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TMI Blog1972 (5) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... ol over one revolver without a valid licence and that by so doing had committed an offence under Section 25(a) of the Indian Arms Act (hereinafter called the Act). 2. It appears that one Miroo who was accused of an offence under Section 302 of he Indian Penal Code gave information to the Police on 16-9-66, during the course of an investigation of that offence, that the appellant had given him a revolver which he had kept with one Chhaganlal at the Village Karoonda in the State of Rajasthan. On that information, the revolver was seized from the said Chhanganlal on the next day namely on 17-9-1966. The Police at Neemuch applied for sanction under Section 39 of the Act to prosecute the appellant for an offence under Section 25(a) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicant could be said to be in possession of the revolver, and whether the charge is substantiated or not could be decided only after the Magistrate proceeds with the trial, records the evidence and determines the credibility of the witnesses thereon. The High Court also thought that the Additional Sessions Judge while rejecting the revision was of the view that before the actual recovery of the revolver the appellant was in possession at some point of time and he was in constructive possession thereof on the date of its recovery. In these circumstances, it saw no illegality or impropriety in framing the charge and accordingly dismissed the revision. 3. Before us the learned advocate for the appellant contends that the High Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 which prohibits him to be in such possession without a licence. It may be mentioned that under Section 19 of The Arms Act of 1878, an offence corresponding to Section 25(1)(a) is committed if a person had in his or under his control any arms or ammunition in contravention of Section 14 and 15 of that Act. The word 'control' under Section 25(1)(a) has been omitted. Does this deletion amount to the legislature confining the offence only to the case of a person who has physical possession or does it mean that a person will be considered to be in possession of a firearm over which he has constructive possession or over which he exercises the power to obtain possession thereof when he so intends ?If the meaning to be given to the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence unless it can be shown that he had knowledge of the weapon being placed in his house. And yet again, if a gun or firearm is given to his servant in the house to clean it, though the physical possession is with him nonetheless possession of, it will be that of the owner. The concept of possession is not easy to comprehend as writers of (sic) have had occasions to point out. In some cases under Section 19(1)(f) of the Arms Act, 1878 it has been held that the word possession means exclusive possession and the word control means effective control but this does, not solve the problem. As we said earlier, the first precondition for an offence under Section 25(1)(a) is the element of intention, consciousness or knowledge with which a pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the word 'on or before' might cause embarrassment and prejudice to the defence of the accused because he will not be in a position to know what the (sic) actually intends to allege. From a reference of Form XXVIII of Schedule 5 of the CrPC, the mode of charging a person is that he 'on or about'...did the act complained of. In view of the forms of the charge given in the Schedule to the Code, we think that it would be fair to the appellant if the charge is amended to read on or about' instead of 'on or before' which we accordingly order. 6. Once we hold that the charge is not defective. it cannot be said tha it travels beyond the sanction acceded by the District Magistrate under Section 39 of the Arms Act as b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where facts do not appear on the face of the letter sanctioning prosecution, it is incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority. Under the Arms Act all that is required for sanction under Section 39 is, that the person to be prosecuted was found to be in possession of the firearm, the date or dates on which he was So found in possession and the possession of the firearm was without a valid licence. As all the elements are contained in the sanction in this case, it is not an illegal sanction nor can it be said that the charge travels beyond that sanction. 7. It is further contended as already indicated that the Court at Neemuch has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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