Supdt. & Remembrancer of Legal
Affairs West Bengal Vs. Anil Kumar Bhunja & Ors  INSC 156 (23 August
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION: 1980 AIR 52 1980 SCR (1) 323 1979
SCC (4) 274
CITATOR INFO :
RF 1986 SC2045 (45) RF 1990 SC1962 (7)
Arms Act 1959 (4 of 1959)-S. 29(b)-Scope
of-Giving of fire-arms for limited purpose of repairs-Whether amounts to
delivery of 'possession'-Great caution and discernment necessary in the
application of the ratio of cases decided under the Arms Act of 1878 to those
under the present Act.
Words & Phrases-"Possession"
meaning of-S. 29(b) Arms Act, 1959.
The prosecution alleged that the police
officers of the appellant state while investigating a case discovered a
workshop run by a mechanic who was then actually working on a revolver. Several
other guns, revolvers and rifles were found in the workshop and all these
fire-arms were seized.
The mechanic claimed to have received one of
the guns so seized from a gun-licensee and the rest from respondents 1 to 4 for
repairs. The mechanic had no valid licence under the Arms Act to keep or repair
these fire-arms but respondent No. 4 however possessed licences under the Act
to run the business of repairing and dealing in fire-arms. The police
charge-sheeted the mechanic, the gun licensee and respondents 1 to 4, for
having committed offences under Sections 25(1)(a) and 27 of the Act.
The Magistrate held that there were materials
to make out a prima facie case under s. 25(1)(c) of the Act against the
gun-licensee and under s. 29(b) of the Act against the mechanic and charged
them accordingly. As regards Respondents 1 to 4 taking the view that giving of
the arms to the mechanic by the respondents for the limited purpose of repairs,
did not amount to delivery of 'possession' of those arms within the meaning of
s. 29(b) of the Act, he discharged the said respondents.
The appellant's criminal revision against the
said order, was dismissed, the High Court holding that Respondents 1 to 4 could
not be said to have delivered the fire-arms into the 'possession' of the
mechanic within the meaning of s. 29(b) of the Act, because the respondents
possessed valid licences for repairs as well as for sale of fire-arms and had
given only 'temporary' custody of those arms to the mechanic for the limited
purpose of carrying out the repair job, while the effective control over those
arms all the time remained with the respondents.
In appeal to this Court it was contended on
behalf of the appellant-State that the question whether a person is in
possession of a fire-arm or had transferred and delivered it to another, is
largely one of fact; that in the instant case, the mechanic was not a servant
or employee of the respondents but was independently running his own business
of repairing fire-arms; that the fire-arms were handed over by the respondents
to the mechanic to be repaired at the latter's residence-cum-workshop which was
not the respondent's licensed place 324 of business; that the mechanic had no
licence for repairing or keeping fire-arms and the respondents were either
aware of this fact or did not ascertain it before delivering the fire-arms to
him, that 'possession' within the purview of s. 29(b) means immediate
possession and consequently, delivery of even temporary possession and control
to an unauthorised person falls within the mischief of the section; that in the
circumstances of the instant case there was a clear prima facie case not only
under s. 29(b) but also under s. 30 read with s. 5 of the Act, against the
Respondents and consequently the Magistrate was not justified in discharging
On behalf of the Respondents it was contended
that the mechanic was only in temporary custody of the fire-arms for the
limited purpose of repairing them, as an agent of the owners, who being
licencees in Form IX entitled to repair and keep these fire arms, throughout
remained in their lawful possession and control. The delivery of possession
contemplated by s. 29(b) is something more than entrusting the arms to an
'agent' for the limited purpose of repairs.
Allowing the appeal,
HELD: 1. "Possession" is a
polymorphous term which may have different meanings in different contexts. It
is impossible to work out a completely logical and precise definition of
"possession" uniformly applicable to all situations in the contexts
of all statutes. "Possession" implies a right and a fact; the right
to enjoy annexed to the right of property and the fact of the real intention.
