STATE Vs. VORA SARAFALLI ALLIBHAI

JUDGEMENT

(1.) THE Sessions Judge, Jhalawad Division, has made this reference for enhancing the opponent's sentence passed by the First Class Magistrate, Limbdi, for the offence under Section 19(f), Arms Act. The opponent lives with his three sons and sons' wives in Limbdi in a house which has a ground floor and two storeys. He has a grocer's shop which is conducted in his name. On 1.8.51 the police raided his house and from the osri on the first floor four boxes containing 800 percussion caps were recovered from a gunny bag containing bahufali and from a mattress 18 bags1 containing 3600 percussion caps were seized. From the shop which was searched next 12 boxes containing 2400 percussion caps, 12 gun locks and two cap stands were seized. The gun looks and the cap stands were found in a Passing Show cigarette tin. Country gun -powder and foreign gun -powder were also seized from the shop. A first information report was sent to the First Class Magistrate Limbdi, as required by Section 157, Criminal P.C. The opponent was arrested by the Police Sub -Inspector and released on bail on the same day. Sanction to prosecute the opponent for the offence punishable under Section 19(f), Amis Act, was obtained from the District Magistrate on 14.8.51 and the charge -sheet was forwarded to the Limbdi First Class Magistrate on 30.8.51 which was received by him on 31.8.51. The opponent was duly tried and convicted by the First Class Magistrate under Section 19(f), Arms Act, who sentenced him to pay a fine of Rs. 125/ - and in default of payment of fine to undergo rigorous imprisonment for one month. The case came to the notice of the Sessions Judge in the course of examination of criminal return from the Magistrate's Court and after issuing notices to the opponent and the Public Prosecutor and hearing them, the learned Sessions Judge made this reference recommending that the opponent's sentence be enhanced and that he should be awarded simple imprisonment for two months in addition to the fine to which he was sentenced by the learned Magistrate.

(2.) TWO points were urged by the opponent before the learned Sessions Judge. It was urged before him that the learned Magistrate took cognizance of the offence before sanction to prosecute the opponent was obtained from the District Magistrate and the whole trial was vitiated thereby. It was further urged that the house from which the ammunition was seized was in the possession of the opponent and his sons, that the opponent resided on the ground floor only and did not even visit the upper floors which were used by the sons. Similarly the shop was conducted by the sons and the learned Magistrate was, therefore, wrong in holding that the opponent was in possession or control of the ammunition and the opponent should have been acquitted. The learned Sessions Judge overruled Josh the objections. On the question of sanction he held that the proceedings before the learned Magistrate could be said to have been instituted only after the receipt of the charge -sheet and as the charge -sheet was received by him after the requisite sanction was obtained, the opponent's trial was In accordance with law and its legality could not be questioned on the ground of want of sanction. On merits he held that the opponent was the head of the family and though the sons might be using some rooms for sleeping purposes it could not be said that he had no control over 1Sie rooms or the osri from where the incriminating articles were found. Similarly the shop was run in his name and therefore the articles seized from the shop were also under his control. He also held that as the head of the family he must be presumed to be in the possession or control of these articles and as he had failed to rebut the presumption he must be deemed to be in possession or control of the articles.

(3.) THE relevant provision of Section 19, Arms Act, Is as follows: 19. Whoever commits any of the following offences, namely: (f) has in his possession or under his control any arms, ammunition or military stores in contravention of the provisions of Section 14 or Section 15 shall be punished.... The offence under Section 19(f) is, therefore, committed if it is shown that the accused is 'in possession or control' of arms or ammunition without a licence.