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PETITIONER: GUNWANTILAL

       Vs.

RESPONDENT: THE  STATE OF MADHYA PRADESH

DATE OF JUDGMENT03/05/1972

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN MATHEW, KUTTYIL KURIEN MITTER, G.K.

CITATION:  1972 AIR 1756            1973 SCR  (1) 508  1972 SCC  (2) 194  CITATOR INFO :  E          1980 SC  52  (10,16)

ACT: The  Arms  Act 54 of 1959, S. 25(a)-Possession of  fire  arm whether  includes constructive possession-Code  of  Criminal Procedure s. 39 Sanction for prosecution-Validity of.

HEADNOTE: M  who  who was accused of an offence under S. 302  of  the, Indian  Penal  Code  gave  information  to  the  Police   on September  16,  1966 during the course of  investigation  of that  offence that the appellant had given him  a revolver which  he  had kept with one C at village  Karoonda  in  the State  AA Rajasthan.  On that information the  revolver  was seized  from C the next day namely September 17, 1966.   The police  at Neemuch in  Madhya Pradesh applied  for  Sanction under  S. 39 of the Art to prosecute the appellant  for  the offence uader S. 25 (a) of the Act. The Sanction stated that the appellant had "allegedly been found in possession of and having  under  his  control one  revolver  without  a  valid licence  at              Neemuch Police Station, Neemuch  on 17-9-1966."  The  Megistrate  at  Neemuch  framed  a  charge against                the  appellant under s. 25(a) of  the Indian  Arms  Act  1959 on the basis that be  was  found  in possession   of  the  revolver  on  or  before   17-9-196,6. The appellant filed a revision petition before the, sessions judge  which        was rejected The High Court  rejected  a further   revision  petition.  In appeal  by  special  leave before  dos Court the question that fell  for  consideration were (1) whether on the facts alleged the appellant could be said to be in possession  of the revolver for being  changed with  in  offence  under SI 25(a) of the  Act  :  and  (ii) whether the charge went Leyond the sanction. Held:(i)  The  possession of a fire arm under the  Arms  Act must   have,  firstly,  the  element  of  consciousness   or knowledged  of  that possession in the person  charged  with such  offence  and  secondly, where he has  not  the  actual physical  possession, he has nonetheless a power or  control over  that weapon so that his possession  thereon  continues desire  physical possession being in someone else.  if  this were  not  so,  then  :an owner of a  house  who  leaves  an

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unlicenced gun in that house but is not present when it  was recovered  by  the  police  can plead that  he  was  not  in possession of it even though he had himself consciously kept it three when he went out.  Similarly. if he goes out of the house during the day and in the meantime someone conreals  a pistol  in  his  house and during  his  absence  the  notice arrives  and discovers the pistol he cannot be charged  with the offence unless it c,n be shown that he had knowledge  of the  weapon being placed in his house.  And vet again  if  a gun or firearm is given to his servant in the house o  clean it, though the physical no session is with him nevertheless possession ,of it will be that of the owner. [511 G-512 BI 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. [512 D] On  the above view the charge that the appellant was in  po- ssession  of the revolver on 17-9-1966 did not  suffer  from any defect particularly 509 when  he was definitely informed in that charge that he  had control over the revolver.  However in view of the forms  of the  charge  given in the Schedule to the Code  of  criminal Procedure the charge should be amended to read ’on or  about 17-9-1966 instead of ’on or before’. [511 E_G] (ii) under  the Arms Act all that is required  for  sanction under s. 39 is that the  person  to be prosecuted was  found to be in possession of the firearm,     the date at dates on which  he was so found in possession and the  possession  of the  firearm  was  without  a valid  licence.   As  all  the ,elements were contained in the sanction in the precent case it was not an illegal sanction nor could it be said that the charge travelled beyond the sanction. [513 E-F] Gokak Chand v. The King, 75 Indian Cases 30, distinguished. Madan  Mohan  v. State of Uttar Pradesh, A.I.R.  1954  $..C. 637, referred to. [The  contention  that the Court in Madhya  Pradesh  had  no jurisdiction  since the revolver was recovered in  Rajasthan was not allowed to be raised since it had not been raised in the Courts below]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Cr.  A. No. 241 of 1969. Appeal  by special leave from the Judgment and  Order  dated the  23rd  April,  1969 of the Madhya  Pradesh  High  Court, Indore Bench in Criminal Revision No. 75 of 1969. Frank  Anthony,  A T. M. Sampath and K.C. Agarwala  for  the appellant. I.   N. Shroff, for the respondent. The  Judgement of the Court was delivered by P.   Jaganwohan  Reddy, J. This appeal is by Special   Leave challenging the judgement of the High Court which  dismissed a  Revision  petition filed by the   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 appellant was found in possession of and having control  over one revolver without a valid licence and  that by so doing had committed an offence under Section 25(a)  of the Indian Arms Act (hereinafter called the Act). It  appears  that one Miroo who was accused  of  an  offence under  Section 302 of he Indian Pepal Code gave  information to   the  Police  on  16-9-66,  during  the  course  of   an

