In Re: A.K.M. Ahmad Naina Maracair

Yahya Ali, J.—The petitioner has been convicted by the Sub-Divisional Magistrate, Negapatam u/s 21 of the Indian Arms Act and

sentenced to pay a fine of Rs. 100, in default rigorous imprisonment for one month. He appealed to the Sessions Judge, Negapatam who

confirmed the conviction but reduced the fine to Rs. 30.

The petitioner held a licence for an S.R.B.L. gun for the years 1944-45 and he was permitted by that licence to possess 50 cartridges or one

pound of gun powder. He also possessed a licence under the Indian Explosives Act by which he was entitled to keep for sale 50 lbs. of gun

powder at a particular place which was described in that licence. He applied for the renewal of the gun powder licence and in the ordinary course,

the application went to the Taluk Magistrate, who on 5th April, 1946, inspected the site where the gun powder was stored. The Taluk Magistrate

found that only 30 lbs. were in store at the place mentioned in the licence under the Indian Explosive Act; but in the shop there were besides the

S.B.B.L. gun 17/8 lbs. of gun powder. The Taluk Magistrate reported the matter to the authorities and as a result the petitioner was prosecuted for

being in possession of 7/8 lb. of gun powder in excess of the quantity permitted by his gun licence. The prosecution was u/s 21 of the Indian Arms

Act and both the Courts below have found the petitioner guilty under that section.

The defence was twofold. On the facts it was alleged that the excess of 7/8 lbs. was the gun powder that was removed from the cartridges and

that possession of such gun powder did not constitute an offence. The more substantial objection was with reference to the provision of law that

was applicable. Even on the assumption that the facts of the prosecution case were all true, it was contended in both the Courts below as well as

before me that the appropriate provision that was applicable to such a case was Section 14 of the Indian Arms Act and that no contravention of

that section can form the subject-matter of a prosecution by virtue of Section 29 of the same Act without the previous sanction of the District

Magistrate. It is admitted that there is no such sanction in the present case because the view upon which the prosecution has throughout acted is

that Section 21 of the Arms Act is applicable and not Section 14 and for a prosecution u/s 21 no such sanction is required. The question that falls

to be decided in this case is whether when a licensee possesses more gun powder than is mentioned in his gun licence, he commits an offence u/s

14 or u/s 21 of the Indian Arms Act.

Section 14 runs thus:

No person shall have in his possession or under his control any cannon or fire-arms or any ammunition or military stores, except under a licence

and in the manner and to the extent permitted thereby.

This has to be read with Section 19(f) which is the provision relating to punishment for the infringement of Section 14:

Whoever commits any of the following offences (namely) :-(f) has in his possession or under his control any arms, ammunition or military stores in

contravention of the provisions of Section 14 or section15,

shall be punished with imprisonment for a term which may extend to three years, or with fine or with both.

Section 29 provides:

Where an offence punishable u/s 19, Clause (f), has been committed within three months from the date on which this Act comes into force in any

province, district or place to which Section 32, Clause 2 of Act XXXI of 1860 applies at such date, or where such an offence has been committed

in any part of British India not being such a district, province or place, no proceedings shall be instituted against any person in respect of such

offence without the previous sanction of the Magistrate of the district or, in a presidency-town, of the Commissioner of Police.

Lastly Section 21 is in these terms:

Whoever, in violation of a condition subject to which a licence has been granted, does or omits to do any act shall, when the doing or omitting to

do such act is not punishable u/s 19 or Section 20, be punished with imprisonment for a term which may extend to six months, or with fine which

may extend to five hundred rupees, or with both.

The lower Courts have, in holding that this is a case falling within the purview of Section 21, relied upon condition 3 of the licence which says that

the licence is valid "" to the extent specified in column 8 "" and column 8 is as follows : ""Area within which the license is valid--Tanjore District."" It is,

from this condition, argued that the expression "" extent "" is in its connotation restricted to the territorial limit. The appellate Court has also relied

upon the second condition in the licence which is in these words:

It (the licence) covers only the persons named, and the arms and ammunition described therein and such retainers (if any) as may be entered in

column 5.

The learned Sessions Judge considered that this condition which also has been violated does not fall within the ambit of Section 14 of the Arms

Act and hence the offence would not be punishable u/s 19(f) as coming u/s 14. Attention was further drawn to the first note at the bottom of the

licence which is to the following effect:

Any breach of the conditions of this licence is punishable with imprisonment for a term which may extend to six months or with fine which may

extend to six months or with fine which may extend to Rs. 500 or with both (Section 21 of the Indian Arms Act, 1878).

