JUDGMENT Walsh and Ryves, JJ.
1. This is a Government appeal against the acquittal of one Zawar Husai'n, on a charge tried by a First Class Magistrate of Saharanpur, for "possessing cocaine" without lawful justification. No lawful ground for, the possession, if any, was suggested.
2. The case presents another example of the sort of travesty of justice of which this Court has had too much reason to complain, of late, in magisterial proceedings. The case lies in a small compass. The first witness was called on the 27th of March, within eight days of the date of the alleged offence. The last witness was not called till about the 7th of July, and the judgment was delivered on the 31st of July, after what must, have been an enormous expenditure of money and magisterial time. We have been compelled to go through a mass of irrelevant matter, and a judgment consisting of twelve closely printed pages of wearisome discussion of superfluous details and laborious reflections on side-issues, of no importance to any one, in which the real issue has been almost totally obscured.
3. The prosecution made the initial error of trying to establish that Zawar Husain lived on the premises; an issue which was bound to fail, and which undoubtedly accounts for much of the waste of time, for which the Magistrate was not responsible. The Magistrate, in the end, decided that Zawar Husain did not live on the premises, and that he had no knowledge of the cocaine which was seized. As to the former of these issues, it is clear that he was right. As to the latter, we differ from the decision. We think that it is clearly established that Zawar Husain used the house for concealing cocaine, and that if he had been charged under 60-A of the United Provinces Excise Act, 1910, as amended by Act No. IV of 1919, he must have been convicted. The Government Advocate asked for a conviction under this section, but the accused was not charged under it, nor was this Court asked in the notice of appeal to after the charge. Mr. Dillon, who represented the accused, and argued his case with great force and fairness, objected on substantial grounds of hardship to this course. We are of opinion that we ought not now to try the accused on a" fresh charge.
4. The question, therefore, which we have to decide is, whether the finding that Zawar Husain was not in possession of the cocaine seized was one at which the Magistrate has arrived against the weight of the evidence.
5. The material facts are simple and clear. On his own showing, Zawar Husain is a notorious trafficker in cocaine. He has already been in prison for illicit dealing. He would have us believe that he is now a reformed character, and has been helping the authorities to catch other offenders. It may be so. The fact is not inconsistent, either with his guilt, or with his innocence in this case. He is a prominent, if not the leading, member of his family, which lives either in or around the house raided. He is the owner, either in whole, or in part, of the house, which he had let on an agreement in writing to his brother-in-law, from year to year, and went through the quite unnecessary formality of getting it registered. He lived in another house close behind, a few yards away, and was naturally an occasional, if not a frequent, visitor to his brother-in-law. The unusual course, with a near relative and neighbour, was taken of putting the agreement of tenancy into precise terms in writing, and by it Zawar Husain reserved to himself a locked apartment containing some of his goods. Bashir Husain, the tenant, was called for the defence and swore that he and his brother-in-law were not on visiting terms. This is quite incredible.
6. One Gopal Narain, whom the Magistrate has criticized severely, and who was responsible for the allegation that the accused lived in the house, had reported that cocaine was hidden in the house, which he believed to be the residence of Zawar Husain. Mr. Young, Superintendent of Police, went on the 20th of March, with a large body of officials and constables, and raided the house. As he approached the place in a motor-car, Gopal Narain pointed out to Mr. Young that Zawar Husain was seated at a mosque situated in one of the angles of the sort of a square which included the house to be raided and the house of the accused. Mr. Young's attention was distracted by the traffic, and he was not able to look in the direction indicated. But it is inconceivable that Gopal Narain would have risked an idle falsehood, having no reason to know that accused was not at the house to be visited, or had not made off as he afterwards, disguised as a woman, tried to do. It is, therefore, certain that the accused was sitting near by.