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investigation of that offence, that the appellant had  given him a revolver which he bad kept with one Chhaganlal at  the Village  Karoonda  in  the  S ate  of  Raiasihan. On  that information,   the  revolver  was  seized  from   the   said Chhanganlal on the next day namely on 17-9-1966.  The Police at Neemuch applied for sanction under Section 39 of the  Act to  prosecute  the appellant for an  offence  under  Section 25(a) of the Act.  The sanction was granted by the  District Magistrate, Neemuch on 4-11-1967.  The sanction states that 510 the appellant had "allegedly been found in possession of and having  under  his  control one  revolver  without  a  valid licence  at Neemuch Police Station, 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 after perusal of the,  case diary  and other papers and after hearing the applicant,  by his  Order dated 23-9-1968 was of the view that there was  a prima facie case for flaming a charge against the  appellant under Section 25(a) of the Act and he accordingly framed the charge  in respect of which a revision was filed before  the Additional  Sessions  Judge,  Neemuch.   This  revision  was rejected  on 19-12-1968 and thereafter another revision  was filed in the High Court of Madhya Pradesh.  Before the  High Court,  it  appears the only contention urged was  that  the charge  went beyond the sanction in hat while  the  sanction specifically  mentions that the appellant had been found  in possession 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 vague and not according to the sanction, as such the  charge was  bad.  The High Court rejected this contention,  holding that  the words "on or before" would not render  the  charge illegal  inasmuch  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 Magistrate proceeds with the  trial, records  the evidence and determines the credibility of  the witneses  thereon.   The High Court also  thought  that  the Additional  Sessions Judge while rejecting the revision  was of the view that before the actual recovery of the revolver the appellant was in possession at some point of time and he was  in constructive possession thereof on the date  of  its recovery.   In these circumstances, it saw no  illegally  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 misconstrued the  case  of Golak  Chand v. The King(1) a case where it was held that  a charge cannot go beyond the scope of the sanction, (2)  that admittedly  as the revolver was seized from Chhaganlal  from Karoonda in the State of Rajasthan, the Court at Neemuch  in Madhya  Pradesh has no jurisdiction to try the case  against the appellant who was a resident of Neemuch in the State  of Madhya Pradesh, and (3) that it was Miroo who is alleged  to have handed over the pistol to Chhaganlal after receiving it from the accused which would show that the revolver was  not in  the  constructive possession of the appellant  on  17-9- 1966. (1)  75 Indian Ca 511 The  main  question  in this case is whether  on  the  facts alleged if true and at this stage nothing can be said  about the truth or otherwise of that allegation, the appellant can be  said  to  be in possession of  the  revolver  for  being

