(1.) THE petitioner Sulaiman Sait Mohammed Yousuf Sait stands convicted by the District Magistrate of Trivandrum under S, 3 read with s. 25 (1) (a) of the Arms Act, 1959 for having been found in possession of a revolver, a gun and some ammunition without license and sentenced to pay a fine of Rs. 150. THE conviction and sentence have been confirmed in appeal, by the sessions Judge of Trivandrum.
(2.) THE accused's plan was two-fold; firstly, that he was not in physical possession of the building from where the contraband articles were recovered; and secondly that the arms recovered themselves have not been proved to be articles falling under the mischief of the Arms Act. THE arms recovered are: one revolver, 18 cartridges, empty cartridges 30, a tin with gun powder, one gun, one barrel, one shield, one barrel cleaner, one big bullet case, 17 bullet cases, metal pieces and a tin containing 150 cases. THE seizure happened to be made in the following circumstances: THE accused was the petitioner in Debt Relief application 3 of 1964 on the file of the Addl. Sub Court, Trivandrum. THE petition is one under S. 15 of the Act praying for a full settlement of his debts. As provided in S. 15, he surrendered to the custody of the court all his assets and one of the items of property so surrendered was the building from where this prohibited arras were recovered. PW. 1 in the case is an advocate who was appointed Receiver in the Debt Relief Petition and he was directed to assume custody of the assets of the petitioner including the building in question. He accordingly went to the spot and prepared an inventory of the articles found in the building THEse arms etc. , were found in an almirah in one of the rooms. THE building itself was found locked and who supplied the key is not clear from the evidence of the Receiver. THE accused's case is that at the time of the recovery he was living away in another house at Shankumugham, Trivandrum. THE impugned building is at Chalai. THE definite case put forward by him is that at least from 1948 he had been living at Shankumugham in a rented house and in the impugned building his aunt was staying. THE building itself belonged to his uncle Mohammed Sait who had bequeathed it under a Will of the year 1097 (M. E.)to his wife Saphia Bai and all along she has been residing in the house. THE courts below have proceeded mainly on the assumption that since the ownership of the building had vested in the accused he should be presumed to be in possession of the building with all that it contained. I think, for the penal consequences to follow the contravention of the provisions of the Arms Act, this kind of a constructive possession is not enough and the courts below seem to have lost sight of this fundamental aspect. For the penal provisions on the Act to come into play a person should be in conscious possession of the article in question. THE decision of the Himachal Pradesh High Court in State v. Chandan lal (A. I R. 1955 Him. P. 26) would repay perusal in this connection THEre, an unlicensed pistol was recovered from a flour mill of which the key was supplied by the accused. THE learned judge held that "it cannot be said positively that the accused was in conscious possession and actual control of the pistol. " THEre also as in the present case the accused was not in exclusive possession of the building. In that case the learned judge observed: "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 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 Even if 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. " Thus to fasten the accused with guilt under the Act it must be proved by the prosecution that he was in conscious possession of the articles. In other words, that he was in possession of the articles knowing their nature, and being alive to the consequences of possessing them without a licence. THE receiver himself admits in his examination that the accused was not present there at the time of the recovery. He has also admitted that the accused was residing away, at the time, at Shankumugham. Evidently, therefore, somebody else was in possession at the time even though the ownership continued to vest in the accused. It is not clear from the evidence of the Receiver as to who supplied the key. Even assuming that the key was handed over to him from the court where it was furnished by the accused himself, the burden of the prosecution is not discharged. It must further be shown that the accused was at the time in exclusive possession of the building and he had also the consciousness that these articles were there in the house. Had he been conscious, would he have ever surrendered the key like that to the court? It is also incumbent on the prosecution to establish by affirmative proof that the arms recovered would fall within the mischief of the arms Act. A Division Bench of the Allahabad High Court in State v. Mohammed Ali (AIR. 1955 All. 700) observed as follows: "a court before convicting an accused person, is entitled to satisfy itself that the arms recovered from the possession of an accused person fulfils the definition of arms given under S. 4 of the Arms Act. In judging whether a particular weapon is a fire-arm or not the test is not whether that particular weapon is serviceable at the time, but whether it has lost its specific character and ceased to be a fire-arm. A weapon does not cease to be a fire-arm if it has not lost its specific character, but the onus of proving that a weapon has not lost its specific character is upon the prosecution. Where doubts are entertained about it, it is necessary for the prosecution to satisfy the court that the weapon still possesses its specific character. Where admittedly the weapon is in an unserviceable condition and no evidence is led to show that slight repairs or changes could turn the weapon into a serviceable weapon the prosecution fails to discharge the onus and the acquittal of the accused is not wrong. " It is, therefore, the duty of the prosecution to satisfy the court that arms recovered have not lost their specific character and serviceability. We have no evidence in the case to show that the arms recovered are really arms falling within the category described or defined in the Act. We have also no evidence as to whether they are in proper condition and have not lost their utility and serviceability. THE accused's case is that these articles form part of the 1200 curios kept in the bouse from the days of his predecessors and continued to remain there even after the building had been allotted to him. It is clear from the evidence of the Receiver that these articles were kept along with other curios. It is possible in the circumstances that these articles were preserved in the house as articles of rare value, out of curiosity, or on aesthetic considerations. THE prosecution ought to have examined a gunnery expert or some such person, competent in the line to demonstrate before court that these arms have not lost their specific character. I am, therefore, of the view that the prosecution has not established its case beyond doubt. THE accused in the circumstances is entitled to an acquittal. THE conviction and sentence are hence set aside and the accused is acquitted. Fine, if realised, would be refunded to him. Revision petition is allowed. Allowed.;