Holding

Delivery of firearms to an unlicensed mechanic for repair at his independent workshop divests the licensor of physical possession and effective control, constituting "possession" under Section 29(b) and violating licence conditions, thereby attracting offences under Sections 29(b) and 30 of the Arms Act, 1959.

Summary

The State of West Bengal appealed the discharge of four licensed gun dealers who had handed firearms to an unlicensed mechanic for repair at his own workshop. The Supreme Court examined whether such hand‑over amounted to delivery of "possession" under Section 29(b) of the Arms Act, 1959, and whether it violated licence conditions under Section 5, attracting liability under Section 30. Relying on the factual circumstance that the mechanic exercised exclusive control at his premises and that the dealers failed to verify his authority, the Court held that the dealers divested themselves of both physical possession and effective control, thereby delivering possession to an unauthorised person. Consequently, the dealers were prima facie liable for offences under Sections 29(b) and 30. The Court allowed the appeal, set aside the lower courts' orders of discharge, and remitted the matter to the trial magistrate to frame charges under the said sections.

Issues considered

Whether handing over firearms to an unlicensed mechanic for repair at his own premises constitutes delivery of "possession" within the meaning of Section 29(b) of the Arms Act, 1959.
Whether such hand‑over also breaches the conditions of the licence under Section 5, attracting liability under Section 30 of the Act.
How the term "possession" should be interpreted under the 1959 Arms Act in contrast to the earlier 1878 Act.
Whether the procedural distinction between a summons case tried as a warrant case affects the validity of the trial.

Legislation cited

Arms Act, 1959s. 25(1)(a), s. 27, s. 29(b), s. 30, s. 5
Code of Criminal Procedure, 1973s. 227, s. 228

Subjects

possessionArms Act 1959Section 29(b)Section 30firearm repairlicence conditionscriminal liabilitytemporary custody

Judgment

323

SUPDT. & REMEMBRANCER OF LEGAL Al'FAIRS
WEST BENGAL
v.
ANIL KUMAR BHUNJA & ORS.
August 23, 1979
B
'[R. S. SARKARIA, P. N. SHINGHAL AND 0. CHINNAPPA REDDY, JJ.]

.Arms Act 1959 (4 of 1959)-S. 29(b)-Scope of-Giving of fire-arms
ifor limited purpose of repairs-Whether amounts to delivery of 'possession'-
Great caution and discenunent necessary in the application of the ratio of ca.~es
<decided under the Arms Act of 1878 to those under the present Act.
c
Words & Phrases-"Possession" meaning of-S. 29(b) Arms Act, 1959.

The prosecution alleged that the police officers of the appellant state while
~nvestigating a case discovered a workshop run by a mechanic who was then
.actually working on a revolver. Several other guns, revolvers and rifles were
found in the workshop and all these fire-arms were seized. The p1echanic
claimed to have received one of the guns so seized from a gun-licensee and the D
rest fron1 respondents 1 to 4 for repairs. The mechanic had no valid licence
t1nder the Arms Act to keep or repair these fire-arms but respondent No. 4
however possessed licences under the Act to run the business of repairing and
.dealing in fire-arms. The police charge-sheeted the mechanic, the gun licensee
and respondents 1 to 4, for having committed offences under Sections 25(l)(a)
and 27 of the Act.
.E
The Magistrate held that there were materials to make out a prima facie
case under s. 25(1)(c) of the Act against the gun-licensee and under s. 29(b)
of the Act against the mechanic and charged them accordingly. As regards
•
Respondents 1 to 4 taking the view that giving of the arms to the mechanic by
1he respondents for the limited purpose of repairs, did not amount to delivery
of 'possession' of those arms within the meaning of s. 29(b) of the Act, he dis-
.charged the said respondents. '

The appellant's criminal revision against the said order, was dismissed, the
High Court holOing that Respondents 1 to 4 could not be said to have· delivered
the fire-arms into the 'possession' of the mechanic within the meaning of s. 29(b)
of the Act, because the respondents possessed valid licences for repairs as \vell
as for sale of fire-arms and had given only 'temporary• custody of those arms
•• tb the mechanic for the limited purpose of carrying Out the repair job, while G
1he effective control over those arms all the time remained with the respoildents.
I