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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 with imprisonment for a term which  may  extend  to three years, or with  fine,  or  with both". What is meant ’by possession in the context of this  section ?  Is  it that the person charged should be shown to  be  in physical possession or is it sufficient for the purposes  of that provision that ha constructive possesion of any firearm or ammunition in contravention of Secton     3         which prohibits him to be in such possession without a licence.  I may  be mentioned that under Section 19 of the Arms  Act  of 1878,  an offence corresponding to Section 25 ( 1 )  (a)  is committe  I if a person had in his or under his control  any arms or ammunition in contravention of Section 14 and 15  of that Act.  The would control’ under Section 25 (1 ) (a)  has en omitted.    Does this deletion amount to the  legislature confining the offence    only  to the case of a  person  who has physical possession or doe;    it  mean  that  a  person will  be  considered to be in possession of a  firearm  over which  he  has  constructive possession  or  over  which  he exercises  the power to obtain possessing th of when  be  so intends   ?  If  the  meaning  to  be  given  to  the   word "possession"  is  that it should be  a  physical  possession only, then certainly the chase as framed on the facts of the prosecution case will not be sustainable but if the  meaning to be given to the word "prossession" is wider than that  of actual  or physical possession then it is possible,, if  the evidence  produced by the prosecution is such as would  sus- tain a finding, that he had constructive possession on 17-9- 1966  when  he handed it over to Miroo and Miroo  handed  it over  to  Chhaganlal  because  if it  was  not  seized  from Chhaganlal,  the appellant could have at any time  got  back the physical possession of the revolver through Miroo.   The possession of a firearm under the Arms Act in our view  must have,  firstly the element of consciousness or knowledge  of that possession in the person charged with such offence  and secondly  where lie has not the actual physical  possession, he  has none-theless a power or control over that weapon  so that  his  possession  thereon  continues  despite  physical possession being in someone else.  If this were not so, then an  owner  of a house who leaves an unlicenced gun  in  that house but is not present when it was recovered by the police can plead that he was not in possession of it even though he bid  himself  consciously kept it there when  he  went  out. Similarly. if he goes out of the house during the day and in the meantime someone conceals a pistol in his house 512 and during his absence, the police arrives and discovers the pistol  he cannot be charged with the offence unless it  can be shown that he had knowledge of the weapon being placed in his  house.  And yet again if a gun or firearm is  given  to his  servant in the house to clean it, though  the  physical possession is with him nonetheless possession of it will  be that  of the owner.  The concept of possess ion is nit  easy to comprehand as winters of Jutice,you have had occasions to point  out.  In some cases under Section 1 9 ( 1 ) (f  )  of the  Arms  Act,  1878  it  has  been  held  that  the   word "possession"   means  exclusive  possession  and  the   word "control"  means effective control but this does  not  solve the problem.  As we said earlier, the first precondition for an  offence  under  Section 25 (1 ) (a) is  the  element  of intention,  consciousness or knowledge with which  a  person

