JUDGMENT The State has filed this appeal against the order of acquittal passed by the Sub-Magistrate of Badagara in a prohibition case. The two accused, husband and wife, were charged for being in possession of two (bottles of arrack in their house, offence punishable under section 4(1)(a) of the Madras Prohibition Act. On 15th September, 1960, on information received, P.W. 1 the Sub-Inspector of Police, Edacherry, searched the house where the two accused were living and recovered in the presence of witnesses two bottles of arrack from the eastern room of the house. They were seized under a mahazar Exhibit P-1 attested by witnesses. The second accused who is the wife of the first accused was present in the house. P.W.2 a resident of Azhiyoor amsom is one of the witnesses who was present with P.W.1 at the time of the search and recovery. He has attested Exhibit P-1 and was examined in Court. He has corroborated the evidence of P.W.1. The accused when questioned denied recovery of arrack from their house but examined no witness in their defence. The learned Magistrate did not disbelieve these witnesses. He, however, acquitted the accused on the ground that the mandatory provisions contained in section 103 , Criminal Procedure Code and section 29 of the Prohibition Act had been violated, the search was, therefore, illegal and as such the accused cannot be convicted. The view of the learned Magistrate is clearly erroneous. If the Magistrate had cared to read the Full Bench decision of this Court in Kochan Velayudhon v. State of Kerala1 he could have seen that even assuming that there was any contravention of the provisions contained in sections 103 and 165, Criminal Procedure Code, and the search was thereby defective it will not vitiate the trial or make the evidence of the search officer inadmissible evidence and would not on that account alone afford a ground for the acquittal of the accused. The learned counsel for the accused while conceding that the reason given by the Magistrate for the acquittal cannot be supported contends that the order of acquittal can be maintained on the ground that the prosecution has not succeeded in proving that the contraband were recovered from “the possession” of the two accused. It is not disputed that the two accused are living in the house. It is not disputed that the two accused are living in the house. Their only case is that the contraband were not recovered from the house. I have carefully gone through the evidence of the witnesses and see no reason to disbelieve them. I, therefore, find that the contraband were actually recovered from the house of the accused. It is argued that even if it can be said to have been recovered from the house it cannot be said to be in the possession of either of them as neither of them had exclusive possession. Possession implies dominion and consciousness in he mind of the person having dominion over an object that he has it and that he can exercise it. It is not necessary that the physical power of dealing with the thing should be retained at every moment of time. It would be enough for the purpose of retaining possession if that physical power can be produced at any moment the possessor wishes it. To take an example it would hardly be doubted that a gentleman's watch lying on the table in his room is in his possession though it is not in his hand and though he may not know whether it is on his writing table or on his dressing table. Possession in order to justify a conviction need not necessarily be in one's exclusive possession. A person can be in possession jointly with others. If contraband is found in the joint possession of two persons in occupation of a house it can be presumed that both are in possession of the article. The presumption no doubt is rebuttable and the weight to be attached to it must vary according to the circumstances of each case. It can be rebutted by showing that the room or the receptacle in question was in the particular or exclusive possession of one member of the family. It can be rebutted by the accused proving that he did not know of the presence of the article, for instance, by showing that it was dumped there without his knowledge or privity. The prosecution, no doubt, should prove that each of the accused had either physical or constructive possession of the property and that one or more of them had possession thereof either physical or constructive on behalf of themselves and the other accused to the knowledge of the latter. The prosecution, no doubt, should prove that each of the accused had either physical or constructive possession of the property and that one or more of them had possession thereof either physical or constructive on behalf of themselves and the other accused to the knowledge of the latter. “The finding of stolen goods in a house may be sufficient evidence that they are in possession of the occupier of the house.” (Russell on Crime, 10th Edition, Vol. II, 1335.) In R. v. Cohen2 Lord Goddard, C.J., observed at page 506: “If they are found in his house, warehouse or other place under his control, that would, establish a prima facie case that he knowingly harboured them.” From, the fact that the accused was in charge of a godown the Supreme Court presumed that he was in possession of the liquor found in it even though there was no evidence to prove that he was aware of its existence (vide Vijendrajit v. State of