1.The Sessions Judge, Jhalawad Division, has made this reference for enhancing the opponent's sentence passed by the First Class Magistrate, Limbdi, for the offence under Section 19(f), Arms Act. The opponent lives with his three sons and sons' wives in Limbdi in a house which has a ground floor and two storeys. He has a grocer's shop which is conducted in his name. On 1.8.51 the police raided his house and from the osri on the first floor four boxes containing 800 percussion caps were recovered from a gunny bag containing bahufali and from a mattress 18 bags1 containing 3600 percussion caps were seized. From the shop which was searched next 12 boxes containing 2400 percussion caps, 12 gun locks and two cap stands were seized. The gun looks and the cap stands were found in a Passing Show cigarette tin. Country gun-powder and foreign gun-powder were also seized from the shop. A first information report was sent to the First Class Magistrate Limbdi, as required by Section 157, Criminal P.C. The opponent was arrested by the Police Sub-Inspector and released on bail on the same day. Sanction to prosecute the opponent for the offence punishable under Section 19(f), Amis Act, was obtained from the District Magistrate on 14.8.51 and the charge-sheet was forwarded to the Limbdi First Class Magistrate on 30.8.51 which was received by him on 31.8.51. The opponent was duly tried and convicted by the First Class Magistrate under Section 19(f), Arms Act, who sentenced him to pay a fine of Rs. 125/- and in default of payment of fine to undergo rigorous imprisonment for one month. The case came to the notice of the Sessions Judge in the course of examination of criminal return from the Magistrate's Court and after issuing notices to the opponent and the Public Prosecutor and hearing them, the learned Sessions Judge made this reference recommending that the opponent's sentence be enhanced and that he should be awarded simple imprisonment for two months in addition to the fine to which he was sentenced by the learned Magistrate.
2. Two points were urged by the opponent before the learned Sessions Judge. It was urged before him that the learned Magistrate took cognizance of the offence before sanction to prosecute the opponent was obtained from the District Magistrate and the whole trial was vitiated thereby. It was further urged that the house from which the ammunition was seized was in the possession of the opponent and his sons, that the opponent resided on the ground floor only and did not even visit the upper floors which were used by the sons. Similarly the shop was conducted by the sons and the learned Magistrate was, therefore, wrong in holding that the opponent was in possession or control of the ammunition and the opponent should have been acquitted. The learned Sessions Judge overruled Josh the objections. On the question of sanction he held that the proceedings before the learned Magistrate could be said to have been instituted only after the receipt of the charge-sheet and as the charge-sheet was received by him after the requisite sanction was obtained, the opponent's trial was In accordance with law and its legality could not be questioned on the ground of want of sanction. On merits he held that the opponent was the head of the family and though the sons might be using some rooms for sleeping purposes it could not be said that he had no control over 1Sie rooms or the osri from where the incriminating articles were found. Similarly the shop was run in his name and therefore the articles seized from the shop were also under his control. He also held that as the head of the family he must be presumed to be in the possession or control of these articles and as he had failed to rebut the presumption he must be deemed to be in possession or control of the articles.
3. The question of the want of sanction was not argued before us by the learned advocate for the opponent. He, however, raised the same objection against the conviction on merits which was taken before the learned Sessions Judge. We have, therefore, to see whether on the facts proved in the case the opponent's conviction can be sustained.
4. The relevant provision of Section 19, Arms Act, Is as follows:
19. 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....
The offence under Section 19(f) is, therefore, committed if it is shown that the accused is 'in possession or control' of arms or ammunition without a licence.
5. The words 'possession' and 'control' have been the subject of judicial interpretation by various Higti Courts. In - Normdra Nath v. The State : AIR1951Cal140 P.B. Mukharji J. explained the concept of possession under the Arms Act in the following terms (p. 142):
The offence under the Arms Act is possession or control of any arms without licence. To my mind such a concept of possession under the Arms Act must connote an element of consciousness in the person charged with such offence. A person who is not aware of the possession of a weapon without licence cannot, in my view, be said to commit an offence under the Arms Act. This is not a question of ignorance of law which of course is never a defence or an excuse. In other words if a person is found to be in possession of the arms and such arms are without licence then the offence is complete no matter whether he is ignorant of the law or not and no further question of 'mens rea' arises. But that is not the same thing as when the person does not know whether he has in his possession any arms without licence. Ignorance of the fact of possession is a defence to the accused charged with such an offence under the Arms Act. For instance the owner of a house goes out to his office during the day and in the meantime some one conceals a pistol in his house and during his absence from his house the police arrives and discovers the pistol. In such a case unless the knowledge of toe owner is established by evidence the owner cannot be said to have committed the offence of possession of the pistol without licence under the Arms Act.