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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 gun, while the person to whom physical  possession is given holds it subject to that power and control.  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.  In this view  it  is difficult at this stage to postulate as to what the evidence will  be and we do not therefore venture to  speculate  the- eon.   In the view we have taken, if the possession  of  the appellant  includes  the  constructive  possession  of   the firearm  in  question the- even though lie had  parted  with physical  possession on he date when it was receive---d,  he will  nonetheless  be  deemed to be  in  posession  of  that firearm.  If so, the charge that he was in possession of the revolver  on  17-9-1966  does not  suffer  from  any  defect particularly  when he is definitely informed in that  charge that he had control over that revolver.  It is also apparent that the words ’on or before’ were intendel to bring home to the accussed that he was not only in constructive possession of  it  on  17-9-1966 ’but that he was  in  actual  physical possession of it prior to that date when he gave it to Miroo It is submitted, however that the word ’on or before’  might cause  embarrassment  and prejudice to the  defence  of  the accused  because he will not be in a position to  know  what the  prosecution  actually  intends,  to  allege.   From   a reference  of  Form  XXVIII of Schedule 5  of  the  Code  of Criminal Procedure, the made of charging a person is that he ’on  or about.......... did the act complained of.  In  view of  the  forms of the charge  given in the Schedule  to  the Code, we think that it it would be fair to the appellant  if The chrge is amended to read ’on or about’ instead of ’on or before’ which we accordingly o-der. Once we hold that the charges is not defective it cannot  be said  that  it travels beyond the sanction accorded  by  the District Magistrate under Section 39 of the Arms Act as both of them are in 513 similar  terms  in  that the sanction  also  refers  to  the appellant  having been allegedly found in possession of  and having  under  his  control one  revolver  without  a  valid licence  at  Neemuch  Police  Station  on,  17-9-1966.   The decision  of the Privy Council in Golak Chand’s  case(1)  is inapplicable  to the facts and circumstances of  this  case. What  the  Privy Council was considering was  a  prosecution under  Clause  18(2) of the Cotton Cloth  and  Yarn  Control Order, 1943 for which sanction to prosecute under Clause  23 was  required.   The  sanction did not  set  out  the  facts constituting  the offence nor did the prosecution  prove  by extraneous  evidence that the necessary facts  required  for granting   sanction  were  placed  before  the   sanctioning authority.   The sanction merely mentioned the names of  the person-,  to  be charged and the provision  of  the  Control Order  under which they were to be prosecuted.   It  appears that cases under Section 195 of the Criminal Procedure  Code were cited before the Board, which. however, as observed  by the  Lordships do not lay (town any  principle  inconsistent with the views expressed by them and as the sections of  the Code  are expressed in language different from that used  in clause 23 of the Control Order and are directed to different objects.  it  was thought that no usefull  purpose  will  be served by an examination of these cases.  This Court held in

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Madan Mohan v. State of Uttar Pradesh(2) following the Privy Council  else in Golak Chand that where facts do not  appear on  the  face of ’he letter sanctioning  prosecution  it  is incumbent  upon the prosecution to prove by  other  evidence that the madical facts constituting the offence were  placed before  the sanctioning authority.  Under the Arms  Act  all that is required for sanction under Section 39, is, that the person to be prosecuted was found to be in possession of the firearm,  the  date  or dates on which he was  so  found  in possession  and the possession of the firearm was without  a valid  licence.  As all the elements are  contained  in  the sanction  in this case.  It is not an illegal  sanction  nor can it be said that the charge travels beyond that sanction. It is further contended as already indicated that the  Court at  Neemuch has no jurisdiction to try the case in  view  of the  fact  that the revolver was recovered  at  Karoonda  in Rajasthan.   Apart from the question whether the  possession of  the  revolver by the appellant is deemed to  be  at  the place  where he resided or whether it is a case  covered  by the provisions of Section 182 of the Criminal Procedure Code which  is  contained in Chapter XV dealing  with  places  of enquiry and trial, we do not think that this contention  can be allowed to be raised before us because no such  objection was  urged before the High Court in revision.  Even  in  the application  for a certificate under Article 134(1)  (c)  of the  Constitution, the appellant did not urge that any  such objections were urged on his behalf (1) 75 Indian Cises 3@D. (2) A.I.R. 1954 S@C. 63.7 514 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 Magistrate and  the  Additional  Sessions Judge, they have not been fully and properly considered.  No similar allegation was made in so far as the High Court  was concerned  though it was said that the Court at  Neemuch  in Madhya  Pradesh  would  have  no  jurisdiction  to  by   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 constructive  possession  of  the appellant, is dependent on the evidence to be adduced at his trial, the learned advocate for the appellant did not  press this ground. In The view we have taken except for the direction that  the charge  be amended by the substitution of the words  "on  or before"  by  the  words  "on  or  about",  this  appeal   is dismissed. G.C.                                                  Appeal dismissed. 515