{"id":66880,"date":"1972-05-03T00:00:00","date_gmt":"1972-05-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gunwantilal-vs-the-state-of-madhya-pradesh-on-3-may-1972"},"modified":"2017-06-06T13:51:30","modified_gmt":"2017-06-06T08:21:30","slug":"gunwantilal-vs-the-state-of-madhya-pradesh-on-3-may-1972","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gunwantilal-vs-the-state-of-madhya-pradesh-on-3-may-1972","title":{"rendered":"Gunwantilal vs The State Of Madhya Pradesh on 3 May, 1972"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Gunwantilal vs The State Of Madhya Pradesh on 3 May, 1972<\/div>\n
Equivalent citations: 1972 AIR 1756, \t\t 1973 SCR (1) 508<\/div>\n
Author: P J Reddy<\/div>\n
Bench: Reddy, P. Jaganmohan<\/div>\n
           PETITIONER:\nGUNWANTILAL\n\n\tVs.\n\nRESPONDENT:\nTHE  STATE OF MADHYA PRADESH\n\nDATE OF JUDGMENT03\/05\/1972\n\nBENCH:\nREDDY, P. JAGANMOHAN\nBENCH:\nREDDY, P. JAGANMOHAN\nMATHEW, KUTTYIL KURIEN\nMITTER, G.K.\n\nCITATION:\n 1972 AIR 1756\t\t  1973 SCR  (1) 508\n 1972 SCC  (2) 194\n CITATOR INFO :\n E\t    1980 SC  52\t (10,16)\n\n\nACT:\nThe  Arms  Act 54 of 1959, S. 25(a)-Possession of  fire\t arm\nwhether\t includes constructive possession-Code\tof  Criminal\nProcedure s. 39 Sanction for prosecution-Validity of.\n\n\n\nHEADNOTE:\nM  who\twho was accused of an offence under S. 302  of\tthe,\nIndian\tPenal  Code  gave  information\tto  the\t Police\t  on\nSeptember  16,\t1966 during the course of  investigation  of\nthat  offence that the appellant had given him\ta revolver\nwhich  he  had kept with one C at village  Karoonda  in\t the\nState  AA Rajasthan.  On that information the  revolver\t was\nseized\tfrom C the next day namely September 17, 1966.\t The\npolice\tat Neemuch in  Madhya Pradesh applied  for  Sanction\nunder  S. 39 of the Art to prosecute the appellant  for\t the\noffence uader S. 25 (a) of the Act. The Sanction stated that\nthe appellant had \"allegedly been found in possession of and\nhaving\tunder  his  control one\t revolver  without  a  valid\nlicence\t at\t\t Neemuch Police Station, Neemuch  on\n17-9-1966.\"  The  Megistrate  at  Neemuch  framed  a  charge\nagainst\t\t       the  appellant under s. 25(a) of\t the\nIndian\tArms  Act  1959 on the basis that be  was  found  in\npossession   of\t the  revolver\ton  or\tbefore\t 17-9-196,6.\nThe appellant filed a revision petition before the, sessions\njudge  which\t    was rejected The High Court\t rejected  a\nfurther\t  revision  petition.  In appeal  by  special  leave\nbefore\tdos Court the question that fell  for  consideration\nwere (1) whether on the facts alleged the appellant could be\nsaid to be in possession  of the revolver for being  changed\nwith  in  offence  under SI 25(a) of the  Act  :  and  (ii)\nwhether the charge went Leyond the sanction.\nHeld:(i)  The  possession of a fire arm under the  Arms\t Act\nmust   have,  firstly,\tthe  element  of  consciousness\t  or\nknowledged  of\tthat possession in the person  charged\twith\nsuch  offence  and  secondly, where he has  not\t the  actual\nphysical  possession, he has nonetheless a power or  control\nover  that weapon so that his possession  thereon  continues\ndesire\tphysical possession being in someone else.  if\tthis\nwere  not  so,\tthen  :an owner of a  house  who  leaves  an\nunlicenced gun in that house but is not present when it\t was\nrecovered  by  the  police  can plead that  he\twas  not  in\npossession of it even though he had himself consciously kept\nit three when he went out.  