GUNWANTLAL versus THE STATE OF MADHYA PRADESH

THE SfATE OF MADHYA l'Rl\DF.511 May 3,. 1972

{P, ]AGANMQHAN REDDY, K. K. MATHEW AND G. K. MITTER, ]J.}

The Arms Act 54 of 1959, S. 25(a)-Possession of fire arm wheth.111 includes constvuctive pos~essiori--Code of Criminal Procedure s. 39-SIJllClion for wosecutio7>-Validity of.

M who was accu ed of an offe11ce undel: s. 302 of the Indian ~nal Code gave inf911),latlon t\> the PQ!ice on S:plember 16 1966 · dur.na the coorse of investigation of that offence that the appeUant had given !iim. revolver whien he had kept with one at villa11e Karoonda in tbe State of Rajastban. On that information tm revolver waa l!lf'@<i frllD! the next day oomely, Septembec 17, 1966. The po.ice at Neemucli in Madhya ~ 11Pplied for sanction under s. 39 of ~ J\ct to prosecute the •weilant for the offence und<ir s. 25 (a) of the Pu:<. I ue s..nction stated that the appell\Ull had "allegedly been found in !'OSSession of and bavieg under his control one revo.ver without va!"IGI licence at 1-leemuch PoHce Statioo, Neemuclt on 17-9-1966." Toe Magi trate :µ Neemuch f~ charge agaiast the appellant under s. 25(a) of the Indian Arms Act 1959 .on the basis that he was found ia pos$0ssion of the revolver .on or befo1•' 17-9-1966. Tbe appellant llled revision petition before the sessions judge . which was rejected The High Coulrt rejecr..d further revision petition. In appeal by special leave before thls Court the que tioo that fell for col)'liderat'o:> ~· : ( 1 ) whether on the facts alleged the a~lant c.ould be said I.) be in !>Q.'Sessioo of the revolver for b.eing changed with an otfenC'e u. der s. 2,5(a) of the Act: and (ii) whetb,er the charge went tt.>yond the sa11ction.

field : (i) Tue possession of a. fue aI'lll un<ler the Anns Act 11)!lSt have, firstly, the element of consciousness or knowled•e of that posses-sion in the person charged with such offence and secondly, whore he has not the actual physical possession, he has none-the less power or con-trol over that weapon so that his possession thereon continues des i ph~ical pos essio<t being in someone else. If this were not so, lhe)l ;in owner of house who leaves an unlio.,"1lced gun in that house but is not present when it was recovered by the police can plead thal he was not in poosession of it even though he had himself consciously kept it tbore when he went out. Simila•ly. if he goes out of the ho-.ise during the day and in the meantime someone conreals pistol in his house .nd during his abs.nee the ooliC'e arrives and discovers the pi·tol he cannot be charged with the offimce unless it c'n be shown tltat he had knowledge of the weapon being nlaced in his house. And vet again if gun or firearm is giV"n to hi• s~rvant in the ho-1se · o cfoan it, though the physic•! oossession i• wi•h him nevertheless ~sioli of it will be that of the owner. [511 G-512 BJ

In anv disputed ~uestion of possession, specific facts admitted or proved will alone esl'llblish the existence of the de facto rehti"ll of <0"1-trol or the dominion of the person over it necessaty to determine whet'-er that person was or was not in possession· of the th'ng in question. [512 D]

On the above view the charge that the appellant was in J>O'lsess;on of the revolver on 17-9-1966 did not suffer from any defect particularly

when he was definitely informed in that .dJarge that )lo had control over !be revolver. However in vie\\ of the forms· of the charge given in the ScbedU!e to tic Code of Criminal Procedure the charge should be amend• ed to read ~on or about' 11-9-1-966 inatead of 'on or bef<>re'. [511 B--G)

(ii) Under the Arius Act all that is required for sanction illlder s. 39 · i5 that the penon to be prosecure.t WM found to be in possession of tho :Qrearm, the data ck dates !lll which he WM SO round in possession and the possmion of the firearm was without valid lioo~. As all the e!cmonts W<'t"e contaioed in the sanction in the preseot ca..e it was not an illega[1 ]sanction oor could it be said that tJie .charge travelled beyond the sanction. [513 B-:-FJ

Gokak Chand v. The King, 75 Indian Cases 30, disllnguisbod.

Malian Mohan v .. State of Uttr.r Pradesh, A.i.R. 1954 S.C. ~37, Nferred to.

[The conte!ltiol! that the Court in Madhya Pradellil had no juris4ic-

lion since the revolver was recowred in llajastbati was not allowed to be ra.ited sinoe it had not been rai ed irt the Courts below.]

