GUNWANTLAL v. THE STATE OF MADHYA PRADESH May 3, 1972
[P, JAGANMOHAN Reppy, K. K. MATHEW AND G. K. MitTeR, JJ.]
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.
M who was accu ed 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 whien he had kept with one C at village Karoonda in the State of Rajasthan. Qa that information the revolver was sewed frem C the next day namely, September 17, 1966. The po.ice at Neemuch in Madhya Pradesh applied for sanction under s. 39 of the Act to prosecute the Appeilant for the offence under s. 25 (a) of the Aci. ine sunction stated that the appellant had “allegedly been found in possession of and having under his control one revo.ver without a valid licence at wleemuch Police Station, Neemuch on 17-9-1966.” Toe Magi trate at Neemuch framed a charge against the appellant under 8, 25(a) of the Indian Arms Act 1959 on the basis that he was found in possession of the revolver on or before 17-9-1966. 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 this Court the que tion that fell for consideratioa were: (1) whether on the facts alleged the appellant could be said to be in possession of the revolver for being changed with an offence u_ der
3. 25(a) of the Act: and (ii) whether the charge went tzyond the sanction,
Held: (i) The possession of a fire arm under the Arms Act must have, firstly, the element of consciousness or knowledge of that posses~ sion in the person charged with such offence and secondly, where he has not the actual physical possesSion, he has none-the less a power or control over that weapon so that his possession thereon continues des ie physical pos ession 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 had 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 and during his absence the police arrives and discovers the pi-tol he cannot be charged with the off-nce unless it can be shown that he had Knowledge of the weapon being vlaced 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 vogsession is with him nevertheless possession of it will be that of the owner, [511 G—512 B]
In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de facto relation of cor trol or the dominion of the person over it necessary 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 possession of the revolver on 17-9-1966 did not suffer from any defect particularly
GUNWANTLAL ¥. STATE ‘(Jaganmohan Reddy, J.) 509 when he was definitely informed in that charge that he had control over the revolver. However in view of thé forms’ of the charge given in the Schedule to the Code of Criminal Procedure the charge should be amends ed to read ‘on of about’ 17-9-1966 instead of ‘on or before’, [511 B—G} _ fii) Under the Arms Act all that is required for sanction under 3, 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 _ ¢lements were contained in the sanetion in the present case it was not an illega! 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 Utter Pradesh, A.I.R. 1954 $.C. 637, referred to. ,
[The ¢ontenttioh 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 rai ed in the Courts below.]
CRIMENAL APPELLATE JURISDICTION : Cr. A. No. 241 of 1969.
Appeal by special leave from the Judgment and Order dated the 23rd Anril, 1969 of the Madhya Prate-h High Court, Indore Bench in Criminal Revision No. 75 of 1969,
Frank Anthony, A. T. M. Sampath and K. C. Agarwala, tor the appellant.
I. N. Shroff, for the respondent. The Judgement of the Court was delivered by
P. Jaganmohan Reddy, J. This appeal is by Special Leave challenging the judgment of the High Court which dismissed a Revision petition filed by the appellant against the framing of a charge by the Magistrate of the Ist 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 infoimation to the Police on 16-9-66, during the course of an investigation of that offence, that the appellant had given him a revolver which he had Kept with one Chhaganlal at the Village Karoonda in the S ate of Rajasthan. 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 gran‘ed by the District Magistrate, Neemuch on 4-11-1967. The sanction states that
510 SUPREME COURT REPORTS [1973] 1 S.C.R.
the appellant had “allegedly been found in possession of and having under his control one revolver without a valid licence 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 after perusal of the case diary and o.her papers and afier hearing the applicant, by his Order dated 23-9-1968 was of the view that there was a prima facie case for framing 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 fied 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 that 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 ot before 17-9-1966” which words are vagwe 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 witnesses 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 iltegality 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 Golak Chand v. The King(*) a case where it was held that a charge cannot go be- a yond 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.