It involves power of control and intent to control. [328D-E]
"Possession" is not a purely legal concept but also a matter of fact,
and the broad test for determining whether a person is in possession of
anything is whether he is in general control of it. [328H-329A] Salmond's
Jurisprudence 11th Edn. p. 52 referred to.
In the instant case although the respondents
held licences in Form IX for repairing and dealing in fire-arms at the place of
business, factory or shop which was specified in Column 3 of their licences,
they handed over the fire-arms to the mechanic who had no such licence to be
repaired at the latters own workshop. Since that workshop and the repairing
business being run therein, was in the exclusive control and occupation of the
mechanic, the inference would be that by handing over the fire-arms to the
mechanic for repair the respondents had divested themselves for the time being
not only of physical possession but also of effective control over those
fire-arms. The respondents had not done anything to ascertain whether the
mechanic was legally authorised to retain those fire-arms even for the limited
purpose of repairing them. Prima facie the materials before the Magistrate
showed that the respondents had delivered the fire-arms in question into the
possession of the mechanic without previously ascertaining that he was legally
authorised to have the same in his possession, and as such, they appeared to
have committed an offence under s.
29(b) of the Act. [330B-C, 330G-331A]
3. By allowing the fire-arms to be removed to
a place other than the place of business or factory specified in Column 3 of
the licences in Form IX, the respondents contravened condition (1)(c) of the
licence, amounting to an offence punishable under s. 30 of the Act. [331 B-C]
325 The materials before the Magistrate, prima facie disclosed the commission
of offences under Sections 29(b) and 30 of the Act by Respondents 1 to 4. The
Magistrate was thus clearly in error in discharging these respondents.
4. The ratio of cases decided under the Old
Arms Act (Act 11 of 1878) should not be blindly applied to cases under the Act
of 1959 which has in several aspects modified or changed the law relating to
the regulation of arms.
5. Trial of summons case as a warrant case
does not amount to an illegality but is a mere irregularity that does not
vitiate the trial unless there is a prejudice.
6. Case remitted to trial Magistrate with
direction to frame charges in respect of offences under Sections 29(b) and 30
of the Act against Respondents 1 to 4 and to proceed further with the trial.
[333C] Manzur Hussain v. Emperor, AIR 1928 All. 55(1); Sadh Ram v. State, AIR
1953 HP 121; Emperor v. Harpal Raj, ILR XXIV All. 454; A. Malcom v. Emperor,
AIR 1933 Cal. 218;
Emperor v. Koya Hansji, 14 Bom. L.R. 964;
Parmeshwar Singh v. Emperor, AIR 1933 Pat. 600; Murli v. Crown, AIR 1929 All.
720; Tola Ram v. Crown, ILR 16 All. 276; held
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 98 of 1973.
Appeal by Special Leave from the Judgment and
Order dated 16-8-1972 of the Calcutta High Court in Criminal Revision No.
M.M. Kshatriya, G.S. Chatterjee and D.N.
Mukherjee for the Appellant.
A.K. Gupta for Respondents 1 and 3.
H.K. Puri for Respondents 2 and 4.
The Judgment of the Court was delivered by
SARKARIA, J.-Whether the giving of fire-arms by a person holding a licence for
repairing and dealing in fire- arms for repairs to mechanic who holds no such
licence, but does the repair job at his workshop at a place different from the
factory or place of business of the licence holder, amounts to "delivery
of those arms into the possession of another person" within the
contemplation of Section 29(b) of the Arms Act, 1959 (For short, called the
'Act'), is the principal question that falls to be answered in this appeal by
special leave directed against a judgment, dated August 16, 1972, of the High
Court of Calcutta. It arises in these circumstances:
On or about April 17, 1971, the Calcutta
Police while investigating a case, went to premises No. 4, Ram Kanai Adhikari
Lane in Calcutta, and, on the ground floor of the building, they discovered a
workshop run by Mrityunjoy Dutta, who was then working on a re- 326 volver. In
the said premises, the police found several other guns, revolvers and rifles.
