Judgement

Mahajan J. - The appellant along with one Kishenchand was charged under S. 66 (b) read with S. 81, Bombay Prohibition Act, 25 of 1949, on the allegation that on 8-6-1950 the two accused were found in possession of twenty gallons and eight drums of rectified spirit without a permit as required by law. The defence was that these articles were not in their possession or in the godown charge of the appellant. The Presidency Magistrate held that it was proved beyond reasonable doubt that the bottles, drums and jars containing the rectified spirit were found in the godown raided by the police. He further held that as admittedly the appellant was in charge of the godown, the inference was that he was in control and possession of the articles found therein. In the result he convicted the appellant and sentenced him to three months rigorous imprisonment and, fine of Rs. 1000. Against the decision of the Presidency Magistrate, an appeal was filed in the High Court but was summarily dismissed. This appeal is before us by special leave.

2. The principal question raised in this appeal is that there is no evidence on the basis of which it could be held proved that the appellant was found in possession of twenty gallons eight drums of rectified spirit on 8-6-1950. It was contended that the Magistrate was not justified in making use of the statement of the accused made under S. 342, Cr. P. C., for the purpose of finding that fact. It was said that the godown was owned by a limited body, Frank Rose & Co., Ltd., and the appellant was paying rent for the godown under their instructions, and that in the absence of evidence that the appellant ever visited the godown or had anything to do with the business carried on therein, it could not be held that the rectified spirit recovered from the godown was in his possession. This contention might have had force if the conviction of the accused was based merely on his statement recorded under S. 342, Cr. P.C., which could not be regarded as evidence, but this is not so.

3. Pitalwalla, P. W. 1, gave evidence that the godown from where the rectified spirit was recovered was in possession of the appellant. He was not cross examined on this point. P. W. 3 also described the godown as the godown of the appellant. He was also not questioned on this point. If the fact that the godown was in the possession and charge of the appellant had been denied, further evidence would have been led on the point as the prosecution had the rent receipts signed by the appellant in their possession. As the appellant admitted that he was in charge of the godown, further evidence was not led an the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under S. 342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of the accused s statement and excluded the exculpatory part does not seem to be correct. The statement under S. 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no intimate connection with the statement concerning the possession of the godown.

4. Mr. Umrigar next argued that even if the appellant was in possession of the godown, from that circumstance an inference could not be drawn that the rectified spirit recovered from the godown was necessarily in his possession or was there with his knowledge. It was not suggested that the godown was accessible to all and sundry. A servant working under the appellant was actually inside the godown filling the bottles with the rectified spirit. As many as 108 bottles and two drums of rectified spirit and various oth