P.B. Mukharji, J.
1 The accused Norendra Nath Mozumdar was charged by the Presidency Mag. Calcutta on 25-11-1950 Under Section 19(f) read with Section 19 A, Arms Act for having on 13-6-1950 in his possession or under his control without the necessary licence one Colt Automatic .32 bore pistol & also charged Under Section 19 (f), Arms Act for having on the same day in his possession or under his control without the necessary licence 4 rounds of cartridges of .32 bore. On these charges the accused was committed by the Mag. for trial in the H. C. Criminal Sessions.
2. The total evidence on the point of possession or control on which the accused has been committed for trial is this. The accused was arrested on 13-6-1950 & was already in custody at Lalbazar. Pursuant to some statement made by the accused the police expected to recover a pistol from his house. The accused took S. I., D. P. Roy & Samar Ghosh from Lalbazar Police Station to his house at 42 B, Ram Dulal Sarkar Street. The accused took the Police to his bedroom & himself looked into different parts of that bedroom searching to find out something. But that something was not found. He failed to find the pistol in the bedroom. The accused's wife Usharani was in the room. The accused talked to his wife & the wife left the room. She told the police not to follow her when she was going out. She returned after 3 or 4 minutes with the pistol & the cartridges. She was also put under arrest but was later on let off. That is all the evidence.
3. There is no evidence as to what the accused told his wife. The wife cannot be called as a witness & compelled to disclose what communication was made by the husband to her. Section 122, Evidence Act prevents such disclosure. Communication between the husband & the wife during coverture is privileged & its disclosure cannot be enforced. Indeed the law provides that he or she shall not be permitted to disclose any such communication unless the person who made it or his or her representative-in-interest consents, except in suit between married persons or proceedings in which one married person is prosecuted for any crime committed against the other. The present case before us does not come within any of these exceptions, & is not a 'proceeding in which one married person is prosecuted for crime committed against the other'. Here is no crime committed by the husband against the wife. That portion of the language in Section 122, Evidence Act obviously refers to such crimes as assault or bodily injuries, wrongful confinement etc. by one of the spouses against the other. There may be also other forms of crime but the gist of this exception is that it must be the crime committed by one married person against the other. The question whether the pistol was in the possession of the husband or wife cannot, in my view be said to involve any crime committed by one against the other. The protective provision Under Section 122, Indian Evidence Act is based on the wholesome principle of preserving domestic peace & conjugal confidence between the spouses during coverture. The exceptions also are based on common sense. Such protection obviously cannot exist in suits between married persons when one of the spouses is litigating against the other or when one of the spouses commits any crime against the other, for to prevent disclosure in that event will be to defeat justice.
4. There is also no evidence as to where the wife went to bring the pistol. There is not a scintilla of evidence about the place from where the pistol was found & brought & whether such a place was in the exclusive possession or use by the accused or his wife or whether it was accessible to other people. The importance of this fact will be realised when I discuss later the law of possession in relation to crimes.
5. The learned counsel for the State has drawn my attention to Section 27, Penal Code & has argued that under legal advice the wife was let off because in this case the pistol although in the possession of the accused's wife the law under that section is said to provide that such possession should be treated as that of the accused husband. This argument in my judgment suffers from a fallacy. Section 27, Penal Code provides that when property is in the possession of a person's wife, clerk or servant on account of that person it is in that person's possession within the meaning of that Code. That is a special definition of the Penal Code. The offence with which I am concerned here is not an offence under the Penal Code but an offence under a special Statute, the Arms Act. In my judgment, Section 27, Penal Code in terms cannot be applied to explain possession under the Arms Act.
6. The concept of possession under the Penal Code which is fully discussed in the Calcutta F. B. decision of 'Emperor v. Fatehchand Agarwalla', 44 Cal 477, is in my opinion not necessarily the same as the concept of possession under the Arms Act. 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 & such arms are without licence then the offence is complete no matter whether he is ignorant of the law or not & no further question of 'mens rea' arises. Butt 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 & in the meantime some one conceals a pistol in his house & during his absence from his house the police arrives & discovers the pistol. In such a case unless the knowledge of the 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.
7. Possession is a difficult concept in law although it is a simple enough word. Salmond in his work on Jurisprudence truly observes 'In the whole range of legal theory there is no conception more difficult than that of possession'. It is one of the curiosities in jurisprudence. A large number of cases has been shown to me, not all of which seem to be in agreement on the question of principle. Going through the maze of discordant decisions one is left with the impression that the theory of possession in Criminal Jurisprudence is a sadly neglected & a much misunderstood theme.
