EMPEROR Vs. LALMAN THARU

JUDGEMENT

(1.) The opposite party, Lalman Tharu, went out with his two employers Bika Diswa and Chhedi Chaudhari and two others from British India into Nepal for the purpose of shooting rhinoceros. With them the party had two muzzle loading guns which were not licensed in British India. On the return of the party into British India they were ambushed by a dafadar and chaukidars who were lying in wait for them having heard that the party was in possession of unlicensed arms. The whole of the hunting party escaped except the respondent (opposite party) who, according to the evidence of the dafadar, was carrying the two guns. The opposite party was charged and tried under Section 19(f), Arms Act with being in possession of arms in contravention of Section 14, that is to say, being in possession of arms without a license. The learned Magistrate has acquitted the opposite party purporting to follow two decisions of the Judicial Commissioner's Court of Nagpur in which it was held that possession within the meaning of Section 19(f) does not mean mere temporary possession or control by a servant. In this Court we have been referred to other decisions in which the same view has been taken. But with one exception all those oases refer to the temporary possession of licensed gun. It has been pointed out in some of those cases that when a master entrusts his gun to his servant for a mere temporary purpose such as holding or carrying it for him or taking it to a gunsmith for repairs, the master in law is not parting with the possession of the gun.

(2.) In the case of a licensed weapon a person who merely assists the owner of the weapon by carrying it for him or taking it somewhere for him may be said to assist his master in doing a perfectly legal act, for the master being the licensee is entitled to have the gun in his possession. But in the case of an unlicensed weapon neither the actual owner of the gun nor anybody to whom he entrusts it can be said to be engaged in a legal act, for the possession in that case is illegal whether it be in the possession of the master or of a servant. Technically therefore the opposite party has committed the offence with which he was charged. But it would appear it is not proved that he had any knowledge that the guns which he was carrying for his master were unlicensed and in these circumstances we do not consider that the offence of which he is guilty calls for a severe punishment. We would sentence the opposite party to pay a fine of Rs. 10 (Rupees ten) and in default of payment to undergo simple imprisonment for 15 days under Section 19 (f). Varma, J.

(3.) I agree.