TaxTMI 
TaxTMI 
1979 (8) TMI 204
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....tta, and, on the ground floor of the building, they discovered a workshop run by Mrityunjoy Dutta, who was then working on a revolver. 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 Magis....
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....ed 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....
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....m 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. 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 d....
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....h 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 ef....
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....ve 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 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 p....