Further on he observes (p. 143):
The language of the Indian Arms Act is possession or control. To my mind it seems that to introduce notions like 'actual possession' or 'physical possession' or 'constructive possession' or 'direct possession' or 'indirect possession' does not help in getting a clearer idea of the nature of possession which can be said to be an offence or a crime under the Arms Act. I do not find it to be a very helpful process of construction. Possession in law may be all of these or any one of them and yet it may not constitute a crime. For instance there may be planting of the article in the pocket of the person charged in which case although he has the actual or physical possession he does not commit the crime.
Similarly again he may not possess the offending article directly but may have it indirectly through his agent but with the knowledge in which event he commits the crime. Possession is not necessarily manual detention.
In my judgment possession as a test or an element of a crime must be of such character as can relate to the fundamental principle of 'mens rea' in criminal jurisprudence. The 'animus' must be there and the 'mens rea' must be there. Unless these notions are specially excluded by any Statute under consideration they are basic test which must be satisfied before a person can be said to have been committed a crime whose basis is possession. It is this element of intention or consciousness or knowledge, which in my view, must be established and must be present as a fact before possession under the Arms Act can be said to constitute an offence. It does not matter, in my opinion, whether such possession is actual or constructive or physical or mediate or immediate or direct or indirect or exclusive or joint or concurrent. 'Corpus' without the 'animus' is ineffective. No mere physical relation, of a person to the thing can have any significance in criminal jurisprudence unless it is the outward form in which the needful 'animus' or intent has fulfilled and realized itself. The 'animus' may be 'animus possidendi' being the intent necessary to constitute possession by excluding others from interference, or it may even be 'animus sibis habendi' which is not necessarily a claim of right and may be consciously wrongful as the possession of a thief.
The 'animus' is the very basis of any legal concept of possession.
After examining the concept of possession under different systems of jurisprudence the learned Judge expressed himself as follows (p. 144):
But whatever jurisprudence or juristic school of thought is analyzed this, at any rate, is, in my opinion, clear that there can be no possession without intention or consciousness or will. In my judgment therefore wherever possession is a basis of crime this consciousness or 'animus' must be established, unless the Statute creating the crime excludes it.
In - Sughar Singh v. Rex : AIR1950All277 where a muzzle loading pistol and soma ammunition were found concealed in a hole in the wall of the house occupied by the accused and his younger brother aged 26, the High Court refused to convict him on the ground that as the articles were kept in the hole without the fad coming to his notice and there was nothing to indicate that the accused must have known the existence of those articles in that hole or that he must have concealed them there. This decision supports the view that possession within the meaning of the Arms Act must be conscious possession of the articles. In - Abdul Rehman v. Empero : AIR1940All449 (C) the word 'possession' was construed as meaning actual and physical possession. In - Emperor v. Santa Singh AIR 1944 Lah 339 (PB) at p. 345 (D), Harries C. J. observed as follows:
In my view, however, possession and control required to constitute offences under the Explosive Substances Act and Aims Act, must mean conscious possession and actual control. A man must know of the existence of something before he can be said to control it or have it under his control. It must be remembered that under these sections of the Explosive Substances Act and Anns Act, mere possession of incriminating articles constitutes serious criminal offences and there must be, in my view, mens rea or guilty knowledge before a person can be convicted of such possession.
6. The control of unlicensed arms is also made punishable under the Act. 'Control' has been described by P. B. Mukharji J. in - 'Norendra Nath's case' (A), referred to above in the following terms (p. 145):
Control in this section under the Arms Act means that the accused must have such power over the weapon that he can direct its custody, production, use or disposal in some manner.
At p. 143 the learned Judge makes a distinction between 'possession' and 'control' and after referring to - Lalu Singh v. Emperor in AIR 1942 Oudh 448 (E), he shows how 'possession' and 'control' differ from each other:
One may control a weapon without being in 'actual' possession of it. Again one may not be able to control a weapon although he is in 'actual' possession of it.
In - AIR 1940 All 449 (C), the word control has been construed to mean actual control.
7. It will be seen from the above discussion that in order to sustain a conviction under Section 19(f), Arms Act, on the ground that the accused was in possession of unlicensed arms or ammunition, it must be shown that his possession was a conscious possession accompanied by the necessary 'mens rea' or intention to possess them and with intent to protect them against others. As stated by P.B. Mukharji J. there must be 'mens rea' and 'animus' accompanying possession. If the conviction, of the accused is based on the ground that the unlicensed arms or ammunition were under his control it must be shown that he had such power over them that he could direct their custody, production, use or disposal in some manner though he may not be in actual possession.
8. We have next to consider cases where the incriminating articles have been found in a house or a place which is in the possession or occupation of the accused person. If such house or place is in his exclusive possession the matter may not present difficulty and if the prosecution can establish by evidence which may either be direct or circumstantial that the articles found its way there with the requisite knowledge or intention on the part of the accused, a conviction on the ground that he was in possession or control of these articles would follow as a matter of course. But the question becomes difficult if the house or the place from where the article is found is occupied by more than one person or to which more than one person have access. In such cases it has been held by the Full Bench of the Lahore High Court in - AIR 1944 Lah 339 (D), that it is the duty of the Court to consider each case on merits and come to the 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 of more than one person. The following passage from their Lordships' judgment may be quoted here with advantage (p. 345):
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.
