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PETITIONER: PABITAR SINGH

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT22/03/1972

BENCH: GROVER, A.N. BENCH: GROVER, A.N. BEG, M. HAMEEDULLAH

CITATION:  1972 AIR 1899            1972 SCR  (3) 948  1972 SCC  (3) 354  CITATOR INFO :  R          1992 SC 669  (8)

ACT: Indian  Arms Act (LIV of 1959), ss 25 and  35--Premisses  in joint  occupation  of  two  Persons--Gun  concealed  in  one room--Conviction of one of the persons--Validity.

HEADNOTE: The  appellant and another, Loco employees of  the  Railway, were in joint occupation of certain quarters consisting of a bed.-room  and a kitchen.  ’They were charged with  offences under  ss.  25 and 26 of ’,he Indian Arms  Act,  1959.   The trial court convicted both the accused.  The first appellate Court  convicted  the  appellant  but  acquitted  the  other accused.   In revision by the appellant, the High Court  set aside his conviction under s. 26, but upheld his  conviction under  s. 25, on the basis that a gun was found  inside  the kitchen-room  in  which  the  appellant  concealed   himself bolting the room from inside, and that the appellant was the sole  occupant  of  that room at the time  when  the  police raided the premises. Allowing the appeal ’to this Court, HELD  :  (1)  The  Courts  below  had  not  considered   the prosecution ’evidence in the light of the gross exaggeration which had been introduced about the door of the kitchen-room having been bolted or chained from inside by the  appellant. Once that vital fact is disbelieved the entire story of  the appellate  having conceived himself in that room had  to  be rejected. [953 C-E] (2) On the evidence, the quarters must be held to be in  the joint  possession of both the accused.  Under s. 35  of  the Act which was never considered by the courts below where any arms  or  ammunition are or is round in any premises  in  he joint  occupation  or  under the joint  control  of  several persons,  each of such persons in respect of whom  there  is reason to believe that he was aware of the existence of  the arms and ,ammunition in the premises unless the contrary  is proved  will  be liable for the offence under  s.  25(1)  of being in possession of an unlicensed fire arm.  But, in  the present  case  the  prosecution  had  not  established   the essential  ingredients  of the offence in the light  of  the provisions  of  s. 3 5. As the gun was concealed in  such  a

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manner  that it was not visible to the naked eye,  it  could not  be urged that when the appellant was using the  kitchen he would be aware of its existence in that room. [953 F-H] (3) In cases of this nature involving the liberty and career of a citizen _great care and attention should be devoted  by the courts to all questions or. law and fact. [954 A-B]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 128 of 1969. Appeal  by Special Leave from the judgment and  order  dated February  6,  1969  of  the Patna  High  Court  in  Criminal Revision No. 541 of 1968. 949 S. C. Agrawala and V. J. Francis, for the appellant. U. P. Singh, for the respondent. The Judgment of the Court was delivered by Grover,  J.  This  is  an appeal by  special  leave  from  a judgment  of the Patna High Court.  Originally  two  persons Pabitar Singh (the present appellant) and Ram Ashray  Sharma who were both Loco employees of the Railway were tried under ss.  25  and  26 of the Indian Arms  Act  1959,  hereinafter called  the  "Act".  The learned  Assistant  Sessions  Judge found each one of them guilty under both the sections.   The sentence imposed was 3 years rigorous imprisonment under  S. 26  and one year’s rigorous imprisonment under S. 25 of  the Act.  The sentences were to run concurrently.  The convicted persons  filed  an  appeal to the court  of  Sessions.   The Additional Sessions, Judge, Gaya, who heard the appeal found the appellant guilty under both the sections of the Act.  He maintained  the sentence imposed on him.  Ram Ashray  Sharma was given the benefit of doubt and acquitted.  Pabitar Singh moved  the High Court in revision.  His conviction under  S. 26  of  the  Act was set aside by the  High  Court  but  his conviction and sentence under s. 25 of the Act were upheld. It is necessary to state a few facts.  The appellant and Ram Ashray Sharma were in joint occupation of quarter/No.  490-A of  the Loco Colony at Gaya.  Some confidential  information was  conveyed by Bishrampore police station to  the  Kotwali police  station  ,it Gaya that stolen  properties  connected with  a  dacoity  were  lying  concealed  in  the  aforesaid quarter.   Consequently Rama Shankar Upadhvay Station  House Officer,  Gaya Kotwali police station raided the quarter  at 5.45  a.m.  on  November  5, 1962.  He  took  with  him  two witnesses P.W. 1 Vijay Kumar Dubey and P.W. 5 Deonadan  Ram. The  quarter  was  found locked from  outside.   Ram  Ashray Sharma  was reported to be on duty.  He was sent for and  he opened  the outer lock of the quarter with his key.  It  was alleged that when the search was made inside the quarter the appellant  was found in the quarter, inside.  That room  was got  opened.   A country made gun was  found  lying  between brick  on the top of which a tin containing flour in  a  bag covered  with  a brass thali was placed, The  bed  room  was searched and two live 12 bore cartridges were found  wrapped in  a  small cloth.  These had been placed behind  a  framed picture of Lord Shiva. The learned judge of the High Court formed the view that  it the  appellant  could  not be convicted in  respect  of  the cartridges  which  were found in the bed room which  was  in joint  occupation  of Ram Ashray Sharma and  the  appellant. According  to the learned judge the inference  of  conscious possession of the appellant ’had 950