Similarly. if he goes out of the\nhouse during the day and in the meantime someone conreals  a\npistol\tin  his\t house and during  his\tabsence\t the  notice\narrives\t and discovers the pistol he cannot be charged\twith\nthe offence unless it c,n be shown that he had knowledge  of\nthe  weapon being placed in his house.\tAnd vet again  if  a\ngun or firearm is given to his servant in the house o  clean\nit, though the physical no session is with him nevertheless\npossession ,of it will be that of the owner. [511 G-512 BI\nIn  any\t disputed question of  possession, specific  facts\nadmitted or proved will alone establish the existence of the\nde  facto relation of control or the dominion of the  person\nover  it necessary to determine whether that person  was  or\nwas not in possession of the thing in question. [512 D]\nOn  the above view the charge that the appellant was in\t po-\nssession  of the revolver on 17-9-1966 did not\tsuffer\tfrom\nany defect particularly\n509\nwhen  he was definitely informed in that charge that he\t had\ncontrol over the revolver.  However in view of the forms  of\nthe  charge  given in the Schedule to the Code\tof  criminal\nProcedure the charge should be amended to read 'on or  about\n17-9-1966 instead of 'on or before'. [511 E_G]\n(ii) under  the Arms Act all that is required  for  sanction\nunder s. 39 is that the\t person\t to be prosecuted was  found\nto be in possession of the firearm,\tthe date at dates on\nwhich  he was so found in possession and the  possession  of\nthe  firearm  was  without  a valid  licence.\tAs  all\t the\n,elements were contained in the sanction in the precent case\nit was not an illegal sanction nor could it be said that the\ncharge travelled beyond the sanction. [513 E-F]\nGokak Chand v. The King, 75 Indian Cases 30, distinguished.\nMadan  Mohan  v. State of Uttar Pradesh, A.I.R.<\/a>\t 1954  $..C.\n637, referred to.\n[The  contention  that the Court in Madhya  Pradesh  had  no\njurisdiction  since the revolver was recovered in  Rajasthan\nwas not allowed to be raised since it had not been raised in\nthe Courts below]\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION : Cr.  A. No. 241 of 1969.
\nAppeal\tby special leave from the Judgment and\tOrder  dated
\nthe  23rd  April,  1969 of the Madhya  Pradesh\tHigh  Court,
\nIndore Bench in Criminal Revision No. 75 of 1969.
\nFrank  Anthony,\t A T. M. Sampath and K.C. Agarwala  for\t the
\nappellant.\n<\/p>\n
I.   N. Shroff, for the respondent.\n<\/p>\n
The  Judgement of the Court was delivered by
\nP.   Jaganwohan\t Reddy, J. This appeal is by Special   Leave
\nchallenging the judgement of the High Court which  dismissed
\na  Revision  petition filed by the   appellant\tagainst\t the
\nframing\t of  a charge by the, Magistrate of the\t 1st  Class,
\nNeemuch.   The ,charge, was that on or before  17-9-1966  at
\nNeemuch, the appellant was found in possession of and having
\ncontrol\t over one revolver without a valid licence and\tthat
\nby so doing had committed an offence under Section 25(a)  of
\nthe Indian Arms Act (hereinafter called the Act).
