Case ID: 4066

Judgment:
: 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. 85/72. 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 (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 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 (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 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 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. 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 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 29(b) 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 25(a) 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 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 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 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 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 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 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 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.

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 25(1)(a) and 27 of the Act. The Magistrate held that there were materials to make out a prima facie case under section 25(1)(c) of the Act against the gun licensee and under section 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 section 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 section 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 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; that in the circumstances of the instant case there was a clear prima facie case not only under section 29(b) 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 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 section 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 section 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. [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 29(b) 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. 55(1); 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.