The main legal point established in the judgment is the requirement of conscious possession and the duty of the prosecution to prove that the recovered arms fall within the definition of arms given under S.4 of the Arms Act. The prosecution also needs to establish that the recovered arms have not lost their specific character and serviceability.

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'