7. Outside the house raided eight persons were found seated. These included the tenant and brother-in-law of the accused, two of his brothers, one of whom lived also at the house, and, significantly enough, the accused's karinda. Inside the house were certain female; members of the family. Much time has been wasted over the question whether one was the wife or mistress of the accused, and over the identity of one who was shortly afterwards delivered of a child. These questions only bear on the issue whether the house was the residence of the accused. But, after a long and elaborate search, a considerable quantity of cocaine (9 oz. 6 grains), said to be worth about Rs. 1,800, was discovered in the false bottom of a large box, in a room chained from the inside, and occupied, at the moment, by one of the females. Zawar Husain had been sent for, but he deliberately kept away. He was in the immediate neighbourhood, and his conduct shows that he knew there was good reason for dissociating himself from the results of the search. An innocent man would naturally be anxious to assist the authorities, and to satisfy them of his bona fides. Letters addressed to the accused were found in the house.
8. The box in which the cocaine was secreted was a very large and heavy one, the presence of which in the house must have been known to the occupants. It was designed to prevent the discovery of its secret contents and not to promote it. This destroys the feeble suggestion of the defence that it had been planted on the people of the house by their enemies; enemies would scheme that cocaine should be found, and not a box which almost defied discovery of its contents. The box had not even the tempting attractions of the wooden horse of Troy, and the conduct of the tenants in concealing and guarding it is inconsistent with its suggested character of an unwelcome intruder. The enemies of Zawar Husain would hardly plant a box in a house, which, according to him, every one, except Gopal Narain, know was not his residence. The time, moreover, to acquaint the authorities with the wicked trick which had been played upon them was when Mr. Young and his party arrived to search. The box, carefully housed and guarded, was indeed surrounded by the family and agents of the accused. It is not suggested that any of them was able to obtain and trade in cocaine to this extent; Bashir was paying a rent, if he paid any, of Rs. 5 per month; and the inference from all these circumstances is irresistible that the box was being kept for Zawar Husain in the house of his brother-in-law, in whose actual physical possession it was.
9. We have perused the mass of defence evidence without finding anything satisfactorily established which is inconsistent with this view. It is not possible to say that Zawar Husain was the sole owner, or the true owner. Bashir Husain, the tenant and brother-in-law, swore to a new and startling story that one Buddhoo had suddenly deposited the box there, the night before, as part of his luggage. This mysterious individual was expected to follow up this advance guard by arriving in force with the rest of his luggage, "later on." But nothing more seems to have been heard of him. The notion that a man would abandon nearly Rs. 2,000 worth of cocaine to its fate in tin's way, requires more evidence than this to satisfy us of its truth. The onus was clearly thrown on the accused to prove the true ownership, or at least to account for its presence in the custody of his relative and tenant, and he has failed to do either.
10. Mr. Dillon's view of the law applicable is perfectly sound. A man is not ordinarily liable for the criminal acts of his agent, except in those cases where, being authorized to traffic in prohibited goods under a licence, and subject to restrictions, he puts a servant in to carry on the business for him, and his servant acts outside the restrictions. If mens rea is relevant, it must be shown that the principal had knowledge. But there may be, and often is in commercial dealings, possession other than that which may be called strict legal possession, for the purposes of a preventive statute such as this. Control, or dominion., may amount to criminal possession, although actual legal possession, such as that of a bailee or an agent, may be in another. In Emperor v. Gajadhar (1903) I.L.R, 25 All. 962 opium found in the house of a neighbour of the owner, who had left it with the neighbour for the night for safe keeping, was held to be in the possession of the owner. In Emperor v. Ghulam Husain (1918) I.L.R. 40 All. 420 the owner of firearms, who held a licence to carry arms, had died. His widow and his minor son continued to live in the house where the firearms were kept. The mother was the legal owner and the manager of the house. There was ground for holding that the youth had cleaned and looked after them, if he had not actually used them. It was held that the son was rightly convicted of being in possession of them without a licence.
11. We, therefore, allow the appeal, and convict Zawar Husain of having been in unlawful possession of these 9 oz. of cocaine.
12. It is a bad case, not merely because of the amount seized, and on account of the previous conviction, but also on account of the nature of the defence set up. We, therefore, sentence Zawar Husain to 2 years' rigorous imprisonment from the date of his surrender to his bail, or arrest in the event of his failing to surrender, whichever happens first.