\nIt  appears  that one Miroo who was accused  of\t an  offence
\nunder  Section 302 of he Indian Pepal Code gave\t information
\nto   the  Police  on  16-9-66,\tduring\tthe  course  of\t  an
\ninvestigation of that offence, that the appellant had  given
\nhim a revolver which he bad kept with one Chhaganlal at\t the
\nVillage\t Karoonda  in  the  S ate  of  Raiasihan. On  that
\ninformation,   the  revolver  was  seized  from\t  the\tsaid
\nChhanganlal on the next day namely on 17-9-1966.  The Police
\nat Neemuch applied for sanction under Section 39 of the\t Act
\nto  prosecute  the appellant for an  offence  under  Section
\n25(a) of the Act.  The sanction was granted by the  District
\nMagistrate, Neemuch on 4-11-1967.  The sanction states that
\n510<\/span>
\nthe appellant had “allegedly been found in possession of and
\nhaving\tunder  his  control one\t revolver  without  a  valid
\nlicence\t at Neemuch Police Station, Neemuch  on\t 17-9-1966.”
\nAfter  the sanction, the Police prosecuted the appellant  on
\n16-1-1968  as stated already in the 1st\t Class\tMagistrate’s
\nCourt,\tNeemuch.  The Magistrate after perusal of the,\tcase
\ndiary  and other papers and after hearing the applicant,  by
\nhis  Order dated 23-9-1968 was of the view that there was  a
\nprima facie case for flaming a charge against the  appellant
\nunder Section 25(a) of the Act and he accordingly framed the
\ncharge\tin respect of which a revision was filed before\t the
\nAdditional  Sessions  Judge,  Neemuch.\t This  revision\t was
\nrejected  on 19-12-1968 and thereafter another revision\t was
\nfiled in the High Court of Madhya Pradesh.  Before the\tHigh
\nCourt,\tit  appears the only contention urged was  that\t the
\ncharge\twent beyond the sanction in hat while  the  sanction
\nspecifically  mentions that the appellant had been found  in
\npossession of the revolver at the Police Station, Neemuch on
\n17-9-1966,  the\t charge speaks of his having been  found  in
\nsuch  possession  “on or before 17-9-1966” which  words\t are
\nvague and not according to the sanction, as such the  charge
\nwas  bad.  The High Court rejected this contention,  holding
\nthat  the words “on or before” would not render\t the  charge
\nillegal\t inasmuch  as  even on the  date  of  recovery,\t the
\napplicant could be said to be in possession of the revolver,
\nand  whether  the charge is substantiated or  not  could  be
\ndecided\t only after the Magistrate proceeds with the  trial,
\nrecords\t the evidence and determines the credibility of\t the
\nwitneses  thereon.   The High Court also  thought  that\t the
\nAdditional  Sessions Judge while rejecting the revision\t was
\nof the view that before the actual recovery of the revolver
\nthe appellant was in possession at some point of time and he
\nwas  in constructive possession thereof on the date  of\t its
\nrecovery.   In these circumstances, it saw no  illegally  or
\nimpropriety in framing the charge and accordingly  dismissed
\nthe revision.\n<\/p>\n
Before\tus the learned advocate for the\t appellant  contends
\nthat  the High Court has palpably misconstrued the  case  of
\nGolak  Chand v. The King(1) a case where it was held that  a
\ncharge cannot go beyond the scope of the sanction, (2)\tthat
\nadmittedly  as the revolver was seized from Chhaganlal\tfrom
\nKaroonda in the State of Rajasthan, the Court at Neemuch  in
\nMadhya\tPradesh has no jurisdiction to try the case  against
\nthe appellant who was a resident of Neemuch in the State  of
\nMadhya Pradesh, and (3) that it was Miroo who is alleged  to
\nhave handed over the pistol to Chhaganlal after receiving it
\nfrom the accused which would show that the revolver was\t not
\nin  the\t constructive possession of the appellant  on  17-9-
\n1966.\n<\/p>\n
(1)  75 Indian Ca
\n511<\/span>
\nThe  main  question  in this case is whether  on  the  facts
\nalleged if true and at this stage nothing can be said  about
\nthe truth or otherwise of that allegation, the appellant can
\nbe  said  to  be in possession of  the\trevolver  for  being
\ncharged\t with  an offence under Section 25 (a) of  the\tAct.
