( 141 )
Present: De SampayoJ.19X9.
BANDA v. HARAMANIS et al.
493 and 494—P. 0. Henaratgoda, 16,418.
Possession of beef—Beef found in house occupied by father and son—No
evidence as to who was responsible.
Two accused, father and son, who occupied the same boose, wereconvicted of having been found in possession of beef, tor whichthey were unable to account to the satisfaction of the Magistrate.
Held, that as there was nothing to show that either of the accusedpnt .the article there, or was responsible for its being found there,the conviction was bad.
“ Possession to be criminal must be actual and exclusive, forcriminal liability does not attach to constructive possessionWhere property is found in a house in the possession of more thanone inmate, none of them could be said to be in possession of itfor the purpose of this offence, unless there is evidence of exclusiveconscious control- against them. ’’
* *HE facts appear from the judgment.
E. W. Jayawardene, for appellants.
July 18, 1919. De Sampayo J.—
The two accused are father and son, and occupy the same house.They have been convicted, under section 81 (1) of the OrdinanceNo.. 9 of 1893, for being found in possession of beef, for which theywere unable to account to the satisfaction of the Police Magistrate.It appears-that a calf belonging to a man named Carolis was stolen,and on complaint being made, the headman made inquiries, and -among other things, he searched the house of the accused. Therehe found about 8$ pounds of beef in a pot in the kitchen. Oneof the witnesses named Deonis gives evidence almost amounting toevidence of actual theft on the part of the accused, but that evidenceis manifestly unreliable, and the Magistrate has not acted upon it.The question is whether either of the accused could be convictedunder the provision in question. Mr. Jayawardene has referredme to page 1892 of the second volume of Gour, where the learnedauthor states, with reference to authorities, that “ possession tobe criminal must be actual and exclusive, for criminal liabilitydoes not attach to constructive possession. . . . . From this itfollows that, where property is found in a house in the possession ofmore than one inmate, none of them could; be said to be in possession
of it for the purpose of this offence, unless there is evidence of exclu-sive conscious control against them. ” This passage is a commenton the provision of the Penal Code as to the receipt or retention ofstolen property, but the principle appears to be applicable generally.This point is further discussed and decided in the same sense inthe case of Punchi v. Babappu.1 Beyond the fact of the finding ofthe beef in the house, there is nothing in the case to show, thateither of the accused put the article there, or was responsible forits being found there. The evidence may disclose a case, of strongsuspicion against one or the other, or both of them, but I am obligedto give effect to the law on the subject, and to hold that actualexclusive possession could not be attributed to either of the accused.
The convictions are, therefore, set aside.
BANDA v. HARAMANIS et al