1. The learned Sessions fudge of Azamgarh has referred to this Court the case of one Kaul Ahir who has been convicted of anoffence under the Arms Act. In the course of a house search two loaded cartridges were found in a corn bin in the house of this man Kaul among ghee, butter and other articles. Kaul and his son were prosecuted for an offence under the Arms Act. The son Lagan was acquitted, and the Magistrate has convicted Kaul on the ground that he was the head of the family and should therefore be held responsible for the Arms recovered from his house. There are many cases of this Court in which it has been laid down that it is improper to convict each and every member of a Hindu joint family because some illicit article 'has been recovered from the house, and the principle that the head of the family is responsible where there are other adult male members who had equal facilities of access to the article in question has never been affirmed as far as we are aware by any High Court in India. We have been referred to a decision of a single Judge of this Court in the case of Emperor v. Sikhdar : AIR1932All441 .
2. In that case the learned Judge held that all the adult male members of a Hindu joint family could be presumed to be in possession of an unlicensed gun found in their house, and it was open to the police to prosecute one or all of them for the offence. This is a view which we are not prepared to accept. We believe that in all such cases it is necessary to prove not only the presence of the article in the house but the possession of some particular person over that article in order to justify a conviction. In a case such as the present it cannot even be said that the head of the house or any individual male member of his family was aware of the presence of these cartridges. For all we know they might have been dropped by some sportsman, picked up by a child and handed over to the child's mother. It is the women of the house and not the men who look after the grain bin and the ghee and the butter and other articles, and the possession of these cartridges may have been entirely innocent. We cannot accept the view that the head of the family is responsible for the presence of the articles, and we do not consider that the conviction for an offence under the Arms Act is legal. We accordingly accept this reference, set aside the conviction and sentence and direct that if the fine has been paid it shall be 'returned.