PABITAR SINGH versus STATE OF BIHAR

This is an appeal by special leave from a judgment qf the Patna High Court. Originally two persons Paoitar Singh (the present appellant) and Ram Ashray Sharma who were both Loco employees of the Railway were tried under ~ 25 and 26 of the Indian Arms Act 1959, hereinafter called the "Act". The learned Assistant Sessions Judge found each one of them guilty under both the sections. The sentence imposed was 3 years rigorous imprisonment under s. 26 and one year's rigorous "imprisonment under s. 25 of the Act. The sentences were to run concurrently. The.convicted persons filed an appeal to the court of Seisions. The Additional Sessions Judge, Gaya, who heard the appeal found the appellant guilty under both the sections of the Act. He maintained the sentence imposed on him. Ram khray Sharma was given the benefit of doubt ana acquitted. Pabitar Singh moved the High Court in revision. His conviction under s. 26 of the Act was set aside by the High Court but his conviction and sentence under s. 25 of the Act were upheld.

p. 849, margin A

It is necessary to state a few facts. The appellant and Ram Ashray Sharma were in joint occupation of quarter No. 490-A of the Loco Colony at Gaya. Some confidential information was conveyed by Bishrampore police station to the Kotwali police station nt Gaya that stolert properties connected with a dacoit}' were lying concealed in the aforesaid auarter. Conseauent\y Rama Shankar Upadhyay Station House Officer, Gaya Kotwali pQlice station raided the quarter at 5.45 a.m. on November 5, 1962. He took with him two .witnesse• P.W. 1 Vijay Kumar Duhev ~nd PW. 5 Deon~ndan Ram. The quarter was found locked from outside. Ram Ashray Sharma was reported to be on duty. He was sent for and he opened the outer lock of the quarter with his key. It was alleged that when the search was made. inside the quarter the apnellant was found in the quarter, c0nce1E"" him,elf in the kitchen room which was b<ilted from in•ide. That room was got onened. A countrv made gun was foun~ l"inq in between tw0 hricli:< on the ton' of which a tin containing flour in a bag covere"d with a brass thali was placed. The beJ room.w~s searched aqd two live 12 bore cartridges were found wrappd m a small cloth. These had been placed behind a framed picture of Lord Shiva.

p. 849, margin D

Tim lelrne'.! judge of the High Court formed the view that the appellant could not be convicted in respect of the cartridges which were found in the bed room which was in joint occupation of Ram A~hrav Sharma and the apoellant. According to the learned judge the inference of conscious possession of the appellant had been drawn by the cou~ts below from tl!P, fact that the picture benrnd wn1ch the cartridges were found was just above the cot. The fact that that cot· belonged to Pabitar Singh had been stated by P.W. 1 alone. No reliance could be placed on that witness as he had to be declared hostile. In view of the fact that the room was in joil)t possession of two persons .the learned judge held that no inference of the appellant's conscious possession of the cart· ridges and their concealment by him could be drawn.

pp. 849–850, margin G

So far as the gun was concerned the learned judge observed that it was found inside the kitchen room in which Pabitar Singh was found having concealed himself. He was the only occupant of the room at the moment. He. had bolted the IDC\ffi from inside. In spite of certain serious discrepancies and other matters which. will be presently discussed the lea\'lled judge accept· ed the pndiqg based mainly on the evidence of the Sub-In5pector that the appellant had .concealed himself in the kitchen room and •the gun was found concea~ed there and an infer.,nce cou'd, therefore, be drawn that he was in conscious possession of that gun.

p. 850, margin A

We may at this stage refer to the relevant provisions . of the Act and the changes which appear to have been made in the In,iian Arms A'ct 1878 by the Act with wlrich we are concerned, namely the Anns Act 19 5 9. Section 14 of the Act or 18 7 8 provided that no person shall have in his possession or . under his control any cannon or firearm or any ammunition or military stores except under l1 license and in the man11er and to the extent permitted thereby. Section 15 related to possession of arms of any cles~ription without license proh!'bited in certain places. Section 19 ( 1 ) ( f) to the extent it is material was in these terms : ,.....

