1. The respondent, Chandan Lal was convicted by the Magistrate first class, Kasumpti, of an offence under Section 19 (f), Arms Act, and sentenced to undergo six months R. I. He preferred an appeal which was allowed by the learned Sessions Judge of Mahasu (Shri Chet Ram), who set aside his conviction and acquitted him. The State Government has now come up in appeal under Section 417, Cr. P. C.
2. Before I come to the merits of the case, I shall deal with a few preliminary objections raised on behalf of the respondent to the competency of this appeal.
3. In the first place, it was contended that the appeal is time-barred. The Sessions Judge acquitted the respondent on 26-9-1953. Five days were taken in preparing a copy of the Sessions Judge's judgment. Limitation, therefore expired on 29-3-1954. The appeal was presented to this Court on 23-3-1954, prima facie, within the period of limitation. Learned counsel for the respondent, however, pointed out that the memorandum of appeal was not accompanied by a copy of the Government order, sanctioning the filing of the appeal. It was, therefore, argued that there was to valid appeal before this Court within the period of limitation.
4. The learned Government Advocate pointed it that on 21-3-1954, he was instructed by the judicial Secretary to the Government to file the appeal and this direction was sufficient to file the appeal. This is supported by copy of a letter from the Judicial Secretary to the District Magisate, Kasumpti, dated 24-3-1954, in which sanction was conveyed for the filing of the appeal. It also contains a recital that the Government Advocate had been given necessary instructions to file the appeal. All that is necessary under Section 417, Cr. P. C., is that the Public Prosecutor should be directed by the Provincial Government to present the appeal. In the present case, it does appear that the Government Advocate was so instructed. It was not necessary tha a copy of the Government sanction should accompany the memorandum of appeal. Therefore, I would hold that the appeal is not time-barred.
5. In the next place, it was argued that the Chief Minister was not empowered to sanction the filing of the appeal. Mr. Chawala for the respondent argued, that the Sling of the appeal could be sanctioned only by the Lt.-Governor and his powers in this regard could not be delegated to the Chief Minister. Learned Government Advocate drew my attention to the Rules of Business made by the President under Article 239 and the proviso to Article 309 of the Constitution, read with Section 38, Government of Part 'C' States Act.
Rule 24 deals with cases which can be disposed of by the Minister-in-Charge, while Rule 31 relates to cases which have to be submitted to the Lt.-Governor through the Chief Minister before the issue of orders. The Government Advocate pointed out that the filing of an appeal under Section 417, Cr. P. C., is not one of the matters which has to be submitted to the Lt.-Governor before the issue of the orders. Under these circumstances, this preliminary objection also must be overruled.
6. Coming to the merits of the case, the learned Government Advocate pointed out that the respondent was convicted by the trial Magistrate andacquitted on appeal. He, therefore, argued that the rigour of the rule, against interference against the order of acquittal, is somewhat less in thiscase. Reliance was placed by him on--'State of Mysore v. K. Basappa', AIR, 1953 Mys 75 (A), where a Division Bench of that High Court observed as follows:
'The rigour of the rule, against interference against the orders of acquittal, is somewhat less in cases where the High Court is to examine the grounds of acquittal of a person, who had been convicted by the trying Magistrate, because, the Sessions Judge is in no better position to weigh the evidence than the High Court.'
Mr. Chawala for the respondent, on the other hand, argued that it makes no difference whether the acquittal was ordered by the trial Court or by the lower appellate Court. In this connection, he drew my attention to an earlier ruling of this Court, reported in--'Koti Darbar v. Ram Chand', AIR 1949 Him. P. 15 (B), where my learned predecessor, Dr. Bannerji, pointed out:
'In an appeal by the Government from an acquittal, the accused starts with a double presumption in his favour. Firstly, there is the rule that it is for the prosecution to make out their case and until they do so, beyond all reasonable doubt, the accused must be presumed to be innocent; and secondly, that the accused having succeeded in securing an acquittal, the superior Court will not interfere, until the Crown shows conclusively that the inference of guilt is irresistible.'
He also relied on--'Wilayat Khan v. State of U. P.', AIR 1953 SC 122 (C), wherein their Lordships pointed out that:
'Even in appeals against acquittals, the powers of the High Court are as wide as in appeals from conviction. But there are two points to be borne in mind in this connection. One is that in an appeal from an acquittal, the presumption of Innocence of the accused continues right up to the end; the second is that great weight should be attached to the view taken by the Sessions Judge, before whom the trial was held and who had the opportunity of seeing and hearing the witnesses.'