\nSection 25 (a) in so far as it is relevant states
\n“whoever  acquires,  has in his possession  or\tcarries\t any
\nfirearm\t  or   ammunition  in\tcontravention\tof   Section\n<\/p>\n
3………. shall be punishable with imprisonment for a term
\nwhich  may  extend  to three years, or with  fine,  or\twith
\nboth”.\n<\/p>\n
What is meant ‘by possession in the context of this  section
\n?  Is  it that the person charged should be shown to  be  in
\nphysical possession or is it sufficient for the purposes  of
\nthat provision that ha constructive possesion of any firearm
\nor ammunition in contravention of Secton     3\t       which
\nprohibits him to be in such possession without a licence.  I
\nmay  be mentioned that under Section 19 of the Arms  Act  of
\n1878,  an offence corresponding to Section 25 ( 1 )  (a)  is
\ncommitte  I if a person had in his or under his control\t any
\narms or ammunition in contravention of Section 14 and 15  of
\nthat Act.  The would control’ under Section 25 (1 ) (a)\t has
\nen omitted.    Does this deletion amount to the\t legislature
\nconfining the offence\t only  to the case of a\t person\t who
\nhas physical possession or doe;\t   it  mean  that  a  person
\nwill  be  considered to be in possession of a  firearm\tover
\nwhich  he  has\tconstructive possession\t or  over  which  he
\nexercises  the power to obtain possessing th of when  be  so
\nintends\t  ?  If\t the  meaning  to  be  given  to  the\tword
\n“possession”  is  that it should be  a\tphysical  possession
\nonly, then certainly the chase as framed on the facts of the
\nprosecution case will not be sustainable but if the  meaning
\nto be given to the word “prossession” is wider than that  of
\nactual\tor physical possession then it is possible,, if\t the
\nevidence  produced by the prosecution is such as would\tsus-
\ntain a finding, that he had constructive possession on 17-9-
\n1966  when  he handed it over to Miroo and Miroo  handed  it
\nover  to  Chhaganlal  because  if it  was  not\tseized\tfrom
\nChhaganlal,  the appellant could have at any time  got\tback
\nthe physical possession of the revolver through Miroo.\t The
\npossession of a firearm under the Arms Act in our view\tmust
\nhave,  firstly the element of consciousness or knowledge  of
\nthat possession in the person charged with such offence\t and
\nsecondly  where lie has not the actual physical\t possession,
\nhe  has none-theless a power or control over that weapon  so
\nthat  his  possession  thereon\tcontinues  despite  physical
\npossession being in someone else.  If this were not so, then
\nan  owner  of a house who leaves an unlicenced gun  in\tthat
\nhouse but is not present when it was recovered by the police
\ncan plead that he was not in possession of it even though he
\nbid  himself  consciously kept it there when  he  went\tout.
\nSimilarly. if he goes out of the house during the day and in
\nthe meantime someone conceals a pistol in his house
\n512<\/span>
\nand during his absence, the police arrives and discovers the
\npistol\the cannot be charged with the offence unless it\t can
\nbe shown that he had knowledge of the weapon being placed in
\nhis  house.  And yet again if a gun or firearm is  given  to
\nhis  servant in the house to clean it, though  the  physical
\npossession is with him nonetheless possession of it will  be
\nthat  of the owner.  The concept of possess ion is nit\teasy
\nto comprehand as winters of Jutice,you have had occasions to
\npoint  out.  In some cases under Section 1 9 ( 1 ) (f  )  of
\nthe  Arms  Act,\t 1878  it  has\tbeen  held  that  the\tword
\n“possession”   means  exclusive\t possession  and  the\tword
\n“control”  means effective control but this does  not  solve
\nthe problem.  As we said earlier, the first precondition for
\nan  offence  under  Section 25 (1 ) (a) is  the\t element  of
\nintention,  consciousness or knowledge with which  a  person
\npossessed the firearm before it can be said to constitute an
\noffence\t and secondly that possession need not\tbe  physical
\npossession but can be constructive, having power and control
\nover  the gun, while the person to whom physical  possession
\nis given holds it subject to that power and control.  In any
\ndisputed question of possession, specific facts admitted  or
\nproved\twill alone establish the existence of  the  de-facto
