JUDGMENT D.P. Uniyal, J. - This revision application by the applicants is directed against their conviction under Section 16(a) and (f) of the U.P. Excise Act, and sentence of fine of Rs. 25/-, in default rigorous imprisonment for 15 days, for the first mentioned offence, and one month's rigorous imprisonment for the latter offence. 2. On the 1st October, 1960 Sri L.N. Sharma, Excise Inspector, Orai raided the house of the applicants and recovered illicit liquor and apparatus for the preparation and distillation of the said liquor from inside a kotha of the house. The liquor in question was found to be of illicit origin. At the time of the search and the recovery of the incriminating material the applicants were not present in the house. Two ladies of the house, Smt. Tulsa, mother of Baladin applicant, and Smt. Teja, wife of Phussu applicant, were however, found present. The two applicants along with the two ladies were prosecuted for being in possession of illicit liquor as also for being in possession of apparatus for the purpose of manufacturing intoxicating liquor. The Magistrate convicted and sentenced the two applicants as aforesaid. He also convicted the two ladies under Section 60 (a) and (f) of the U.P. Excise Act but released them on admonition. 3. This revision application came on for hearing before our brother Mathur. It was contended before him that the applicants were not liable to be convicted as it had not been proved that they were aware of the existence of illicit liquor and apparatus for manufacturing liquor inside their house at the time of the raid; that the recovery of the incriminating material from inside the house was made in their absence and it could not, therefore be presumed that they had knowledge about the existence of the said material. The learned single Judge referred the case for consideration to a Division Bench as he was of the view that there was considerable divergence of opinion in this Court as to whether the prosecution would be justified in drawing a presumption that the applicants had knowledge of the existence of the incriminating material as they were members of the same family and were in joint occupation of the house from which recovery was made. Admittedly the applicants were absent when the police party raided the house and recovered illicit liquor and apparatus used for the manufacture of liquor. Admittedly the applicants were absent when the police party raided the house and recovered illicit liquor and apparatus used for the manufacture of liquor. The question as to whether the applicants were liable to be convicted on the mere presumption that they were in joint occupation of the house along with their women folk has therefore a direct bearing on the point involved. 4. Section 60 (a) of the U.P. Excise Act makes it penal to import, export, transport or possess any intoxicant without a proper licence. Similarly, Section 60(f) prohibits and makes penal the use, keeping or possession of any material, still, utensils, implements or apparatus ..........for the purpose of manufacturing any intoxicant other than without permit. The word `possession' in both Cls. (a) and (f) of Section 60 is a word of very general import, its primary meaning being: actual holding or occupancy; visible power of exercising such control as attachis to lawful ownership-but it may also exist apart from lawful ownership. Possession in the eye of law necessarily connotes a conscious and voluntary act. If a person is not aware of the existence of a property and has no knowledge that he has power to hold or keep it under his control it cannot be said that he has the necessary animus to possess it. This would be more so when a person is charged for being in possession of an article in contravention of law. It has been held that in order to constitute possession in law there must be manifest intent not merely to exclude the world at large from interfering with the thing in question but also to do so on one's own account and in one's own name. This concept of possession imports the existence of certain mental element. The mere fact that an article is recovered from ones possession may not necessarily mean that he was conscious of its existence or that it was in his control. For example, the recovery of a stolen watch from inside the pocket of one's coast left hanging in the house may be result of planting. The owner of the coat and the other members of his family jointly occupying the house may not be aware of the existence of stolen property in the house. For example, the recovery of a stolen watch from inside the pocket of one's coast left hanging in the house may be result of planting. The owner of the coat and the other members of his family jointly occupying the house may not be aware of the existence of stolen property in the house. Could it be said then that the owner of the coat as well as the inmates of the house were all liable to be convicted because the coat was found hanging on a peg in a room jointly occupied by several members of the family? 5. A good deal of controversy has raged on this matter and there are cases on both sides of the line. On one side there is the view that where incriminating articles are recovered from a place in occupation one all of them are equally liable, while on the other, it has been held that unless the prosecution is able to establish by clear and positive evidence that one or more of the intimates of the house had knowledge of the existence of the article inside the house none could be convicted for being in its possession. There is yet a third line of reasoning which is to the effect that where a house is in occupation of the members of a joint family and it is not possible to say which of them was in exclusive possession of the incriminating article or material, the karta of the family should be presumed to have knowledge of its existence and would be liable to be convicted. 