p. 850, margin D

S. 19 (1) "Whoever commits any of the following ojknces (namely) :- ....................... .......... .

p. 850, margin E

(f) has in his possession or under his control any arms, ammunition or military stores in contraventidh of the orovisions of section 14. or section

p. 850, margin F

15;" . shall be punished with imprisonment for a term which

p. 850, margin F

may extend to three years or with fine, or with both" The Act came into force on the_ first dav of October 1962 as it was OJ\ that date that tbe requisite notification was macle. Under sub-s. ('3) of s. 1.. ~ction 3 reads :- . "No ponon shall acquire, have in his possession or carry any . fireann or ammunition unlesa be holds in tbls behalf a license issued in accordance with the provisions of this Act and the rules made thereunder : .

pp. 850–851, margin G

ProviC:.~d that . . . . . ." ' Section 7 relates to prohibition of acquisition or possession etc. of prohibited arms· or prohibited ammunition. Chapter III contains provisions relating to licenses, Chapter IV to power and procedure and Chapter V to offences and penalties. , Section 25 to the exte.nt it is relevant for this case is as follows : S. 25 (1) "WhQever- ( a) acquires, has in his possession or carries in any firearm or ammunition in contravention of section 3 ; or• shall· be punishable with imprisonment for a term which may extend to 3 years. or with fine

p. 851, margin A

or· with both". Section· 35 provides :-

p. 851, margin C

"Where any arms or ammunition in respect of which . any offence under this Act has· been or being conrmitted

p. 851, margin D

or is found _in any prtlmises, vehicle or other place · .in the joint oc¢u9ation or under the joint control of several persons, each. of such per8ons in respect of whO)ll there is reason to beliew that be was aware of the existence of the aims or ammunition iI\ the premises, vehicle or other place shall, unless the contrary is -proved, be liable for'that offence in the same manner as if

p. 851, margin E

it has beeii or is ~g poquni\ted b,y hijn alone". In s. 25( i )(a) only the W<irds "has .in his possession" have been retained ·and the other worils which appeared disjunctively in s. 19 (I)( f) namely, ~·or ·under his control" have beeti. omitted. Section 3 5 l\ppears to have been newly iilsetted to clarify the true position where at\Y 1aims or ammunition are or is found , in any premises etc. in the joint occupation or under the joint control of several persons. Each of such persons in respect of w)lqm tltere is reason to believe that he was aware of the existence of the armt and ammunition in the preQlises unle!ls .the contrary is proved will be liable for that offence.

p. 851, margin E

It is abundantly clear from ·a perusal of the jud~ents of the courts belaw including the High Court that the case was neither tried nor examin_ed from the point of view of the provisions contained in s . .35 of the Act. In the present case the .quarter· wu admittedlv in joint occupation Of botll the a~llant and Ram Ashray Sharinl. It is tiue that at the time of tho raid llam Ashray Sharma was not present but the mere presence of the appellant was not sufficient to make him guilty of the offence unless the court could come to the conclusion that thete was reason to believe that be was aware of the existence of the gun in the premises. If the view of the courts below is accepted that the appellant had concealed himself after having' locked the kitchen when the raid took place and that be was in exclusive posses,ion of the kitchen it might have been possible in the light of other tacts and circumstances to come to the conclusion that the conditions laid down in s. 35 were sati~fied. The courts have, however, ignored wme salient facts which were proved and which completely negatived the case of the prosecution that the appellant bad locked himself in the kitchen and was in sole occupation thereof. The learned trial Judge pointed out that the story that lhe appellant had locked himself in the. kitchen was not supported by P. W. 1. In his view that witness had displayed considerable sympathy fo;· the accused person. He therefore took into consideration the statement made by the witness to the police. P.W: I had been declared hostile. It has not been shown on behalf of the State how such a course could be followed and any statement made by him could be relied on particularly, when the aforesaid witness had been ,declared hostile and had to be cross-examined by the prosecutor. The appellant had also moved the trial judge for local inspection an.cl it was pointed out to the judge that there was no device at all in the door of the kitchen by which it could be dosed from inside. Other inaccuracies in the de,criotion of the room which were to be found in the statement of P.W. 14 Rama Shankar Upadhaya_:_the Investigating Officer-were also pointed out. This is what the trial judge stated in his judgment :

