Possession under the Arms Act requires an element of consciousness or knowledge in the person charged with the offence.

( 1 ) THE accused Norendra Nath Mozumdar was charged by the Presidency Mag. Calcutta on 25-11-1950 Under Section 19 (f) read with Section 19 A, Arms Act for having on 13-6-1950 in his possession or under his control without the necessary licence one Colt Automatic. 32 bore pistol and also charged Under Section 19 (f), Arms Act for having on the same day in his possession or under his control without the necessary licence 4 rounds of cartridges of. 32 bore. On these charges the accused was committed by the Mag. for trial in the H. C. Criminal Sessions.

( 2 ) THE total evidence on the point of possession or control on which the accused has been committed for trial is this. The accused was arrested on 13-6-1950 and was already in custody at Lalbazar. Pursuant to some statement made by the accused the police expected to recover a pistol from his house. The accused took S. I. , D. P. Roy and Samar Ghosh from Lalbazar Police Station to his house at 42 B, Ram Dulal Sarkar Street. The accused took the Police to his bedroom and himself looked into different parts of that bedroom searching to find out something. But that something was not found. He failed to find the pistol in the bedroom. The accused's wife Usharani was in the room. The accused talked to his wife and the wife left the room. She told the police not to follow her when she was going out. She returned after 3 or 4 minutes with the pistol and the cartridges. She was also put under arrest but was later on let off. That is all the evidence.

( 3 ) THERE is no evidence as to what the accused told his wife. The wife cannot be called as a witness and compelled to disclose what communication was made by the husband to her. Section 122, Evidence Act prevents such disclosure. Communication between the husband and the wife during coverture is privileged and its disclosure cannot be enforced. Indeed the law provides that he or she shall not be permitted to disclose any such communication unless the person who made it or his or her representative-in-interest consents, except in suit between married persons or proceedings in which one married person is prosecuted for any crime committed against the other. The present case before us does not come within any of these exceptions, and is not a 'proceeding in which one married person is prosecuted for crime committed against the other'. Here is no crime committed by the husband against the wife. That portion of the language in Section 122, Evidence Act obviously refers to such crimes as assault or bodily injuries, wrongful confinement etc. by one of the spouses against the other. There may be also other forms of crime but the gist of this exception is that it must be the crime committed by one married person against the other. The question whether the pistol was in the possession of the husband or wife cannot, in my view be said to involve any crime committed by one against the other. The protective provision Under Section 122, Indian Evidence Act is based on the wholesome principle of preserving domestic peace and conjugal confidence between the spouses during coverture. The exceptions also are based on common sense. Such protection obviously cannot exist in suits between married persons when one of the spouses is litigating against the other or when one of the spouses commits any crime against the other, for to prevent disclosure in that event will be to defeat justice.

( 4 ) THERE is also no evidence as to where the wife went to bring the pistol. There is not a scintilla of evidence about the place from where the pistol was found and brought and whether such a place was in the exclusive possession or use by the accused or his wife or whether it was accessible to other people. The importance of this fact will be realised when I discuss later the law of possession in relation to crimes.

( 5 ) THE learned counsel for the State has drawn my attention to Section 27, Penal Code and has argued that under legal advice the