Das, J.:— This is an appeal by the State of Bihar against an order of acquittal recorded by the learned Ses., J. of Bhagalpur in respect of one Amir Hasan, aged about thirty-two years, who was tried by the learned Ses., J. for an offense under Section 5 of the Explosive Substances Act. The assessors who aided the learned Ses., J. were of the opinion that the respondent (Amir Hasan) was guilty. The learned Ses., J. did not accept the opinion of the assessors & acquitted the respondent. Three women, namely, the mother of the respondent, his wife & the wife of another member of the family, were also on trial before the learned Ses., J. They were also acquitted. The appeal against the order of acquittal when presented for admission in this Court, was not pressed as against the women accused persons, & the appeal was admitted only in respect of the respondent Amir Hasan. It may also be stated that the respondent Amir Hasan had an elder brother Abdul Hasan, who was also committed to the Court of Session. He was suffering from pthisis, & died about a month before the trial began.

2. The facts found & not disputed before us are these. On 7-5-1948, at about 6 amthere was a raid by a police party on several houses in village Maheshmunda within the jurisdiction of Colgong police station. One of these houses belonged to the two brothers Abul Hasan & Amir Hasan. The house was north of a village lane a faced east. It was built of mud & consisted of two storeys. There were two rooms on the ground floor, one towards the north & the other towards the south, both of which opened on a verandah towards the east. There was a staircase leading to the upper storey where there was a hall partitioned by a wall in the middle. This will had an opening without any shutter, or door plank. The search was conducted by an Assistant Sub-Inspector of Polioe, Biseswar Nath Rai (P.W 1), in the presence of a Magistrate, Jagdish Narayan Sinha (P.W 8) & two search witnesses, Etwari Mandal (P.W 2) & Iswer Bind (P.W 3). The police party consisted of the Assistant Sub-Inspector & some other constables. These constables, it appears, surrounded the house at about 5 ambut remained outside when the searoh was actually made. One Imtiaz Hassain, a brother of the respondent, was present at the time of the search. The womenfolk were inside the house, but the respondent was absent. There was evidence which was accepted by the learned Ses. J., that, the respondent was seen in the house on the evening previous to the search.

3. The search party first went to the second storey. The northern room in the second storey was searched, but nothing was found. Then, the southern room in the second storey was searched A four country-made bombs placed between the top of the eastern wall of the room & the thatch were recovered. The bombs were live bombs & of the size of coconuts. The prosecution led evidence to show that the bombs were capable of causing injury to life on explosion. After searching the upper floor, the search party came down to the ground floor & went first to the northern room. The women of the family who were in the northern room, were asked to go into the southern room, & this they did. In the northern room on the ground floor two country, made bombs of a similar character were found inside an earthern granary. The search party then went on to the yerandah & asked the womenfolk, who were then in the southern room, to go again into the northern room. The women had veiled their faces, & the Assistant Sub Inspector gave evidence to the effect that he suspected that the women were carrying something under their Saris. The women, however, were allowed to go into the northern room, & then the southern room was searched. Nothing was found there except the uniform of a constable minus the belt & the number badge. After this, the Assistant Sub-Inspector of Police sent for a woman in order to search the person of the women of the family. One Mt. Eeshmi (P.W 5) was called for the purpose & she searched the women folk. But nothing was found on their person. The search party then again went into the northern room of the ground floor & recovered ten country-made bombs five of the bombs being found between the western wall & a bag of grains & the other five from under a wooden box close to the wall. Thus, all told, sixteen country-made live bombs were recovered from the house, four from the southern portion of the upper room & twelve from the northern room of the ground floor. The prosecution led evidence to show that the house in question belonged to the two brothers Abul Hasan & Amir Hasan. There was evidence of one prosecution witness to the effect that Abul Hasan was the malik of the house, being the elder brother. There was also evidence which was accepted that both the brothers were seen in the house on the day previous to the search & also on several days before that. I have already referred to the evidence that Amir Hasan was seen in the house in the evening previous to the search.