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been drawn by the cours below from the fact that the picture behind  which the cartridges were found was just  above  the cot.   The fact that that cot belonged to Pabitar Singh  had been stated by P.W. 1 alone.  No reliance could be placed on that  witness as he had to be declared hostile.  In view  of the  fact  that  the room was in  joint  possession  of  two persons  the  learned judge held that no  inference  of  the appellant’s conscious possession of the cartridges and their concealment by him could be drawn. So  far as the gun was concerned the learned judge  observed that  it was found inside the kitchen room in which  Pabitar singh  was found having concealed himself.  He was the  only occupant ofthe  room at the moment.  He had  bolted  the room from inside.In    spite    of    certain     serious discrepancies and other matters whichwill  be   presently discussed  the  learned  judge accepted  the  finding  based mainly  on  the  evidence  of  the  Sub-Inspector  that  the appellant had concealed himself in the kitchen room and  the gun was found concealed there and an inference could, there- fore,  be drawn that he was in conscious possession of  that gun. We may at the stage refer to the relevant provisions of  the Act  and the changes which appear to have been made  in  the lndian Arms Act 1878 by the Act with which we are concerned, namely the Act Act 1959.  Section 14 of the Act of 1878 pro- vided  that no person shall have in his possession or  under his  control  any  cannon or firearm or  any  ammunition  or stores  except under a license and in the manner and to  the extent permitted thereby.  Section 15 related to  possession of  arms  of any description without license  prohibited  in certain  places.   Section 19 (1 ) (f) to the extent  it  is material was in these terms :-               S.   19  (1)  "Whoever  commits  any  of   the               following  offences (namely) :--               (f) has in his possession or under his control               any  arms,  ammunition or military  stores  in               contravention of the provisions of section  14                             or section 15;"               shall be punished with imprisonment for a term               which may extend to three years or with  fine,               or with both". The Act came into force on the first day of October 1962  as it  was  on that date that the  requisite  notification  was made.  Under sub-s. (3) of s. 1. Section 3 reads :-               "No  person  shall  acquire  ,  have  in   his               possession or carry any firearm or  ammunition               unless he holds in this 951 behalf a license issued in accordance with the provisions of this Act and the rules made thereunder Provided  that...................." Section   7  relates  to  prohibition  of   acquisition   or possession etc. of prohibited arms or prohibited ammunition. Chapter II contains provisions relating to licenses, Chapter IV  to  power and procedure and Chapter V  to  offences  and penalties.  Section 25 to the extent it is relevant for this case is as follows S. 25 (1) "Whoever--               (a) acquires, has in his possession or carries               in any firearm or ammunition in  contravention               of section 3; or               shall  be punishable with imprisonment  for  a               term which may extend to 3 years or with  fine               of with both". Section 35 provides :-

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             "Where  any arms or ammunition in  respect  of               which  any offence under this Act has been  or               being  committed  are  or  is  found-  in  any               premises, vehicle or other place in the  joint               occupation  or  under  the  joint  control  of               several  persons,  each  of  such  persons  in               respect  of  whom there is reason  to  believe               that  he,  was aware of the existence  of  the               arms or ammunition in the premises vehicle  or               other place shall, Unless the contrary is pro-               ved,  be liable for that offence in  the  same               manner as if it has been or is being committed               by him alone". In S. 25 (1) (a) only the words "has in his possession" have been   retained   and  the  other   words   which   appeared disjunctively in s. 19 ( 1)(f) namely "or under his control" have  been omitted.  Section 35 appears to have  been  newly inserted to clarify the true position whereany   arms   or ammunition are or is found in any premises etc. in the joint occupation  or under the joint control of  several  persons. Each  of such persons in respect of whom there is reason  to believe  that he was aware of the existence of the arms  and ammunition  in  the premises unless the contrary  is  proved will be liable for that offence. It  is abundantly clear from a perusal of the  judgments  of the courts below including the High Court that the case  was neither  tried  nor examined from the point of view  of  the provisions  contained in s. 35 of the Act.  In  the  precent case the quarter was admittedly in joint occupation of  both the appellant and Ram Ashray Sharma.  It is true that at the time of the raid Ram 952 Ashray  Sharma was not present but the mere presence of  the appellant  was  not  sufficient to make him  guilty  of  the offence  unless the court could come to the conclusion  that there  was  reason  to  believe that he  was  aware  of  the existence  of the gun in the premises.  If the view  of  the courts  below is accepted that the appellant  had  concealed himself  after having locked the kitchen when the raid  took place and that he was in exclusive possession of the kitchen it might have been possible in the light of other facts  and circumstances  to  come to the conclusion  that  the  condi- tions_laid  down in S. 35 were satisfied.  The courts  have, however,  ignored some salient facts which were  proved  and which completely negatived the case of the prosecution  that the  appellant had locked himself in the kitchen and was  in sole  occupation thereof.  The learned trial  judge  pointed out that the story that the appellant had locked himself  in the,  kitchen was not supported by P.W. 1. In his view  that witness had displayed considerable sympathy for the  accused person.  He therefore took into consideration the  statement made by the witness to the police.  P.W. 1 had been declared hostile.   It has not been shown on behalf of the State  how such  a course could be followed and any statement  made  by him  could  be relied on particularly,  when  the  aforesaid witness  had  been  declared hostile and had  to  be  cross- examined  by the prosecutor.  The appellant had  also  moved the trial judge for Iocal inspection and it was pointed  out to the judge that there was no device at all inthe   door of the kitchen by which it could be closed from inside.Other inaccuracies in the description of the room which were to be found in the statement of P.W. 14 Rama Shankar  Upadhaya-the Investigating Officer--were also pointed out.  This is  what the trial judge stated in his judgment               "It  cannot,  therefore, be  denied  that  the