pp. 851–852, margin G

';It cannot, therefore, be denied that the de,criotion of the room as given bv by the I.O. applied to the latrine of the quarter rather than the kitch~n excent for · its loc•tion i.e. th•t it wa' situate1l adjacent ea•t to the northo'rn end nf the inner varandah. The. latrb.e, it may

p. 852, margin E

be pointed out is at some distance east of the varandah". After stating a few fact' the· trial judge came to the conclusion that the fnve,tieatine Officer had made some confu,ion in the description of the kitchen. The learned Sessions Judee acceoted the finding thai the appellant had decided to "close himself in the kitchen".

p. 852, margin F

Now the story that the appellant had concealed him•elf inside the kitchen was ba•'lrl sub•tantiallv on the evirlence of PW. 14, the TnvQStigating Pfficer. A perusal of hi' st!ltement would not satMv any court that imnlicit reliance could be nlAc'ld on his evidence. He had deposed in cat~gorical terms that he found the door of the kitchen closed from inside. He stated in crossexamination that the. ~hains were fitted in the door from inside as also from outsi.de. The hinge for chaining the door was not fitted to the door frame but 1t was fitted to the door plank. He also gave description of the kitchen which was found to be different when the inspection was made by the trial judge nor were any chains or marks of any chains wa~ found in the door of the kitchen as deposed to by P:W. 14. P.W. 2 Ram Swarath, officer-incharge, polic;e station Daltonganj who accompanied the raiding party also stated· that the door of the kitchen room was closed which was got unfastened. It is implicit in his statement thatthere was some bolting or chaining device in the door of the kitchen room by which it had been secured by the appellant. This is not at all supported by the inspection note. The allegation that the kitchen had. been bolted from inside by the appellant who had concealed himself there at the time of the raid finds mention in the first information report as well. The comts below do not appear to have looked at the prosecution evidence in the light of this gross exaggeration which had been introduced about the door having been bolted or chained from inside by the appellant where he was alleged to have concealed himself. Once that vital fact is disbelieved the entire story of his having concealed himself in the kitchen becomes doubtful and worthy of rejection.

pp. 852–853, margin G

It has also been suggested in some of the judgments of the courts and this fact has been relied upon on behalf of the State before us that the kitr.hen was used only by the appellant and not by Ram Ashray Sharma, the other occupant. However, there is absolutely no material on which any such suggestion could be justified or based. We are wholly at a loss to understand hi1w a quarter which consisted only of a bedroom and a kitchen would not be in the joint possession of both these persons, namely, the appellant and Ram Ashray Sharma.

p. 853, margin D

The next and .the crucial question that arises is whether the prosecution has established the essential in~redients of the offence in the light of the provisions of s. 35 of the Act. It has been urged that when the appellant was using the kitchen it was legitimate to expect that he- would be aware of the existence of the gun which was concealed there. The gun was concealed in such a maMer that it was not visible to the naked eye. Although there may be 'very grave suspicion that the appellant was aware of the existence of the gun the prosecution is bound to establish facts from which the court could have reason to believe that he was aware of the existence of the unlicensed fire-ann. We are not satisfied in the present case that any such facts have been established.

p. 853, margin E

Lastly it cannot be ov.er-emphasised that in cases of the present nature where not only the. liberty of a citizen is involved but also his whole career on conviction a person in service is bound to be dismissed great care and attention should be devoted by the courts to all questions of law and fact which unfortunately had not been done in the present case. That has Jed to miscarriage of justice. The appellant, is en.titled to the 1-enefit of doubt and he is hereby acquitted. V.P.S. Appeal allowed.

p. 854, margin A