SADH RAM Vs. STATE

JUDGEMENT

(1.) THIS is a reference under Section 438, Cr. P. C., by the learned Sessions Judge of Mahasu and Sirmur, recommending that the conviction of Sadh Ram for an offence under Section 22, Arms Act, 1878, be set aside and he be acquitted.

(2.) THE facts of the case are not in dispute. Sadh Ram holds a license for a gun. The gun was at the time out of repair, and he was taking it for repairs to a gun maker at Kot Khai. On his way to Kot Khai he came to know at village Dim that the gun maker was not at Kot Khai. Sadh Ram thereupon deposited the gun with one Jiwan Ram, promising to return the following day and take it back from him. He however told Jiwan Ram that in case he was unable to return the following day, the gun should be taken by him (Jiwan Ram) to the Police Station along with the license, which was also handed over to Jiwan Ram by Sadh Ram, for inspection. The following day, before Jiwan Ram could take the gun to the Police Station for its inspection, it was recovered from his possession by the Police and Sadh Ram was prosecuted for the offence under Section 22 of the Act.

(3.) IT is well settled that temporary possession of a fire arm on behalf of the license holder without any intention that it be used as such does not amount to possession within the various provisions of the Arms Act under which possession of a fire arm has been penalized. A number of decisions on this point have been referred to in 'Kedar Nath v. Emperor', AIR 1941 Pat 209 (A). In this Patna case itself one of the persons convicted was the license holder of the gun. It appears that on returning from a shooting expedition he left the gun with a friend with the intention of returning shortly afterwards and taking it back from him. The license holder was convicted for breach of condition No. 2 of 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 Column 5. The friend 'of the license holder was not such a retainer. It is manifest that on the above facts breach of the condition of the license was also punishable under Section 22 of the Act, as in the present case. It was however held that the possession of the gun must be deemed to have remained with the license holder though it was not actually in his physical possession, and that his friend must be deemed to have been in possession of the gun on behalf of the license holder. The circumstances which were taken into consideration in arriving at this finding were that the gun was not left with the friend in order that it might be used, by him, and that the gun was left with the friend only temporarily. The same is the case here.