(i) 75 Indian Ca o
GUNWANTLAL y, STATE (Jaganmohan Reddy, J.) 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 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 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 charg2d should be shown to b> in physical possession or is it sufficient fo- the purposes of that provision that he has constructive possesion of any firearm or ammunition in contravention of Section 3 which prohibits him to be in such possession without a licence. I+ may be mentioned that under Section 19 of a Arms Act of 1878, an offence corresponding to Section 25(1){a) is committed 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 word ‘control’ under Section 25(1) (a) has been omitted. Does this deletion amount to the lecislature confining the offence only to the case of a person who has physical possession or does it mean that a person will be considered to be in posses*inn of a firearm over which he has constructive possession or over which he exercises the power to obtain possessinn the-eof when he so intends? If the meaning to be given to the word “possession” is that it should be a phvsical possession only, then certainly the charge as framed on the facts of the prosecution case wi'l not be sustainable but if the meaning to be given to the word “possession” is wider than that of actual or physical possession then it is possible, if the evidence produced by the prosecution is such as would sustain a finding, that he had constructive possession on 17-9-1966 when he handed it over to Miroo and Miroo handed it over to Chhaganial because if it was not seized fom Chhaganlal, the appellant could have at any time got back the phvsical possession of the revolver through Miroo. The possession of a firearm under the Arms Act in our view must have, firstly the element of consci?usness or knowledge of that possession in the person charged with such offence and secondly where he has not the actual physical possession, he has none-the-less a power or control over that weapon so that his possession thereon continues despite physical posseszion being in someote else. If th's wee rot 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 had himself consciously kent 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 SUPREME COURT REPORTS [1973} 1 SCR.
‘and during his absence, the police arrives and discovers the pistol ke 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 nonethe LES possession ‘of it will be that of the owner. The concept of poos«s- " sion is. not easy: to comprehend as writers of Jurisprudence have had . occasions to point out. . In some cases under Section 19(1) (£) of the Arnis 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 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 nerson 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 eviderce wil! be and
‘we do not therefore venture to speculate thereon. In the view we have taken, if the possession of the apnellant includes the construc-
. tive possessirn of the firearm in question then even thouch he had parted with physical possession on the date when it was recovered, he will nonetheless be deemed to be in possession 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 wvrds ‘on or before’ were intended to bring home to the accused that he was not only in constructive poss*ssion of it on 17-9-1966 but that he was in actual physical nosses-ion of it prior to that date when he save it to Mirgo, It is submitted, however. that the word ‘on or before’ mizht cause embarrassment and prejudice to the defence of the accused because he will not be in a nosition to know what the or-secntion actually intends to allege. From a refe-ence of Form XXV'II of Schedule © 5 of the Code of Criminal Procedure, the mde of charcing a person is that he ‘on or about’......... did the act comnlained of: In view of the forms of the charse given in the Schedule to the Code, we think that it would be fair to the arnellant if the charg is amended to read ‘on or about’ instead of * ‘on or before’
_ which we accordingly onder.
Once we hold. that the charge is not def ective, it cannot be said that it travels bevond the sanction ace>rded bv. the District Magistrate under Sec‘ion 39 of the Arms Act as both of them are in
GUNWANTLAL v. STATE (Jaganmohan Reddy, J.) 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 ext-aneous evidence that the necessary facts required for granting sanction were placed before the sanctioning authority. The sanction merely mentioned the names of the persons to be charged and the provision of the Control] Order under which they wee to be prosecuted. It appears that cases under Section 195 of the Criminal Procedure Code wee cited before the Board, which. however, as observed by the Lordships do n*t lay down any principle inconsistent with the views exores-ed bv them and as the sections of the Code ave expressed in lanenage different from that used in clause 23 of the Cont-ol Order and are directed to different objects. it was thought that no useful nurhoce will be served by an examination of those cases. This Court held in Madan Mohan vy. State of Uttar Pradesh(*) following the Privy Council case in Golak Chand that where facts do not appear on the face of the letter sanctioning prosecutirn, it is incumbent upon the prosecution to prove by other evidence that the mateial facts constituting the effence were placed before the sanctioning authority. Under the Arms Act all that is required for sanction under Sction 39 is, that the person to‘be prosecuted was found to be in p%ssession of “he firearm, the date or dates on which he was so found in msse5sion and the nossession of the ficearm was without a valid licence. As all the elements are contained in the sanction in this case. it is not an ijlegal 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 whethe~ the possession of the revolver by the a»pellant 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 be‘ore us because no such objection was urged
‘before the Hich Court in revision. Even in'the anplication for a certificate under Article 134(1)(c). of the Constitutixn, the anpel- _lant did not urge that any such objections were urged on his behalf rr nr rng (1) 75 Indian Cases 39. —— (2) A.LR. 1954 S.C, 637
514 SUPREME COURT REPORTS [1973] 1 SCR.
before the High Court and these were not considered. In that A petition, five grounds were said to have been raised before the Mapistrate 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 Macistrate and the Additional Sessions Judge, they have not been fully and pro- 8 perly considered. No siinilar allegation was made in so far as :he High Court was concerned though it was said that the Court at Neemuch in Madhya Pradesh would have no jucisdiction to ty 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 excent 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.
Cc
GC. Appeal dismissed,