Cm&INAL .APPELLATE JURiso1cr10N : Cr. A. No. 241<Jf1969.

Appeal by special leave from the Judgm&nt and Orde• dated the 23rd Anril, 1969 df the Madhya Pra'1e High Court, Indore Bench in Criminal Revision No. 1S of 1969.

Frank Anthony, A. T. M. Sampath and K. C. Agarwala, for the appellant.

l. N. Shroff, for the respondent.

The Judgement of the Court was deliwred by

I>, Jaganmohan Reddy, J,

This appeal is by Special

Leave challenging the judgment of the High Court which dismiss-ed Revision petition filed by Jthe appellant against the framing of .a charge by the Magistrate of the 1st Class, Neemuch. The charge was that on or before 17-9-1966 .at Neemuch, the appel-lant was found in possession of and having control over one re-volver without valid licence and that by so doing had commit-ted a!1 offence under Section 45 (a) of the Indian Arms Act (herelllafter called the Act).

It appears that one Miroo who was accused of ~ offence

under Section 302 of he Indian Pepal Code gave info1mation to the Police on 16-9-66, during the course of an investiga[1]ion of that offence, that the appellant had given him revolver which he had kept with one Chhaganlal at tthe Village Karoonda in the S ate of Rajas1han. 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 Sectien 39 of tthe Act to pro&~cute the appellant for an offence under' ~ction 25 (a) of the Act. The sanction was gran' ed by the District Magistrate, Neemuch on 4-11-1967. The sanction states that

the appellant had "allegedly been foun~ in posses~ion. of and having under his control one revolver without valid hcence at Neemuch Police S.ation, Neemuch on 17-9-1966." After the sanction, the Police prosecuted the appellant on 16-1-1968 as stated already in the 1st Class Magistrate's 'Court, Neemuch. The Magistrate af1er perusal of the case diary and o.her papers and after hearing the applicant, by his Ord.er dated 23-9-1968 was of the view that there was prima facie case for framing charge agains1 the appellant under Section 25 (a) of the Act and he accordingly framed the charge in respect of which revision was fi:ed before the Additional Sessions Judge, Neemuch. This revi-sion was rejected on 19-12-1968 and. thereafter another revision was filed in the High Court of Madhya Piadesh. Before the High Court, ·it appears the only contention urged was that the charge went beyond the sanction in that while the sanction speci-fically mentions that the appellan1 had been found in .possessibn of the revolver at the Police Station, Neemuch on 17-9-1966, the charge speaks of his having been found in such possession "on or before 17-9-1966" which words are vagw~ and not according to the sanction, as such the charge was bad. The High Ccurt rejected this contention, holding that the words "on or before" would not render the charge illegal fuasmuch as even on the date of recovery, the 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 Magis1rate proceeds with the trial, records the evidence and determines the credibility of the witnesses thereon. The High Court also thought that 1th>~ Additional Sessions Judge while rejecting the revision was of the view that before the ac<tual recovery of the revolver the appellant was in possession at some pofut of time and he was in constructive posses-sion thereof on the da1e of its recovery. In these circumstances, it saw no iJ!egality or impropriety in framing the charge and accordingly dismissed the revision.

, Before us the learned advocate for the appellant contends that the High Court has palpably misconst·ued the case of G'>/ak Chand v. The King ( [1]) case where it was held that charge cannot go be-yond the scope of the sanction; (2) that admittedly as the revolver Wl15. seized from Chhaganlal from Karoonda in the State e>f. Rajas-than, the Court at Neemuch in Madhya Pradesh has no ju<isdktbn to try the case agajnst the apoelJant who was resident of Neemuch in the State of Ma'1hya Prade1h. and (3) that it was Miroo who is alleged to have handed over the pistol to Chhaganlal after receivi11g it fr"m the accmPd. which wouM sh"w that the r~vnlver w<ts not in the constructive possession of the appellant on 17-9-1966.

The main question in this case is whether on the facts alleged if true and at this stage nothing can be said ab Jut the truth or other-wise of that allegation, the appellant can be said to be in possession Of the revolver for being charged with an offence under Section 25(a) of the Act. Section 25(a) in so far as it is relevant states:

"whoever acquires, has in his possession or carries any firearm

or ammunition in contravention of Section 3 .......... shall be punishable wi.h impri;onment for term which may extend to three years, or with fine, or with both".