\nrelation  of control or the dominion of the person  over  it
\nnecessary to determine whether that person was or was not in
\npossession  of\tthe thing in question.\tIn this view  it  is
\ndifficult at this stage to postulate as to what the evidence
\nwill  be and we do not therefore venture to  speculate\tthe-
\neon.   In the view we have taken, if the possession  of\t the
\nappellant  includes  the  constructive\tpossession  of\t the
\nfirearm\t in  question the- even though lie had\tparted\twith
\nphysical  possession on he date when it was receive—d,  he
\nwill  nonetheless  be  deemed to be  in\t posession  of\tthat
\nfirearm.  If so, the charge that he was in possession of the
\nrevolver  on  17-9-1966\t does not  suffer  from\t any  defect
\nparticularly  when he is definitely informed in that  charge
\nthat he had control over that revolver.\t It is also apparent
\nthat the words ‘on or before’ were intendel to bring home to
\nthe accussed that he was not only in constructive possession
\nof  it\ton  17-9-1966 ‘but that he was\tin  actual  physical
\npossession of it prior to that date when he gave it to Miroo
\nIt is submitted, however that the word ‘on or before’  might
\ncause  embarrassment  and prejudice to the  defence  of\t the
\naccused\t because he will not be in a position to  know\twhat
\nthe  prosecution  actually  intends,  to  allege.   From   a
\nreference  of  Form  XXVIII of Schedule 5  of  the  Code  of
\nCriminal Procedure, the made of charging a person is that he
\n‘on  or about………. did the act complained of.  In\tview
\nof  the\t forms of the charge  given in the Schedule  to\t the
\nCode, we think that it it would be fair to the appellant  if
\nThe chrge is amended to read ‘on or about’ instead of ‘on or
\nbefore’ which we accordingly o-der.\n<\/p>\n
Once we hold that the charges is not defective it cannot  be
\nsaid  that  it travels beyond the sanction accorded  by\t the
\nDistrict Magistrate under Section 39 of the Arms Act as both
\nof them are in
\n513<\/span>
\nsimilar\t terms\tin  that the sanction  also  refers  to\t the
\nappellant  having been allegedly found in possession of\t and
\nhaving\tunder  his  control one\t revolver  without  a  valid
\nlicence\t at  Neemuch  Police  Station  on,  17-9-1966.\t The
\ndecision  of the Privy Council in Golak Chand’s\t case(1)  is
\ninapplicable  to the facts and circumstances of\t this  case.
\nWhat  the  Privy Council was considering was  a\t prosecution
\nunder  Clause  18(2) of the Cotton Cloth  and  Yarn  Control
\nOrder, 1943 for which sanction to prosecute under Clause  23
\nwas  required.\t The  sanction did not\tset  out  the  facts
\nconstituting  the offence nor did the prosecution  prove  by
\nextraneous  evidence that the necessary facts  required\t for
\ngranting   sanction  were  placed  before  the\t sanctioning
\nauthority.   The sanction merely mentioned the names of\t the
\nperson-,  to  be charged and the provision  of\tthe  Control
\nOrder  under which they were to be prosecuted.\t It  appears
\nthat cases under Section 195 of the Criminal Procedure\tCode
\nwere cited before the Board, which. however, as observed  by
\nthe  Lordships do not lay (town any  principle\tinconsistent
\nwith the views expressed by them and as the sections of\t the
\nCode  are expressed in language different from that used  in
\nclause 23 of the Control Order and are directed to different
\nobjects.  it  was thought that no usefull  purpose  will  be
\nserved by an examination of these cases.  This Court held in
\nMadan Mohan v. State of Uttar Pradesh<\/a>(2) following the Privy
\nCouncil\t else in Golak Chand that where facts do not  appear
\non  the\t face of ‘he letter sanctioning\t prosecution  it  is
\nincumbent  upon the prosecution to prove by  other  evidence
\nthat the madical facts constituting the offence were  placed
\nbefore\tthe sanctioning authority.  Under the Arms  Act\t all
\nthat is required for sanction under Section 39, is, that the
\nperson to be prosecuted was found to be in possession of the
\nfirearm,  the  date  or dates on which he was  so  found  in
\npossession  and the possession of the firearm was without  a
\nvalid  licence.\t As all the elements are  contained  in\t the
\nsanction  in this case.\t It is not an illegal  sanction\t nor
\ncan it be said that the charge travels beyond that sanction.