6. We now proceed to discuss the various conflicting and divergent views on the question under reference. The earliest case of this Court is that of Queen Empress v. Sangam Lal 15 All. 129. The observations made in this case have been interpreted to mean that the head of a joint Hindu family must be deemed to be in possession of an article recovered from the house occupied by the joint family, but as was rightly pointed out in Sughar Singh v. Rex A.I.R. 1950 All. 277, the observations made in this case have been the subject of great misunderstanding and consequent confusion of thought in later cases. 277, the observations made in this case have been the subject of great misunderstanding and consequent confusion of thought in later cases. What was observed in that case by their Lordships was that- "We are not disposed in the present case to depart from the well-known rule of law that where articles are found in a house in such place or places as several persons living in the house may have access to, there is no presumption as to possession and control that those articles are in possession and control of any other person that the house-master." Their Lordships qualified the above statement by saying- "We do not lay it down as an invariable rule that where weapons are found in a house occupied by a Hindu family living jointly, possession is necessarily that of the managing member and the managing member only; but we do lay down that in all such cases where it is sought to establish that possession and control are with some member of the family other than the managing member, there must be good and clear evidence of the fact before we can in an act of this kind arrive at such a conclusion. The act is one highly penal and one which must be strictly construed." The above observations would indicate that it is a question of fact in each case whether the incriminating article has been proved to be in possession and control of a particular member or members of the joint family occupying the house. 7. The next case is Emp. v. Budh Lal 29 All. 598. A large quantity of stolen cloth was recovered from a room which was locked. It was found that the house was in the occupation of Budh Lal, his father and his son. Dillon, J. observed that the petitioner Budh Lal was the managing member of the family and though that circumstance might not by itself have been sufficient to bring home the guilt to him the fact that the key of the lock was given by Budh Lal to the police would indicate the he was in possession or control of the stolen goods and, therefore, the learned Judge was not prepared to accept the Judge was not prepared to accept the contention that the conviction was not justified. 8. In Emp. v. Sikhdar 54 All. 8. In Emp. v. Sikhdar 54 All. 411 : 1932 A.L.J. 570 Bennet, J. held that the finding of an unlicensed gun in a house occupied by a joint family would raise a presumption against all the adult male members who lived in that house that the gun was in their possession and control, and they might one and all be tried on that charge; but in a later judgment reported in Kaul Ahir v. Emp A.I.R. 1933 All. 112=1932 A.L.J. 1072, a Division Bench dissented from the view expressed in the case of Sikhdar 54 All. 411=1932 A.L.J. 570. 9. In Kaul Ahir v. Emp. A.I.R. 1933 All. 112=1932 A.L.J. 1072, two loaded cartridges were found in a corn bin inside a house which was in the occupation of Kaul and his son the son was acquitted but Kaul was convicted on the ground that he was the head of the family and, therefore, must be presumed to have knowledge of the existence of the incriminating articles. Pullan and Thom, JJ. observed as follow :- "There are many cases of this Court in which it has been laid down that it is improper to convict each and every member of a Hindu joint family because some illicit article has been recovered from the house, and the principle that the head of the family is responsible where there are other adult male members who had equal facilities of access to the article in question has never been affirmed as far as we are aware by any High Court in India." Their Lordships dissented from the view expressed by Bannet, J. in Sikhdar's case, 54 All. 411 : 1932 A.L.J. 570. Their Lordships made it clear that- "in all such cases it is necessary to prove not only the presence of the article in the house but the possession of some particular person over that article in order to justify conviction." 10. In the case of Jwala v. Emp. A.I.R. 1934 All. 548=1934 A.L.J. 366, the facts were that a muzzle loading pistol having 11 percussion caps inside the barrel was recovered under a heap of juar inside a vessel from a room occupied by Jwala, his sons and their wives. Jwala was convicted on the ground that he was the house-master and, as such, must be presumed to have knowledge of the existence of the illicit article. Jwala was convicted on the ground that he was the house-master and, as such, must be presumed to have knowledge of the existence of the illicit article. Sulaiman, C.J. and King, J. upheld the conviction of Jwala, observing that the pistol could not have been kept in the house by any other member of the family without informing the head of the family and that the head of the family could not have been unaware of its existence in the house. Their Lordships were impressed by the fact that Jwala had been convicted of dacoity and had set up a false case about the recovery of the pistol from inside his house. Taking all these facts into consideration their Lordships felt no doubt about the guilt of Jwala. They, however, made it clear that every case must be decided on its own facts and that they did not wish to lay down and general proposition of law. 11. In Tulsi Ram v. Emp. A.I.R. 1936 All. 650=1936 A.L.J. 508, a number of counterfeit coins were found in a rack in one of the rooms occupied by Tulsi Ram and his brother Salig Ram. Tulsi Ram was convicted and his brother Salig Ram was acquitted. At page 509 (of A.L.J.) Allsop, J. observed- " I think it should be clearly understood what the law is on this subject of searches. It is certainly not intended that no person in possession of a house shall be convicted of being in possession of stolen property or counterfeit coin or anything of that kind if there happen to be other people living in the house and if it cannot be positively established that the person convicted had put the incriminating articles in the place where they were found. It must be shown in the first place that the incriminating articles were found in a place in the possession of the person to be convicted. In the next place, it must be shown either by directly evidence or by circumstantial evidence from which a reasonable inference can be drawn that the person to be convicted knew that these particular things were in the place where they were found." 