What is meant b)' P')Ssession in the context of this ~ection ? Is

it that the person charg!d shouli be shown to b~ in physical pos· session or is it sufficient fo- the purooses of that pr0visim1 thot he has constructive possesion of any firearm or ammunition in c<>ntra-vention of Section 3 which prohibits him to be in such possession without licence. I• may be mentioned that under Section 19 of _ .. Arms Act of 1878, an offence corresponding to Section 25 ( 1) (a) is committei if person had in his or under his control 0 any arms or ammunition in contravention of Section 14 and 15 of that Act. The word 'control' under s~ction 25 ( 1) (a) has been omitted. Does this deletion amount to the leqislature confining the offence only to the case of person who has physical pos•ession or does it mean that person will be considered to be in posses·i"n of firearm over which he ha• constructive po•session or over which he exercises the power to obtain p0ssessbn the-eof when he so intends ? If the meaning to be given to the wbrd "possession~ is that it should be phvs;cal possession only, then certainly the charge as framed on the facts of the nrosecution case wi'I not be sustainable but i.f the me1ning to be given to the word "oossessiryn" is wid¢r than that of actual or physical possession then it is possible, if the evidence produced by the prosecution is such as would sus-F tain finding, that he had constructive ~session on 17-9-1966 when he handed it over to Miroo and Miroo handed it over to Chhaganlal because if it was not seized f•om Chhaganlal, the appel-lant could have at any time got back the phvsical possession of the revolver through Miroo. The possession of firearm under the Arms Act in our view must have, firstly the element of conscbusness or knowledge of that posseision in the person charged with such offence and secondly where he hls not the ac•ua! physical posses-sion, he has none-the-less power or control over that weaoon so that his possession thereon continues despite physical posses,ion bein~ in someone else. If th:s we not •o. theri ari owner of home who leaves an unlicenced gun in that house but is not present when it was recovered by the oolice can plead that he was not in possession of it even th"ugh he h1d himself comciouslv k:e"t it there when. he went out. Similarlv. if he goes out of the house du.;ng the day and in the meantime someone conceals pistol in his house

·and during his absence, the police arrives and discovers the pistol he cannot be charged with the· offence u.nless it can be shown that he had knowledge of the weapon being placed in his house. And yet. again. if gun or firearm is given to his servant in the house to cl~an.it, though the physical possession i~ with "hiin nonethe.ess pos.;ession of ,it will be. that of the owner. The concept of po.s<i;S· sion -is not easy. l-0 comprehend as wnters of J uilol'l.Tadcnc~ have had occasions to point out. . In some cases under Section 19-( 1)( f) of. the Amts Act, 1878 it has b.len held that the word "posse;sion" means exclusive possession and the word "control" ineans effective control but this ·~oe>. not solve the problem. As· we· said earlier, the first precondition for an offence under Section 25 ( l) (a) is th: element of intention, consciousness or knowledge with which person possessed the firearm before it can be said to constitute an offence and secondly that possession need not be physical possession but can be constructive, having power and control over the ~un, wh:le the person to whom physical possession is given holds it suoiect to that power and control. In any di5pu•ed question of possession, ·specific facts admitted or proved will alone establish the existence of the de-facto relation of control or the domini0n of the per;on over it necessary to determine whether th1t netSon was or was not in possession of the thing in question. fn this view it ;, . . diffi~ult at this stage to postulate as to what the eviderce will be. and ·we do not therefore venture to 1peculate thereon. In the view we "have taken, if the possession of the apoellant indudes the construe-. tive posses1bn of the firearm in que1•ion then even thou<Zh he had parted with physical p'.)ssession on •he date when it was rec'lvered. he will nonetheless be deemed to b~ in pmsessbn of that !!rearm. If so, the ch~rge that he was jn p'lsses1ion of the revclver on 17-9-1966 dQes not suffer from any defect particularly when he is defi11i•ely informed in th:it charge •hat he had control over that revolver. It is al10 appa·ent that the w"rds 'on or bef'lre' w••p intended to bring home to the ;iccuse'1 that he was not only in comt•uc'ive poss~ssi'ln of it on 17c9-1966 b11t that he was in a[0]tual phv5ical 00ssedon of it prior to that dote "'hP." 1'• ~·"~ i• to M;n0. It i> submitted, h"wever. that the word 'on or before' mioht cause emb•rras1ment and p•ejudice to the defence nf the accused because he will not b~ in no1ition tn know wh•t the nr<•cnti<in ac'u"1iv intends to allege. From refe·ence o' Form XXVTII r>f Schedule 5 o' the f'ode of Crimiml Procedure, the, m"de ol char•ing person is that h~ 'on or about' ......... d:d the· act c"m.,fained of.. Iti view of •he forms of the, char~e given in the s~hetlule' to the Code, we thi~k thqt ii. W"uld be f•ir to the ""nellant if the ch•rg~ i1 ·am•n-'etl to re·ad 'on or about' instead of 'on or before' . which we accordingly o·der. '

"C '. ...

