SC – Citation for Discharge U-s 239 CrPC - Supdt. S. Remembrancer of legal affairs W.B. Vs. Anil Kumar Bhunja- AIR 1989 SC 52

SC – Citation for Discharge U-s 239 CrPC - Supdt. S. Remembrancer of legal affairs W.B. Vs. Anil Kumar Bhunja- AIR 1989 SC 52

 

Equivalent citations: 1980 AIR 52, 1980 SCR (1) 323

Bench: Sarkaria, R Singh

PETITIONER:

SUPDT. & REMEMBRANCER OF LEGAL AFFAIRS WEST BENGAL

Vs.

RESPONDENT:

ANIL KUMAR BHUNJA & ORS.

DATE OF JUDGMENT23/08/1979

BENCH:

SARKARIA, RANJIT SINGH

BENCH:

SARKARIA, RANJIT SINGH

SHINGAL, P.N.

REDDY, O. CHINNAPPA (J)

CITATION:

1980 AIR 52 1980 SCR (1) 323

1979 SCC (4) 274

CITATOR INFO :

RF 1986 SC2045 (45)

RF 1990 SC1962 (7)

ACT:

Arms Act 1959 (4 of 1959)-S. 29(b)-Scope of-Giving of fire-arms for limited purpose of repairs-Whether amounts to delivery of 'possession'-Great caution and discernment necessary in the application of the ratio of cases decided under the Arms Act of 1878 to those under the present Act. Words & Phrases-"Possession" meaning of-S. 29(b) Arms Act, 1959.

HEADNOTE:

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 Arms Act 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 s. 25(1)(c) of the Act against the gun-licensee and under s. 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 s. 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 s. 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

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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 s. 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 s. 29(b) but also under s. 30 read with s. 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 s. 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 s. 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 s. 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 Arms Act (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 v. Emperor, AIR 1928 All. 55(1); Sadh Ram v. State, AIR 1953 HP 121; Emperor v. Harpal Raj, ILR XXIV All. 454; A. Malcom v. Emperor, AIR 1933 Cal. 218; Emperor v. Koya Hansji, 14 Bom. L.R. 964; Parmeshwar Singh v. Emperor, AIR 1933 Pat. 600; Murli v. Crown, AIR 1929 All. 720; Tola Ram v. Crown, ILR 16 All. 276; held inapplicable.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: 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 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, 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-

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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 Arms Act (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 v. Emperor Sadh Ram v. State; Emperor v. Harpal Rai; A. Malcom v. Emperor; Emperor v. Koya Hansji; Parmeshwar Singh v.

328

Emperor; Gunwantlal v. State of Madhya Pradesh; and Sullivan v. 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 v. 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 Arms Act, 1959, 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 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.

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-

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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' Arms Act (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 v. Crown and Tola Ram v. 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 v. State, Emperor v. 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.

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