\nIt is further contended as already indicated that the  Court
\nat  Neemuch has no jurisdiction to try the case in  view  of
\nthe  fact  that the revolver was recovered  at\tKaroonda  in
\nRajasthan.   Apart from the question whether the  possession
\nof  the\t revolver by the appellant is deemed to\t be  at\t the
\nplace  where he resided or whether it is a case\t covered  by
\nthe provisions of Section 182 of the Criminal Procedure Code
\nwhich  is  contained in Chapter XV dealing  with  places  of
\nenquiry and trial, we do not think that this contention\t can
\nbe allowed to be raised before us because no such  objection
\nwas  urged before the High Court in revision.  Even  in\t the
\napplication  for a certificate under Article 134(1)  (c)  of
\nthe  Constitution, the appellant did not urge that any\tsuch
\nobjections were urged on his behalf
\n(1) 75 Indian Cises 3@D.\n<\/p>\n
(2) A.I.R. 1954 S@C. 63.7
\n514<\/span>
\nbefore\tthe  High Court and these were not  considered.\t  In
\nthat  petition, five grounds were said to have\tbeen  raised
\nbefore the Magistrate and the Additional Sessions Judge, one
\nof which was regarding the jurisdiction of Neemuch Court  to
\ntake  cognizance ,of the case.\tThe complaint in respect  of
\nthese  grounds\twas that while all of them  were  taken\t and
\nurged  before  the Magistrate and  the\tAdditional  Sessions
\nJudge, they have not been fully and properly considered.  No
\nsimilar allegation was made in so far as the High Court\t was
\nconcerned  though it was said that the Court at\t Neemuch  in
\nMadhya\tPradesh\t would\thave  no  jurisdiction\tto  by\t the
\n,offence.  As this objection was not urged we cannot  permit
\nany such contention to be raised before us.
\nAs  the third contention raised before us namely that  since
\non  the prosecution case Miroo had handed over the  revolver
\nto Chhaganlal after receiving it from the accused, it cannot
\nbe  said  to  have been in constructive\t possession  of\t the
\nappellant, is dependent on the evidence to be adduced at his
\ntrial, the learned advocate for the appellant did not  press
\nthis ground.\n<\/p>\n
In The view we have taken except for the direction that\t the
\ncharge\tbe amended by the substitution of the words  “on  or
\nbefore”\t by  the  words\t “on  or  about”,  this\t appeal\t  is
\ndismissed.\n<\/p>\n
G.C.\t\t\t\t\t\t      Appeal\ndismissed.\n515<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Gunwantilal vs The State Of Madhya Pradesh on 3 May, 1972 Equivalent citations: 1972 AIR 1756, 1973 SCR (1) 508 Author: P J Reddy Bench: Reddy, P. Jaganmohan PETITIONER: GUNWANTILAL Vs. RESPONDENT: THE STATE OF MADHYA PRADESH DATE OF JUDGMENT03\/05\/1972 BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN MATHEW, KUTTYIL KURIEN […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-66880","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGunwantilal vs The State Of Madhya Pradesh on 3 May, 1972 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gunwantilal-vs-the-state-of-madhya-pradesh-on-3-may-1972\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gunwantilal vs The State Of Madhya Pradesh on 3 May, 1972 - 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