Judgment

GROVER, J.:- This is an appeal by special leave from a judgment of the Patna High Court, Originally two persons Pabitar Singh (the present appellant) and Ram Ashray Sharma who were both Loco employees of the Railway were tried under Ss. 25 and 26 of the Indian Arms Act1959, 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 person filed an appeal to the Court of Sessions. 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 Ashray Sharma was given the benefit of doubt and 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.

2. 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 at Gaya that stolen properties connected with a dacoity were lying concealed in the aforesaid quarter. Consequently Rama Shankar Upadhyaya Station House Officer, Gaya Kotwali police station raided the quarter at 5.45 a.m. on November 5, 1962. He took with him two witnesses P.W. 1 Vijay Kumar Dubey and P.W. 5 Deonadan 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 appellant was found in the quarter, concealing himself in the kitchen room which was bolted from inside. That room was got opened. A country made gun was found lying in between two bricks on the top of which a tin containing flour in a bag covered with a brass thali was placed. The bad room was searched and two live 12 bore cartridges were found wrapped in small cloth. These had been placed behind a framed picture of Lord Shiva.

3. The Learned 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 Ashray Sharma and the appellant. According to the learned judge the inference of conscious possession of the appellant had been drawn by the courts below from the fact that the picture behind which the cartridges were found was just above the cot. The fact that the cot belonged to Pabitar Singh had been stated, by P. W. 1 alone. No. reliance could be placed on that witnesses as he had to be declared hostile. In view of the fact that the room was in joint possession of two persons the learned judge held that no inference of the appellant s conscious possession of the cartridges and their concealment by him could be drawn.

4. So far as the gun was concerned the learned judge observed that it was found inside the kitchen room in which Pavitar Singh was found having concealed himself. He was the only occupant of the room at the moment. He had bolted the room from inside. In spite of certain serious discrepancies and other matters which will be presently discussed the learned judge accepted the finding based mainly on the evidence of the Sub-Inspector that the appellant had concealed himself in the Kitchen room and the gun was found concealed there and an inference could, therefore, be drawn that he was in conscious possession of that gun.

5. We may at this stage refer to the relevant provisions of the Act and the changes which appear to have been made in the Indian Arms Act 1878 by the Act with which we are concerned, namely the Arms Act 1959. Section 14 of the Act of 1878 provided that no pe