.W. 2. 2½ bottles of Haywoods Fine Brandy VAT No. 4, were found in the house of the accused. The half bottle, M.O.1, was found in the bottom drawer of the mirror almirah in the southernmost room of the house of the accused. The lull bottles with the original company seals were found in the iron safe in the same room. They were seized along with other articles concerned in the other case for which the search was made in the first instance and a search list Ex. P-1 was prepared. These bottles of brandy were handed over along with a report the same day by the Special Establishment Police Inspector, P.W.1 to the local Prohibition Sub-Inspector Mohamad Lal Sheriff, examined as P.W.4. This Prohibition Sub-Inspector, came to the spot took up the investigation and prepared another Panchayatnama and which has also been signed by the aforesaid persons.

It is not disputed that before the search the person of the searching officers was searched by the Magistrate as well as by the outside witness Mr. S. N. Singh. The accused was present at the time of the search. On 5th December, 1949, the Prohibition Sub-Inspector enquired the accused in regard to the recovery of these bottles of brandy and possession of the same by him. The accused in Ex. P-4 stated that he was suffering from fever and that he was unable to give any statement. The accused was again called upon to appear and give a statement on 7th December, 1949, and in regard to which also he sent a report Ex. P-5, that he was still sick and was unable to give a statement.

5. On the accused being charge-sheeted for an offence under section 4 (i) (a) of the Madras Prohibition Act that he was found to have been in possession of two full bottles of brandy in his iron safe and a half bottle in a mirror almirah in his house without being covered by permit, he came forward with the version that these bottles were found in the southern room of the house and that his only son, who is D.W.4, and his wife Jayalakshmi are living separately in that house in that separate room and that the keys for these receptacles were in the possession of Jayalakshmi and that the accused had nothing to do with that southern room or the receptacles and that he should not be construed to have