# PABITAR SINGH v. STATE OF BWAR

- **Citation:** [1972] 3 S.C.R. 848
- **Court:** Supreme Court of India
- **Decided:** 1972-03-22
- **Case number:** Criminal Appeal No. 128 of 1969
- **Bench:** A. N. Grover, M. H. Beg
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pabitar-singh-v-state-of-bwar-5620
- **Pages:** 7

## Headnote

Indian Arms Act (UV of 1959), ss. 25 and 35-Premises in joint
0CcU11ation of two ot'rsons-Gun concealrd in one room'-Conviction ,,f
One of the perso.'ls-Yalidity.
B
The appellant and another, Loco employees of the Railway, were in
joint occupation of certain quarters consisting of · a bed-room and a
kitchen.
They were char~ed with offences under ss. 25 and 26 of the
C
Indian Arms Act, 1959. The trial court convictejl"both the accused. The
first appellate Court coovicted the appellant but acquitted the othi:r
accused.
In revision by the- appe1lant, the High Court set aside his conviction under s. 26, but up~ld his coiviction U'lder s. 25, on the bas:s
that a J?Un was found i n:Side the kitchen ~room· in which the - appellant
concealed himself bolting the room from inside, and that the appellant
was the sole occupant of that room at the time when the' police raided the
D
premises.
Allowing the ·appeal to this Court,
HELD : (I), Th• Courts below h•d not considered the P.rooecution
evidence in the light of the gross exaggeratio, which had been 1ntroduoed
about the door nl tho kitchen-room having been bolted or chai"ed from
inside by the appellont. Once that vital'fact is disbelieved !he ent're story
.c;f the apoellan· havi.1~ concealed himself in that room had to be rejected. t
!953 C.El
(2) On Ibo evidence, the quarters m.u•t be held to be In the join~
possession of both the accused.
U.1der s. 35 of the Act wluch was never
considered by the courts below where any arms or ammunition are Or
is 1ound in any premises in he joint oxupation or u.1der the joint con ..
trol ni: several J)Cfsons, ea.ch oi such persons in respect of whom Jnere
is rra.,ntJ to believe that he was aware of the txistcnce of the arms and
F
ammunition in the premises unless the contrary ·is proved wiJl be liable
for tne offence under s. 25 { l) of bei.1g in possession df an unhce .. sed
fite arm.
But, in the preseat; case the prosecUtion had -not established
the essentiW ingredients of the offence in the light of the prov15.ons of
s. 35.
As the ~u.1 was concealed in such a manner that it was not
visible to the naked eye, it could not be urged that when the
appe1Jant
was using the kitchen he would be aware of its existence in that rocm.
(953 F-Hl
G
(3) In cases of this nature involvin.~e liberty and care~r of a citizen
.s:reat care and attention .should be devO'led by the courts to all questions
or Jaw and tact. 954 A-BJ

## Text

948
PABITAR SINGH
v.
STATE OF BWAR
March 22, 1972
[A. N. GROVER AND M. H. BEG, JJ.J
Indian Arms Act (UV of 1959), ss. 25 and 35-Premises in joint
0CcU11ation of two ot'rsons-Gun concealrd in one room'-Conviction ,,f
One of the perso.'ls-Yalidity.
B
The appellant and another, Loco employees of the Railway, were in
joint occupation of certain quarters consisting of · a bed-room and a
kitchen.
They were char~ed with offences under ss. 25 and 26 of the
C
Indian Arms Act, 1959. The trial court convictejl"both the accused. The
first appellate Court coovicted the appellant but acquitted the othi:r
accused.
In revision by the- appe1lant, the High Court set aside his conviction under s. 26, but up~ld his coiviction U'lder s. 25, on the bas:s
that a J?Un was found i n:Side the kitchen ~room· in which the - appellant
concealed himself bolting the room from inside, and that the appellant
was the sole occupant of that room at the time when the' police raided the
D
premises.
Allowing the ·appeal to this Court,
HELD : (I), Th• Courts below h•d not considered the P.rooecution
evidence in the light of the gross exaggeratio, which had been 1ntroduoed
about the door nl tho kitchen-room having been bolted or chai"ed from
inside by the appellont. Once that vital'fact is disbelieved !he ent're story
.c;f the apoellan· havi.1~ concealed himself in that room had to be rejected. t
!953 C.El
(2) On Ibo evidence, the quarters m.u•t be held to be In the join~
possession of both the accused.
