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TMI Blog1979 (8) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. - Criminal Appeal No. 98 of 1973 - - - Dated:- 23-8-1979 - Sarkaria, Ranjit Singh, Shingal, P.N. And Reddy, O. Chinnappa (J),JJ. JUDGMENT 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, 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 custodian. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eads 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 technical. "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cence 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 relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother 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 Proviso. 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. 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) an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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