4. The fact of the recovery of sixteen country-made live bombs in the circumstances mentioned above has not been seriously disputed before us. The learned Ses., J. accepted this part of the prosecution case & negatived a suggestion made by the defense that the bombs might have been planted in the house. He gave his finding in the clearest terms “Accordingly, I hold that there was no possibility of the planting of the bombs”. As to the women accused, the learned Sessions Judge was rather doubtful of that part of the prosecution case which seemed to Buggest that the women had removed some of the bombs, from one room to another under their saris. I need not say anything more about this part of the case, as the acquittal of the women accused is not in question before us. With regard to the two brothers, the learned Sessions Judge felt the difficulty which has been felt by many Courts when some incriminating object is recovered from a house which is in the possession or occupation of more than one person. The learned Sessions Judge considered some of the decisions bearing on this question, and relying very lately on the Full Bench decision of the Lahore High Court in Emperor v. Santa Singh, 26 Lah. 137, he held that though there was a strong suspicion against the respondent, the prosecution had failed to bring home the charge against the respondent.

5. The learned Government Advocate has contended before us (1) that the learned Sessions Judge has not correctly applied the principles laid down in the Lahore Full Bench decision, (2) that the facts and circumstances proved by the prosecution bring home the charge against the respondent, inasmuch as they prove that the respondent was in conscious, actual and effective control of, at least, four of the country-made bombs, and (3) that the learned Sessions Judge failed to consider a statement of the respondent made in his examination before the committing Magistrate to the effect that the southern portion of the upper flat, from where four of the bombs were recovered, was his.

6. The crucial question for consideration in this case is if the prosecution has been able to prove beyond reasonable doubt that the respondent was in conscious possession or actual and effective control of the bombs, or at least some of them, recovered from the house, with the necessary guilty knowledge. The difficulty which has arisen in this case has been the subject of judicial consideration in several decisions relating to offences punishable under Section 19(f) of the Arms Act, or Section 5 of the Explosive Substances Act. A summary of these decisions will be found in Emperor v. Wasant Waman, I.L.R (1945) Bom. 302, though that decision itself related to a case under R. 39, Defence of India Eules. The learned Government Advocate has referred to two decisions relating to R. 39, Defence of India Rules, one is the Bombay decision cited above and the other is the case of Anantanath v. Emperor, 22 Pat. 549. In my opinion, the decisions relating to B. 39, Defence of India Rules are not directly in point. Sub-r. (2) of R. 39, Defence of India Rules, was so worded as to throw the onus on the accused persons, when any document containing a prejudicial report etc., was found in premises in his occupation or under his control. The important point of difference between Section 5 of the Explosive Substances Act and sub-r. (2) of R. 39, Defence of India Rules is this: in the Defence of India Eules, the occupation or control of the premises in which the prejudicial document is found shifts the onus; whereas in Section 6 of the Explosive Substances Act, conscious possession or actual control of the incriminating object itself must be proved before the accused can be called upon to explain such possession or control. For this reason, I do not think that the decisions relating to R. 39, Defence of India Rules are of any help in the present case.

7. There is no dispute that the house from where the incriminating objects were found in this case belonged to the two brothers Abul Hasan and Amir Hasan. It is now well-settled that, though there is a difference between the two concepts denoted by the words ‘possession’ and ‘control’, possession and control for the purpose of Section 5 of the Explosive Substances Act, mean something more than mere constructive or legal possession) and control. As has been rightly pointed out by Harries, C.J, in Santa Singh's case, 26 Lah. 137:

“possession and control required to constitute offences under the Explosive Substances Act and Arms Act must mean conscious possession and actual control: a man must know of the existence of something before he can be said to control it or have it under his control;”

In other words, there must be mens rea or guilty knowledge before a person can be convicted of possession or control of explosive substances. I thing that the wording of Section 5 of the Explosive Substances Act, itself makes this clear. The section uses the word ‘knowingly’ in connection with possession and control; it further states:

“under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object.”

These words make it perfectly clear that before the onus shifts, the prosecution must prove conscious possession or actual control with a guilty knowledge.

8. On the question whether more than one person can be in conscious possession or actual control of an incriminating object the Lahore decision is equally emphatic. Harries, C.J stated as follows:

“I do not suggest that the recovery of an article in a house occupied by a number of persons is proof of joint possession but that fact coupled with other evidence might establish such joint possession. All I desire to point out is that exclusive possession or control of any particular person is not required under these sections. The possession or control might well be possession or control of two or more persons.”

If I may say so with respect, this is the correct view. Section 5 of the Explosive Substances Act, does not require exclusive possession, as was observed in some previous decisions.

