1. This appeal is under Rule 21 of the Rules for the Administration of Justice and Police in the Sib-sagar and Nowgong Mikir Hills Tracts read with Assam Regulation No. 10 of 1951, against an order of conviction passed by the learned District Magistrate of the United Mikir and North Cachar Hills. The appeal is on behalf of two persons, Narendra Goswami and Khagendra Barua who were convicted Under Section 19(f), Arms Act, and sentenced to two years' rigorous imprisonment for alleged possession of a stengun without license.
2. The case for the prosecution is that Lall Chand Namasudra, a Police Sub-Inspector, getting information from private sources about the illicit possession of a gun by Narendra Goswami arrived with some other persons in his company on 23-5-50 at the house at Bokajan where Narendra Goswami was staying. It was in the early hours of the morning and he roused from sleep Narendra Goswami as well as Khagendra Barua who lived in the neighbouring house in the same compound. The Police Sub-Inspector somehow induced them to go and point out the place where they had secreted a stengun and both of them followed him to a plot of jungle land about half a mile away from the Bokajan bazar where the accused persons were staying and there, Khagendra Barua took out a stengun wrapped in rags and straw from under the jungle after a mutual talk between themselves as to the production of the gun.
On the recovery of the gun, a seizure list was prepared by which a sten-gun and some other articles were seized and the same was duly signed by two persons who were then present, they being the prosecution witnesses, Syam Chandra Gowalor and Chandrika Prosad Sarma, both of them residents of the Bokajan area. The accused persons could produce no license for the gun nor did they offer any explanation in Court as to how the gun happened to be there or how they came to know of its existence. The two accused, however, pleaded not guilty though there was an attempt 'inter se' to charge the other accused with the possession and control of the gun. The fact of recovery of the gun was not challenged. The learned District Magistrate believed the prosecution evidence and convicted and sentenced the accused persons as aforesaid.
3. Mr. S. C. Bardoloi, appearing for the appellants, has contended before us that there was some inadmissible evidence as to what a Naga did or said about the gun and the learned District Magistrate wrongly admitted that evidence into the record and had acted upon it whereby the accused are prejudiced. There was another defect pointed out in the judgment to the effect that the learned District Magistrate laboured under an idea that the accused had some onus in the matter of proving their innocence. The main contention, however, of Mr. Bardoloi was that there was no evidence to connect Narendra Goswami with the offence and at any event they had not the possession and control of the gun which would make them liable to conviction.
4. It is correct to say that the reference to the Naga or what he said is inadmissible and the learned District Magistrate was not justified either in thinking that the accused had any responsibility to prove their innocence. But taking the evidence as a whole into consideration which is admissible and relevant, that comes from the three witnesses, the Police Sub-Inspector and the two search witnesses, we must see how far the conviction can stand legitimately against either or both the accused persons.
It is admitted that Khagendra Barua took part in the matter of taking the Sub-Inspector to the jungle and in recovering the gun and practically he has no defence unless we hold that the nature of possession he had was not the sort of possession or control which is contemplated in Section 14 or Section 19 (f), Arms Act. As a matter of fact, the evidence against both the accused persons is identical and there is very little ground to distinguish the case of Narendra Nath Goswami from that of Khagendra Nath Barua because the prosecution case all along has been that both the persons accompanied the police officer to the forest and pointed out the gun and discrimination was sought to be made only on the ground that Khagendra Barua took it out from the place and not Narendra Goswami. The Police Sub-Inspector denied the suggestion in the cross-examination that Prafulla alone accompanied him to the jungle.
Prosecution witness No. 2, Chandrika Prasad Sarma, states in his deposition that when the accused persons accompanied the police party along with these witnesses to the place where the gun was lying one accused asked the other to point out the gun and at last Khagendra Barua pointed it out and the gun was recovered from the jungle when the police seized it. This evidence along with what the police officer said makes it clear that both the accused had a part in secreting the gun and in recovering it. Therefore, the case of Narendra Goswami cannot be distinguished on this ground from that of Khagendra Barua.
5. The other point which is of some Importance is as to whether the two accused can be said to have the gun in their possession or control as contemplated Under Section 19 (f), Arms Act. Mr. Bardoloi placed before us two cases to show that under such circumstances, the conviction would not be justified and they are — 'Cheru Sheikh v. Emperor', 40 Cal WN 1374 (A) and — 'Maru V. Emperor' AIR 1937 Lab. 561 (B).
Both the cases, however, are clearly distinguishable from the facts in this case. In the case of 40 Cal WN 1374 (A), the point for decision was really whether it would be fair for a Judge to hold a trial by making the same set of persons assessors at one stage and jurors at another, in the course of the same trial. There the case was that a servant was convicted for pointing out the place from where a revolver and cartridges belonging to his master were recovered. The finding of the trial Judge was that there was no satisfactory evidence to show that the accused had secreted these articles and the learned Judges re-affirmed that finding and Cunliffe J. observed as follows:
I do not see why because a man might happen to know that there was illegally concealed in his master's garden a revolver and cartridges that the revolver and cartridges should necessarily be in his possession or Control.
The finding even of the trial Judge was that the facts themselves do noti necessarily amount to an act on the part of the accused of having the revolver in his possession or under his control. In such Circumstances, there could have been no conviction of the accused Under Section 19 (f), Arms Act.
In AIR 1937 Lah 561 (B), the accused was charged Under Section 19 (f), Arms Act, and the only evidence against him was that at his instance, a place was dug up in the house of another person wherefrom a pistol and some cartridges were recovered but during the commission of robbery, he was not alleged to be armed with a pistol; moreover, the person from whose house the pistol and cartridges were recovered was suspiciously withheld by the police and in these circumstances, it was held that it was not exclusive possession of the incriminating articles on the part of the accused and there could be no conviction Under Section 19 (f) inasmuch as there was not that amount of possession and control which is required for the purpose of that section.
On the other hand, I would like to rely on — 'Emperor v. Santa Singh' AIR 1944 Lah 339 (FB) (C), a decision of the Pull Bench of the Lahore High Court where it was held that the possession or control might well be possession or control of two or more persons. In the words of Harries C. J.:
Every case must depend upon its particular facts and the Courts must consider each case and} come to a conclusion whether it is proved that the incriminating article is in the possession or under the control of any particular person or in the possession or under the control of more than one person. If on the evidence the Court cannot hold possession or control by any person or persons, then the case is not established.
But here, as a matter of fact, the evidence is conclusive on the point that the two persons knew where the gun was and they would have resorted to the place without let or hindrance and taken out the gun whenever they wanted to use it. This1 clearly shows the nature of the possession or control they had. The condition under which it was recovered further shows that it was kept and secreted with care and mens rea was also there as can be gathered from the circumstances. In this state of things, we agree with the learned District Magistrate that a case Under Section 19 (f), Arms Act, was made out against both the accused persons and hold that they were rightly convicted. A stengun is not an article of ordinary use and unless one has some mischievous purpose, there Is not much sense in possessing or getting the saffltfe in an illegal manner and accordingly we hold that both the conviction and sentence were proper in this case. The appeal therefore fails and is dismissed. The accused to surrender forthwith if on bail.
Sarjoo Prasad, C.J.
6. I agree.