Reference was also made to--'Zwinglee Ariel v. State of M. P.', AIR 1954 SC 15 (D), wherein their Lordships indicated that:
'In an appeal against acquittal the High Court must not overlook the well-known principles-recognised in the administration of criminal justice as laid down by the Privy Council in--'Sheo Swarup v. Emperor', AIR 1934 PC 227 (2) (E), that the order of acquittal had strengthened the presumption of innocence in favour of the appellant and that he was entitled to the benefit of reasonable doubt, must not be lost sight of.'
The same view was reiterated in--'Pran Dasv. State', AIR 1954 SC 36 (P), wherein their Lordships pointed out:
'Sections 417, 418 and-423 of the Code give tothe High Court full power to review at large,the evidence upon which the order of acquittalwas founded, and to reach the conclusion thatupon evidence the order of acquittal should bereversed. No limitation should be placed uponthat power, unless it be found expressly statedin the Code. But in exercising the power conferred by the Code and before reaching itsconclusions upon fact, the High Court shouldand will always give proper weight and consideration to such matters as (1) the viewsof the- trial Judge as to the credibility of theWitnesses, (2) the presumption of innocence infavour of the accused, a presumption certainlynot weakened by the fact that he has beenacquitted at his trial, (3) the right of theaccused to the benefit of any doubt, and (4) theslowness of an appellate Court in disturbing afinding of fact arrived at by a Judge, who hadthe advantage of seeing the witnesses.'
7. That brings us to the facts of the case. The prosecution case, in brief, was that on 1-9-1952 P. D. Joshi, S. H. O., Solan, received information that the respondent had an unlicensed pistol in his possession. He sent for the respondent and questioned him but the respondent denied the allegation. Thereupon, the S. H. O. went to the respondent's residence and searched it but nothing incriminating was found. The S. H. O. next went to the flour mill belonging to the respondent and, it is alleged, he recovered a pistol, Ex. P-1, from beneath a wooden floor, adjacent to a wall. A 'durree' had been spread over the floor.
In the trial Court, the respondent denied that the pistol had been recovered from his possession and attributed the case to enmity. The trial Magistrate was of the opinion that the recovery of the pistol was established. Accordingly, he convicted the respondent. In appeal, the learned Sessions Judge felt that the alleged recovery was highly suspicious. Consequently, he acquitted therespondent.
8. I heard learned counsel for the parties at considerable length on 3-11-1954. .Since then, I have been continuously on circuit in the outlying districts of Himachal Pradesh. I returned to Simla only recently and now proceed to dispose of the appeal.
9. As was pointed out by my learned predecessor in AIR 1949 Him-P 15 (B), in a case like this, it is for the appellant to show conclusively that the inference of guilt against the respondent is irresistible. Let us see what evidence is against the respondent. As already mentioned, the statement of the S. H. O., P. D, Joshi, is that on 1-9-1952, he received information from an informer that the respondent had an unlicensed pistol in his possession. Thereupon, he sent for the respondent, who denied the allegation. The S. H. O. then searched the respondent's residential house but found nothing incriminating therein. A Search of the respondent's flour mill however, resulted in the recovery of the pistol.
The learned Sessions Judge has commented on the fact that the information was conveyed to the S. H. O. at 6 A. M. He has also pointed out that the name of the informer has not been disclosed. It is true that under Section 125, Evidence Act, no Magistrate or police officer shall be compelled to disclose the name of an informer. At the same time, the fact remains that the information--if this allegation be a fact--reached the S. H. O. at an unearthly time, namely 6 A. M. I should not be understood as saying that such information cannot, in any case, reach the police officer at that time, but, in that case, some good reason must be forthcoming.
The informer--whoever he was--presumably must have come to know of the existence of the pistol some time in advance. In case the informer came to know of it the previous day, he could have conveyed the information to the S. H. O. the same day, however late it might be. It is straining one's credibility to hold that the informer came to know of the pistol in the early hours of the morning and went to inform the S. H. O. at 6 A. M. The circumstance, as pointed out by the learned Sessions Judge, is not free from suspicion.