All these fire-arms were seized by the police.
Mrityunjoy Dutta claimed to have received one
of the guns so seized from one Matiar Rahaman gun-licensee and the rest from
respondents 1 to 4 for repairs. Mrityunjoy Dutta had no valid licence to keep
or repair these fire-arms under the Act. Respondents 1 to 4, however, were
holding licences under the Act to run the business of repairing and dealing in
On April 17, 1970, the police charge-sheeted
Mrityunjoy Dutta, Matiar Rahaman and respondents 1 to 4 to stand their trial in
the Court of the Presidency Magistrate, in respect of offences under Sections
25(1) (a) and 27 of the Act.
The trial Magistrate, while considering the
question of framing charges, held that there were materials to make out a prima
facie case under Section 25(1) (c) of the Act against Mrityunjoy Dutta and
under Section 29(b) of the Act against Matiar Rahaman, and charged them
accordingly. So far as respondents 1 to 4 are concerned, the Magistrate took
the view that the giving of the arms to the accused Dutta, by respondents 1 to
4 for the limited purpose of repairs, did not amount to delivery of possession
of those arms within the meaning of Section 29(b) of the Arms Act (Act
IV/1959), and in the result, he discharged the respondents by an order, dated
November 17, 1971.
Aggrieved, the State of West Bengal filed a
Criminal Revision against the Magistrate's order before the High Court,
contending that delivery of the arms, into the possession of a person who did
not have a valid licence for repairs of fire-arms, is not only a contravention
of the provisions of Section 5 of the Act, but also amounts to delivery of
fire-arms by the respondents into the possession of Mrityunjoy Dutta and, as such,
the respondents were prima facie liable for an offence under Section 29(b) of
The Division Bench of the High Court, who
heard the Revision, dismissed it with the reasoning, that Respondents 1 to 4,
could not be said to have delivered the fire-arms, concerned into the
possession of Mrityunjoy Dutta within the meaning of Section 29(b) of the Act,
because the respondents who possessed valid licences for repairs as well as for
sale of fire-arms, had given only temporary custody of those arms to Mrityunjoy
Dutta for the limited purpose of carrying the repair job, while the effective
control over those arms all the time remained with the respondents. In its
view, there is no delivery of possession of the fire-arms so long as control
over the arms and the authority to use those arms is not transferred to the
327 Hence, this appeal.
The whole case pivots around the
interpretation and application of the term "possession", used in
Section 29(b) of the Act.
Learned counsel for the appellant-State
contends that the question whether a person is in possession of an arm or had
transferred and delivered it to another, is largely one of fact. It is
submitted that in the instant case, there were three stark facts which more
than any other, unmistakably showed that the respondents had given possession
of these fire-arms to Mrityunjoy Dutta: (a) Mrityunjoy Dutta was not a servant
or employee of the respondents, but was running his own business of repairing
fire-arms. (b) The fire-arms were handed over to Mrityunjoy Dutta to be
repaired at his own residence-cum-workshop which was not the respondents
licensed place of business, and was in the exclusive control and occupation of
Dutta. (c) Mrityunjoy Dutta had no licence for repairing or keeping fire-arms
and the respondents were either aware of this fact or did not ascertain it
before delivering the fire-arms to him. It is maintained that "possession,
within the purview of Section 29(b) means immediate possession, and
consequently, delivery of even temporary possession and control to an
unauthorised person falls within the mischief of the Section. It is further
urged that the delivery of fire-arms for repairs to the unlicensed mechanic for
repairs, to be carried out at a place other than the factory or place of
business specified in the licence of the owners, will amount to an offence
under Section 30 read with Section 5 of the Act also.
As against this, Mr. Anil Kumar Gupta has
addressed lengthy arguments to support the judgments of the Courts below. The sum
and substance of his arguments is that the mechanic, Dutta, was only in
temporary custody of these arms for the limited purpose of repairing them, as
an agent of the owners, who being licensees in Form IX entitled to repair and
keep these fire-arms, throughout remained in their lawful possession and
control. It is maintained that the delivery of possession contemplated by
Section 29(b) is something more than entrusting the arms to an agent for the
limited purpose of repairs. In support of this contention, Mr. Gupta has cited
several decisions. Particular reliance has been placed on Manzur Hussain v.