12. In the case of Maharaj Singh v. Emp. A.I.R. 1945All. 230 : 1945 A.L.J. 124, one Maharaj Singh was convicted of being in possession of stolen property. In the case of Maharaj Singh v. Emp. A.I.R. 1945All. 230 : 1945 A.L.J. 124, one Maharaj Singh was convicted of being in possession of stolen property. The house from which the stolen property was recovered was in the occupation of Maharaj singh and his brother. Walliullah, J. pointed out that there was no real divergence of judicial opinion with regard to the law applicable to the facts of a case like the present. He went on to say that- "It is settled law that the prosecution must establish not only that the stolen property was recovered from the house, or other place, in the occupation of the culprit but also that the incriminating article was in the house or other place and the culprit was fully aware of its presence there." 13. In Hirdey Ram v. Emp. A.I.R. 1946 All. 4 : 1945 A.L.J. 528, one Hirdey Ram took out a stick gun from a place inside his lemon grove. The place from where the article was recovered was accessible to other person. Sinha, J. held that the article was found at a place not in the use or occupation of a particular individual but possession must be deemed to be that to of the manager or karta. No other member of the family could be said to be in possession of the same. 14. In Sughar Singh v. Rex, A.I.R. 1950 All. 277 Sughar Singh along with his sons and younger brother lived in the house. On a search of the hose a single barrel country-made muzzle-loading pistol, gunpowder, etc. were recovered from a special hole inside the wall of a room. Both the brothers were prosecuted under Section 19(f) Arms Act. On appeal the Learned Sessions Judge upheld the conviction of Sughar Singh and acquitted his brother. A revision was filed before the High Court by Sughar Singh and Raghubar Dayal and Agarwala, JJ. set aside the conviction of Sughar Singh and acquitted him. They held that the pistol and other ammunition were found concealed in a hole in the wall. The articles could have been placed there by any member of the family without the knowledge of others. set aside the conviction of Sughar Singh and acquitted him. They held that the pistol and other ammunition were found concealed in a hole in the wall. The articles could have been placed there by any member of the family without the knowledge of others. Their Lordships held- "The fact that the accused does not directly admit the recovery of the articles from the hole in his house and makes a wrong statement that he was at the time in the field, should not in our opinion be taken into consideration in concluding that his wrong statement is a pointer to his guilt ......... We are, therefore, of opinion that there is no evidence on record to indicate that Sughar Singh must have known about the existence of these articles in that hole or that he himself concealed them there. It cannot, therefore, be held definitely that he was in possession of those arms which were recovered from his house." In Kamta Prasad v. State A.I.R. 1961 All. 438 : 1960 A.L.J. 692 Desai, J. (as he then was) was considering a case in which one Kamta Prasad had been convicted under Section 19 (f) of the Arms Act. The case against him was that on search of his house which was jointly occupied by him, his brother and his father, a sword, kanta, pistol, and a barrel of a pistol and triggers were recovered from inside a room. The applicant and his father had no licence for possessing the weapons in question. The Sessions Judge convicted Kamta Prasad alone on the ground that he must have been aware of the existence of the illicit arms in the house, the other members being either too old or too young to have kept them in the house. After considering all the relevant cases of this Court and other High Courts, Desai, J. observed- "Where unlicensed arms are found in a house occupied by several persons no particular occupier can be held to be in possession of unlicensed arms found in the house simply because he is aware of its existence there, even if he be the head of the family or owner of the house. There must be evidence to show that the article is in his possession and not that of any other occupant or that he is in join possession with any other occupier." 15. There must be evidence to show that the article is in his possession and not that of any other occupant or that he is in join possession with any other occupier." 15. The question as to whether an incriminating article is proved to have ben recovered from the possession of one or more persons occupying a house is a matter to be determined on the basis of evidence given in each case and no hard and fast rule can be laid down which may be of universal application. In this connection we respectfully adopt the observations made in Emp. v. Santa Singh A.I.R. 1944 Lah. 339 (F.B.). In that case certain incriminating articles were recovered from a place in the occupation of more persons than one. While considering as to what factors are necessary to fasten criminal liability on persons in joint occupation of a house from which recovery of illicit articles is made, Harries, C.J. delivering the judgment of the Court, observed:- "In my judgment there is no presumption that a father or head of a family is in possession of everything contained in his house; neither can it be