10. Coming to the actual recovery of the pistol, the prosecution case was that the key of the flour mill was given by the respondent and. thereupon, the premises were searched and the pistol recovered. The respondent, however, denied this. His case was that due to illness he could not visit the flour mill for a few days. His servant, Kaku Ram, used to open and close the flour mill and leave the key with his (respondent's) daughter, who used to hand it over to her mother. On the day in question, the key of the flour mill was sent for through his brother, Ambika Prasad. Hari Chand (P. W. 4) in examination-in-chief stated that the key was offered by the respondent.
But, in further cross-examination, he changed his ground and stated that the key was sent for through Ambika Prasad. The learned Government Advocate argued that Hari Chand had colluded with the respondent. Even it for argument's sake, we proceed on the assumption that the key was supplied by the respondent, even then, it cannot be said positively that the respondent was in conscious possession and actual control of the pistol.
It appears from the record that there were three persons working at the Chakki, namely Chandan Lal, his son Sukhdarshan Kumar aged 18, and an employee, Kaku Bam. In--'Bhekha Ahir v. Emperor', AIR 1947 Pat 236 (G), which has been referred by the Sessions Judge it was observed by the Patna High Court:
'Mere proof that an incriminating article is found in premises, having number of rooms and occupied by a number of persons belonging to a joint family, does not, in itself, establish, prima facie, the guilt of any particular person or of all of them jointly. The possession and control required to be established under Section 19 (f), mean conscious possession and actual control. In other words, mens rea or guilty knowledge must be proved in a particular individual or group of individuals. Because the other members of the family cannot be found guilty, it does not follow, as a necessary corollary of law, that the head of the family must be held guilty. Like all other criminal trials, the burden lies entirely on the prosecution and all the time on . the prosecution, to show the guilty knowledge in any particular individual or the head of the joint family.'
Learned Counsel for the appellant cited--'Harbans Singh Hira Singh v. Emperor', AIR 1941 Nag 296 (H), where a single Judge of that High Court was of the view that :
'In the case of a family, whether Hindu or non-Hindu, living jointly in the same house, the head of the family is presumed to be in possession of the unlicensed arms that may be found in the house.'
A different view was taken by the Allahabad High Court in--'Sughar Singh v. Rex', AIR 1950 All 277 (I). In the words of their Lordships:
'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 be held to be proved or not.'
In--'Satdeo v. Rex', AIR 1950 All 284 (J), the facts were that certain arms were recovered from a house where they were concealed and which was occupied by two brothers; it was held that none of the brothers could be said to have been in possession of the arms on account of the mere fact that they occupied the hduse. In an earlier ruling of that High Court, reported in--'Abdul Rahman v. Emperor', AIR 1940 All 449 (K), Braund J., observed that:
'Section 19 (f) contemplates actual and physical possession and control and not merely a 'possession' or 'control' by construction of law. It is not a liability to be found in a merely constructive or presumed possession or control, which the law might, for other purposes, import into the facts of the case.'
In --'Mohan Lahiri v. The King', AIR 1950 Pat 243 (L), the faces were that a man of fifty was found to be living in a house along with his adult son and nephew. There was nothing to show that he was personally and consciously in possession of the weapon found in the house. In the circumstance, their Lordships held that his conviction could not be sustained. The same view was held by the Calcutta High Court in --'Norendra Nath v. The State', AIR 1951 Cal 140 (M), where Mukharji, J., 'pointed out: 'The offence under the Arms Act is possession or control of any arms without licence. Such a concept of possession under the Act must connote an element of consciousness in the person charged with such offences. A person, who is not aware of the possession of a weapon without licence, cannot be said to commit an offence under the Arms Act. Ignorance of the fact of possession is a defence available to the accusedcharged with such an offence under the Arms Act.' I am in entire agreement with the view expressed by the Patna, Allahabad and Calcutta High Courts.
11. Thus, even if we take the prosecution case at its face value it cannot be said with any degree of certainty that the respondent was in conscious possession and control of the pistol. Under these circumstances, I am not satisfied that the prosecution showed conclusively that the inference Of guilt against the respondent was irresistible. Consistently, therefore, with the view of this Court, set forth in AIR 1949 Him-P 15 (B), I feel that this Court would not be justified in interfering with the order of acquittal entered by the learned Sessions Judge. Consequently, the appeal is rejected.