Dalziel, J.This petition has been filed by one Sahendra Singh against his conviotion by the learned Subdivisional Magistrate, Sasaram, u/s 19(f), Arms Act, on which he was sentenced to undergo rigorous imprisonment for nine months, this conviction and sentence having been upheld on appeal by the learned Additional Sessions Judge, Shahabad.

2. The facts of the case are briefly that one single barrelled muzzle-loading gun was recovered from a room alleged to be in occupation of the petitioner on a search made by the Inspector of Police, Earn Prasad, along with a Sub-Inspector and two witnesses including one Bishwanath Pande who was P.W. 1 in the case. One point of law which has been urged in support of this petition is that the prosecution did not succeed in proving that the gun was in possession or under the control of the petitioner, as it was not shown that he was the only occupant of the room. Admittedly, he was not present at the time of the search. The evidence on which the appellate Court has found possession and control to have been with the petitioner is that of Biswanath Pande, the search witness whom I have just mentioned. This witness deposed in his examination in chief as follows "I know the accused. He and Ramdas live in the same courtyard east and west of it respectively." It was a room on the eastern side of the courtyard which was searched and the gun was found leaning against a wall in the corner of an anteroom attached to this room. On this basis the prosecution sought to prove the possession and control of the petitioner. In cross-examination, however, the same witness has deposed that "Ramdas Singh, Sahendra Singh (the petitioner) and Bijoy Singh live in the same angan. Bijoy Singh and Sahendra Singh were joint before, but I do not know about the present." In this state of the evidence it is .urged by Mr. G.P. Das on behalf of the petitioner that it cannot be held to have been proved that the petitioner was in possession, and control of the gun within the meaning of Section 19(f).

3. In my opinion this contention must succeed. The latest ruling in this matter is that reported in Emperor v. Santa Singh A.I.R 1944 Lah. 339 . The learned Additional Sessions Judge appears to have read this ruling as entirely following the earlier ruling reported in Emperor Vs. Sikhdar, and as being against the defence contention. I have, however, examined that ruling, and find that this is not a correct view. It was held in that case that:

The words possession and control in Section 19(f), Arms Act, and Section 5, Explosive Substances Act, mean something more than more constructive or legal possession arid control. Possession and control required to constitute offences under the aforesaid sections must mean conscious possession and actual control, and as under these sections mere possession of incriminating articles constitutes serious criminal offences there must be mens rea or guilty knowledge before a person can be convicted of such possession.

It was further held that:

Exclusive possession or control of any particular person over an incriminating article is not required u/s 19(f), Arms Act, and Section 5, Explosive Substances Act, The possession or control might well be possession or control of two or more persons. Every case must depend on its particular facts.

4. It is perhaps on a mere perusal of this part of the placitum that the learned Additional Sessions Judge has come to the conclusion that this ruling goes against the defence in the present case. This, however, is not really so. The question has previously been dealt with in the Allahabad case, Emperor Vs. Sikhdar, Dealing with this previous ruling, Harries C.J. remarked that the difficulty (of obtaining convictions where articles are recovered from premises jointly occupied by a number of persons) confronted Bennet J. in Emperor Vs. Sikhdar, in which he held that the finding of an unlicensed gun in the house of a joint Hindu family would raise a presumption against all the adult male members who lived in that house that the gun was in their possession and control, and they might one and all be tried on that charge. After discussion of this ruling Harries C.J. goes on:

However, I am not prepared to hold that where an incriminating article is found in a house occupied by a number of persons, the onus is thrown upon these persons to establish their innocence. Though Eennet J. did not in terms refer to Section 106, Evidence Act, he was, in my view, undoubtedly attempting to apply the provisions of that section to the facts of the case before him. Section 106, Evidence Act, provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Bennet J. appeared to have thought that where an article is found in a house in circumstances in which alt the members of the house must have been aware of its existence then the question of its possession and control was a fact especially within the knowledge of all of them and the burden of proving that they were not in such possession and control rested on the various accused.

5. It is clearly, however, laid down in that Lahore-judgment that ordinarily Section 106, Evidence Act, would not apply to cases of this sort. In other words, it would only apply in such circumstances as where to repeat the words just quoted, an article is found in a house in circumstances in which all the members of the house must have been aware of its existence. That is not the position in the present case. The prosecution alleged that the room which was searched belongs to the petitioner, but it has been brought out in evidence that another man, Bijoy Singh, who is the uncle of the petitioner lives in the same again. It is also admitted that he and the petitioner were joint at least before, and the witness does not know about their position at present. The presumption would, of course, be that they are still joint. In the circumstances the prosecution has not proved that the petitioner was the only occupant of that room. Moreover, the petitioner was not present at the time, and there is nothing in the evidence to show when be was last in actual occupation of that room. In theses circumstances I do not think that the prosecution has fully proved the possession and control1 of the petitioner. Nor, in my opinion, can the onus be cast upon the accused in this case u/s 106, Evidence Act, or under any other provision of law, to prove that he was not in possession and control of the gun.

6. For these reasons this petition must be allowed. In the circumstances it is not necessary, to deal with the point of law which has been referred to this Division Bench by my brother Bennett J. on the question whether proper sanction was required and was obtained for the prosecution of the petitioner in respect of an offence u/s 19(f), Arms Act.

7. I would, therefore, allow this petition, and set aside the conviction and sentence of the petitioner. He ought to be released from his bail forthwith.

Sinha, J.

I agree.