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             description of the room as given  by the I.O .               applied  to the latrine of the quarter  rather               than the kitchen excent for its location  i.e.               that  it  was situated adjacent  east  to  the               northern  end  (if the  inner  varandah.   The               latrine,  it  may be pointed out  is  at  some               distance east of the varandah". After  stating  a  few facts the trial  judge  came  to  the conclusion  that  the Investigating Officer  had  made  some confusion  in the description of the kitchen.   The  learned Sessions  Judge accented the finding that the appellant  bid decided to "close himself in the kitchen". Now  the  story  that the appellant  had  concealed  himself inside  the kitchen was substantially on the, evidence of  P W.  14,  the  Investigating  Officer.   A  perusal  of   his statement would not satisfy any court that implicit reliance could  be  placed  on  his  evidence.   He  had  deposed  in categorical terms that he found the 953 door of the kitchen closed from inside.  He stated in cross- examination  that  the chains were fitted in the  door  from inside  as  also from outside.  The hinge for  chaining  the door  was not fitted to the door frame but it was fitted  to the  door  plank.  He also gave description of  the  kitchen which was found to be different when the inspection was made by  the  trial  judge nor were any chains or  marks  of  any chains was found in the door of the kitchen as deposed to by P.W.  14.   P.W.  2 Ram  Swarath,  officer-incharge,  police station  Daltonganj who accompanied the raiding  party  also stated  that the door of the kitchen room was  closed  which was  got unfastened.  It is implicit in his  statement  that there was some bolting or chaining device in the door of the kitchen  room by which it had been secured by the  apellant. This  is not at all supported by the inspection  note.   The allegation  that the kitchen had been bolted from inside  by the appellant who had concealed himself there at the time of the  raid finds mention in the first information  report  as well.  The courts below do not appear to have looked at  the prosecution evidence in the light of this gross exaggeration which had been introduced about the door having been  bolted or chained from inside by the appellant where he was alleged to  have  concealed  himself.   Once  that  vital  fact   is disbelieved the entire story of his having concealed himself in the kitchen becomes doubtful. and worthy of rejection. It  has also been suggested in some of the judgments of  the courts  and this fact has been relied upon on behalf of  the State  before  us  that the kitchen was  used  only  by  the appellant and not by Ram Ashray Sharma, the other  occupant. However,  there is absolutely no material on which any  such suggestion could be justified or based.  We are wholly at  a loss  to understand how a quarter which consisted only of  a bedroom  and a kitchen would not be in the joint  possession of both these persons, namely,. the appellant and Ram Ashray Sharma. The next and the crucial question that arises is whether the prosecution has established the essential ingredients of the offence in the light of the provisions of S. 35 of the  Act. It  has  been urged that when the appellant  was  using  the kitchen  it was legitimate to expect that he would be  aware of the existence of the gun which was concealed there.   The gun  was concealed in such a manner that it was not  visible to the naked eye.  Although there may be very rave suspicion that the appellant was aware of the existence Of the gun the prosecution is bound to establish facts from which the court could  have  reason  to believe that he  was  aware  of  the

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existence of the unlicensed fire-arm.  We are not  satisfied in   the  present  case  that  any  such  facts  have   been established. 954 Lastly  it  cannot be over-emphasised that in cases  of  the present  nature where not only the liberty of a  citizen  is involved but also his whole career on conviction a person in service  is bound to be dismissed great care  and  attention should be devoted by the courts to all questions of law  and fact  which unfortunately had not been done in  the  present case.   That  has  led  to  miscarriage  of  justice.    The appellant,  is  entitled to the benefit of doubt and  he  is hereby acquitted. V.P.S.                        Appeal allowed. 955