Walsh and Ryves, JJ.:— This is an appeal by Government against an order of acquittal by a first class Magistrate, dated the 31st of August, 1923. The whole case turns upon the question of unlawful possession of some cocaine found in a certain house in the city of Allahabad. There has been a previous prosecution and an acquittal. One Bishan, together with his sister Musammat Kishan Piari, and Ganesh, who is believed to be his maternal uncle, were charged with the wrongful possession of this cocaine. In that case the present defendant, one Banarsi, who is said to be 60 years of age and is also believed to be related to Bishan, although he strenuously denies it, gave evidence for the defence, and his statement on that occasion has been used against him in this case. In the order of acquittal, the Magistrate who tried the previous case directed that proceedings against Banarsi should be instituted. It was natural, therefore, and right that the case should he heard and disposed of by another Magistrate. In our view the appeal must succeed on the ground that the facts proved against the defendant are particularly conclusive, and that the Magistrate unfortunately instead of taking a broad, common sense view of the facts, which could not be explained except upon the hypothesis of guilt, has cut up the case into small pieces which he has disposed of one by one by a series of technical fallacies.
The matter is perfectly simple. In this house No. 70, Sarai Mir Khan, in the city of Allahabad, resides from time to time a varied assortment of individuals whose relationship to one another, whether by blood or by matrimony or by contract of tenancy or otherwise, seems to be wrapped in some obscurity. A prominent person known in connection with this collection of people who frequent this house is the person Bishan who was acquitted. He is said to be a junior member of the family and the man who handles the wealth, and the evidence in this case of one of the occupants of the house is that Bishan was well to do. The city excise authorities had reason to suspect that the money was not unconnected with illicit traffic in cocaine and that the house No. 70 belonged to Bishan. As the Inspector very fairly said in this case when Banarsi was on trial, everything pointed to the house being in the possession of Bishan. A raid was made upon the house and the result of the search was that in one room cocaine was found in a coat hanging up on a peg on the wall, and in another room was found a locked wooden box which, in addition to containing other things, contained a small tin box in which cocaine was also discovered. There were a pair of scales also in the room and an empty phial, both of which articles, innocent in themselves, might have had no connection with cocaine. But, on the other hand, there is no evidence of any legitimate trade going on, or of the existence of any material with reference to which either a phial or scales would be useful except this cocaine, and as this was a house in the crowded part of a crowded city, the reasonable presumption is that traffic in cocaine, that is to say, in selling cocaine in small quantities, as we say, by retail, was going on in that place to persons who wanted it in small quantities. That is to say, the indications are in favour not of a store for safe keeping and removal to some other place on a large scale, but rather in favour of a small trade going on with retail customers. We attach great importance to that feature of the case, because to enable it to be done secretly and to evade any possible search, it would be necessary to have the stuff well hidden and yet in an accessible place. It has this further bearing upon the case that it follows that if that inference is correct, it was impossible for a trade of that kind to be going on from day to day without the knowledge of the occupants who had access to the room where the cocaine was discovered. It also follows that mere temporary absence for three or four days from the premises would by no means afford an answer, which it might otherwise do in the case of cocaine suddenly introduced into the building of a person charged with guilty possession.
The present accused gave evidence on the charge against Bishan. The learned Magistrate has excluded that sworn statement of Banarsi's altogether as inadmissible, and he has made a terrible mess of the sections applicable. The evidence was not tendered as a confession or as an admission of guilt, but as a statement of fact by the accused himself amounting to an admission of a very relevant fact connected with the discovery of the cocaine, namely, the occupation of the house and the possession of a locked box. The evidence was properly proved by bringing the previous statement on the record of this case, and also by the direct testimony of the Inspector, and the Magistrate entirely misunderstands both the purpose for which it was tendered and the plain meaning of section 21 of the Evidence Act which made it admissible.
It is necessary to pause here to deal with an ingenious argument now raised for the first time by Banarsi's counsel, namely, that under section 132, the answers which Banarsi gave when he was examined in Bishan's case being such as he was not excused from giving, were answers which he was compelled to give, and, therefore, they could not be proved against him in a criminal proceeding. That argument undoubtedly raises a serious question. The proviso in this instance, as in most other cases, really depends upon the right meaning to be given to the word “compelled.” It has been held that the word “compelled” involves the necessity of a formal objection to giving the answer, and an order made at the time to the witness compelling him to answer. We are of opinion that is too narrow an interpretation. The matter has been recently discussed in two or three cases, particularly by a member of this Court in the case of Emperor v. Ganga Sahai , in which the judgment quotes with, approval a sentence from Mr. Justice Piggott's judgment in the case of Kallu v. Sital , and we are of opinion that the interpretation put upon the word “compelled” in the former case is right and ought to be followed. Subsequently Mr. Justice Tudball, in the case of Emperor v. Chatur Singh , following the case of Emperor v. Ganga Sahai , and Mr. Justice Piggott's dictum in the case of Kallu v. Sital , held that it was impossible to deny that in the case of ordinary laymen unacquainted with the technical terms of this section, they were compelled to answer on oath questions put either by the court or by the counsel, especially when the question is relevant to the case. Mr. Justice Tudball's view was that a common sense meaning should be given to the word “compelled.” In our view this really means that compulsion under that section is a question of fact. It by no means follows that the witness is compelled to answer every question put by counsel, and Mr. Justice Tudball did not say so. But he may, of course, be compelled in particular cases to answer questions put by counsel, and in such cases the section is clearly applicable. We can only say that there is no evidence of any compulsion in this case at all it is