JUDGMENT

Gokaran Nath, A J C - This is an application for revision of the order of the learned Judge of Gonda, dated the 23rd January 1925, confirming the order of Babu Chintamani, a Magistrate of the first class of Gonda, convicting the applicant of an offence under Section 60(a) of U.P. Excise Act, 1910. The accused has been sentenced to pay a fine of Rs. 15 or in default to suffer a week's rigorous imprisonment. The charge laid against him is that while a search was made in his house bhang weighing about 9 chhataks was found in a handi (earthen pot) in his house.

2. There can be no doubt that the bhang was discovered in the house of the applicant and if its possession could be brought home to him his conviction would be quite proper. In revision, however, it is urged that it was established beyond doubt that, in the house in which the bhang was found and in which the applicant lived, there were several other persons who also lived there. There were three of his sons, one of them aged about 25, the second aged about 20 and the third aged about 15, who together with his nephew, Bhikhari, aged about 25, all lived in the same house. Two witnesses, D.W. 1 and D.W. 2, were examined on the point and their evidence stands quite unrebutted. Both of them were not even cross-examined on this point. Under these circumstances it is impossible to bring home the possession of the bhang to the applicant. A ruling reported in 19 Madras Law Journal, 301, was quoted before the learned Sessions Judge but he refused to look to it, it being an unauthorised publication. The principle laid down in that ruling, however, is a clear one and has been laid down by this Court in Bashir Ahmad Khan v. King-Emperor [1920] 22 O.C. 256 and King-Emperor v. Farrukh Husain A.I.R. 1921 Oudh 225. In the former case, it was held by Kanhaiya Lal, J.C., that where stolen property was found in a house occupied by several persons, it was not enough to show that the property was found in the house, to convict a member of the family who might have had nothing to do with bringing or keeping it there. In the latter case the same principle was upheld by Lindsay, J.C. A father and son lived in the same house. The son was challaned under Section 411 of the Indian Penal Code after the father had been convicted under the same section. The only evidence against the son was that the stolen property had been found in the house. It was held that there was nothing to show that the accused was in possession of the property which he knew or had reason to believe was stolen. In the case before me there is no evidence to show that the applicant brought the bhang and kept it in the handi which was found in the house. It might be that the other inmates of the house were responsible for this act. Under these circumstances the applicant cannot be convicted of the offence with which he had been charged. The learned Sessions Judge remarks in his judgment that the applicant; was present in his Court and had red eyes of an habitual smoker of bhang. I am surprised to find such a statement in the judgment of the learned Judge. The redness in the eyes of the applicant if any, as noticed by the learned Judge, may have been due to several causes and in the absence of evidence, I am not prepared to hold that the applicant, merely on that account, is an habitual smoker of bhang.

3. I therefore accept this application, set aside the conviction and sentence passed on the applicant and direct that the fine, if realised, be at once refunded to him.