· Once. we hoM th qt the charge is not dc'ec•ive. i• c'\nnot be ~aid th•t jt tr•v•ls bevond •he sanction acc"•ded bv. the Di1[1]Ti[0]t M•gi~ trate under Sec'ion 39 of the Arms Act as both ol them are in

similar terms in that the sanction also refers to the appellant having: been allegedly found in p.1ssession of and having under his c1ntrol one revolver without .valid licence at Ncemuch Police Station on 17-9-1966. The de<oision of the Privy Council in Golak Chand's case(') is inapplicable to the facts and circumstances of this. case. What the Privy Council was )nsidering was p-osecution ull<!er Clau'le 18(2) of the Cotton Cloth and Yarn Control Order, 1943 for which sanction to prosxute under Clause 23 was required. The sanc•ion did not set out the facts constitutin~ the offence nor did the prosecution prove by ext-aneous evidence that the necessary facts required for granting sanctbn were placed before the sanc-tioning authority. The sanction merely mentioned the names of the person~ to be charged and the provision of the Control Order under which they we·e to be pro•ecuted. It aopeats that cases under Sectbn 195 of the Criminal Procedure Code we cited before the Board, which. h<JWever, as observed by the Lordships d'.1 n"'t lay down any prinqiple lnconsbtent with the vi~ws exores ·ed bv •hem nnd as the sections of the Code a·e exo•essed in lanc:ua!le d;fferent from that used in clause 23 of the Cont·ol Orde• and are di•ected to different objei.:•s. it .was th~u~ht that no meful nurno<e will ~ served by an examination of thnse case,, This Court h[0])d in Mt:1'1an Mohan v. Stnte of Uttat Prade•h(') following the Privy Council case in Golak Ch~nd that where facts do not appear on the face of the letter sanctioning p•o•ecu•i~n. it is incumb~nt uoon the pro5ecutioT1 to o•ove by other evid~nce that the ma•e·ial fac•s con-E ~titu•ine the <'ff~nce were olaced before the sanctionine authority. Un-le• th~ Arms Actall that is reauired fnr •ane'i'n under S•ct;on 39 is, that the J)l'rson to-be orooecuted wa5 found to be in p~ssession of 'he firea-m, the date or date• on which he w1, so fnunc1 in '>"Ss~s­sion and the oos•ession of the fi-earm was without v>lid licence. As •II the elem[0]nts a•e cnn•ained in th~ sanctinn in thi• ca5e. it is not an ;n~g1I sanc'ion nor can it be said that the charge travels beyond that sanction.

It is further contended as already indicated that the Court at Ne~much h&5 n'o jurisdiction to try the case in view of the hct that the revolver was recovered at Karoonda in Rajasthan. Apart from the queition whethe· the possession of the •evolver by the a1pella'lt is deemed to be at the place where he resided or whether it is case c'lvered by the provi~ions of Section 182 of th~ Criminal Prncedu·e Code which is contained in Chapter XV dealing with places of enquiry and trial, we do not think that this contention can be aUnwed to ~ raised be'ore us because no such obj~ction was urged befo•e the ffiqh Cou·t in revision. Even in 'the anolication for certifica•e under Art;cle 134( 1) ( c) of the Comtitu•hn, th~ ano~I-. Janf did not urge that any s\lch objections were urged on his behalf

before the 'High Court and these were not considered. In that petition., five grounds were said to have been raised before the Magistrate and the Additional Sessions Judge, one of which was regarding the jurisdiction of Neemuch Court to take cognizance-/ of the case. The complaint in respect of these grounds was that while all of them were taken and urged before the MMistrate and the Additional Sessions Judge, they bave not been fully and p•o-perly considered. No· siinilar al]egation was made in so far as 1he High Court was concerned though it was said that the Court. at Neemuch in M 1dhya Pradesh would have no ju-isdiction to t· y the offence. As this objection was not urged we cannot permit any such contention to be raised before us.

As the third contention raiSed before us namely that since on the prosecution case Miroo had handed over the revolver to Chhaganlal after receiving it from the accused, it cannot be said to have been in comtructive PoSSession of the apoellant, is depen-dent on the evidence to be adduced at his trial, the learned advocate lor the appellant did not press this ground;

In the view we have taken excent for the direction that the charge be amended by the substitution of the WC>rds "on or before" by the words "on or about", this appeal is dismissed.

Appeal dismissed.