U.1der s. 35 of the Act wluch was never
considered by the courts below where any arms or ammunition are Or
is 1ound in any premises in he joint oxupation or u.1der the joint con ..
trol ni: several J)Cfsons, ea.ch oi such persons in respect of whom Jnere
is rra.,ntJ to believe that he was aware of the txistcnce of the arms and
F
ammunition in the premises unless the contrary ·is proved wiJl be liable
for tne offence under s. 25 { l) of bei.1g in possession df an unhce .. sed
fite arm.
But, in the preseat; case the prosecUtion had -not established
the essentiW ingredients of the offence in the light of the prov15.ons of
s. 35.
As the ~u.1 was concealed in such a manner that it was not
visible to the naked eye, it could not be urged that when the
appe1Jant
was using the kitchen he would be aware of its existence in that rocm.
(953 F-Hl
G
(3) In cases of this nature involvin.~e liberty and care~r of a citizen
.s:reat care and attention .should be devO'led by the courts to all questions
or Jaw and tact. 954 A-BJ
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
128 of 1969.
Aop~I by Sp~cial Leave from the judgment and order dated
February 6, 1969 of the Patna High Court in Criminal Revisicn
No. ,541 of 1968.
H
PABITAR SINGH v. BIHAR (Grover, J.-)
949
A
S. C. Agrawala and V.".J. Francis, for the appellant.
U. P. Singh, for the respondent.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from a
judgment qf the Patna High Court.
Originally two persons
B
Paoitar Singh (the present appellant) and Ram Ashray Sharma
who were both Loco employees of the Railway were tried under
~ 25 and 26 of the Indian Arms Act 1959, 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
C
concurrently.
The.convicted persons filed an appeal to the court
of Seisions.
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 khray
Sharma was given the benefit of doubt ana acquitted.
Pabitar
Singh moved the High Court in revision.
His conviction under
D
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.
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H
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 nt Gaya that stolert properties connected with a dacoit}'
were lying concealed in the
aforesaid
auarter.
Conseauent\y
Rama Shankar Upadhyay Station House Officer, Gaya Kotwali
pQlice station raided the quarter at 5.45 a.m. on November 5,
1962.
He took with him two .witnesse• P.W. 1 Vijay Kumar
Duhev ~nd PW. 5 Deon~ndan 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 apnellant was found in the quarter,
c0nce1E"" him,elf in the kitchen room which was b<ilted from
in•ide.
That room was got onened.
A countrv made gun was
foun~ l"inq in between tw0 hricli:< on the ton' of which a tin containing flour in a bag covere"d with a brass thali was placed.
The
beJ room.w~s searched aqd two live 12 bore cartridges were found
wrappd m a small cloth.
These had been placed behind
a
framed picture of Lord Shiva.
Tim lelrne'.! 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
A~hrav Sharma and the apoellant.
According to the learned
judge the inference of conscious possession of the appellant had
950
SUPREME COURT REPORTS
[1972] 3 S.C.R.
been drawn by the cou~ts below from tl!P, fact that the
picture
A
benrnd wn1ch the cartridges were found was just above the cot.
The fact that that cot· belonged to Pabitar Singh had been stated
by P.W. 1 alone.
No reliance could be placed on that witness as
he had to be declared hostile.
In view of the fact that the room
was in joil)t possession of two persons .the learned judge held that
no inference of the appellant's conscious possession of the cart·
8
ridges and their concealment by him could be drawn.
So far as the gun was concerned the learned judge observed
that it was found inside the kitchen room in which Pabitar
Singh was found having concealed himself.
He was the only
occupant of the room at the moment.
He. had bolted the IDC\ffi
C
from inside.
In spite of certain serious discrepancies and other
matters which. will be presently discussed the lea\'lled judge accept·
ed the pndiqg based mainly on the evidence of the Sub-In5pector
that the appellant had .concealed himself in the kitchen room and
•the gun was found concea~ed there and an infer.,nce cou'd, therefore, be drawn that he was in conscious possession of that gun.
D
We may at this stage refer to the relevant provisions . of the
Act and the changes which appear to have been made in the
In,iian Arms A'ct 1878 by the Act with wlrich we are concerned,
namely the Anns Act 19 5 9.