In appeal to thjs Court it was contended on behalf of the appellant-State
that. the question whether a person is in possession of a fire-arm or had trans-
ferred and delivered it to another, is largely one of f9.ct; that in the instant case,
the mechanic was not a servant or employee of the respondents but \\tis in~
.dependently running his own business of repairing fire-arms; that the fire-arins H'
\\'ere handed over by the respondents to the mechanic to be repaired at the
latter's residence-cum-workshop which was not the respondent's licensed place
324 SUPREME COURT REPORTS (1980] 1 S.C.R.

'A of business; ,that the mechanic had no licence for repairing or keeping fire-arm.s-
and the respondents were either aware of this fact or did not ascertain it before
delivering the fire-arms to him, that 'possession' within the purview of s. 29(b)
means immediate possession and consequently, delivery of even temporary pos.-
session and control to an unauthorised person falls within the mischief of the
siection; that in the circumstances of the instant case there was a clear pritna
facie case not only under s. 29(b) but also under s. 30 read withs. 5 of the
B Act, against the Respondents and consequently the Magistrate was not justified.
in discharging them.

On behalf of the Respondents it was contended that the mechanic was only
in temporary custody of the fire-arms for the limited purpose of repairing them,
.as an agent of the owners, who being licencees in Form IX entitled to repair
and keep these fire arms, througho\lt remained in their lawful possession and
c control. The delivery of possession contemplated by s. 29(b) is something.
more t_lian entrusting the arms to an 'agent' for the limited purpose of repairs.

Allowing the appeal,
HELD : 1. "PosSession" is a polymorphous term which may have different
, meanings in different contexts. It is impossible to work out a completely logical
D and precise definition of "possession" uniforinly applicable to all situations in.
the contexts of all statutes. "Possession" implies a right and a fact; the right
to enjoy annexed to the right of property and the fact of the real intention. It
involves power of control and intent to control. [3280-E]

"Possession" is not a purely legal concept but also a matter of fact, and tho·
broad test for determining whether a person is in possession of anything ill. ~
E whether he is in general control of it. [328H-329A]

Salmond's Jurisprudence 11th Edn. p. 52 referred to.

Jn the instant case although the respondents held' licences in Form IX for,
,..repairing and· dealing in fire-arms at the place of business, factory or shop-·
¥rhich V.'as specified in Column 3 of their licences, they handed over the fire-
arms to the mechanic who had no such licence to be repaired at the latters own·
F \vorkshop. Since that workshop and the repairing business being run therein,
was in the exclusive control and occupation of the mechanic, the inferen~e
\\'ould be that by handing over the fire-arms to the mechanic for repair the
respondents had divested themselves for the time being not only of physical
possession but also of effective control over those fire-arms. The respondents
had not done anything to ascertain whether the mechanic was legally authorised'
to retain those fire-arms even for the limited' purpose of repairing them. Prima- •
facie the materials before the Magistrate showed that the respondents had de-
livered the fire-arms in question into the possession of the mechanic without
previously ascertaining that be was legally authorised to IDve the same in his
possession. and as such, they appeared to have committed an offence under s.
29 (b) of the Act. [330B-C, 330G-33 IAJ
•
3. By allowing the fire-arms to be removed: to a place other than the place·
H of business or factory specified in Column 3 of the licences in Form IX, the res-
pondents contravened condition (l)(c) of the licence, amounting to an offence'"
punishable under s. 30 of the Act. [3 31 B-C]
WEST BENGAL v. A. K. BHUN.JA (Sarkaria, !.) 325

'fhe n1aterials before the ~Jagistrate, prima jacie disclosed the con1mission A
of oITenccs under Sections 29 (b) and 30 of the Act by Respondents 1 to 4. The
l\.1agistrate was thus clearly in error in discharging these respondents. [331D]

4. The ratio of cases decided under the Old Arms Act (Act 11 of 1878)
should not be blindly applied to cases under the Act Or 1959 which has in
.several aspects modified or changed the law relating to the regulation of arms.
[331H] B
5. Trial of summons case as a ¥:arrant case does not amount to an illegality
, but is a mere irregularity that does not vitiate the trial unless there is a prejudice.
[3~3 B]

