P L D 1965 Dacca 284 (PLP)

(c) ??.., (d) ??., (e) goes armed in contravention of the provisions of section 13,‑-- (f) ??, (g) ??, (h) ??., (i) ??.., shall be punished with imprisonment for a term which may extend to three years, or with fine or with both." This section provides for punishment of a person who goes armed in contravention of the provision of section

13. The nature of the offence contemplated under section 19(e) will therefore be found in section

13. That section is as follows:‑ "

13. No person shall go armed with any arms except under licence and to the extent and in the manner permitted thereby. Any person so going armed without a licence or in contravention of its provisions may be disarmed by any Magistrate, Police‑officer or other person empowered by the Central Government in this behalf by name or by virtue of his office." The second part of section 13 relates to the power to disarm a person who goes armed without a licence and has no relevance to the facts of this case. We are concerned in this case with the first part of section 13 as quoted above. It is laid down there in that "no person shall go armed with any arms" without licence. If he does so, he will make himself liable to punishment under Clause (e) of section 19 as quoted above. On the prosecution case itself, it appears that the petitioner did not go to the place of occurrence armed with the gun in question. It was his brother Prem Chandra who had gone there with the gun and asked him to hold the same and cut the paddy to which the learned Magistrate found he entertained a bona fide claim of right. He is further stated to have directed that if he is opposed he should use the gun. The evidence is that owner of the gun also stood nearby. It is therefore clear that the petitioner Kashi Charan did not himself go armed with any arm. That being so, he has not violated the provision of section 13 and as such is not liable to punishment as provided under section 19(e). Section 13 does not speak of possession, nor makes the firing of a gun an offence. Therefore the question of considering as to whether the petitioner was in possession of the gun or fired the same does not arise. Even if he fired the gun that would not be B an offence under section

13. But the learned Magistrate has found that he fired the gun apparently thinking that firing is also contemplated under section 13 and there clearly erred in law. Mr. Chaudhry has submitted that the petitioner was not in possession of the gun and that therefore he cannot be deemed to have gone armed with the same and that firing of the gun is not an offence at all under clause (e) of section

19. In the view I have taken of the provisions of section 13 read with section 19(e) of the Act, further consideration of the question raised, although not necessary, my opinion will be briefly indicated here. On an examination of the prosecution case, it appears that possession of the gun remained with Prem Chandra, because, Kashi Charan was holding the gun on the order of Prem Chandra who was also present there. The view expressed above, finds support in the case of Prabhat Chandra Chaudhry v. Emperor (I L R 35 Cal. 219). In that case it was held: "The provisions of section 19(f) do not make the mere possession of a gun punishable; they make possession contrary to the provisions of section 14 of that Act, punishable; and we agree with the learned counsel, who appears for the petitioner that the temporary possession which the petitioner had of the gun when he snatched it up and fired it was not the possession contemplated by section 14." That was a case under section 19 (f). That the observation that mere temporary possession is not a possession as contemplated under section 14 of the Act supports the contention of Mr. Chaudhry. In the case of Emperor v. Babu Ram (I L R 47 All. 606), it was held that where a brother of a man who had licence for a gun but who himself held no licence took his brother's gun at a time when the rioting was going on and fired shots in order to scare the rioters away, he was not guilty of any offence under the Arms Act. This case is also an authority for the proposition that if a person fires shots on the order of the persons holding the licence for the protection of his property he would be committing no offence under section 19 (e) of the Arms Act. In the case before me also, the person holding the licence was present and the shots were fired at his instance. In the case of Parmeshwar Singh v. Emperor (A I R 1933 Pat. 600), Fazal Ali, J., held that the accused, a servant of a licence holder, was in possession of the gun on behalf of his master who left the place for a short time only, the accused committed no offence although he was guarding his master's property with the gun in his absence. The learned Judge observed as follows: "Mr. Baldeo Sahay points out that the petitioner has been convicted of offence under section 19 (e) which cannot be established unless it is proved that the petitioner went out armed with a gun. He also cites the case: Sonaimathu Ambalam v. Emperor A I R 1925 Mad. 585, in which it has been pointed out that the offence of going armed with a fire‑arm is considerably narrower than the offence of being in possession merely of fire‑arms. It is unnecessary to discuss these points because in the special circumstances of the case it is evident that the petitioner was only in possession of the gun on behalf of his master who was in Bath and who had left the place where the petitioner was guarding ihis money for a short time only." Similary, in the case before me, Prem Chandra who was himself present at the place of occurrence, as alleged by the prosecution itself should be deemed to be in possession of the gun even when he handed over the same to his brother. It is Prem Chand who had gone armed with the gun and not the petitioner. In the result the Rule is made absolute. The conviction and sentence of the petitioner are set aside. K. B. A. ????????????????????????????????????????????????????????????????????????????????????????????? Rule made absolute.