John Beaumont, Kt., C.J.
1. This is an application in revision against the conviction of the applicant under Rule 39(6) of the Defence of India Rules, 1939. The offence under Rule 39, so far as relevant for the present purpose, is : under Sub-rule (1) being in possession of any document containing any prejudicial report, and under sub-r. (2) having on any premises in a person's occupation or under his control any document containing any prejudicial report.
2. Now, the facts are not in dispute. Certain documents containing prejudicial reports were found in a box in the house occupied by the applicant and her husband. When the house was raided the husband was out and the applicant, i.e. the wife, produced all the family keys with one of which the box could be opened. In addition to the prejudicial reports there were some letters in the box addressed to the wife. The husband was convicted of being in possession of prejudicial matter, and though he appealed, the appeal was not pressed, and he has not applied in revision.
3. The first point to consider is whether the contents of this box were in the possession of the applicant. Now, the possession might have been that of the husband alone, or of the wife alone, or it might have been of the two jointly. As the husband has been convicted, it is not open to the prosecution to maintain that possession was that of the wife alone. Therefore, they must contend that the possession was joint. But, to my mind, where a husband and wife are living together, prima facie a box containing documents would be in the possession of the husband, and the mere fact that when he is absent he has left the keys with his wife or his son or his butler would not make any of those persons in joint possession with himself; nor, I think, does the fact that there were letters in the box addressed to the wife mean that she was in joint possession of all the contents of the box. The fact that the letters addressed to her show that she is literate, on which the learned Sessions Judge relied, seems to me wholly irrelevant. It is not an offence to read prejudicial reports, the offence is to be in possession of prejudicial reports. In our opinion, therefore, the wife was not in possession of this box, and the only further question is whether she can be said to come under sub-r. (2), that is to say, whether the documents in this box were on premises in her occupation or under her control. No doubt, a wife, in a loose sense occupies the house in which she lives with her husband. Equally so, do the husband's children and servants. But when Rule 39 speaks of a person in occupation, I apprehend that it means legal occupation, and the only occupier of the house in question is the husband so far as the evidence shows. The natural presumption would be that he is the occupier unless it is shown that the wife is the occupier and he is a mere appendix to her. But if he is the occupier, the house is under his control.
4. In our opinion, on the facts shown in this case, it is not established that the wife was in possession of this box and its contents or that the house was in her occupation or under her control.
5. That being so, I think the application must succeed. The conviction and the sentence must, therefore, be set aside and the fine, if paid, should be refunded.
6. I agree.