6. Case remitted to trial Magistrate with direction to frame charges iii. re·
spcct of offences under Sections 29(b) and 30 of the Act against Respondents
1 to 4 and to proc•ed further with the trial. (3 3JC] c
Manzur Hussain v. Emperor, AIR 1928 All. 55(1); Sadh Rafn V. State,
AIR 1953 HP 121: Emperor v. Harpal Raj, ILR XXIV All. 454; A. Malcom
v. Emperor, AIR 1933 Cal. 218; Emperor v. Kaya Hansji, 14 Born. L.R. 964;
Parmeshwar Singh v. Emperor, AIR 1933 Pat. 600; Murli v. Crown, AIR
1929 All. 720; Tola Ram v. Crawn, !LR 16 All. 276; held inapplicable.
D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 98 of
1973.
Appeal by Special Leave from the J udgmenf and Order dated
16-8-1972 of the Calcutta High Court in Criminal Revision No. 85/72.
M. M. Kshatriya, G. S. Chatterjee and D. N. Mukherjee for the
E
Appellant.
A. K. Gupta for Re>pondents 1 and 3.
H. K. Puri for Respondents 2 and 4.
The Judgment of the Court was delivered by
SARKARIA, J .-Whether the giving of fire-arms by a person holding F
a licence for tepairing and dealing in fire-arms for repairs to a mechanic
who holds no such licence, but does the! repair job at his workshop at
a place different from the factory or place of business of the licence-
holder, amounts to "delivery of those arms into .the possession of an-
other person" within the contemplation of Section 29 (b) of the Arms
• Act, 1959 (For short, called the 'Act'), is the principal question that G
falls to be answered in this appeal by special leave directed again•t a
judgment, dated August 16, 1972, of the High Court of Calcutta. It
arises in these circumstances :
~ On or about April 17, 1971, the Calcutta Police while investigat-
ing a case, went to premises No. 4, Ram Kanai Adhikari Lane in R
Calcutta, and, on the ground floor of the building, they discovered a
workshop run by Mrityunjoy Dutta, who was then working on a re-
f
326 ~UPREME COURT REPORTS [1980) l S.C.R.

volver. In the said premises, the police found several other guns,
revolvers and rifles. All these fire-anns were seized by the police.
Mrityunjoy Dutta claimed to have received one of the guns so
seized from one Matiar Rahaman gun-licensee and the rest from res-
pondents 1 to 4 for repairs. Mrityunjoy Dutta had no valid licence to
B keep or repair these fire-arms under the Act. Respondents 1 to 4, how- l
ever, were holding licences under the Act to run the business of re-
pairing and dealing in fire-arms.
On April 17, 1970, the police charge-sheeted Mrityunjoy Dutta,
Matiar Rahaman and respondents 1 to 4 to stand their trial in the
Court of the Presidency Magistrate, in respect of offences under Sec-
tions 25(1) (a) and 27 of the Act.
The trial Magistrate, while considering the question of framing
charges, held that there were materials to make out a prima fade case
under Section 25 ( 1) ( c) of the Act against Mrityunjoy Dutta and under
Section 29 (b) of the Act against Matiar Rahaman, and charged them
accordingly. So far as respondents 1 to 4 are concerned, the Magistrate
took the view that the giving of the arms to the accused Dutta, by res-
pondents 1 to 4 for the limited purpose of repairs, did not amount to
delivery of possession of those arms within the meaning ot Section
29 (b) of the Arms Act (Act IV /1959), and in the result, he discharged
the respondents by an order, dated November 17, 1971.
E
Aggrieved, the State of West Bengal filed a Criminal Revision
against the Magistrate's order before the High Court, contending that
delivery of the arms into the possession of a person who did not have a·
valid licence for repairs of fire-arms,. is not only a. contravention of the
provisions of Section 5 of the Act, but also amounts to delivery of firt-
F arms by the respondents into the possession of Mrityunjoy Dutta and,
as such, the respondents were prima facie liable for an offence under
Section 29(b) of the Act.
The Division Bench of the High Court, who heard the Revision,
dismissed it with the reasoning, that Respondents 1 to 4, could not be
-G said to have delivered the fire-arms, concerned into the possession oi •
Mrityunjoy Dutta within the meaning of Section 29 (b) of the Act,
because the respondents who possessed valid licenoes for repairs as well
as for sale of fire-arms, had given only temporary custody of those arms
to Mrityunjoy Dutta for the limited purpose of carrying the repair job,
while the effective control over those arms all the time remained _with
H the respondents. In its view, there is no delivery of possession of the
fire-arms so long as control over the arms and the authority to use those
am1s is not transferred to the custodian.
WEST BENGAL v. A. K. BHUNJA (Sarkaria, J.) 327

