1979 (8) TMI 204 - SC - Indian Laws

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? Held that - 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 possession, 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 - Appeal allowed and set aside the orders of the Courts below whereby respondents 1 to 4, herein, were discharged.

Issues Involved:
1. Interpretation of "possession" under Section 29(b) of the Arms Act, 1959.
2. Whether the delivery of firearms for repair to an unlicensed mechanic constitutes an offense under Section 29(b) and Section 30 of the Arms Act, 1959.
3. The validity of the trial Magistrate's decision to discharge respondents 1 to 4.
4. The impact of prolonged criminal proceedings on the accused.

Detailed Analysis:

1. Interpretation of "possession" under Section 29(b) of the Arms Act, 1959:
The term "possession" is central to the case. The court recognized that "possession" is a polymorphous term with different meanings in different contexts. It involves both a right and a fact, implying control and intent to control. The court cited jurisprudence to emphasize that possession is not purely a legal concept but also a matter of fact. The test for determining possession is whether a person has general control over the item.

2. Whether the delivery of firearms for repair to an unlicensed mechanic constitutes an offense under Section 29(b) and Section 30 of the Arms Act, 1959:
The court examined whether handing over firearms for repair to an unlicensed mechanic amounts to delivering possession under Section 29(b). The prosecution argued that the respondents had given possession to Mrityunjoy Dutta, who was not authorized to repair or keep firearms. The court noted that the respondents had divested themselves of physical possession and effective control over the firearms by handing them to Dutta. The materials before the Magistrate indicated that the respondents did not ascertain whether Dutta was legally authorized to retain the firearms for repair, suggesting a prima facie case under Sections 29(b) and 30 of the Act.

3. The validity of the trial Magistrate's decision to discharge respondents 1 to 4:
The trial Magistrate had discharged respondents 1 to 4, concluding that giving firearms to Dutta for repair did not amount to delivering possession under Section 29(b). The High Court upheld this decision, reasoning that the respondents retained effective control over the firearms. However, the Supreme Court disagreed, stating that the Magistrate erred in discharging the respondents. The materials before the Magistrate at the initial stage were sufficient to show grounds for presuming that the respondents had committed offenses under Sections 29(b) and 30 of the Act.

4. The impact of prolonged criminal proceedings on the accused:
The respondents argued that the prolonged criminal proceedings, extending over eight years, should preclude further trial. The court acknowledged the prolonged harassment and expense but declined to dismiss the charges on these grounds. Instead, it suggested that the trial court consider this factor when determining the nature and quantum of the sentence if the accused are found guilty.

Conclusion:
The Supreme Court allowed the appeal, set aside the lower courts' orders discharging respondents 1 to 4, and directed the trial Magistrate to frame charges under Sections 29(b) and 30 of the Arms Act against the accused and proceed with the trial. The court emphasized that the trial Magistrate should not be unduly influenced by the Supreme Court's observations when assessing the evidence and recording findings. The appeal was allowed, and the case was remanded for trial.

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