Bombay1). The general principle laid down by Lord ussell, C.J., in South Staffordshire Water Co. v. Sharman2 is: Where a person has possession of house or land, with manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land……the presumption is that the possession of that thing is in the owner of the locus in quo.” Issacs, C.J., conceded in In re Earnest Foreman3 that if stolen goods are found in a house it may be evidence that they are in the occupier's possession. It is not necessary for the occupier to have conscious specific intention concerning all the chattels in his house or on his land because his general intention that unauthorised persons shall not meddle with them is enough. If both the accused were thus in joint possession the presumption under section 4(2)(a)could be applied. It is not necessary for the occupier to have conscious specific intention concerning all the chattels in his house or on his land because his general intention that unauthorised persons shall not meddle with them is enough. If both the accused were thus in joint possession the presumption under section 4(2)(a)could be applied. Section 4(2)(a)reads as follows: “(a)It shall be presumed until the contrary is shown-(a) that a person accused of any offence under clauses (a)to (j)of sub- section (1) has commited such offence in respect of any liquor or intoxicating drug or any still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug, or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug for the possession of which he is unable to account satisfactorily.” No satisfactory explanation was given for the presence of the two bottles of arrack in the house. It was not suggested that the house was accessible to all and sundry. The wife was actually there at the time of the search. All that was suggested was that nothing was recovered and not that anybody had or could have planted it there. From these circumstances any Court would be justified in drawing the inference that the article was in the possession of the accused who were in possession of the house and under section 4(2) it can be presumed that both the accused have committed the offence charged. The learned counsel has brought to my notice the decision in Sukumaran v. State of Kerala4 a case under section 8(1)(a)of the Travancore-Cochin Prohibition Act. In that case the husband and wife were prosecuted for the offence. The wife was acquitted by the trial Court, but the husband was convicted. The contraband was recovered from a wooden box, the key of which was with the wife who handed it over to the Inspector for opening it. Relying on section 27 of the Penal Code the Court found that possession of the wife was that of the husband and convicted him. The contraband was recovered from a wooden box, the key of which was with the wife who handed it over to the Inspector for opening it. Relying on section 27 of the Penal Code the Court found that possession of the wife was that of the husband and convicted him. It was held that so long as the prosecution has not succeeded in proving that the illicit liquor kept inside the box the key of which was with the wife was with the husband's knowledge he could not be said to have the requisite mens rea and could not be called upon to explain the possession of the contraband. An argument was raised that though under section 27 of the Penal Code it could be said that the possession of the contraband in the possession of a person's wife could be said to be in the husband's possession it cannot be stated that the wife is also in possession and in any view the wife cannot be found guilty of the offence. I cannot agree. Though section 27 says that the possession of the wife is in certain circumstances the possession of the husband, it does not say that such possession is not that of the wife also. Reference was also made to the decision in Maharaj Prithvisinghji Bhimsinghji v. State of Bombay5. Their Lordships held that the circumstantial evidence in the case was not of that kind from which the only inference that could reasonably be drawn was that the appellant had knowledge of the contents of his luggage and that the had accordingly possessed and imported an intoxicant, in contravention of the provisions of the Act. These decisions have no application to the facts of this case where knowledge can easily be imputed to both the accused as the arrack bottles were kept in an open place in the house in view of both the accused and could not have been there without the knowledge of either of them. The plea of want of knowledge cannot, therefore, be of any avail in this case. The acquittal of the accused is, therefore, clearly erroneous and has to be set aside. I find the two accused guilty of the offence charged against them. In the result, the order of acquittal is set aside. The 1st accused is convicted and sentenced to pay a fine of Rs. The acquittal of the accused is, therefore, clearly erroneous and has to be set aside. I find the two accused guilty of the offence charged against them. In the result, the order of acquittal is set aside. The 1st accused is convicted and sentenced to pay a fine of Rs. 100 in default to undergo rigorous imprisonment for one month. The 2nd accused is convicted and sentenced to pay a fine of Rs. 25 in default to undergo rigorous imprisonment for two weeks. Time for payment of fine one month from this date. Appeal is allowed. M.C.M.-----Appeal allowed.