8. The decision in 'Emperor v. Sikhdar', 54 All 411, of a single Judge of the Allahabad H. C. where it was held that all the adult male members of a Hindu joint family could be proved to be in possession of an unlicensed gun found in their house & it was open to the Police to prosecute one or all of them for the offence appears to be against all canons of criminal jurisprudence. A Bench of two Judges of the same H. C. in 'Emperor v. Kaul Ahir', 55 All 112, Pullan & Thom JJ. dissented from this view & observed:
'This is a view 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 a particular person of that article in order to justify a conviction. In a case such as the present it cannot be said that the head of the house or any individual male member of the family was aware of the cartridges. For all that we know they might have been dropped by some sportsman, picked up by a child & handed over to the child's mother.'
Then again in the case of 'Abdul Rahaman v. Emperor', 42 Cr L J 59, it has been said by Braund J. that possession or control under the Arms Act to constitute an offence must be actual physical possession or control but not constructive possession or constructive control. The other cases referred to are 'Surain Singh v. Emperor', 48 Cr LJ 390 & 'Gian Chand v. Emperor', 146 IC 232. The case of Gian Chand has a comparable context with the present problem before me. In that case it was held by Tek Chand J. that although it was the accused who led the police to the shed & pointed out the place where the revolver was lying, yet the mere knowledge of the fact that the revolver was lying in the shed or the pointing out of the place from which it was actually found, without proof that the actual place was in the exclusive possession of the accused is not sufficient to bring home the offence to the accused & that he was not guilty under Section 19 (f), Arms Act. Here in this case before me the facts are worse. The pistol was not found in the bedroom & no one knows from where it was brought.
9. On behalf of the State reliance has been placed on the case 'Lalu Singh v. Emperor', 18 Luck 253 & on the case of 'Hriday Ram v. Emperor', : AIR1946All4
10. In 'Lalu Singh's case', 18 Luck 253, unlicensed arms were recovered from a room in the joint possession of two brothers & none of them being willing to take the responsibility it was said that the only possible presumption that the Court can make is that they were in joint control of the arms. On the facts of that case where it was found that the two brothers were in joint exclusive possession of the place where the arms were found. The conclusion that was arrived at in that case was perhaps not wrong. But I am afraid I cannot subscribe to the steps in the reasoning that are to be found in that decision. The learned Thomas C. J. sitting singly in that case observes at p. 253 'The word 'control' should be taken to mean something more than 'actual' possession'. With great deference to the learned Chief Judge I should have thought that control could also be something less than or something quite different from 'actual' possession. 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. At p. 256 of that report the learned Chief Judge is said to have expressed his views in this way. 'I am therefore of opinion that the words 'and control' must be taken in a wider sense & to mean something more than actual possession'. The language of Section 19 (f), Arms Act does not use the words 'and control' but the words are 'or control'. If it were 'and' then there perhaps might have been some justification for saying as the learned Chief Judge said that control was something more than actual possession. But that is not the language of the section. In the other case relied on by the State, Sinha J. holds in : AIR1946All4 that the word possession means exclusive possession & the word control means effective control. That was a case of a joint Hindu family where unlicensed arms were found at a place belonging to the family but not in use or occupation of any particular individual of the family & the ratio of the decision is that in such a context the possession or control must be 'deemed' to be with the Manager or Karta of the family. The head or the manager of a family may be quite innocent & ignorant of what the bright young things in his family are doing in the matter of illicit & secret arms & yet he is on the basis of this decision a criminal under the Arms Act. I am quite unable to make one a criminal by the dangerous process of 'deeming' unless I am forced by the language of the Statute. To make honest citizens criminals by dubious & devious inferences will be to create the most unenviable state of social order. Although such a view was held by a single Judge of the Allahabad H. C. it was later overruled by a Bench of the same H. C. & to which reference has already been made. I respectfully agree with that Allahabad decision of the Bench of the Judges in 'Emperor v. Kaul Ahir', 55 All 112, as representing the correct view. I have little hesitation in holding that it is wrong law to say that the mere fact that the accused is the head or Manager or Karta of a family is sufficient for a finding that he must have been in possession or control of the arms found in the joint family house. Apart from the Allahabad decision of two Judges which I have just referred to, I find the decisions in 'Sughar Singh v. Rex', : AIR1950All277 & 'Abdul Rahim v. Emperor', ILR (1949) Nag 519, to be in support of the view I am taking.
