JUDGMENT M.N. Shukla, J. - The applicant along with his wife Maya Devi was convicted by the SDM Jasrana, district Mainpuri, u /S. 60 (a) and (f) of the the Excise Act and each of them was sentenced to three month's rigorous imprisonment and a fine of Rs. 200/-. in default of payment of fine they were directed to undergo further rigorous imprisonment for one month each. In appeal the learned Tem. Civil and Sessions Judge while maintaining the conviction of Maya Devi and the sentence of fine imposed on her set aside the sentence of imprisonment. The conviction and sentence of the applicant were, however, maintained. Maya Devi did not prefer any revision. The revision has been filed only by the applicant. This revision raises an interesting question with regard to the interpretation of S. 7 of the Excise Act and the extent to which it can be pressed into service by the prosecution to secure conviction of the husband not actually present on the spot at the time of the arrest and recovery. 2. The prosecution story in brief was that a search was taken of the house of the applicant and his wife Maya Devi at 6.30 p.m. on 8-8-1966 by the Excise Inspector Sri D.C. Sharma in presence of Chootey and S. I. J. P. Sharma (PWs 2 and 3) as well as others and from a room one canister smelling of illict liquor (Ex. 1), Nalka Bans (Ex. 2), one batloi, full of illicit liqor (Ex. 3) and i wo bottles full of illicit liquor (Exs. 4 and 5) were recovered. The applicant is a railway employee. The stuff recovered was tasted by the Excise Inspector and was found to be illicit liquor. The applicant himself was not present at the time of the search and his wife Maya Devi alone was present at that time. Both of them were challaned under section 60 of the UP Excise Act read with S. 7 of the said Act. 3. The defence of the accused was that no search was taken at all, that the two constables called Maya Devi from the house of one Siya Ram where she cooked food and had taken her to the police station where her thumb impressions had been taken on different papers and she had been falsely prosecuted. 4. 3. The defence of the accused was that no search was taken at all, that the two constables called Maya Devi from the house of one Siya Ram where she cooked food and had taken her to the police station where her thumb impressions had been taken on different papers and she had been falsely prosecuted. 4. The courts below accepted the prosecution evidence and convicted and sentenced the accused as aforesaid. 5. I have heard the counsel for the parties and examined the record of the case. It has been contended by Sri S. N. Mulla, on behalf of the applicant that the applicant not being present at the spot at the time of the alleged search and recovery, the possession of the incriminating articles by Smt. Maya Devi could not be deemed to be on account of the applicant. He submitted that there is no such thing as "automatic presumption" in S. 7 of the UP Excise Act which reads as follows: "7. Possession of intoxicant by wife. clerk or servant-When any intoxicant is in the possession of a person's wife, clerk or servant on account of that person, it shall, for the purposes of this Act, be deemed to be in the possession of that person." The effect of the above provision is that in certain circumstances a presumption may be raised for holding that the husband is in possession, although he may not be actually present at a certain time. The contention of the learned counsel for the applicant is that possession of a person's wife is not per se a proof of the fact that it is on account of her husband. It was submitted that there must be some evidence from which the conclusion may become irresistible that the possession of the wife was on account of her husband. The burden of proving such nexus would be on the prosecution itself and cannot be a matter of mere presumption. There is no doubt about the proposition that the initial burden of proving its case never shifts from the prosecution. I am also in agreement with the contention raised by the learned counsel for the applicant that the presumption contemplated by S. 7 of the UP Excise Act must be on the basis of some material or evidence and it cannot flow merely from the factum of the possession of the wife. I am also in agreement with the contention raised by the learned counsel for the applicant that the presumption contemplated by S. 7 of the UP Excise Act must be on the basis of some material or evidence and it cannot flow merely from the factum of the possession of the wife. Before some act of one person can be said to be on account of some other person, the link between the two has to be established by positive material. If there is a hiatus, the benefit must be given to the accused. On the other hand it is equally true that the onus may be discharged by the prosecution not merely by adducing direct or positive evidence but also by means of circumstantial evidence. In certain cases it may not be possible to furnish directly in terminating evidence and inferences may have to be drawn from the surrounding circumstances, totality of facts and the material on record. In such cases it is not possible to Jay down any hard and fast rule which may be of universal application. Such matters have always to be determined on the basis of evidence given in each case. So far as the present case is concerned it is significant that both Smt. Maya Devi and her husband Subedar chose to observe an ominous silence. None of them gave a whisper of any extenuating circumstances, they simply confronted the prosecution with a bland denial of the search and recovery. It is, possible to imagine extenuating circumstances which can be legion. A person may be really not occupying a house for a considerable long period of time. He may be out of station. He may prove the occupation because of several other persons in respect of the house. Circumstances like these can be multiplied which would raise grave doubt with regard to the allegations made by the prosecution. Before any one of those extenuating circumstance, can be applied to a case a foundation has to be laid for them by the accused. It is not open to him to refrain from speaking the truth and yet ask the court to embark on speculation. So far as the prosecution evidence is concerned, it was to the effect that the recovery and search were made from the house which was occupied by Smt. Maya Devi and her husband Subedar. It is not open to him to refrain from speaking the truth and yet ask the court to embark on speculation. So far as the prosecution evidence is concerned, it was to the effect that the recovery and search were made from the house which was occupied by Smt. Maya Devi and her husband Subedar. It was at no stage disputed by the applicant that he occupied this house. J. P. Verma (PW 3) Sub-Inspector deposed that the house which was searched was the house of the applicant. He was not cross examined on that point at all. It is not disputed by the applicant that he is the husband of the lady. The premises searched comprised of a room in a railway quarter. From there circumstances the prosecution could legitimately ask the court to hold that the possession of the lady was on account of her husband. I am unable to appreciate the contention of the learned counsel for the applicant that the prosecution should have led some evidence to prove the lady's possession on account of her husband. As I observed earlier, some defence has to be raised by the accused in order to save him from the initial evidence which has been produced by the prosecution to prove from circumstances that the possession of the wife was on behalf of the husband. Consequently, the latter could be deemed to be in possession the premises as contemplated by S. 7 of the UP Excise Act. In my opinion mere reticence of another person cannot be used as a device by the accused to throw from himself the burden of proof on the prosecution. 6. Thus, having regard to the facts and circumstances of the case I am satisfied that the courts below rightly arrived at the conclusion that the possession of Smt. Maya Devi of the articles recovered from the house was on account of her husband. Therefore with the aid of S. 7 the conviction of the applicant was rightly made. 7. There is no force in this revision and it is accordingly dismissed. The applicant is on bail. His bail bonds are cancelled. He shall be taken into custody forthwith to serve out his sentence