Lokur, J.
1. This is an application in revision against the petitioners' conviction under Rule 39(6) of the Defence of India Rules, 1939, and the sentence of rigorous imprisonment for three months passed on them by the City Magistrate at Nasik and confirmed in appeal by the Sessions Judge at Nasik.
2. On receiving information that a proclaimed offender named Naik was hiding in a room on the second floor of Batan Kasar's house, the District Superintendent of Police and the District Magistrate raided that room at 6 a. m. on August 3, 1943, but Naik was not found there. The two petitioners and two others named Shirsat and Khare were sleeping there, and when the room was searched, 58 pamphlets styled 'Kranti-kari' (Revolutionary) were found lying in an open tin case. As those pamphlets contained prejudicial reports, as defined in Rule 34(7) of the Defence of India Rules, all the four persons found in the room were prosecuted for having them in their possession, without lawful authority or excuse, in contravention of Rule 39(1)(b) of the Defence of India Rules. The case against Shirsat and Khare was subsequently withdrawn and the trial of the two petitioners was proceeded with. The defence of the petitioners was that they were not occupying that room, but having returned late at night from a cinema show, they had gone to sleep with their friends in that room. This has not been believed by the learned Magistrate and the Sessions Judge. Baban Kasar, the owner of the house, says that one Vishnu Sonar took the room on hire from him for giving it to some students, and that the two petitioners and their friends Shirsat and Khare were occupying it. Relying upon his evidence, the learned Magistrate found that the room was in the joint occupation of all those four students and convicted the petitioners under Rule 39(6) of the Defence of India Rules. The learned Sessions Judge agreed with his findings and confirmed the conviction and the sentence.
3. It is not disputed that the pamphlets found in the room contain prejudicial reports and it is not open to the petitioners to challenge the findings of fact that they were in joint occupation of that room. Rule 39(1)(b) of the Defence of India Rules says that no person shall, without lawful authority or excuse, have in his possession any document containing any prejudicial report, and any contravention of this sub-rule is punishable under Rule 39(6). The petitioners say that they knew nothing about the presence of the incriminating pamphlets in that room and that they were not in their possession. But Sub-rule (2) of Rule 39 provides:
Any person who, without lawful authority or excuse, has an any premises in his occupation or under his control any document containing any information likely to assist the enemy, any confidential information or any prejudicial report shall, unless he proves that he did not know, and had no reason to suspect, that the said document contained any such information or report as aforesaid, or that the said document was on such premises without his knowledge or against his consent, be deemed to have contravened this rule.
4. In spite of this sub-rule Mr. Bhalerao contends for the petitioners that when four persons were jointly occupying the room, it cannot be presumed that all of them had possession of the offending pamphlets, and that the prosecution must prove affirmatively that the pamphlets were in the conscious possession of the petitioners. In support of this contention he relies upon the remarks of Brough J. in Anantanath Chatterji v. King-Emperor I.L.R (1943) Pat. 549. In that case two documents containing prejudicial reports were found in a room in a house occupied by a highly respected pleader and his two sons. As the room was being used by the sons, both of them were prosecuted and convicted under Rule 39(6) of the Defence of India Rules. The eldest son, who was also a detenu under the Defence of India Rules, does not seem to have appealed, but the younger son's conviction, which was confirmed in appeal, was set aside in revision by the High Court. Brough J. held that of the two documents, at least one contained what might technically be regarded as a prejudicial report. But he thought that the prosecution had failed to prove that the accused was in possession of that document. Referring to Rule 39(2) he observed (p. 553):
'Occupation' must, in my judgment, be taken to mean effective occupation, that is to say, such an occupation as gives the alleged occupant effective control over the premises in question and I think where more than one person are together using premises which cannot be subdivided into separate parts each in the exclusive occupation of one person, no one can be said to be in occupation of the premises within the rule. as the room was jointly used by the accused and his brother the room was not in his occupation within the meaning of Rule 39(2).
5. He pointed out that otherwise even the father could not have escaped conviction, except by inducing one or other of his sons to confess.
6. Manohar Lall J. agreed with him in acquitting the accused, but on the ground that the documents did not contain any prejudicial report, and he deliberately refrained from giving any decision as to the interpretation of Rule 39(2).
7. Possession of firearms, ammunition etc., without a license is punishable under Section 19(f) of the Indian Arms Act; possession of explosives without a license is punishable under Section 5 of the Explosive Substances Act; possession of illicit liquor without a license is punishable under the Bombay Abkari Act; under Section 114, ill. (a), of the Indian Evidence Act, 1872, possession of stolen goods soon after the theft raises a presumption that the possessor is either the thief or has received the goods knowing them to be stolen. In all these and similar cases the question of the liability of a number of persons who are in joint occupation of the place where the incriminating articles are found arises very often. The law on the subject is in an unsatisfactory state ; and it is not easy to reconcile the various judicial decisions on the point, the most recent of which is that given by a full bench of the Lahore High Court in Emperor v. Santa Singh A.I.R [1944] Lah. 339.
8. In Dula Singh v. The Crown I.L.R (1928) Lah. 531 Shadi Lal C.J., after referring to the unsatisfactory state of the law on the subject, observed that there were certain propositions founded upon common sense, which could not admit of any doubt. His observations are worth repeating (p. 534):
It may be stated at the outset that the law does not require that the incriminating article must be in the manual possession of the accused. A thing is in the possession of a person, if it is in his power or under his control. It is at the same time clear that the mere fact that an article is found in a house belonging to the joint family does not, per se, render every member of the family liable for its possession. If it is found in a portion of the house, of which one member has the exclusive use, the presumption, which might be rebutted, is that that member alone and none else is liable for it. The difficulty arises when the portion of the house, where the article is found, is not in the exclusive possession of any particular member, but is used by, or accessible to, all the members of the family. In such a case the rule, as enunciated in Queen-Empress v. Sangam Lal I.L.R (1893) All. 129 and followed in several other judgments, is to the effect that there is no presumption that the article is in the possession or control of any person other than the house-master or the head of the family.