11. The felicitous fiction of the Common Law that husband & wife are one & the same person, however, romantic, cannot be extended to say that the wife's crimes are the husband's crimes. That fiction depends on its usefulness to protect such hazards of conjugal life as a necessitous wife or a world that deals with a spouse without being privy to marital infelicities. This rubric of the Common Law even in the Conventional sphere is apt to be declasse in the present climate of modern life when the institution of marriage does not connote the same orthodox control of the husband over the wife. Whatever it may be, here at any rate it cannot be said by invocation of that fiction that the wife's possession is the husband's possession unless such possession also satisfies the test of criminal jurisprudence relating to the theory of possession, as I have stated.
12. 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 & 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.
13. 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 & 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 & 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 & realised 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 sibi habendi' which is not necessarily a claim of right & may be consciously wrongful as the possession of a thief.
14. The 'animus' is the very basis of any legal concept of possession. Much legal erudition has enriched different schools of world's juristic thought on the problem of intent in possession. Why is possession given legal protection when the possessor is not also the owner? English Law in a fit of good sense supplied by the Common Law allowed title to be set up in defence to a possessory action. English law of possession was developed by means of various remedies for wrongs to possessory rights. Every law is the reflection of the civilisation that produces it. The pragmatic civilisation of England insisted that law like the tree must be known by the fruit it yields. So English law of possession discovered trespass as wrong to possessor's land or goods, conversion as wrong affecting possessory rights in goods only with a variant in Trover a specialised action on the case which was its appropriate remedy, theft or larceney a particular kind of trespass to goods which by reason of trespasser's intent becomes criminally punishable, ejectment & doctrine of 'seisin' in respect of remedies regarding land. The imperial civilisation of Rome made Roman Law lay emphasis on 'corpus' & 'animus' in the theory of possession with the major accent on dominion & exclusion, the inevitable stamp of a social order based on slavery. The embers of 'dominus' in Roman Law were rekindled by the German civilisation & were fanned into a flame in the Germanic law of possession with its basic note of will to power. The best known theories have been framed as theories of the German interpretation of Roman Law under the influence of some form of Kantian or post Kantian philosophy. The type of Roman possession according to German opinion was that of a owner or of one on his way to become owner. Following this out it was said by Savigny the only writer on the subject with whom English readers are generally acquainted that the 'animus domini' or intent to deal with the thing as owner is in general necessary to turn a mere physical detention into juridical possession. But such a view leads to the absurd result of excluding bailees from the category of possessors. The effect of this exclusion as interpreted by the Kantian philosophy of law has been to lead the German lawyers to consider the intent necessary to possession as primarily self-regarding. This philosophy of law proposes that a man's physical power over a subject is protected because he has the will to make it his & that is why it is self-regarding. The will of the possessor being thus conceived as self-regarding, the intent with which he must hold is obviously one for his own benefit. But whatever jurisprudence or juristic school of thought is analysed 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.
15. The next question is whether there is any case to go to the jury. Very often it is a difficult problem to determine how much is fact & how much is law & it is specially so when the problem is one based on notions of possession. Sir Fredrick Pollock in his 'Essay on Possession in the Common Law' published in 1888 by Oxford Claredon Press at p. 10 makes the following observations which still remain the clearest exposition on the subject & which I consider extremely appropriate in this context.
'Every legal relation is or may be an affair both of facts & of right; there are not two separate & incommunicable spheres, the one of fact & the other of right. Facts have no importance for the lawyer unless & until they appear to be, directly or indirectly, the conditions of legal results, of rights which can be claimed & of duties which can be enforced. Rights cannot be established or enforced unless & until the existence of the requisite facts is recognized. Again, the recognition of those facts is not always a direct or simple matter. To some extent their existence must be inferred rather than observed, & this independently of all grounds of dispute in relation to the credibility or accuracy of human testimony. The lines & limits of permissible inference have to be considered, & in time become subjects of authoritative definition. Apply these general notions to the matter in hand, & it will be seen that, even after we have fixed the meaning of the term possession, we cannot completely separate though we may & must distinguish, the elements of fact & of law in a given case. Whether legal possession shall follow physical possession or not is a point of law. Whether there exists, at the date in question, between a given person & a given thing, the relation of physical possession or occupation, is wholly or mainly a matter of fact. But this in turn may be disputed, & then it must be settled whether the specific facts admitted or proved will suffice to establish the existence of the 'de facto' relation of control or apparent dominien required as the foundation or the alleged right, & here we get the kind of questions said expressively if not with dialectic exactness to be of mixed law & fact.'