Hence, this appeal.
The whole case pivots around the interpretation and application of
·the term "possession", used in Section 29(b) of the Act.
Learned counsel f9r the appellant-State contends that the question
whether a person is in possession of an arm or had transferred and de-
1ivered it to another, is largely one of fact. It is submitted that in the B
J .instant case, there were three stark facts which more than any other,
unmistakably showed that the respondents had given possession of these
fire-arms to Mrityunjoy Dutta: (a) Mrityunjoy Dutta was not a ser-
vant or employee of the respondents, but was running his own business
.of repairing fire-anns. (b) The fire-arms were handed over to Mrit- c
yunjoy Dutta to be repaired at his own residence-cum-worksl:J.op which
was not the respondents licensed place of business, and was in the ex-
clusive control and occupation of Dutta. ( c) Mrityun joy Dutta had no
licence for repairing or keeping fire-arms and the respondents were
either aware of this fact or did not ascertain it before delivering the
fire-arms.to hin1. It is maintained that "possession" within the purview D
of Section 29 (b) means immediate possession, and consequently, de-
livery of even temporary possession and control to an nnauthorised
person falls within the .mischief of the Section. It is further urged that
the delivery of fire-arms for repairs to the unlicensed mechanic for re-
pairs, to be carried out at a place other than the factory or place of
ibusiness specified in the licence of the owners, will amount to an offence E
under Section 30 read with Section 5 of the Act, also.
As against this, Mr. Anil Kumar Gupta has addressed lengthy argu-
ments to support the judgments of the Courts below. The sum and
substance of his arguments is that tht? mechanic, Dutta, was only in
temporary custody of these arms for the limited purpose of repairing F
them, as an agent of the owners, who being licensees in Form IX en-
titled to repair and keep these fire-arms, throughout remained in their
lawful possession and control. It is maintained that the delivery of
possession contemplated by Section 29 (b) is something more than
entrusting the arms to an agent for the limited purpose of repairs. In
• ·support of this contention, Mr. Gupta has cited several decisions. G
Particular reliance has been placed on Manzur Hussain v. Emperor(')
Sadh Ram v. State('); Emperor v. Harpal Rai( 3 ); A. Malcom v.
• Emperor(<); Emperor v. Kaya Hansji('); Parmeshwar Singh v.
(I) AIR l 928 All. 55(1 ).
(2) AIR 1953 H.P. 121.
(3) !LR XXIV AIL 454.
(4) AIR 1933 Cal. 218.
(5) 14 Born. L. R. 964.
32S SliPREME COURT REPORTS [1980] l S.C.ll..

A Emperor('); Gunwantlal v. State of Madhya Pradesh('); and Sullivan \
v. Earl of Caithness(').
Reference was also made to Halsbury's Laws of England, Vol. 25,
Third Edition, page 874, and Salmond's Jurisprudence, 11th Edition.
It was next contended that even if the term "possession" in Sectiorr
B 29(b) is susceptible of two interpretations,. the one favourable to the
accused be adopted. In this connection reference has been made to
Woodage v. Moss(4).
The last submission of Mr. Gupta is that since these criininaL pro-
ceedings have been brooding over the head~ of the respondents for the
c last eight years, this Court should not, even if it reverses the opinion
of the courts below, direct the Magistrate to frame charges against the
respondents and to proceed with the trial. It is emphasised that in any
event, the offence disclosed against the respondents was purely techni-
cal.