highly unlikely that Banarsi acted under any compulsion. The point was not taken until it was too late, but the probability is that whether Banarsi is the uncle, or whether he is not, he was a voluntary if not enthusiastic witness making statements which he thought, as they did, would satisfy the court of Bishan's innocence. We are of opinion, therefore, that this statement is not excluded by section 132. What he says does not come to very much. Its importance is that it cannot be controverted. He said that the locked box was his, and he repeated the statement at this trial. He also said, which is even more important, that the house was in his occupation. That statement is also confirmed by the statement of Ganesh, who was an occupant of the house, and who was acquitted in the previous case. He gets out of the inference which would be otherwise drawn against a man in whose locked box cocaine is found, or in whose coat there are packets of cocaine, by alleging that the coat belongs to his son, and that the tin box in which cocaine actually was secreted, although found in the locked box of the accused, was not in fact his. Both these statements are very likely true but they really do not carry the matter any further than the fact admitted by himself. He was away at the time and, therefore, not in physical possession either of the coat or of the locked box, but it is unlikely that, if he went away for four days, he did not leave the key of the locked box in the possession of somebody else so that access could be obtained to it. But the coat is said to belong to his son Kandhai, and unfortunately Kandhai was not so anxious, as Banarsi had been in the previous charge, to tell the court his view of the possession of the coat and the cocaine that was found therein. Nor has Banarsi attempted to give any explanation, or to call any evidence to explain how it was that in his unfortunate absence in Benares during these four days, people living in this house in apparent harmony, friendship and, to some extent at any rate, close blood relationship with him, should have planted upon him by means of putting into his locked box a tin box containing cocaine, or, in other words, damning evidence of traffic in this illicit substance. Nor has he attempted to call any evidence to explain how and why any one did the same thing with the son's coat. It is not improbable that the persons in the house at the time of the arrival of the search party seized upon the coat pocket as the most convenient place for rapidly disposing of the substance which they had then in a saleable form.
It is because of the very difficulty which arises in a case of this kind, where you have a body of persons, most of whom are related to one another, living jointly, and jointly living on the big profits which are made out of this substance, that the legislature has enacted the provisions which are relied upon by the prosecution in this case. It is only natural that in a case of this kind, whenever a charge is made, effort's should be made by other members of the joint concern to prove that the person charged is the one person in the whole concern who had nothing whatever to do with it. There is always danger in doing so, as Banarsi has now discovered in his own case. But that his own statement, and the evidence in this case independently of his own statement, were sufficient to raise the presumption against him under this section, admits of no possible doubt. Section 71 provides that it shall be presumed until the contrary is proved that the accused person has committed an offence, namely, in this case possessing the excisable article, when possession for which he is unable to account satisfactorily is established against him. The Magistrate says that there is not an iota of evidence of the cocaine being in the possession of Banarsi. Can the possession, asked the Magistrate, at the time of the search be said to be his when all the evidence points to the contrary, and he relies upon the statement that the key of the box was in the possession of Bishan. The key of the box, if the locked box belonged to Banarsi and was in the house occupied by him, could only be in the possession of Bishan with the authority and consent of Banarsi, and it is a narrow and almost foolish view to take to hold that the transfer of the key has the effect of dispossessing the owner of the box. All of us have things in our possession, for example, kitchen utensils in the kitchen house, which we seldom see and never touch, but they are in the possession of our cooks as our agents. The result is that possession is established, both by direct evidence and by the admissions of the accused, and no attempt has been made to account for it.
The appeal must be allowed and Banarsi must be convicted of being in unlawful possession of this cocaine in the box and in the coat of his son. Having made up our minds to this result, we examined the Excise Inspector as to his knowledge of this household. Bishan has been acquitted of the particular offence charged against him arising out of these facts. But there is reason to believe, from what we have heard in this case and from what the Inspector has added, that he is really the moving spirit of the concern, and that this man, Banarsi, although we are satisfied that he is implicated in it, probably only takes a subordinate part and lives with his family on the proceeds. But he has chosen, if in fact he is not the person principally responsible, to come into the witness box on oath in this case and to give evidence directed to establish the innocence of Bishan, one result of which, if true, was to increase the evidence against himself. It is impossible for 113 to decide whether his conduct was due to a desire to earn credit with Bishan and the other members of the family and to make himself a scapegoat for a person whom he knew to be guilty, or whether in fact what he said was literally true. In the ordinary way one would be disposed to take a more lenient view of the conduct of a man who, in aiding and abetting the principal offender in a subordinate capacity, has been caught, while the principal offender has escaped. But it is impossible to do so in this case as this man, we are satisfied, coldly and deliberately put himself forward for the express purpose of shielding the man who is probably the principal offender, and the sooner people understand that they will not by that course escape the just punishment of their own admissions, the better for them. Everybody knows that they are not really the principals, but if they choose to take upon themselves that character, they will be dealt with, and ought to be dealt with and punished as such, by the courts which have to deal with their cases. The only punishment which seems in these cases to have a deterrent effect is, as the Inspector tells us, a punishment of imprisonment, and if Banarsi has brought upon himself the punishment which is merited by somebody else, he has only Himself to thank. We sentence Banarsi to six months' rigorous imprisonment and a fine of Rs. 500. In default of payment of fine, he will serve another six months' rigorous imprisonment. He must surrender to his bail.
Appeal allowed.