Gunwantlal v. the State of Madhya Pradesh
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 a 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 a 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 investiga1ion of
that offence, that the appellant had given him a 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
510 Sli(>REME COURT REPORTS [1973] 1 S.C.R.
the appellant had "allegedly been foun~ in posses~ion. of and
having under his control one revolver without a 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 a prima facie case for framing a charge
agains1 the appellant under Section 25 (a) of the Act and he
accordingly framed the charge in respect of which a 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) a case where it was held that a 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 a 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.
(1) 75 Indian Ca
fr
t
:i
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GU!iYl'ANTLAL v. 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 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 a 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 a licence. I• may be mentioned that under Section 19 of
_ .. e Arms Act of 1878, an offence corresponding to Section
25 ( 1) (a) is committei 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 s~ction 25 ( 1) (a) has been
omitted. Does this deletion amount to the leqislature confining the
offence only to the case of a person who has physical pos•ession
or does it mean that a person will be considered to be in posses·i"n
of a 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 a 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
tain a 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 a 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 a power or control over that weaoon so
that his possession thereon continues despite physical posses,ion
bein~ in someone else. If th:s we e not •o. theri ari owner of a
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 a pistol in his house
512 SUPREMB COURT REPORTS [1973} 1 S.C.R.
·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 a 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 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 ~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 a0 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 a no1ition tn know wh•t the nr<•cnti<in ac'u"1iv
intends to allege. From a refe·ence o' Form XXVTII r>f Schedule
5 o' the f'ode of Crimiml Procedure, the, m"de ol char•ing a
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. '
· 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 Di11Ti0 t M•gi~
trate under Sec'ion 39 of the Arms Act as both ol them are in
"C '. ...
GUNWANTLAL v. STATE (Jaganmohan Reddy, J.) 513
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 a .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 c )nsidering was a 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 e 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 h0 )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
~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~s
sion and the oos•ession of the fi-earm was without a v>lid licence.
As •II the elem0 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 a 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 a
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
(t) 75 !ndi1n Cises 30. (2) A.l.R. 1954 S.C. 63T
before the 'High Court and these were not considered. In that A
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.
o:c. Appeal dismissed.