D "Possession" is a polymorphous term which may have different
meanings in different contexts. It is impossible to work out a com-
pletely logical and precise definition of "possession" unifomtly applic-
able to all situations in the contexts of all statutes. Dias & Hughes in
their book on Jurisprudence say that if a topic ever suffered from too
much theorizing' it is that of "possession". Much of this difficulty andf
E confusion is (as pointed out in Salmond's Jurisprudence, 12th Edition,
1966) caused by the fact the possession is not purely a legal concept.
"Possession", implies a right and a fact; the right to enjoy annexed to
the right of property and the fact of the real intention. It involves
power of control and intent to control.
(See Dias and Hughes, ibid)
F
According to Pollock & Wright "when a person is in such a relation
to a thing that, so far as regards the thing, he can assume, exercise or
resume manual control of it at pleasure, and so far as regards other
persons, the thing is under the protection of his personal presence, or
in or on a house or land occupied by him or in any receptacle belong-
G ing to him and under his control, he is in physical possession of the
thing".
While recognising that "possession" is not a purely legal concept
but also a matter of fact; Salmond (12th Edition, page 52) describes
"possession, in fact", as a relationship between a person and a thing.
H (!) AIR 1933 Pat. 600.
(2) [1973] l S.C.R. 508.
(3) [1976] 1 Q.B. 966.
(4) [1974] 1 All. Eng. Rep. 484
WEST BENGAL v. A. K. BHUNJA (Sarkaria, J.) 329

According to the learned author the test for determining "whether a A
person is in possession of anything is whether he is in general control
.of it".

In Gunwantlal (ibid), this Court while noting that the concept of
possession is not easy to comprehend, held that in the context of Sec-
1 tion 25(a) oif the Arms Act, 1959, the possession of a fire-arm must B
have, firstly, the ekment of consciousness o~ knowledge of that posses-
·, -sion in the person charged with such offence, and secondly, he has

• either the actual physical possession of the fire-arm, or where he has
not such physical possession, he has nonetheless a power or control
-0ver that weapon. It was further recognised that whether or not the c
.accused had such control or dominion to constitute his possession of
the fire-arm, is a question of fact depending on the facts of each case.
In that connection, it was observed : "In any disputed question of
possession, specific facts admitted or proved will alone establish the
.existence of the de facto relation of control or the dominion of the per-
·sou over it necessary to determine whether that person was or was not D
in possession of the thing in question".

With this guiding criterion in mind, the Magistrate had to see whe-
ther the facts alleged and sought to be proved by the prosecution prima
jacie disclose the delivery of the fire-arms by the respondents into the
possession of Mrityunjoy Putta, without previously ascertaining whether E
the recipient had any licence to retain and repair those fire-arms within
the contemplation of Section 29 (b) .
It may be remembered that the case was at the stage of framing
.charges; the prosecution evidence had not yet commenced. The Magis-
trate had therefore, to consider the above question on a general con• 1'
·sideration of the materials placecl before him by the investigating police
officer. At this stage, as was pointed out by this Court in State of Bihar
v. Ramesh Singh(l), the truth, veracity and effect of the evidence which
the prosecutor proposes to adduce are not to be meticulously judged.
The standard of test, proof and judgment which is to be applied finally
• before finding the accused guilty or otherwise, is not exactly to be ajl-" G
plied at the stage of Section 227 or 228 of the Code of Criminal Pro-
·Cedure, 1973. At this stage, even a very strong suspicion founded upon
materials before the Magistrate, which leads him to form a. presumptive
opinion as the existence of the factnal ingredients constituting the offence
alleged; may justify the framing of charge ag!l.inst the accused in res-
pect of the commission of the offence. H
(I) A.I.R. 1977 S.C. 2018.
330 SUPREME COURT REPORTS [1980] 1 S.C.R,.