A similar view has been expressed in - AIR 1951 Cal 140 (A), referred to above. The decision in the Lahore Full Bench case was followed in - Mohan Lahiri v. The King : AIR1950Pat243 ; - Sahendra Singh v. Emperor AIR 1948 Pat 222 (G); - Bhekha Ahir v. Emperor AIR 1947 Pat 236 (H) and - Chitta v. Emperor AIR 1947 Oudh 114 (I). In the last mentioned case Watford J. appreciated the difficulty of the prosecution in the way of establishing the guilt of any particular individual in cases where incriminating articles were recovered from a house occupied by a number of persons but the only remedy according to him lay in special legislation enacting special rules of evidence. Therefore in cases where a house or place is jointly occupied by several persons or several persons have access to it and there is nothing on record beyond the fact that articles have been found from such house or such place, none of such persons can be convicted. In such cases even knowledge of the fact that the article is lying in the house is not sufficient to sustain a conviction unless the 'animus' or the will to possess or control is established against the person or persons sought to be made liable.
9. There is yet a third class of cases where the house or the room is in the occupation of a Joint Hindu family and it has been held in some cases that in such cases the head of the family or the Karta should be presumed to be in the possession or control of anything found in the house., including incriminating articles such as unlicensed arms, etc., and this presumption need not be confined to joint Hindu families but may be extended to other families also such as Mahommedans or Christians, though, of course, it is open to the Karta to rebut this presumption. This was the view expressed in - Mangar Koiri v. Emperor AIR 1935 Pat 512 (J); - Emperor v. Mir Ahmad AIR 1937 Posh 73 (K); - Harbans Singh Hira Singh v. Emperor AIR 1941 Nag 296 (L) and - Hirdey Ram v. Emperor AIR 1946 All 4 (M). The last mentioned case was in respect of prosecution of younger members of a family who had pointed out unlicensed arms from a lemon grove and a. bush which were not in the possession of-any particular member of the family and to which every member had an access. The accused were acquitted on the ground that though the articles were found at a place which belonged to the whole family, possession should be deemed to be with the manager or the Karta and that not every member of the family can be said to have been in possession of the same. But this decision cannot be said, to be strictly in point because the liability of the head of the family for the recovery of these articles was not in issue In that case. In : AIR1950All277 (B), all these decisions were referred to and. not approved and following the Lahore Full Bench decision in - AIR 1944 Lah 339 (D), their Lordships summarized the law as follows (p. 283):
It would appear from the above that it Is practically well settled that the mere fact that an accused is the head of the joint family is not sufficient to hold that he is in possession of the articles recovered from the house. It would depend on other circumstances whether his possession over the articles can tie held to be proved or not.
In - AIR 1948 Pat 222 (C) a similar rule has been laid down. This decision is a Bench decision while the earlier decision of the same High Court in - AIR 1930 Pat 512 (J), was a single Judge decision. Therefore the law is not different in cases where the articles are found from a place Which is in joint possession of several persons belonging to tile same family and the senior member cannot be in a worse position than any other member of the family and lie can. be convicted only if the prosecution proves by evidence that the incriminating articles found in the house were in his possession with the requisite 'mens rea' or under his control.
10. We shall now examine the present case in the light of the above principles. The opponent's contention that he did not visit the first floor and consequently was not in possession of the articles found in the order has been rightly rejected by the Courts below. He could have examined his sons to support this plea. His sons are nevertheless in joint possession of the osri and the prosecution has to prove that the opponent knew that the articles were lying in the osri and had the necessary guilty intent. The articles were concealed in a gunny bag and in a mattress and it is possible that his attention might not have been drawn to them. Therefore if the only evidence against him was the finding of the articles from the house, it might probably have been difficult to sustain his conviction; but other article have been, found from the shop, also which is run in his name. The opponent's contention that the shop was run by his sons cannot be accepted as it is conducted in his name and his sons have not been examined in support of his contention and the incriminating articles in the shop must be held to be in his possession and under his control within the meaning of Section 19(f), Arms Act. Some articles were found concealed in the gunny bag in the osri of the house which contained Bahufali in which he was trading and which must be taken to have been intended for the shop. Therefore the possession or the control of the articles in the house also must be held to be with him and his conviction must be confirmed.
11. The next question is whether the opponent's sentence should be enhanced. Possession of unlicensed arms and ammunition is a serious offence. The opponent is no doubt an old man of 55 but he was present in Court during the hearing of the reference and appeared to be quite hale and hearty. A sentence of fine under these circumstances is, in our opinion, a very lenient punishment. The opponent must know that he cannot get away cheaply from the consequences of dealing in contraband ammunition by merely paying a fine. We therefore sentence him to one month's rigorous imprisonment. The sentence of fine imposed by the learned Magistrate is maintained.
12. Shah C. J.