9. It is this last proposition, with which we are concerned, which has given rise to a sharp difference of opinion. In Mangar Koiri v. King Emperor I.L.R (1936) Pat. 696, Sangam Lal's case was followed, and in the absence of evidence to the contrary, the head of the family alone was held to be in possession of the weapon found in the house occupied by the joint-family. On the other hand in Harsha Nath Chaterjee v. Emperor I.L.R (1914) Cal. 1153 where two persons had rented and were living in the house in which unlicensed arms were found, they were both held to be in possession of the arms. In Emperor v. Sikhdar I.L.R (1931) All. 411 Bennet J. (sitting singly) took the same view and said that it was for the persons so living to prove that they were not in possession. In Ram Charan v. Emperor A.I.R [1933] All. 437 Niamatullah J. (also sitting alone) disapproved of both these views and held that there was no presumption either that the head of the family was in possession or that all the joint occupants of the house were in possession. Similarly Bennet J.'s view in Sikhdar's case was expressly dissented from in Emperor v. Kaul Ahir I.L.R (1932) All. 112 and the head of the family was not held to be in possession of cartridges found in a corn-bin among ghee, butter and other articles on the ground that women of the house looked after the corn-bin and house-hold articles.
10. According to the decision of the full bench in Emperor v. Santa Singh possession and control required to constitute an offence must mean conscious possession and actual control. A man must know of the existence of the incriminating articles before he can be said to have it in his possession or under his control. It is possible that an article may be in such possession or under such control of more than one person. Every case must depend upon its own particular facts and it has to be decided on the evidence in each case whether the possession of or control over the incriminating article by the person or persons accused is or is not proved.
11. Ordinarily the onus of proving this lies on the prosecution, and it is not unlikely that when an incriminating article is found in a house jointly occupied by several persons, it may be impossible for the prosecution to prove that any particular occupant or occupants had possession of it or control over it. Hence in some cases an attempt was made to shift the burden of proof by invoking the aid of Section 106 of the Indian Evidence Act which provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. But in Ram Bharosey v. Emperor : AIR1936All833 that section was held not applicable to such cases. In Santa Singh's case Harries C.J. pointed out that Section 106 could not be used to strengthen the evidence for the prosecution. Before the onus shifts to the accused, the prosecution must make out a prima facie case, and mere proof that an incriminating article is found in premises occupied by a number of persons does not in itself establish prima facie the guilt of any person or all of them jointly and they cannot be called upon after such evidence to establish their innocence.
12. But during the emergency brought about by the present war conditions, drastic measures were thought necessary, and the burden of proof, which could not be thrown on the accused under Section 106 of the Indian Evidence Act, has been expressly thrown upon them by Sub-rule (2) of Rule 39 of the Defence of India Rules. In some cases the accused may find it hard to discharge the burden, in much the same way as the prosecution would find in normal times in the absence of such a special provision. In Anantanath Chatterji v. King-Emperor Brough J. has expressed his righteous indignation at the very possibility of an innocent person being penalised for the mischief of a co-occupant of the premises where a document containing any prejudicial report is found. But the Central Government having thought it necessary or expedient to make such a rule in exercise of the emergency powers under Section 2 of the Defence of India Act, it is not within the province of the Courts to consider the necessity or the expediency of the rule. It is not contended that the rule is ultra vires and Courts have to enforce it as it stands. Brough J. has tried to get over it by interpreting the word 'occupation' as 'effective' occupation, meaning thereby exclusive occupation; but there is no justification for introducing into the rule a qualifying word, which is not there and which effectively frustrates the very purpose of the rule. He says that as the accused is not allowed to give evidence on oath, he has no chance of proving his innocence and that this 'revolts his sense of justice'. But as pointed out by Manohar Lall J. it is open to him to prove his innocence by means of circumstances and facts elicited in the course of cross-examination or by leading evidence on his behalf or by giving some sort of explanation when he is examined under Section 342 6f the Criminal Procedure Code. Whether the rule be good or bad, just or unjust, necessary or superfluous, it is there, and Courts must give effect to it according to its plain meaning.
13. The rule had to be interpreted by a division bench of this Court in Emperor v. Sumatibai Wasudeo (1943) 46 Bom. L.R. 102. Some prejudicial reports were found in a house occupied by a husband and wife, and in the absence of the husband, the wife had the key of the trunk in which the incriminating documents were found. Both were prosecuted and convicted under Rule 39(6) of the Defence of India Rules. In acquitting the wife, Beaumont C.J. held that though a wife, in a loose sense, occupied the house in which she lived with her husband, he was the occupier of the house and she could not be said to have been in legal occupation of it. The reasoning adopted clearly shows that if she could be held to have been a joint occupant, then she too would be guilty.
14. We, therefore, hold that when a document, containing any prejudicial report is found in a house or on premises jointly occupied by several persons, every such occupant will be deemed to have contravened Rule 39(1)(b) of the Defence of India Rules, unless he proves that he did not know and had no reason to suspect that the Said document contained any prejudicial report or that it was in such house or on such premises without his knowledge or against his consent. As the accused have failed to discharge this burden of proof, their conviction must be upheld.
15. It was also argued for the petitioners that Rule 39(1)(b) of the Defence of India Rules was itself ultra vires the Central Government, but it has been held by this Court in Annaji Balkrishna Barve v. Emperor (1944) 47 Bom. L.R. infra. that the rule is not ultra vires and this contention does not survive.
16. The rale is discharged.