Emperor Sadh Ram v. State; Emperor v. Harpal Rai; A. Malcom v. Emperor; Emperor
v. Koya Hansji; Parmeshwar Singh v.
328 Emperor; Gunwantlal v. State of Madhya
Pradesh; and Sullivan v. Earl of Caithness.
Reference was also made to Halsbury's Laws of
25, Third Edition, page 874, and Salmond's
Jurisprudence, 11th Edition.
It was next contended that even if the term
"possession" in Section 29(b) is susceptible of two interpretations,
the one favourable to the accused be adopted. In this connection reference has
been made to Woodage v. Moss.
The last submission of Mr. Gupta is that
since these criminal proceedings have been brooding over the heads of the
respondents for the last eight years, this Court should not, even if it
reverses the opinion of the courts below, direct the Magistrate to frame
charges against the respondents and to proceed with the trial. It is emphasised
that in any event, the offence disclosed against the respondents was purely
"Possession" is a polymorphous term
which may have different meanings in different contexts. It is impossible to
work out a completely logical and precise definition of "possession"
uniformly applicable to all situations in the contexts of all statutes. Dias
& Hughes in their book on Jurisprudence say that if a topic ever suffered
from too much theorizing it is that of "possession". Much of this
difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th
Edition, 1966) caused by the fact the possession is not purely a legal concept.
"Possession", implies a right and a fact; the right to enjoy annexed
to the right of property and the fact of the real intention. It involves power
of control and intent to control.
(See Dias and Hughes, ibid) According to
Pollock & Wright "when a person is in such a relation to a thing that,
so far as regards the thing, he can assume, exercise or resume manual control
of it at pleasure, and so far as regards other persons, the thing is under the
protection of his personal presence, or in or on a house or land occupied by
him or in any receptacle belonging to him and under his control, he is in
physical possession of the thing".
While recognising that "possession"
is not a purely legal concept but also a matter of fact; Salmond (12th Edition,
page 52) describes "possession, in fact", as a relationship between a
person and a thing.
329 According to the learned author the test
for determining "whether a person is in possession of anything is whether
he is in general control of it".
In Gunwantlal (ibid), this Court while noting
that the concept of possession is not easy to comprehend, held that in the
context of Section 25(a) of the Arms Act, 1959, the possession of a fire-arm
must have, firstly, the element of consciousness or knowledge of that
possession in the person charged with such offence, and secondly, he has either
the actual physical possession of the fire-arm, or where he has not such
physical possession, he has nonetheless a power or control over that weapon. It
was further recognised that whether or not the accused had such control or
dominion to constitute his possession of the fire-arm, is a question of fact
depending on the facts of each case. In that connection, it was observed:
"In any disputed question of possession, specific facts admitted or proved
will alone establish the existence of the de facto relation of control or the
dominion of the person over it necessary to determine whether that person was
or was not in possession of the thing in question".
With this guiding criterion in mind, the
Magistrate had to see whether the facts alleged and sought to be proved by the
prosecution prima facie disclose the delivery of the fire-arms by the
respondents into the possession of Mrityunjoy Dutta, without previously
ascertaining whether the recipient had any licence to retain and repair those
fire-arms within the contemplation of Section 29(b).
It may be remembered that the case was at the
stage of framing charges; the prosecution evidence had not yet commenced. The
Magistrate had therefore, to consider the above question on a general
consideration of the materials placed before him by the investigating police
officer. At this stage, as was pointed out by this Court in State of Bihar v.
