Case Note & Summary
The appeal arose from a criminal prosecution of the appellant for possessing a revolver without a valid licence under Section 25(a) of the Indian Arms Act, 1959. The prosecution originated from information given by one Miroo, an accused in a murder case under Section 302 of the Indian Penal Code, during police investigation on 16-09-1966, that the appellant had given him a revolver which he kept with Chhaganlal at village Karoonda in the State of Rajasthan. Acting on that information, the police seized the revolver from Chhaganlal on 17-09-1966. The police at Neemuch applied for sanction under Section 39 of the Arms Act to prosecute the appellant for an offence under Section 25(a). The District Magistrate, Neemuch granted the sanction on 04-11-1967. 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 17-09-1966. After obtaining sanction, the police prosecuted the appellant on 16-01-1968 before the First Class Magistrate, Neemuch. The Magistrate, after perusing the case diary and hearing the appellant, by order dated 23-09-1968 framed a charge under Section 25(a) of the Act, alleging that on or before 17-09-1966 at Neemuch, the appellant was found in possession of and having control over one revolver without a valid licence. The appellant's revision before the Additional Sessions Judge, Neemuch was rejected on 19-12-1968. A further revision before the Madhya Pradesh High Court, Indore Bench was dismissed on 23-04-1969. Before the Supreme Court, the appellant contended that the High Court misconstrued the decision in Golak Chand v. The King, that the Neemuch court lacked territorial jurisdiction because the revolver was recovered in Rajasthan, and that the revolver was not in the constructive possession of the appellant on 17-09-1966 because Miroo had handed it to Chhaganlal after receiving it from the appellant. The Supreme Court examined the meaning of possession under Section 25(a) of the Arms Act, 1959. It noted that the earlier Section 19 of the Arms Act, 1878 included the words 'or under his control', which were omitted in the new Act, and held that possession must include both actual physical possession and constructive possession. The essential elements are consciousness or knowledge of possession and, where actual physical possession is absent, the retention of power or control over the firearm. The Court held that specific facts admitted or proved alone establish the de facto relation of control necessary to determine possession. On this interpretation, the charge that the appellant was in possession on 17-09-1966 did not suffer from any defect, particularly because the charge specifically alleged control over the revolver. However, in view of the forms given in the Schedule to the Code of Criminal Procedure, the Court directed that the charge be amended to read 'on or about 17-09-1966' instead of 'on or before 17-09-1966'. Regarding the validity of sanction under Section 39, the Court held that all that is required is that the person to be prosecuted was found in possession of the firearm, the date or dates of such possession, and that the possession was without a valid licence. The sanction in this case contained all these elements, and therefore it was not illegal, nor could it be said that the charge travelled beyond the sanction. The Court distinguished Golak Chand v. The King and referred to Madan Mohan v. State of Uttar Pradesh. The objection regarding territorial jurisdiction was not allowed to be raised because it had not been raised in the courts below. The Supreme Court upheld the High Court's order and directed the amendment of the charge accordingly; it declined to entertain the jurisdictional plea.
Headnote
A) Criminal Law - Possession of Firearm - Constructive Possession - Indian Arms Act, 1959 Section 25(a) - The court examined whether possession under Section 25(a) required actual physical possession or included constructive possession. It held that possession must involve consciousness or knowledge and, where actual physical possession is absent, the accused must nonetheless have power or control over the weapon, so possession continues despite physical possession in another. On this view, the charge that the appellant was in possession of the revolver on 17-9-1966 did not suffer from defect, but the charge should be amended to read 'on or about 17-9-1966' instead of 'on or before' in view of Code of Criminal Procedure forms. (Paras not mentioned) B) Criminal Procedure - Sanction for Prosecution - Validity of Sanction - Indian Arms Act, 1959 Section 39 - The court held that under Section 39, sanction requires only that the person to be prosecuted was found in possession of the firearm, the date or dates of possession, and that possession was without a valid licence. As all elements were contained in the sanction, it was not illegal and the charge did not travel beyond the sanction; Golak Chand v. The King distinguished. (Paras not mentioned) C) Criminal Procedure - Territorial Jurisdiction - Objection Not Raised Below - Code of Criminal Procedure, 1898 - The appellant contended that the Neemuch court lacked jurisdiction because the revolver was recovered in Rajasthan, but the Supreme Court declined to allow this contention as it had not been raised in the courts below. (Paras not mentioned)
Issue of Consideration
Whether constructive possession suffices for offence under Section 25(a) of Arms Act; whether charge travels beyond sanction; whether Neemuch court has territorial jurisdiction
Final Decision
The Supreme Court upheld the High Court's order and directed that the charge be amended to read 'on or about 17-9-1966' instead of 'on or before 17-9-1966'. The Court held that possession under Section 25(a) includes constructive possession with consciousness and control, and that the sanction under Section 39 was valid and not exceeded by the charge. The objection as to territorial jurisdiction was not entertained as it had not been raised in the courts below.
Law Points
- Possession under Section 25(a) of Indian Arms Act
- 1959 includes constructive possession with consciousness and control
- Sanction under Section 39 valid if states possession
- date
- and absence of licence
- Territorial jurisdiction objection cannot be raised first time in Supreme Court