Section 14 of the Act or 18 7 8 provided that no person shall have in his possession or . under his
control any cannon or firearm or any ammunition or military
E
stores except under l1 license and in the man11er and to the extent
permitted thereby.
Section 15 related to possession of arms of
any cles~ription without license proh!'bited in certain places. Section
19 ( 1 ) ( f) to the extent it is material was in these terms : ,.....
S. 19 (1) "Whoever commits any of the following
ojknces (namely) :-
F
....................... '\' • .......... .
(f) has in his possession or under his control any
arms, ammunition or military stores in contraventidh of the orovisions of section 14. or section
15;"
.
shall be punished with imprisonment for a term which
may extend to three years or with fine, or with both"
The Act came into force on the_ first dav of October 1962 as it
G
was OJ\ that date that tbe requisite notification was macle. Under
,
sub-s. ('3) of s. 1.. ~ction 3 reads :-
· H
. "No ponon shall acquire, have in his possession or
carry any . fireann or ammunition unlesa be holds in tbls
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)
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PABITAR SINGH v.
0B!HAif (Grover, J.)
951
behalf a license issued in accordance with the provisions
of this Act and the rules made thereunder : .
ProviC:.~d that .
. . . . ."
'
Section 7 relates to prohibition of acquisition or possession etc. of
prohibited arms· or prohibited ammunition.
Chapter III contains provisions relating to licenses, Chapter IV to power and
procedure and Chapter V to offences and penalties. , Section 25 ·
to the exte.nt it is relevant for this case is as follows :
S. 25 (1) "WhQever-
( a) acquires, has in his possession or carries in any
firearm or ammunition in contravention of
section 3 ; or•
shall· be punishable with imprisonment for a
term which may extend to 3 years. or with fine
or· with both".
Section· 35 provides :-
"Where any arms or ammunition in respect of which .
any offence under this Act has· been or being conrmitted
a1 e or is found _in any prtlmises, vehicle or other place ·
.in the joint oc¢u9ation or under the joint control of
several persons, each. of such per8ons in respect of whO)ll
there is reason to beliew that be was aware of the
existence of the aims or ammunition iI\ the premises,
vehicle or other place shall, unless the contrary is -proved, be liable for'that offence in the same manner as if
it has beeii or is ~g poquni\ted b,y hijn alone".
In s. 25( i )(a) only the W<irds "has .in his possession" have been
retained ·and the other worils which appeared disjunctively in
s. 19 (I)( f) namely, ~·or ·under his control" have beeti. omitted.
Section 3 5 l\ppears to have been newly iilsetted to clarify the true
position where at\Y 1aims or ammunition are or is found , in any
premises etc. in the joint occupation or under the joint control of
several persons.
Each of such persons in respect of w)lqm tltere
is reason to believe that he was aware of the existence of the armt
and ammunition in the preQlises unle!ls .the contrary is proved will
be liable for that offence.
It is abundantly clear from ·a perusal of the jud~ents of the
courts belaw including the High Court that the case was neither
tried nor examin_ed from the point of view of the provisions contained in s . .35 of the Act.
In the present case the .quarter· wu
admittedlv in joint occupation Of botll the a~llant and Ram
Ashray Sharinl. It is tiue that at the time of tho raid llam
952
SUPREME COURT REPORTS
[1972] 3 S.C.R.
Ashray Sharma was not present but the mere presence of the
A
appellant was not sufficient to make him guilty of the offence
unless the court could come to the conclusion that thete was
reason to believe that be was aware of the existence of the gun in
the premises.
If the view of the courts below is accepted that the
appellant had concealed himself after having' locked the kitchen
when the raid took place and that be was in exclusive posses,ion
B
of the kitchen it might have been possible in the light of other
tacts and circumstances to come to the conclusion that the conditions laid down in s. 35 were sati~fied. The courts have, however, ignored wme salient facts which were proved and which
completely negatived the case of the prosecution that the appellant
bad locked himself in the kitchen and was in sole occupation
C
thereof.
The learned trial Judge pointed out that the story that
lhe appellant had locked himself in the. kitchen was not supported
by P. W. 1.
In his view that witness had displayed considerable
sympathy fo;· the accused person.
He therefore took into consideration the statement made by the witness to the police. P.W:
I had been declared hostile. It has not been shown on behalf of the
State how such a course could be followed and any statement made
D
by him could be relied on particularly, when the aforesaid witness
had been ,declared hostile and had to be cross-examined by the
prosecutor.
