1. These are two references by the learned Sessions Judge, Gaya. Criminal Reference No. 44 relates to one Kedar Nath, who has been convicted under Section 21 of the Arms Act, that is to say, for violation of a condition subject to which his license had been granted and has been fined a sum of Rs. 30, (sic) or in default directed to undergo simple imprisonment for a period of 40 days. The other Reference No. 45 relates to one Jamal Ahmad, who has been convicted under Section 19(f) of the Arms Act, for having in his possession or under his control a gun in contravention of the provisions of S. 14, that is to say, without a license and has been sentenced to pay a fine of Rs. 25, or in default to undergo simple imprisonment for a period of 60 days. The facts which led to these convictions were as follows. On 23rd February 1940, there was a communal not in Gaya town and an order under Section 144 of the Cr PC, was issued that day prohibiting the taking out of any kind of arms. Next day the houses of many persons in the bazar were searched and from the house of Jamal Ahmad a double-barrelled shotgun was recovered. It was found that Jamal Ahmad had no license for this gun. It was licensed, but the license stood in the name of Kedar Nath and there was no provision for any retainer.
2. Jamal Ahmad and Kedar Nath put forward similar defences, namely that they were close friends. On the morning of 23rd February 1940, Kedar Nath had gone out shooting with the gun and Jamal Ahmad had gone with him. They returned at about 5 P.M and were informed of the order under Section 144 of the Cr PC, prohibiting the carrying of arms. Kedar Nath stayed in the house of his friend Jamal Ahmad for that night, but before 6 A.M the following morning he had to leave for Patna for medical treatment, as he was attacked with asthma. He left his gun and bedding, etc., in Jamal Ahmad's house with the intention of returning shortly afterwards for them. When Kedar Nath came to know that his gun had been seized, he sent his son who brought his license and a letter from Kedar Nath to the Sub-Inspector of Police in which he explained the circumstances in which the gun had been left in Jamal Ahmad's house.
3. On these facts, as I have said, Kedar Nath was convicted for violating condition No. 2 on his license, which stated that the license covered only the persons named and the arms and ammunition described therein and such retainers, if any, as might be entered in Col. 5; and Jamal Ahmad was prosecuted for being in possession of the gun without a license.
4. The learned Judge has made these references on the ground that “possession” for the purposes of the Arms Act, has been construed as possession for use. The temporary possession of a friend in the circumstances described, in the opinion of the Judge, would be deemed to be the possession of the holder of the license. The learned Judge points out that it was not alleged that Jamal Ahmad used the gun in any way, nor did it even appear that he was aware of the fact that the gun had been left at his house, as according to the defence case Kedar Nath had left the house in the early morning before Jamal Ahmed had risen; nor was it alleged that Kedar Nath had any bad motive in leaving the gun at Jamal Ahmad's house. Manifestly the cases of both men turn on the question whether possession of the fire-arm had been actually transferred in law from Kedar Nath to Jamal Ahmad. The opinion of the learned Judge is that there had been no transfer of possession, and, in my view, the learned Judge is correct. In a long series of rulings it has been uniformly held that possession in circumstances comparable to the present case is not possession within the meaning of Section 19 of the Arms Act, but is merely the holding of the weapon on behalf of the person entitled to it.