The criterion to be applied in deciding whether Section 14 applies is whether the possession or control, was not covered by a licence or if it was

covered by a licence whether it was in the manner and to the extent permitted by the licence. The prosecution case is definitely to the effect that so

far as the excess quantity of gun powder that is found in the shop is concerned, it is not covered by the licence. It was therefore a case of

possession of 7/8 lbs. of gun powder without a licence. Condition 2 might also be applicable to such a case but it has to be noticed that Section 21

comes into play only where in violation of a condition subject to which the licence has been granted an act has been done which is not punishable

u/s 19. Apart from this quite simple way of disposing of the matter, I have to deal with the second part of Section 14 which relates to the manner

and extent permitted by the licence as there has been considerable discussion about it at the Bar and in the Court below. Both the lower Courts

relied on the decision of the learned Chief Justice of the Oudh Chief Court sitting singly in Ram Saroman Singh v. Emperor (1946) 21 Luck. 301 :

AIR 1946 Oudh 124 where it was held that the word "" extent "" in Section 14 means territory in which the licence is valid but with regard to the

word "" manner "" the learned Chief Justice was of the opinion that it should not be given a restricted meaning. We are not concerned in this case

with the interpretation of the word "" manner "" but with reference to the meaning given in the Oudh case to the word "" extent "". I have to point out

that the learned Chief Justice was under the impresssion that that word had not been construed in any case before and it is in that view that the

interpretation was given that the word means only territorial limits. Actually there is an earlier decision given by a Division Bench of the Calcutta

High Court in A. Malcolm and Another Vs. Emperor, , directly on the question of meaning of the word "" extent "" in Section 14 of the Indian Arms

Act and unfortunately this case was not cited before the learned Chief Justice of the Oudh Court. In the Calcutta case, Jack and Ghose, JJ.

rejected the argument that was raised before them that the word "" extent"" in Section 14 relates only to the territorial extent and construed the word

extent"" to include the concept of limit of time or of the duration of the licence as well. There had been some delay in the renewal of the licence but

at the time when the offence complained of was committed the weapon was not actually covered by a licence. Although it is usual not to prosecute

persons who have applied for renewal before the expiry of the year allowing them a month''s period of grace, the learned Judges held that that

would not affect the provisions of Section 19, which states that a person who has in his possession arms in contravention of the provisions of

Section 14 commits an offence and to such a case it was held that the word "" extent "" was applicable as the accused was in possession and control

of the weapon after the expiry of the period of licence.

The learned Public Prosecutor tried to distinguish the Bench decision on the ground that that was a case where the licence had expired and at

the time of the alleged sale of the weapon it was not actually covered by a subsisting licence. It was thus a case of possession without a licence and

would come directly under the earlier portion of Section 14 and it was not necessary to discuss the connotation of the word "" extent "" or its

applicability to such a case. I have pointed out that the position is quite similar in the present case also as the excess quantity was held without a

licence. The Calcutta case is certainly authority for the position that the word "" extent "" is not confined to territorial extent only but it has to be

understood in its ordinary and natural sense. The meaning of the word "" extent "" according to Webster''s New International Dictionary is, inter alia,

degree, measure, proportion "" as can be gathered for the phrases in common use "" to a certain extent, to a great extent, to the full extent and

reaching the extent "". In fact when one speaks of the extent of a person''s wealth or liabilities or his gains or losses, it cannot be said that the use of

the word ""extent "" in that context as implying the concept of quantity or bulk is inappropriate and there is no justification for holding, whatever the

limited application of the word "" extent "" may be in condition 3 read with column 8 of the licence, that the word "" extent "" was used in Section 14

as excluding the idea of quantity. Reference to the first footnote in the licence is also unprofitable as the conditions in the licence as to which section

of the Act is applicable cannot be held to govern or control the provisions of the Act itself. It may be contended that upon such wide interpretation

of Section 14, Section 21 would become a superfluous provision and such intention cannot be attributed in the Legislature. There can conceivably

be several cases where Section 21 would come into play but I may, for illustration, mention the breach of condition 7 of the licence requiring the

licensee to report the loss or theft of the weapon at the nearest police station. Such a violation will not fall u/s 14 and would be rendered punishable

u/s 21 of the Act.

For the reasons, I am in agreement with the defence contention that the word "" extent "" in Section 14 includes the quantity of ammunition

permitted by the licence. Possession or control of any quantity in excess of it must be deemed, apart from its not being covered by the licence, an

offence u/s 14 read with Section 19(f) because it is not according to the ""extent"" permitted by the licence. In this view it must be held that the

prosecution of the petitioner was not maintainable u/s 29 without the sanction of the District Magistrate. The petition is allowed and the conviction

is set aside ; the fine if paid will be refunded.