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 8572
MM Kshatriya GS Chatterjee and DN Mukherjee for the Appellant
AK Gupta for Respondents 1 and 3
HK 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 29b of the 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 fire arms
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 251 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 251 c of the Act against Mrityunjoy Dutta and under Section 29b 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 29b of the Act IV1959 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 29b of the Act
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 29b 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
327 Hence this appeal
The whole case pivots around the interpretation and application of the term possession used in Section 29b 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 29b 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 29b 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 vs Emperor Sadh Ram vs State Emperor vs Harpal Rai A Malcom vs Emperor Emperor vs Koya Hansji Parmeshwar Singh vs 328 Emperor Gunwantlal vs State of Madhya Pradesh and Sullivan vs Earl of Caithness
Reference was also made to Halsbury s Laws of England Vol 25 Third Edition page 874 and Salmond s Jurisprudence 11th Edition
It was next contended that even if the term possession in Section 29b is susceptible of two interpretations the one favourable to the accused be adopted
In this connection reference has been made to Woodage vs 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 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 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 25a of the  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 29b
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 vs 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 29b 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 29b 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 1c of their licence the material part of which reads as under 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 29b 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 29b 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 Courts cited before us were cases under the Old  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 vs Crown and Tola Ram vs 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 vs State Emperor vs 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 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
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 29b 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 29b 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
NVK Appeal allowed


Summary:
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 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 251a and 27 of the Act
The Magistrate held that there were materials to make out a prima facie case under section 251c of the Act against the gun licensee and under section 29b 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 section 29b 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 section 29b 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 section 29b 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 section 29b but also under section 30 read with section 5 of the Act against the Respondents and consequently the Magistrate was not justified in discharging them
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 section 29b 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 section 29b 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 1c of the licence amounting to an offence punishable under section 30 of the Act
331 B C 325 The materials before the Magistrate prima facie disclosed the commission of offences under Sections 29b and 30 of the Act by Respondents 1 to 4
The Magistrate was thus clearly in error in discharging these respondents
331D 4
The ratio of cases decided under the Old 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
331H 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
333 B 6
Case remitted to trial Magistrate with direction to frame charges in respect of offences under Sections 29b and 30 of the Act against Respondents 1 to 4 and to proceed further with the trial
333C Manzur Hussain vs Emperor AIR 1928 All
551 Sadh Ram vs State AIR 1953 HP 121 Emperor vs Harpal Raj ILR XXIV All 454 A Malcom vs Emperor AIR 1933 Cal
218 Emperor vs Koya Hansji  Parmeshwar Singh vs Emperor AIR 1933 Pat
600 Murli vs Crown AIR 1929 All 720 Tola Ram vs Crown ILR 16 All
276 held inapplicable