5. Mr. Yasin Yunus, who has appeared in support of these references, has collected the rulings on this question. The first case cited by him is from 1 Weir 664.1 The holder of the license for a gun had left it temporarily with the accused, his servant, while he went outside to search for a stray animal. It was held that the possession of the accused in the circumstances must be treated) as the possession of his master, who held the license. To hold otherwise, the Court observed, would be unreasonable and unjust. The next case cited is 3 CWN 3942 wherein it was held by a Division Bench of the Calcutta High Court that so long as the arms are the property of a licensee or person exempted, the mere fact that the arms happened at the time to be carried by a servant; does not make the servant liable for not having himself a license. In 35 Cal 2193 another Division Bench of the Calcutta High Court held that the temporary possession of a gun by a man who had snatched it up to fire at a mad dog, which had entered his premises, was not contemplated by S. 14 and a person could not be convicted under S. 19(f) for possession of an unlicensed gun in those circumstances. 17 CWN 9794 was a case where the petitioner was carrying a gun on behalf of his master for the purpose of getting the license renewed. It was admitted that the object of the petitioner was merely to carry the gun to the Magistrate. The petitioner was convicted under Section 19(f) of the Arms Act, for possessing a gun in contravention of the provisions of the Act, but it was held by the Court that the conviction of the petitioner could not be upheld. In 16 ALL 2765 it was held by the Allahabad High Court that the mere temporary possession without a license of arms for purposes other than their use as such, as for instance, where a servant is carrying his master's gun to a blacksmith for repairs, is not an offence within the meaning of Section 19 of the Arms Act.
6. Similarly, in 37 Bom 1816 it was held by a Division Bench of the Bombay High Court that the mere temporary possession without a license of arms for purposes other than their use was not an offence within the meaning of Section 19 of the Arms Act. That was a case where the accused had been sent to an adjacent village by his master, who was licensed to bear arms, to fetch a gun which he, the master, had left there. Again in 24 ALL 1517 where the licensee had given his pistol to another man to take it into the town to get it repaired, it was held that the latter could not be convicted, for the mere temporary possession without a license of arms for purposes other than their use as such is not an offence within the meaning of Section 19 of the Arms Act. In 47 ALL 6068 Mukerji J. makes some pertinent remarks regarding the meaning which must be attached to the word “possession” for the purpose of constituting an offence under the Arms Act. He says:
The word ‘possession’ is a well-known word in law and a man may be in possession of a thing without being in physical touch with it. A locks up a vacant house. He will be deemed to be in possession of the same. A, a license-holder of a gun living at Allahabad and holding a license for that District, may go to Calcutta leaving his gun at his house in charge of the servants or his wife. The possession of the wife and the servants would be the possession of the license-holder and it cannot be said that the wife and the servants are in possession of an unlicensed gun. Similarly, a servant cleaning a gun for his master or carrying it for him to the police office, for an inspection by an officer there, is not in possession of an unlicensed gun. But if the same servant takes out the gun without the permission of his master and commits an offence with it, or goes out for a mere show in a marriage procession his (the servant's) possession would be unlawful. The reason is that the possession is not on behalf of the master but on behalf of the servant himself.
7. If I may say so with respect, this learned Judge has, in my view, stated the legal principles to be followed clearly and correctly. In AIR 1933 Pat 600,9 where the accused who was the servant of a license-holder was only in possession of a gun on behalf of his master who had left the place where the accused was guarding his master's money for a short time only, it was held by a learned Judge of this High Court that the accused could not be convicted under Section 19 of the Arms Act. Lastly, I may refer to a case cited by the learned Sessions Judge, 60 Cal 445,10 where it was held that where a weapon is made over to a person without a license merely for the purpose of negotiating the sale, such possession is not unlawful, inasmuch as it is not possession of the weapon with the intention of using it as a weapon. Such temporary possession is not possession as contemplated by the Arms Act.
8. It is clear from the law laid down in all these rulings that possession of the gun must be deemed to have remained with Kedar Nath, though it was not actually in his physical possession and if Jamal Ahmad was in possession of the gun at all, which may be considered doubtful if he was unaware that it was within his house, then at most the possession of Jamal Ahmad was on behalf of the licensee, Kedar Nath and not on his own behalf. The learned Magistrate in his explanation upon the rule has referred to the special conditions prevailing at the time, the communal riot and the great danger that arms might be misused. The answer is that these circumstances are quite irrelevant when it comes to deciding the legal question involved. Legally it is, to my mind, clear that neither of these convictions was proper and they cannot be sustained. This being so, I accept the reference in both cases and set aside the convictions and sentences upon both Kedar Nath and Jamal Ahmad. The fines, which have been paid, must now be refunded.
D.S/R.K
9. Convictions set aside.