JUDGMENT
Kapur, J.
1. This is an appeal brought by the State against the order of acquittal of Mohinder Singh by the learned Sessions Judge dated 14-7-1950, allowing an appeal against the order of conviction passed by Mr. S. P. Jain, Magistrate 1st Class, who had convicted Mo-hinder Singh under Section 19(f), Arms Act, and imposed a sentence “of one year’s rigorous imprisonment.
2. Mohinder Singh was arrested on 26-4-1950 in connection With a case of dacoity. On 9-5-1950, he made a statement to Assistant Sub Inspector Teja Singh of the Anti Dacoity Staff in which he stated “that he had concealed a pistol under a ‘shisham’ tree in Kang Mai and that he would point out the place and have it recovered”. The Assistant Sub Inspector then took the accused, Gurdit Singh Lambardar and Dasondha Singh and in the presence of these two persons the accused took out the pistol Ex. P. 1 from inside the reeds. It was wrapped in a torn piece of cloth. The accused was’then tried under Section 19(f), Arms Act, and although he was convicted by the Magistrate he was quitted by the Sessions Judge, as I have said above. The learned Sessions Judge remarked in his judgment that it had not been proved that the pistol recovered at the instance of the accused “belonged to any one” and was stolen, nor is there evidence to prove that the police, had received information that the accused was keeping an unlicensed pistol and, therefore, there was no occasion for the police to interrogate the accused with regard to the pistol and if no interrogation was necessary the statement made to the police could not be said to be voluntarily made. He, therefore, disbelieved the story. The State has come up in appeal to this Court.
3. Assistant Sub Inspector Teja Singh as P. W. 3 has stated that he interrogated the accused and during the course of this interrogation the accused ‘stated about the concealment of the pistol. The other witnesses relied upon by the prosecution are P. W. 1 Dasondha Singh and P. W. 2 Gurdial Singh, P W. 1 Dasondha Singh deposed “the accused stated that he had kept buried a country-made pistol under the ‘tahli’ tree outside the village and that he could produce it by taking it out from there. The accused pointed out that place and dug out the pistol * * * and produced the same.” In his statement Gurdial Singh P. W. 2 has deposed that the accused stated that he had a pistol which he kept under a ‘shisham’ tree in Kang Mai. The statement of P. W. 3 Assistant Sub Inspector Teja Singh is only this that the accused had said that he had concealed the pistol under a ‘shisham’ tree. From these statements it is quite clear that as a result of the statement of the accused a pistol which was licensed was recovered.
4. It has been submitted by Mr. Kesar that the statement made by the accused is inadmissible in evidence, because Sections 25 and 26 and Section 27 which is only a proviso to the previous section make it so. In support of his contention he has relied on a judgment of the learned Chief Justice (Weston C. J.) in — ‘Cr. R. No. 961 of 1951’ where the statement made by the accused is not given but the learned Chief Justice has put the matter as follows:
“After a while the accused is said to have made a confession and to have offered to produce the fire-arms. He then took the police and party inside a room and from a box in which there were clothes produced a rifle and a pistol.”
The learned Chief Justice held this not to be admissible and observed;
“In such circumstances I myself have always been unable to understand how Section 27 can apply to the statement, which is in no way the cause of the articles being found. I am aware that there are certain rulings which on the argument that the matter forms one transaction, hold that the discovery can be said to be in consequence of the information given. I prefer however the view I have set out. I, therefore, hold that the statement Jn the present case in no way advances the prosecution case beyond the production which on the evidence undoubtedly was made by the accused.”
The same view was taken by the learned Chief
Justice in two other revision petitions — ‘Crl.
Revn. No. 706 of 1951′ and ‘Crl. Revn. No. 883
of 1951.’
5. The accused -was tried for an offence
under Section 19(f) which is in the following words:
“Whoever commits any of the following offences (namely):
” xx x x
(f) has in his possession or under his control any arms, ammunitiori or military stores in contravention of the provisions of section 14 or section 15;
xx X x.”
6. The question to be decided in this case
only is this whether the accused had in his
possession or under his control any pistol. It
does not matter whether it belonged to him
or it belonged to anybody else or was stolen
or was not stolen. An offence under Section 19(f)
is completed as soon as it is shown that he
had such a pistol under his possession or control. The evidence of the various witnesses
shows that the accused made a statement to
the police and also pointed out the place where
the pistol was and brought it out. This evidence, in my opinion, is sufficient to prove
control. The argument which was raised by
Mr. Kesar in this Court that such evidence is
not admissible is, in my opinion, unsustainable.
In — ‘Sukhan v. Emperor’, 10 Lah 283 (FB) the
question of interpretation of Section 27 was discussed
by a Full Bench of that Court. The statement
there made was, “I had removed the ‘karas’,
had pushed the boy into the well and had
pledged the ‘karas’ with Allah Din”, and in
consequence of the information so received the
‘karas’ were recovered- from Allah Din. The
question was what portion of the statement was
admissible in evidence. Sir Shadj Lal, Chief
Justice, who wrote the leading judgment held
that the only portion admissible was the pledging of the ornaments with Allah Din. In–‘Ganuhandra v. Emperor’, 56 Bom 172, the statement made was :
“Every accused except accused No. 9 first gave
us information that he would point out the
place where his share of the property stolen
in the Dahiwadi Dacoity case was buried and
offered to produce the same.”
And it was held that the statement that they
would point out the places where the property
was buried was admissible in evidence, but the
rest was hot. These two cases have received
the approval of their Lordships of the Privy
Council in — ‘Pulukuri Kottaya v. Emperor’,
ILR (1948) Mad 1 (PC). There the statement
made was as follows:
“About 14 days ago, I Kotayya and people of my party lay in wait for Sivayya and others at, about sunset time at the corner of Pulipad tank. We, all beat Boddupati China Sivayya and Subayya to death. The remaining persons Pullayya, Kotayya and Narayana ran away. Dondapati Ramayya who was in our party received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and my stick in the rick of Venkata-narasu in the village. I will show if you come. We did all this at the instigation of Pulukuri Kotayya.”
It was held that the whole of the statement except the passage “I hid it (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come” is inadmissible. Sir John Beaumont on page 13 observed as follows :
“The condition necessary to bring the section
into operation is that the discovery of a fact
in consequence of information received from
a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as
relates distinctly to the fact thereby discovered may be proved.”
Proceeding his Lordship observed: “Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused.” It was further held in this judgment that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.
7. It is clear from the observations of Sir John Beaumont that Section 27 is available even when a person in police custody produces from some place of concealment some object said to be connected with the crime and the only thing Which is inadmissible in evidence is that portion of the statement in which the accused confesses some past user or the history of the object produced. The view of the learned Chief Justice that a statement made by the accused with regard to the presence of an object at a particular place becomes inadmissible as soon as he takes the police to the place where it is buried or concealed and produces it seems to be contrary to what their Lordships of the Privy Council have held. I am, therefore, of the opinion that the learned Judge was in error in reversing the order of the Magistrate and I would, therefore, allow this appeal, set aside the order of acquittal and convict the accused under Section 19(f), Arms Act. As the, offence, was committed as long ago as the 9-5-1930, and the accused was in jail for a period of about five weeks the ends of justice will be sufficiently met if a fine of Rs. 150/- and in default six months’ rigorous imprisonment is imposed and I would order accordingly.
Falshaw, J.
8. I agree.