By John B Monteiro

Aug 19: On August 17, 2016, Supreme Court (SC) of India handled two cases concerning “Possession”, ruling on one and initiating judicial processes on the other. But, first the facts.

In the first case, SC reunited a couple, restoring the possession a woman to her husband who married her in the church against the wishes of her parents; who "abducted" her on some pretext. According to the report in Deccan Herald (18/8/16), as she turned and smiled profusely, the court bench, presided over by Chief justice T S Thakur, told the girl’s husband, a 27-year-old man: "You look very happy... we are also happy to see you smile. God bless you both" - the bench wished the couple, who had to seek the help of the top court to lead their life as husband and wife.

Both had in the last week of June 2016 married each other at a church in Delhi after a courtship. After the wedding they lived in the house of the man’s father in Noida – but the woman’s family was unhappy over her decision to marry. When she travelled to Hyderabad for some official work on July 8, her father called to say that they would accept the marriage and asked her to see him at her cousin’s house in that city. But when she reached there, the father assaulted her and forcibly took her to Chennai where she was locked up in his house. Attempts by the husband and his family to reconcile with the woman’s father did not yield any results. Police in Noida and Delhi refused to register the FIR on one pretext or another and hence the case landed in SC.

In the second case bearing on "possession", the SC on August 17 issued notice to Maharashtra government on the plea challenging the Bombay High Court verdict which had decriminalised possession of beef from outside the State. A bench of Justices A K Sikri and D Y Chandrachud sought response from Maharashtra State on the plea filed by Akil Bharat Krishi Goseva Sangh. The genesis and background to this case is given below.

According to a report from Mumbai in The Times of India dated June 16, 2016, "A month after Bombay High Court struck down two sections of Maharashtra Animals Preservation (Amendment) Act which criminalised possession of beef of animals slaughtered outside the state, some activists have urged Chief Minister Devendra Fadnavis to challenge the decision in the apex court". Thus, the question of "possession" is likely to be alive as the Supreme Court deals with possible appeals on the subject (which has now come to pass). It may be noted that the apex court, in another context, had averred that possession by itself is not illegal or criminal. But, before we come to the judicial averments on possession, it is interesting to know the historical background of possession which has almost a doctrinal status.

It is an old dictum, dating back to several centuries, that "Possession is nine-tenths of the law". It means that ownership is easier to maintain if one has possession of something, or difficult to enforce if one does not. The expression is also stated as "possession is nine points of the law". Although the principle is an oversimplification, it can be restated as: In a property dispute, in the absence of clear and compelling testimony or documentation to the contrary, the person in actual, custodial possession of the property is presumed to be the rightful owner. The shirt or blouse you are currently wearing is presumed to be yours, unless someone can prove that it is not.

The Bombay High Court on May 20, 2016 upheld the Maharashtra government’s ban on slaughter of beef in the state while allowing people to consume beef imported from other states, observing that a ban on imported beef would be "an infringement of right of privacy, which is a fundamental right". The court’s Divisional Bench, comprising Justices A S Oka and S C Dave, said the objective of the ban was to protect the cow and its progeny, not to prevent citizens from eating beef that may be brought from a state or a country where there is no prohibition on cow slaughter. Under Article 21 of the Constitution, citizens are protected from unnecessary state intrusion into their home, the court held. The court also struck down a provision in the Maharashtra Animal Preservation (Amendment) Act, 1976, which put the burden on a person found to be in possession of beef to prove his innocence. The court said that, too, infringes on the fundamental rights of a person.

Now, from Maharashtra on to Bihar. According to TNN report on June 2, 2016, titled "Possessing liquor not offence, says Patna High Court", the Patna High Court ruled that mere possession of liquor bottle is not illegal as the Bihar Excise Act has provisions for penal action only in cases of "trade and consumption of alcohol". The High Court, in its order of May 26, had said the Act is silent over possession of liquor. The interim order was passed by a bench headed by acting Chief Justice Iqbal Ahmed Ansari while hearing a petition filed by one Ram Sumir Sharma, whose house in Aurangabad was sealed after liquor bottles were found in possession of his nephew.

More than 3,000 raids had been conducted and more than 100 people in the state were behind bars for possessing liquor bottles. The court especially pointed out that a minute reading of Sec 19(4) of the Bihar Excise Act makes it clear that the Bihar government has not "prohibited possession of liquor by anyone", and unless such a notification is issued, possession of Indian-made foreign liquor (IMFL) would not become an offence punishable under the Act.

Leaving behind Mumbai and Patna, let us now shift to New Delhi where the Supreme Court ruled on the possession of assets. The Hindu reported on June 2, 2016: Acquisition of assets per se is not a crime unless proved that the source of funds is illegal, the Supreme Court observed on June 1, 2016, while hearing the wealth case involving Tamil Nadu Chief Minister Jayalalithaa. In the first hearing after Jayalalithaa was voted back to power in the State, a Bench of Justices P C Ghose and Amitava Roy met Karnataka’s submissions charging the three co-accused - N Sasikala, J Elavarasi and V N Sudhakaran - of criminal conspiracy, abetment and possession of disproportionate assets with a barrage of questions. "Disproportionate assets is not a crime. It is only a crime if it is proved that the source of the money is illegal. Otherwise it [the illegality of disproportionate assets] is only an inference," Justice Amitava Roy orally observed.

The observation came when senior advocate B V Acharya, appearing for Karnataka, described the HC judgment as "perverse beyond imagination". The court asked how Karnataka could prove that the money "circulated" among the co-accused was that of Jayalalithaa. Jayalalithaa had argued that the prosecution cannot "presume" she was the source of the money flow merely because the co-accused lived in the same house as her. The court again intervened to ask whether Karnataka had any proof to show that the money "enjoyed, utilised" by the accused persons was that of Jayalalithaa alone."

Discerning and awake readers would have observed that this article starting from right to property has shifted to right to privacy, both upheld by judgments cited above. In this context, it is relevant to recall a British dictum that an Englishman's home is his castle. This maxim is most often cited these days in articles in the British right-wing press that bemoan the apparent undermining of the perceived principle that a man can do as he pleases in his own house, which they hold up as an ancient right. Such rights in India are officially notified, and run into several pages, regarding rights of those targeted for search and seizure by various enforcement agencies – which are often transgressed. But, that is a subject in itself for another time.