A Now, in the instant case, at that initial stage, it was apparent from
the materials before the Magistrate, that the basic facts proposed to be
proved by the prosecution against the accused-respondents were as.
follows :
(a) That the respondents. held licences, inter alia, in Fann IX for
B repairing and dealing in fire-anns at the place of business, factory or· r
shop specified in the Column 3 of their licences.
(i) The respondents handed over the fire-anns in question to·
Mrityunjoy Dutta for repairs.
(ii) Mrityunjoy Dutta did not have any licen•e for repairing or·
c dealing in fire-arms;
(iii) (a) Mrityunjoy Dutta was doing the repair job in respect of
these fire-arms at his own residence-cum-workshop which was situated
at a place different from the business places specified in the licences of
the respondents.
D (b) The fire-arms in question were seized from the workshop-
cum-housc in the occupation and control of Mrityunjoy Dutta, when
the latter was actually in the act of repairing working on a revolver.

There is nothing in these materials to show that at the time of the
seizure of these fire-anns, any of the respondents or any Manager of ,-
E their concerns, was fonnd present and personally supervising the repair-
work that was being done by the mechanic, Mrityunjoy Dutta.
These positive and negative facts, in conjunction with other subsidiary
facts, appearing expressly or by implication from the materials which:
were before the Magistrate at that initial stage were, at least, sufficient
F to show that there were grounds for presuming that the accused-rei;pon-
dents had committed offences onder Sections 29 (b) and 30 of the Act.
.Facts (iii)(a) & (b) listed above, inferentially show that by handing
over the fire-anns to Mrityunjoy Dutta to be repaired at the latter's!
independent workshop, the respondents had divested themselves, for tho
G
time being, not only of physical possession but also of effective control
over those fire--arms. There is nothing in thosei materials to show that
..
before handing over those fire-arms to Mritynnjoy Dutta for repairs,
the respondents had done anything to ascertain that Mritynnjoy Dutta
was legally authorised to retain those arms even for the limited pur-
pose of repairing them. Thus, prima facie the materials before the-
B Magistrate showed that the respondents had delivered the fire-arms in
question into the possession of Mrityunjoy Dutta, without previou.i!)I'
ascertaining that he was legally authorised to have the same in his pos-
WEST BENGAL v. A. K. BHUNJA (Sarkaria, J.) ~31

session, and as such, the respondents appeared to have committed an A
offence under Section 29(b) of the Act:
Further, by allowing the fire-arms to be removed to a place other
, than the ,places of their business or factory specified in Column 3 of
their licences in Form IX, the respondents appear to have contravened
condition 1 ( c) of their licence, the material parU of which reads a~ B
U11der :

" ( c) This licence is valid only so long as the licensee
• carries on the trade or business in the permises shown in
Column 3 thereof ...... "
c
Contravention of any condition of the licence amounts to an offence
punishable under Section 30 of the Act.
'
I

In sum, the materials before the Magistrate, prima facie disclosed
the commission of offences under Sections 29 (b) and 30 of the Act
by respondents 1 to 4. Th(1 Magistrate was thns dearly in error in D
discharging these accused-respondents.

We do not think it necessary to notice and discuss in detail the
various decisions cited by the counsel at the bar, because, as mentioned
earlier, the question whether a particular person is or continues to be
E
in possession of an arm (in the context of the Act) is, to a substantial
extent, one of fact. This question, often resolves into the issue : whe-
ther that person is or continues to be, at the material time, in physical
possession or effective control of that arm. This issue, in tum, is a
mixed issue of fact and law, depending on proof of specific facts or
definite circumstances by the prosecution. F

