1. The petitioner was convicted of the unlawful possession of prejudicial literature Under Rule 39, Defence of India Rules and sentenced to rigorous imprisonment for two years his conviction and sentence being upheld on appeal. The facts of the case in so far as they are necessary at this stage are that the petitioner was living in a house with his mother and his undivided elder brother, the latter having been found to be the manager of the family. In the room shared by the petitioner and his brother a large quantity of highly prejudicial matter was found by the police in an unlocked metal box when they searched the premises. Some attempt was made in the evidence to show that there was other material in this box which would identify it as the property of the petitioner, but this evidence was not accepted, However, the convicting Magistrate relied upon Rule 39(2) of the Rules and as the petitioner was in occupation of the premises, the burden lay upon him of proving his innocence. The witnesses examined for the defence were disbelieved, and the petitioner was convicted and sentenced as already stated.
2. The only question which arises in revision is whether the joint occupation of the room by the accused and his undivided brother is sufficient occupation within the meaning of Rule 39(2), Defence of India Rules so as to cast upon him the burden of proof. In support of his argument that it does not his learned advocate relied on two decisions. The first is Anantanath Chatterji v. Emperor : AIR1943Pat389 . That was a case in which the alleged prejudicial literature was found in a room in the occupation of an accused and his elder brother, the latter being a person who was detained under the Defence of India Rules and the former only a young boy who pleaded that he had no knowledge of the books or of their origin. It was held, that he was not in occupation of the premises within the meaning of the rule but from the judgment it does not appear that the question of how far the joint occupation of premises by undivided members of the same Hindu family is effective occupation was examined. Brough J. appears to have reached his conclusion more upon a consideration of the effect of shifting the burden of proof, and there was also the circumstance that the accused was only a boy. Manohar Lall J. held that the publications found in the room were not prejudicial documents within the meaning of the rule and so he did not find it necessary to express an opinion on the question arising Under Rule 89(2). The other case relied on is Sumati Rai v. Emperor A.I.R. 1944 Bom. 125 a case in which a husband and his wife had been convicted for the possession of prejudicial literature found in the premises occupied by them both. It was held in that case that his wife should not be held to be the occupier of the house unless it could be shown that she was in fact the occupier and that her husband was a mere appendix to her.
3. Neither of these cases deals with the occupation of premises by undivided members of a Hindu joint family, each of whom owns an undivided share in every portion of the property and each of whom is competent to exercise his rights of ownership in the property. I consider that the use of the word ''occupation' in Rule 39(2), Defence of India Rules, contemplates physical occupation rather than occupation in the sense, of being the legal tenant or other person who may be looked to for the payment of taxes etc. If the Legislature had intended that the occupation contemplated by Sub-clause (2) of the rule was to be sole or effective occupation, the necessary words would doubtless have been inserted. 'The petitioner's learned advocate has strenuously argued that the mere presence of prejudicial literature in a room where the accused' lives is not sufficient proof of possession by him. But if possession can be proved then there is no necessity to have recourse to Clause (2) of the rule; because if actual possession is established then the case comes Under Clause (1). My view is that it is not necessary for the prosecution to prove that the accused is in sole occupation of premises where prejudicial literature has been found, and that joint occupation with another person is sufficient occupation for the purposes of the, rule in order to cast the burden of proof upon him. In the earlier of the two cases cited, Brough J. has commented upon the difficulties of proof in such a case where one of several persons is prosecuted for the possession of prejudicial literature found on premises in the possession of them all; but with all due respect to the learned Judge, I cannot agree that the physical occupation of premises by several members of a family should not be accepted as occupation by any one of them merely because the operation of the rule may result in difficulties in discharging the burden which the rule imposes. It was doubtless with a view to meeting cases of this kind, where prejudicial literature is found on premises in the joint occupation of more than one person, that the rule was framed so as to throw upon those persons the burden of disproving their guilt, in the same way that Section 65, City Police Act, and Section 64, Madras Abkari Act, throw upon an accused person the burden of proving his innocence. There is no necessity for any interference in revision and the petition is dismissed.