presumed that he is in control of anything so found....... In my view, possession and control mean something more than mere constructive or legal possession or control. Can it be said for the purposes of the criminal law that a man in fact possesses or has under his control something, the existence of which he has no knowledge. It may be said that he possesses it but only on the assumption that a man possesses everything in the house which he possesses. In my view, however, possession and control required to constitute offences under the Explosive Substances Act and Arms Act, must mean conscious possession and actual control. A man must know of the existence of something before he can be said to control it or have it under his control. It must be remembered that under these Sections of the Explosive Substances Act and Arms Act mere possession of incriminating articles constitutes serious criminal offences and there must be in my view mens rea or guilty knowledge before a person can be convicted of such possession. It must be remembered that under these Sections of the Explosive Substances Act and Arms Act mere possession of incriminating articles constitutes serious criminal offences and there must be in my view mens rea or guilty knowledge before a person can be convicted of such possession. If a father or house master is to be convicted merely because he is in possession of a house and therefore everything in it, then he can be held to be guilty where no mens rea exists and when he is entirely ignorant of the presence of an offending article ..... No presumption can be made that the head of a family or house master must know of everything which may be concealed in his house and unless such a presumption can be made, he cannot be convicted on mere evidence of recovery with nothing more." 16. The Patna High Court in Sahendra singh v. Emp. A.I.R. 1948 Pat. 222 referred to the observations of the Full Bench of the Lahore High court in Emp. v. Santa Singh A.I.R. 1944 Lah. 339 (F.B.)and observed that- "Ordinarily Section 106 Evidence Act, would not apply to cases of this sort. In other words, it would only apply in such circumstances as where ........an article is found in house in circumstances in which all the members of the house must have been aware of its existence." 17. The Calcutta High Court expressed the same view in respect of recovery of a stolen article from a room which was in the sole occupation of an accused, vide Indubhushanpal v. Emp. A.I.R. 1942 Cal. 449. The Court held that- "even if it be found that Indubhushanpal was the sole occupant of the room it does not necessarily follow that he must have been aware of the presence in the room of all the articles that were found therein. It was incumbent on the learned judge to consider the circumstances of the occupation of the room and to consider whether it was reasonably possible for other persons to introduce the articles into the room without the accused's knowledge." 18. It was incumbent on the learned judge to consider the circumstances of the occupation of the room and to consider whether it was reasonably possible for other persons to introduce the articles into the room without the accused's knowledge." 18. It follows, therefore, than the mere fact that an article is recovered from inside a house in the occupation of more than one member of the family does not raise a presumption that everyone of them is in possession and control of it; nor does it follow that the karta of the family must be presumed to have knowledge of its existence. Where a person is charged with a criminal offence the prosecution has to prove mens rea or guilty knowledge before a conviction can be founded on the basis of mere recovery of an incriminating article from inside the house. The fact whether an article is in possession of an individual member of the family or whether it is in possession of all the members of the family or whether it is in possession of all the members residing in the house is a question of fact and has to be decided not by raising presumptions but by reference to the actual knowledge of the person or persons concerned as to the presence of the article inside the house. It is also incumbent on the prosecution to prove that the incriminating article was in the control and keeping of a member or members of the family in the sense that they could deal with it in any manner they liked. The mere recovery of an incriminating article from a house in the occupation of more than one person would not necessarily import their possession or control over it. 19. In the present case the applicants were not present in the house when the incriminating articles were recovered from inside a kotha which was open and accessible to all. The only persons present in the house were the two ladies who were found sitting in an other portion of the house. In our opinion the prosecution had failed to establish that the illicit liquor and apparatus recovered was in possession and control of the applicants. There was no evidence worth the name to connect the ladies of the house, the possession of the said articles. In our opinion the prosecution had failed to establish that the illicit liquor and apparatus recovered was in possession and control of the applicants. There was no evidence worth the name to connect the ladies of the house, the possession of the said articles. The Magistrate was not convinced that the ladies had anything to do with the incriminating articles recovered from inside the house. He convicted them merely on the ground that the house was jointly occupied by them along with the applicants. We are clearly of opinion that there was no legal evidence on the record to sustain the conviction of the applicants or of the two ladies living in the house. 20. We accordingly allow this revision and quash the conviction and sentence of the applicants. In exercise of our revisional jurisdiction we also quash the conviction of Smt. Teja and Smt. Tulsa and acquit them. The fines if paid by the applicants shall be refunded to them.