Ramesh Singh, the truth, veracity and effect of the evidence which the
prosecutor proposes to adduce are not to be meticulously judged. The standard
of test, proof and judgment which is to be applied finally before finding the
accused guilty or otherwise, is not exactly to be applied at the stage of
Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even
a very strong suspicion founded upon materials before the Magistrate, which
leads him to form a presumptive opinion as the existence of the factual
ingredients constituting the offence alleged; may justify the framing of charge
against the accused in respect of the commission of the offence.
330 Now, in the instant case, at that initial
stage, it was apparent from the materials before the Magistrate, that the basic
facts proposed to be proved by the prosecution against the accused-respondents
were as follows:
(a) That the respondents held licences, inter
alia, in Form IX for repairing and dealing in fire-arms at the place of
business, factory or shop specified in the Column 3 of their licences.
(i) The respondents handed over the fire-arms
in question to Mrityunjoy Dutta for repairs.
(ii) Mrityunjoy Dutta did not have any
license for repairing or dealing in fire-arms;
(iii) (a) Mrityunjoy Dutta was doing the
repair job in respect of these fire-arms at his own residence-cum-workshop
which was situated at a place different from the business places specified in
the licences of the respondents.
(b) The fire-arms in question were seized
from the workshop-cum-house in the occupation and control of Mrityunjoy Dutta,
when the latter was actually in the act of repairing working on a revolver.
There is nothing in these materials to show
that at the time of the seizure of these fire-arms, any of the respondents or
any Manager of their concerns, was found present and personally supervising the
repair work that was being done by the mechanic, Mrityunjoy Dutta.
These positive and negative facts, in
conjunction with other subsidiary facts, appearing expressly or by implication
from the materials which were before the Magistrate at that initial stage were,
at least, sufficient to show that there were grounds for presuming that the
accused-respondents had committed offences under Sections 29(b) and 30 of the
Act. Facts (iii) (a) & (b) listed above, inferentially show that by handing
over the fire-arms to Mrityunjoy Dutta to be repaired at the latter's
independent workshop, the respondents had divested themselves, for the time
being, not only of physical possession but also of effective control over those
fire-arms. There is nothing in those materials to show that before handing over
those fire- arms to Mrityunjoy Dutta for repairs, the respondents had done
anything to ascertain that Mrityunjoy Dutta was legally authorised to retain
those arms even for the limited purpose of repairing them. Thus, prima facie
the materials before the Magistrate showed that the respondents had delivered
the fire-arms in question into the possession of Mrityunjoy Dutta, without
previously ascertaining that he was legally authorised to have the same in his
pos- 331 session, and as such, the respondents appeared to have committed and
offence under Section 29(b) of the Act.
Further, by allowing the fire-arms to be
removed to a place other than the places of their business or factory specified
in Column 3 of their licences in Form IX, the respondents appear to have
contravened condition 1(c) of their licence, the material part of which reads
"(c) This licence is valid only so long
as the licensee carries on the trade or business in the permises shown in
Column 3 thereof.. " Contravention of any condition of the licence amounts
to an offence punishable under Section 30 of the Act.
In sum, the materials before the Magistrate,
prima facie disclosed the commission of offences under Sections 29(b) and 30 of
the Act by respondents 1 to 4. The Magistrate was thus clearly in error in
discharging these accused-respondents.
We do not think it necessary to notice and
discuss in detail the various decisions cited by the counsel at the bar,
because, as mentioned earlier, the question whether a particular person is or continues
to be in possession of an arm (in the context of the Act) is, to a substantial
extent, one of fact. This question, often resolves into the issue:
whether that person is or continues to be, at
the material time, in physical possession or effective control of that arm.
This issue, in turn, is a mixed issue of fact and law, depending on proof of
specific facts or definite circumstances by the prosecution.
At this preliminary stage, therefore, when
the prosecution has yet to lead evidence to prove all the facts relevant to
substantiate the ingredients of the charge under Section 29(b) levelled against
these respondents, a detailed discussion of the principles enunciated in the
cited decisions, is apt to partake of the character of a speculative exercise.