9. On the question of presumption, it is now well-settled that in cases where incriminating articles are recovered from a place in the occupation or possession of more persons than one and it is not possible to fix the liability on any particular individual, a Court is not bound to hold that the said article was in possession or control of the head of the family. It is also clear that Section 106 of the Evidence Act, has no application unless and until the prosecution has proved conscious possession or actual control with guilty knowledge. These propositions laid down in the Lahore Full Bench decision have now been accepted and approved by a Division Bench of this Court. In Sahendra v. King-Emperor*, 26 Pat. 46, it was pointed out that ordinarily Section 106 of the Evidence Act, would not apply to cases of this sort; but it would only apply, in such circumstances as where an article is found in a house in circumstances in which all the members of the house must have been aware of its existence. In Bheka Ahir v. Emperor, A.I.R (34) 1947 Pat. 236, it was pointed out that the duty lay on the prosecution to adduce some evidence-from which the inference could properly be deduced that any particular member, or, for the matter of that, the head of the joint family was-in possession in the sense of conscious possession of the corpus delicti. It was also observed:

“Like all other criminal trials, the burden lies entirely on the prosecution and all the time on the prosecution to show the guilty knowledge in any particular individual or the head of the joint family.”

These views were again approved in Mohan Lahiri v. The King, A.I.R (37) 1950 Pat. 248.

10. Prom a consideration of the aforesaid decisions the following propositions clearly emerge: (1) The prosecution must prove conscious possession or actual control of the incriminating objects, remembering at the same time that possession need not always be manual possession, that is possession by physically touching the incriminating object. ‘Control’ is a somewhat wider concept: than ‘possession,’ but there again the control must: be actual control and not merely constructive or notional control. (2) The prosecution must prove mens rea or guilty knowledge. It is possible for more than one person to be in conscious possession or actual control of an incriminating object, but whether they are in such possession or not must be inferred from the facts and circumstances; proved. (3) When the aforesaid two conditions are fulfilled, then the onus changes, and it would be for the person in such possession or control, as has been indicated above, to explain his possession or control.

11. Let us now come back to the facts of this case, and see how far the tests laid down above have been fulfilled. With regard to four of the bombs, it seems to me that there is no doubt that the respondent was in conscious possession or actual control with a guilty knowledge. These bombs were recovered from the southern portion of the Upper flat. Though the house itself belonged to the two brothers, the respondent himself admitted that the southern portion of the upper flat was his.: therefore, these four bombs were ‘recovered from the portion which was the reapondent's. Mr Safdar Imam appearing for the respondent, tried to show that the respondent was a constable who lived away from the village, and when he came to the house, he lived on the ground floor only. He drew our attention to the evidence of Iswar Bind (P.W 3) who said “Amir Hassan lives outside the village as he is in police service.” He also drew our attention to the fact that the uniform of a constable was recovered from the southern room of the ground floor. There is, however, good evidence in the record, which the learned Sessions Judge has accepted, that the respondent was discharged from the Police Department some years ago, and that he used to go about as a fakir and do other business (vide the evidence of Tejnarain Misra, P.W 6). Mr. Safdar Imam tried to explain the statement of the respondent by making a distinction between ‘living’ and ‘owning.’ I am unable to accept that explanation of the statement of the respondent. That statement shows clearly enough that four of the bombs were recovered from a portion of the upper flat which was the respondent's portion. I have already referred to the evidence that the respondent was seen in the house in the evening previous to the search. There is also evidence that his elder brother was suffering from pthisis for Borne months before the occurrence, and died after he had been committed to the Court of Session. The learned Sessions Judge has opened that the elder brother, who was a tubercular patient, might have secreted the bombs. It seems to me most unlikely that a person, who is suffering from pthisis and is on the verge of death, will think of secreting country made-live bombs in the house. After giving my most anxious consideration to the facts and circumstances, I have come to the conclusion that the only reasonable inference from the facts and circumstances proved in this case is that the respondent Amir Hasan, the younger brother, who was formerly in police Rervice, had kept at least those four bombs which were found in his portion of the house; the circumstances further show that he must have secreted the bombs between the wall and the thatch for another than lawful object.

12. There is no evidence that any of the women occupied that portion, nor is it likely that any of them would secrete the bombs in the way they were secreted between the thatch and the wall. I agree with the learned Sessions Judge that any hypothesis of planting by an outsider must be excluded in view of the facts and circumstances of this case.

13. For the reasons given above, I would allow this appeal, set aside the order of acquittal, convict the respondent of the offence under Section 5 of the Explosive Substances Act, and sentence him to rigorous imprisonment for three years.

14. Narayan, J.:— I agree.

G.M.J

15. Appeal allowed.