RANAWAT,J. - (1.) This is an appeal by the State from the judgment of the Munsiff -Magistrate, Malpura, dated the 5th of November, 1960, acquitting the accused Bishna of an offence under Sec. 19 (f) of the Indian Arms Act.
(2.) The prosecution case was that on 13th of March, 1959, accused Bishna gave information to the police that one Nanuda, who was wanted in some cases of dacoity, had left with him a few articles of clothing in a bag, along with some .12 bore cartridges, which he had kept hidden and which he could get recovered. Accordingly, the accused led the police and got 34 live cartridges of .12 bore recovered from his hut in his field in village Sans. He was therefore prosecuted for an offence under Sec. 19 (f) of the Indian Arms Act for keeping live cartridges in his possession without a licence. The learned Munsiff -Magistrate placing reliance on a decision of this Court in State Vs. Ramkishan (1), held that no offence under Sec. 19 (f) was made out for the reason that only a limited possession of the cartridges was given by Nanuda to the accused and so, in the eye of law, the possession would be deemed to be that of Nanuda and not of the accused. In this view, the learned Munsiff -Magistrate recorded an order of acquittal. It has been urged for the State that the learned Magistrate v as in error in treating the possession of the unlicensed ammunition to be that of Nanuda and not of the accused.
(3.) In State Vs. Ram Kishan (1) the following observations were made by this Court - - "where a servant or a friend is in temporary possession of a licensees gun for a limited purpose, say repairs, he would not be guilty under Sec, 19 (f) of the Arms Act for being in possession or control of the gun because in such circumstances the possession in law will be that of the licensee." In that case, the licensee of a pistol pledged it with the proprietor of the Grand Hotel, Jodhpur for an amount of Rs. 300/7/ - and the police challaned the proprietor of the hotel for keeping the pistol in his possession without a proper licence. It was held that the possession of the proprietor of the hotel was that of a pledgee and he could not be said to hold the pistol for a temporary purpose like that of a servant or a friend holding an arm on behalf of a licensee for a temporary purpose, say for repairs. The accused was therefore held technically guilty and was fined Rs. 25/ - only. Thus it was a case in which a fire arm was held by a licensee and the possession of the pledgee was held not to be temporary or for a limited purpose so as to be treated as the possession of the licensee in law. The observations regarding temporary possession in State Vs. Ramkishan do not therefore apply to the facts and circumstances of this case. Here, Nanuda, who handed over the ammunition to the accused Bishna, had no licence to keep the ammunition in his possession. His possession was not legal and the ammunition could not be treated to be in the possession of Nanuda when it was actually found to be with Bishna. The legal fiction that was enunciated in Ramkishans case cannot hold good in a case in which the person giving the possession for a temporary purpose holds no licence for the possession of the fire arm or the ammunition. The possession of Bishna is his own possession, and he cannot be regarded as holding the ammunition for a temporary purpose on behalf of some one else. We may refer to the decision in Emperor Vs. Lalman Tharu (2). In that case a gun was held by the accused who alleged that he was the servant of the owner of the gun and held it on his behalf, and it was also alleged that he had no knowledge whether the owner of the gun held it under a licence or otherwise. It was found that" the owner had no licence for the possession of the gun and the servant, who was the accused in that case, was held liable for keeping the fire arm in his possession without a licence. It was observed that the possession of the servant could not be treated to be that of the master, for the master had no licence to keep the gun in his possession. The statement of Shoodana (Court witness No. 1) proves it beyond doubt that Nanuda visited the place of the accused Bishna and he gave him the possession of 34 live cartridges of 12 bore along with some other articles. Bhairon Singh has stated that 34 live cartridges were recovered from the hut in the field of Bishna on information furnished by him. Thus it is proved that the accused Bishna was in possession of 34 live cartridges of 12 bore and he had no licence for keeping the said ammunition in his possession. He is guilty of an offence under Sec. 19(f) of the Indian Arms Act. The accused denied the recovery of the said ammunition from his possession, but in view of the evidence mentioned above it is held proved that 34 live cartridges of 12 bore were recovered from his possession on information furnished by him to the police. The reason for which the possession was not held to be that of Bishna by the lower court, is mis -conceived. The observations in Ram Kishans (1) case, as discussed above are distinguishable, and they do not apply to the facts and circumstances of this case. about:blank 7/20/2016 Page 2 of 2;