It will be sufficient to say in passing that
almost all the decisions of the High Courtís cited before us were cases under
the 'Old' Arms Act (Act 11 of 1878). The ratio of cases decided under the 'Old'
Act should not be blindly applied to cases under the Act of 1959 which has, in
several aspects modified or changed the law relating to the regulation of arms.
For instance under the 'Old' Act, repairing of arms without a licence, was not
punishable, as 'repair' was different and distinct 332 from manufacture. In
Murli v. Crown and Tola Ram v. Crown it was held that a person in temporary
possession of arms without a licence, for repairing purposes was not guilty
under Section 19 of the Act of 1878. But section 5 of the present Act of 1959,
has materially altered this position by requiring the obtaining of a licence
for-repairing fire-arms (or other arms if so prescribed). Further, the word
"keep" occurring in Section 5 of the 'Old' Act has been replaced by
the words "have in his possession" in the present Section.
Then in three of these cases, namely, Manzur
Husain, Sadh Ram v. State, Emperor v. Harpal Rai, the license-holder sent his
licensed firearm for repairs through a person who had the license-holders' oral
authority, expressly or impliedly given, to carry it to the repairer. It was
held that the carrier, though he held no licence to keep the fire-arm, could
not be said to be in "possession" of it, nor could the license-holder
be said to have parted with the "possession" of the fire-arm or
delivered its possession to an unauthorised person. Similarly, in one of the
cases cited, the license-holder sent his fire-arm to the Magistrate through his
servant or agent for getting the licence renewed. In that case also, it was
held that the servant was not guilty of any offence for having in his
possession or "carrying" a gun without a licence. The possession was
held to be still with the license-holder- owner of the weapon.
The rule enunciated in these decisions has
been given a limited recognition in the Proviso to Section 3 of the Act of
1959. Under this Proviso, if a licensed weapon is carried to an authorised
repairer by another having no licence, he will not be guilty for carrying that
fire-arm, if he has a written authority of the license-holder for carrying that
weapon to a repairer. Similarly, for carrying a licensed fire-arm to the
appropriate authority for renewal of the license, written authority of the
owner of the weapon is essential to bring him within the protection of the
In some of these cases referred to by the
counsel, a person was carrying or was in custody of a licensed weapon for use
by the licensee. Now, the Proviso to Section 3 of the present Act, protects
such carriers or custodians of weapons for use by the license holder, only if
they do so in the presence of the license-holder concerned. We have referred,
by way of example, some of these changes brought about by the Act of 1959, only
to impress on the trial court that in considering the application of the ratio
of the cases decided under the Act of 1878, to those under the present Act
great caution and discernment is necessary.
333 For all the reasons aforesaid, we allow
this appeal and set aside the orders of the Courts below whereby respondents 1
to 4, herein, were discharged. Although offences under Section 29(b) and 30 of
the Act are summons cases, the Magistrate has followed the warrant procedure,
obviously because an offence under Section 25 of the Act, for which Mrityunjoy
Dutta was being jointly tried with Respondents 1 to 4, was a warrant case.
Moreover, trial of a summons case as a warrant case does not amount to an
illegality, but is a mere irregularity that does not vitiate the trial unless
there is prejudice. We therefore, send the case back to the trial Magistrate with
the direction that he should frame charges in respect of offences under
Sections 29(b) and Section 30 of the Act against the accused- respondents 1 to
4 and proceed further with the trial in accordance with law. We decline the
submission made on behalf of these respondents that on account of their
prolonged harassment and expense, which are the necessary concomitants of
protracted criminal proceedings extending over eight years, they should not be
put on trial now for offences which, according to the counsel, are merely
technical. Even so, we think, this is a circumstance to be taken into
consideration by the trial court in fixing the nature and quantum of sentence,
in the event of the accused being found guilty.
Before parting, with this judgment, we will
however, set it down by way of caution that the Magistrate while assessing the
evidence and recording his findings on its basis with regard to proof or
otherwise the factual ingredients of the offences with which the accused may
stand charged, shall not allow himself to be unduly influenced by anything said
in this judgment in regard to the merits of the case.
N.V.K. Appeal allowed.