possession, the prosecution must prove that the person who is alleged to be in possession of a contraband article has dominion or control over such article. In this case, the Excise Officials found that the accused was lifting a can from a pond, which is situated in the property of PW3. Except for the act of lifting the can from the pond, no other overtact is alleged against the accused in this case. The prosecution has not even a case that the accused was perplexed when he saw the Excise Officials. So the evidence available in this case is that the accused was lifting a can from a pond which belongs to a third party. Admittedly, PW3 is the owner of the pond from where this can was taken by the accused. Simply because there is evidence to show that the accused was found lifting the can from a pond belong to PW3 it will not prove "possession". Touching or lifting a contraband article from an open pond by an accused without any other overtacts will not amount to possession.To prove possession, dominion or control over the property is necessary. Hence it cannot be concluded that the accused was in possession of the contraband articles. Admittedly, the pond is situated in an open property. If a can is seen in a pond, a person may even take out the same because of curiosity. He may be a thief or an ordinary person trying to take out a strange article seen in a pond. In this case, the admitted case of the prosecution is that the accused lifted the can from the pond. I don't think that the same amounts to either physical/actual possession or even constructive possession of illicit liquor. ”
