1. The applicant, Abdul Rahim Khan of Betul was convicted and sentenced to pay a fine of Hs. 60 under Section 19 (f), Arms Act, by the First Class Magistrate, Betul; and his appeal was dismissed by the Additional Sessions Judge, Betul, He has now come up in revision to this Court.
2. The prosecution case was, briefly stated i to the effect that on 16th September 1947 when his house was searched by the police, a live cartridge was found in an almirah in the front room of the house. The applicant in examination admitted that the cartridge, Article A, had been found in his house and seized from him on the relevant date by V. W. Matapurkar (p. W. i), Sub-Inspector, but in his written statement, which was filed 4 months later, he represented that the house was divided into 2 separate portions and that Article A had been found in the portion occupied by the widow and children of his deceased brother Abdul Hamid Khan who was the licence-holder of a gun, This belated plea was not accepted by the two Courts below and I can discover no reason why it should 'be accepted by me. The applicant as an accountant in the Civil Surgeon's office is not a rustic and I understand that he is over 50 years of age. It follows that if there had been any substance in his belated plea, he would have specifically adverted to it in examination.
3. Apart from this, there are circumstances which inhibit me from maintaining the conviction. Although the cartridge was found in an almirah in a room in which, according to Durga prasad (p. W. 2), the applicant lived, I am not satisfied that he was in conscious control of the cartridge. His brother Abdul Hamid Khan, who died in 1945, possessed a .12 bore shot gun and the cartridge in question was of that calibre. It was, therefore, extremely probable that this single cartridge was one which had belonged to Abdul Hamid Khan and that he had left it in the almirah in which there were papera, books and bottles. It might well have escaped the notice of the applicant and it was not suggested that any attempt at its concealment had been made. In fact, Durgaprasad averred that it was lying in the almirah in an uncared for way. The applicant himself had no gun with which the cartridge could be fired and it seems to me that he would not have kept it in the almirah if he had the slightest desire of evading the law. Moreover, a .12 cartridge is not a big article and one which might well have escaped observation. There was also the testimony of Gokulprasad nesses, to the effect that the applicant's brother Salim Khan resides in the house, if not permanently, at any rate from time to time.
4. In Sahendra Singh v. Emperor : AIR1948Pat222 a Division Bench held that the words 'possession and control' in Section 19 (f), Arms Act mean something more than mere constructive or legal possession and control. Possession and control required to constitute an offence under that clause much mean conscious possession and actual control and as under this section the mere possession of incriminating articles constitutes a serious criminal offence, there must be metis rea of guilty knowledge before a person can be convicted of such possession. I am in respectful agreement with this view and I am clear that when it is applied to the case before me, the applicant's conviction was unwarranted.
5. The conviction and sentence are, therefore, set aside and the fine, if paid by, shall be refunded to the applicant, Abdul Rahim Khan.