16. It has been argued that it is for the jury to find as a fact whether in the context that I have described the inference of the guilt of the accused can be reasonably drawn. The principle that I consider should be followed is that where there are no grounds in the evidence taken as a whole upon which any tribunal could properly as a matter of legitimate inference arrive at a conclusion that the accused was guilty & any conclusion on the available materials would be mere conjecture or guess, which are not in law or justice permissible grounds on which to base a verdict then, in my view the jury should not be allowed to gamble & speculate on possible inferences. Where there is no scintilla of evidence the Judge, in my view, is not justified in leaving the case to the jury. There must be some evidence on which the jury can be expected reasonably & properly to conclude a fact to be established before the case can go to the jury. It is for the jury to see whether & how far the evidence is to be believed. And if the facts regarding which evidence is given are such that from them a further inference of fact may reasonably be drawn then also it is for the jury to say whether that inference should be drawn or not. But it is, in my view, for the Judge first to determine whether from any facts the inference can legitimately & lawfully be drawn. Such is the observation of Lord Blackburn in 'Metropolitan Railway Company v. John Jackson', (1878) 3 A C 193 at p. 207 followed by Jenkins C. J. in the Calcutta F. B. decision in 'Emperor v. Upendra Nath Das', 19 CWN 653 at p. 663.
17. On the materials before me I hold that there is no evidence or fact from which any legitimate inference of possession is at all possible to be drawn & the case cannot therefore go to the jury on the question of possession.
18. The learned counsel for the State has also relied on the word 'control' in Section 19 (f), Arms Act. It has been argued before me on behalf of the State that even if the accused husband cannot on those facts be said to be in possession of the pistol so as to constitute the offence, he can at least on the same facts be said to be in 'control' of the pistol. On the same facts the counsel for the State argues that husband's control over the pistol is established. A little analysis will show that it is not so. The evidence is that the accused looked for the Pistol in his bedroom but failed to find it. At that point of time he cannot be said to have control over a pistol which he could not find. Then comes a talk with the wife whose words are not in evidence. As already seen the wife cannot be compelled under the law to disclose the nature of the communication she received from the accused husband. It is also not in evidence from the other persons or search witnesses who were present in the bedroom that they overheard the nature of the communication. No one has said what the husband told the wife. For all one knows he might have said 'I had seen a Pistol in this bedroom but I cannot find it now. Do you know where it is?' Is that control by the accused husband? I do not think so. Then again he might have said to the wife 'Bring the pistol' which will be quite inconsistent with the accused searching for the pistol in the bedroom. Or again he might have said to his wife 'You are a member of an illegal association & kept one of your pistols here which I told the police. Where is it?' There may be other possibilities & conversations of other nature. The mere fact that the wife produced after 4 or 5 minutes the pistol cannot lead to one particular conclusion to the exclusion of all others beyond all reasonable doubt. In such a context it is quite impossible for the Jury to find as a fact whether the husband controlled the pistol or not. And in this context to ask the jury to find that as a fact or not will be to invite them to indulge in speculation without any scintilla of evidence, a course I am not prepared to follow.
19. Control in this section under the Arms Act, mean's that the accused must have such power over the weapon that he can direct its custody, production, use or disposal in some manner. Request & compliance with the request do not necessarily indicate control. Control must in this context mean power or ability to regulate the keeping or possession or use or disposal of the weapon. Is there any evidence in this case to suggest that wife could not have refused to produce the weapon even if she was asked by the husband? I do not find any. I find no evidence on which the accused was committed to trial from which only one possible legitimate inference that the husband controlled the weapon could be drawn, & I therefore hold that the case cannot go to the jury even on the question of control.
20. The question of control under the Arms Act specially where the weapon is found from a particular place has always to be very carefully examined. One principle is well established. That is, where the place in which an article is found is one to which several persons have equal right of access it cannot be said to be in the possession of any one of them. This principle was laid down first in 'Jogjiben Ghosh v. Emperor', 13 CWN 861, as being grounded on common sense & followed & approved by the D. B. in 'Sudhanya Bawali v. Emperor', 21 CWN 839, at p. 840. As I have said before the evidence here is that the wife went out of the room. But there is no evidence where she went to or whether she went to any other part of the house or went out of the house altogether. In fact there is no iota of evidence as to the place from where the weapon was produced or brought.
21. In the circumstances I am of the view that the charges are clearly unsustainable within the meaning of Section 273, Criminal P. C. Rankin C. J. points out in the F. B. decision of the Calcutta H. C. in 'Emperor v. Girish Chandra', 57 Cal 1042 at pp. 1057-8
'The reference to portions of a charge & to the charge or portion thereof, being clearly unsustainable, is sufficient to show that the section is intended to provide a short & effective way by which charges, which have no merits, may be disposed of.'
On the evidence on which the accused was committed to trial before me I find the charges can not clearly be sustained. I therefore direct that an entry be made to that effect on the two charges.