SAHENDRA SINGH Vs. EMPEROR

JUDGEMENT

(1.) This petition has been filed by one Sahendra Singh against his conviotion by the learned Subdivisional Magistrate, Sasaram, under Section 19(f), Arms Act, on which he was sentenced to undergo rigorous imprisonment for nine months, this conviction and sentence having been upheld on appeal by the learned Additional Sessions Judge, Shahabad.

(2.) The facts of the case are briefly that one single barrelled muzzle-loading gun was recovered from a room alleged to be in occupation of the petitioner on a search made by the Inspector of Police, Earn Prasad, along with a Sub-Inspector and two witnesses including one Bishwanath Pande who was P.W. 1 in the case. One point of law which has been urged in support of this petition is that the prosecution did not succeed in proving that the gun was in possession or under the control of the petitioner, as it was not shown that he was the only occupant of the room. Admittedly, he was not present at the time of the search. The evidence on which the appellate Court has found possession and control to have been with the petitioner is that of Biswanath Pande, the search witness whom I have just mentioned. This witness deposed in his examination in chief as follows "I know the accused. He and Ramdas live in the same courtyard east and west of it respectively." It was a room on the eastern side of the courtyard which was searched and the gun was found leaning against a wall in the corner of an anteroom attached to this room. On this basis the prosecution sought to prove the possession and control of the petitioner. In cross-examination, however, the same witness has deposed that "Ramdas Singh, Sahendra Singh (the petitioner) and Bijoy Singh live in the same angan. Bijoy Singh and Sahendra Singh were joint before, but I do not know about the present." In this state of the evidence it is .urged by Mr. G.P. Das on behalf of the petitioner that it cannot be held to have been proved that the petitioner was in possession, and control of the gun within the meaning of Section 19(f).

(3.) In my opinion this contention must succeed. The latest ruling in this matter is that reported in Emperor V/s. Santa Singh A.I.R 1944 Lah. 339. The learned Additional Sessions Judge appears to have read this ruling as entirely following the earlier ruling reported in Emperor V/s. Sikhdar and as being against the defence contention. I have, however, examined that ruling, and find that this is not a correct view. It was held in that case that: The words possession and control in Section 19(f), Arms Act, and Section 5, Explosive Substances Act, mean something more than more constructive or legal possession arid control. Possession and control required to constitute offences under the aforesaid sections must mean conscious possession and actual control, and as under these sections mere possession of incriminating articles constitutes serious criminal offences there must be mens rea or guilty knowledge before a person can be convicted of such possession. It was further held that: Exclusive possession or control of any particular person over an incriminating article is not required under Section 19(f), Arms Act, and Section 5, Explosive Substances Act, The possession or control might well be possession or control of two or more persons. Every case must depend on its particular facts.