The appellant had also moved the trial judge for
local inspection an.cl it was pointed out to the judge that there was
no device at all in the door of the kitchen by which it could be
dosed from inside.
Other inaccuracies in the de,criotion of the
E
room which were to be found in the statement of P.W. 14 Rama
Shankar Upadhaya_:_the Investigating Officer-were also pointed
out.
This is what the trial judge stated in his judgment :
';It cannot, therefore, be denied that the de,criotion
of the room as given bv by the I.O. applied to the latrine
of the quarter rather than the kitch~n excent for · its
loc•tion i.e. th•t it wa' situate1l adjacent ea•t to the
northo'rn end nf the inner varandah.
The. latrb.e, it may
be pointed out is at some distance east of the varandah".
F
After stating a few fact' the· trial judge came to the conclusion
that the fnve,tieatine Officer had made some confu,ion in the
G
description of the kitchen.
The learned Sessions Judee acceoted
the finding thai the appellant had decided to "close himself in the
kitchen".
Now the story that the appellant had concealed him•elf inside
the kitchen was ba•'lrl sub•tantiallv on the evirlence of PW. 14, .H
the TnvQStigating Pfficer.
A perusal of hi' st!ltement would not
satMv any court that imnlicit reliance could be nlAc'ld
on his
evidence.
He had deposed in cat~gorical terms that he found the
A
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PABITAR SINGH v. B!HAR (Grover, J.)
953
door of the kitchen closed from inside.
He stated in crossexamination that the. ~hains were fitted in the door from inside as
also from outsi.de.
The hinge for chaining the door was not fitted
to the door frame but 1t was fitted to the door plank.
He also
gave description of the kitchen which was found to be different
when the inspection was made by the trial judge nor were any
chains or marks of any chains wa~ found in the door of the kitchen
as deposed to by P:W. 14.
P.W. 2 Ram Swarath,
officer-incharge, polic;e station Daltonganj who accompanied the raiding
party also stated· that the door of the kitchen room was closed
which was got unfastened. It is implicit in his statement thatthere
was some bolting or chaining device in the door of the kitchen
room by which it had been secured by the appellant.
This is not
at all supported by the inspection note.
The allegation that the
kitchen had. been bolted from inside by the appellant who had
concealed himself there at the time of the raid finds mention in
the first information report as well.
The comts below do not
appear to have looked at the prosecution evidence in the light of
this gross exaggeration which had been introduced about the door
having been bolted or chained from inside by the appellant where
he was alleged to have concealed himself.
Once that vital fact is
disbelieved the entire story of his having concealed himself in the
kitchen becomes doubtful and worthy of rejection.
It has also been suggested in some of the judgments of the
courts and this fact has been relied upon on behalf of the State
before us that the kitr.hen was used only by the appellant and not
by Ram Ashray Sharma, the other occupant.
However,
there
is absolutely no material on which any such suggestion could be
justified or based.
We are wholly at a loss to understand hi1w a
quarter which consisted only of a bedroom and a kitchen would
not be in the joint possession of both these persons, namely, the
appellant and Ram Ashray Sharma.
The next and .the crucial question that arises is whether the
prosecution has established the essential in~redients of the offence
in the light of the provisions of s. 35 of the Act. It has been
urged that when the appellant was using the kitchen it was legitimate to expect that he-would be aware of the existence of the gun
which was concealed there.
The gun was concealed in such a
maMer that it was not visible to the naked eye.
Although there
may be 'very grave suspicion that the appellant was aware of the
existence of the gun the prosecution is bound to establish facts
from which the court could have reason to believe that he was
aware of the existence of the unlicensed fire-ann.
We are not
satisfied in the present case that any such facts
have been
established.
954
SUPREME COURT REPORTS
(1972] 3 S.C.R.
Lastly it cannot be ov.er-emphasised that in cases of the preA
sent nature where not only the. liberty of a citizen is involved but
also his whole career on conviction a person in service is bound to
be dismissed great care and attention should be devoted by the
courts to all questions of law and fact which unfortunately had not
been done in the present case.
That has Jed to miscarriage of
justice.
The appellant, is en.titled to the 1-enefit of doubt and he
B
is hereby acquitted.
V.P.S.
Appeal allowed.