At this preliminary stage, therefore, when the prosecution has yet
to lead evidence to prove all the facts relevant to substantiate the in-
gredients of the charge under Section 29 (b) levelled against thes~ res-
pondents, a detailed discussion of the principles enunciated iu the cited
decisions, is apt to partake of the character of a speculative exercise. G
Iti \\~II be sufficient to say in passing that ahnost all the decision$
of the High Courts cited before us were cases under the 'Old' i\rms
Act (Act 11 of 1878). The ratio of cases decided under the 'Old' Act
should not be blindly applied to cases under the Act of 1959 which has,
in several aspect.s modified or changed the law relating to the regula- R
tion of arms. For instance under the 'Old' Act, repairing of arms with·
out a licence, was not punishable, as 'repair' was different and distinct
332 SUPREME COURT REPORTS [1980] I s.cR:
A
from manufacture.. In Murli v. Crown(') and Tola Ram v. Crown(')
1t was held that a person in temporary possession of arms without a
licence, for repairing purposes was not guilty under Section 19 of the
Act of 1878. But section 5 of the present Act of 1959, has materially r
~ltered this position by requiring the obtaining of a lieenee for-repair-
B mg fire-arms (or other arms if so preseribed) . Further, the word
"keep" oceurring in Section 5 of the 'Old. Act has been replaced by r
the words "have in his possession" in the present Section.
Then in three of these cases, namely, Manzur Husain, Sadh Ram v.
State, Emperor v. Harpal Rai, the license-holder sent his licensed fir!(-
arm for repairs through a person who had the license-holders' oral
c authority, expressly or impliedly given, to carry it to the repairer. It was
held that the carrier, though he held no licence to keep the fire-arm,
could not be said to be in "possession" of it, nor could the license-holder
be said to have parted with the "possession'; of the fire-arm or deliveredl
its possession to an unauthoriood person. Sim1larly, in one of the cases y

D cited, the license-holder sent his fire-arm to the Magistrate through bis
servant or agent for getting the licence renewed. In that case also, it
was held that the servant was not guilty of any offence for having in
his possession or "carrying" a gun without a licence. The possession •
was h~ld to be still with the license-holder-owner of the weapon.

E The rule enunciated in these decisions has been given a limited re-
cognition in the Proviso to Section 3 of the Act of 1959. Under this
Proviso, if a licensed weapon! is carried to an authorised repairer by i
another having no licence, he will not be guilty for carrying that fire-
arm, if he has a written authority of the license'.h-0!der for carrying that
weapon to a repairer. Similarly, for carrying a licensed fire-arm to the
appropriate authority for renewal of the license, written authority of the
owner of the weapon is essential to bring him within the protection of
the Proviso. In some of these cases referred £0 by the counsel., a per-
son was carrying or was in custody of a licensed weapon for use by
'
'

the licensee. Now, the Proviso to Section 3 of the present Act, pro-
tects such carriers or custodians of weapons for use by the, license-
holder, only if they do so in the presence of the license-holder concern-
ed. We have referred, by way of example, some of these changeg
brought about by the Act of 1959, only to impress on the trial court
that in considering the application of the ratio of the cases decided
under the Act of 1878, to those under the present Act great caution and
B discernment is necessary.
(!) A.I.R. 1929 All. 720
(2) I.L.R. 16 All. 276.
WEST BENGAL v. A. K. BHUNJA (Sarkaria , J.) 333

For all the reasons aforesaid, we allow this appeal and set aside the A
orders · of the Courts below whereby respondents 1 to 4, herein, were
discharged. Although offences under Section 29 (b) and 30 of the Act
are summons cases, the Magistrate has followed the warrant procedure,
' I
obviously because an offence under Section 25 of the Act, for which
l" Mrityunjoy Dutta was being jointly tried with Respondents 1 to 4, was
i
B
a warrant case. Moreover, trial of a summons case as a warrant case
.,,. does not amount to an illegality, but is a mere irregularity that does_not
vitiate the trial unless there is prejudice. We therefore, send the case
back to the trial Magistrate with the direction that he should fmme
charges in respect ofi offences under Sections! 29 (b) and Sectio'flJ 30
of the Act against the accused-respondents 1 to 4 and proceed further c
with the trial in accordance with law. We decline the submission made
on behalf of these respondents that on account of their prolonged
ha.rassment and expense, which are the necessary concomitants of pro-
tracted criminal proceedings extending over eight years, they should
not be put on trial now for offences which, according to the counsel,
are merely technical. Even so, we think, this is a circumstance to be D
taken into consideration by the trial court in fixing the nature and
quantum of sentence, in the event of the accused -being found guilty.

Before parting, with this judgmerit, we will however, set it down
~ by way of caution that the Magistrate while assessing the evidence and
recording his findings on its basis with regard to proof or otherwise the E
factual ingredients of the offences with which the accused may stand
charged, shall not allow himself to be unduly influenced by anything
said in this judgment in·regard to the merits of the case.

N.V.K. Appeal allowed.

3-531SCI/79