The High Court should not interfere in an appeal against an order of acquittal in a case under S. 6(1)(a) and (g) of the Prohibition Act unless there is a miscarriage of justice due to incompetence, stupidity, or perversity of the subordinate tribunal.

1. This appeal is filed by the State Government of Madhya Pradesh under Section 417, Criminal P. C. against the order of acquittal passed by the Magistrate First Class. Nagpur, in Criminal Case No. 1753 of 1951.

2. The Respondents Vithi wife of Ganpat and Ambi mother of Ganpat were prosecuted under S 6(1)(a) and (g) of the Prohibition Act for being in possession of illicitly distilled liquor and also apparatus for its manufacture.

3. On 29-8-1951 head constable Nasir Ahmed (P. W. 1) along with constable Jadish Singh (P. W. 2) and Zongdu (P. W. 4) raided and searched the house of the Respondents in their presence. A mobil oil tin containing illicitly distilled liquor about 11/2 bottles, a tin containing boiled 'mahua' and an earthen pot smelling of fermented 'mahua' were seized from their house as per seizure memo (Exhibit P. 1). The Respondents were tried summarily for the above offences. Both of them denied that the articles were found in their house. Respondent Vithi stated that these articles were implanted in their house.

4. The trial Court, while accepting the prosecution evidence that the incriminating articles were found in the house acquitted the Respondents on the ground that the house belongs to Ganpat and these articles must have been kept by him there besides there was no evidence to show that they abetted Ganpat in manufacturing the illicit liquor.

5. The only question for consideration is whether this is a fit case in which the High Court should interfere in an appeal against the order of acquittal. The learned Government Pleader argued that the evidence on record clearly showed that the Respondents were in possession of the incriminating articles when the house was searched. They did not contend that these articles belonged to Ganpat, but pleaded that they were implanted from outside which plea was negatived. Under the circumstances, they cannot escape the liability even though Ganpat was absent from the house at the time of the search.

6. The learned Counsel for the Respondents argued that Ganpat being the adult male member of the family was the proper person to answer the charge & not the Respondents. Reliance was placed on -' Harbans Singh v. Emperor, 1941 AIR(Nag) 296'(A); - Emperer v. Santa Singh, 1944 AIR(Lah) 339' (F.B.) (B) and - 'Wazir v. Emperor'.

7. The first two cases were under Section 19(1) of the Arms Act. The third case was under Section 9 of the Opium Act. In the last mentioned case, six tolas of contraband opium were discovered or a search being made in the house in which the husband and wife lived. Both were convicted under Section 9 of the Opium Act. In appeal, the wife was acquitted as it was held that the husband was alone liable under Section 9 and it cannot be presumed that the wife also was jointly in possesion with him. The principle laid down in the Lahore case is:

In cases where incriminating articles are recovered from a place in the occupation or possession of more persons than one and it is not possible to fix the liability on any particular individual, it would not be legally permissible to call upon all the occupants of the place to account for the presence of the incriminating articles in their premised and in the absence of any satisfactory explanation on their part to hold all of them to he in possession or control of the same. Mere proof that an incriminating article is found in premises occupied by a number of persons does not in itself establish 'prima facie' the guilt of any particular person or all of them jointly. That being so they cannot be called upon after such evidence to establish their innocerce.

The above principles are also applicable to cases under Section 6(1) (a) & (g) of the Prohibition Act where the charge is for possession of the incriminating articles.

8. Too much stress seems to be easily said upon the remedy available under Section 417, Criminal P. C. in petty cases. An appeal against an acquittal is a special weapon which the State Government judicially