Public Prosecutor vs A.K. Gopalaswami Pillai

Rajagopalan, J.—The appellant was licensed to possess and use a D. B. B. L. gun which bore the number 75710. The accused had two

houses, one in which he lived and the other in which apparently he kept his gun. The gun itself appear to have been kept in a gun case and the gun

case was kept in an almirah in the house at the rear. It was common ground that on the day the police searched the rear house it was in the

possession of one Kolandavelu. What other objects were traced to the possession of Kolandavelu we are not concerned with in this case. The

police found the D. B. B. L. gun in the open gun case in the almirah with its doors closed but not looked. The only other article declared to have

been found in that almirah was M. C. 2 but whether M. 0. No. 2 belonged to Kolandavelu or to anyone else there was nothing in evidence to

indicate. The learned First Class Magistrate convicted the appellant u/s 22, Arms Act with having delivered the gun to Kolandavelu who admittedly

had no licence to possess or use a fire arm of that kind. On appeal the learned Sessions Judge acquitted the appellant holding that there was no

proof of delivery as such within the meaning of Section 22, Arms Act. Against that order of acquittal the Government have preferred this appeal.

I see no reason to differ from the learned Sessions Judge. What Section 22 punishes is ""delivery."" It must be a conscious delivery. It need not

necessarily be a .physical delivery in that there must be proof that the accused delivered with his own hands the gun in it question to Kolandavelu ;

but from the circumstances of the case the only possible inference must be that the gun in question was delivered. All that the prosecution was able

to prove was that the gun, disjointed, in an open gun case, was found in an almirah in the house in possession of Kolandavelu. There was nothing

to show that Kolandavelu knew what were the contents of the almirah, the doors of which were closed though not locked. There was nothing in

evidence to indicate that Kolandavelu had the use of the almirah with the express or implied permission of the accused ,To reiterate there was

nothing to indicate to whom M. C. No. 2 belonged. There was nothing to indicate that the accused could not go into the house and take

possession of the gun whenever he wanted. Kolandavelu apparently lived alone ; and if the evidence of D.W. 2 is to be accepted Kolandavelu

arrived in that house and took possession of it only the evening before the search. Merely because a person leaves in a house of his which is

temporarily leased to another, the articles belonging to him, from that factum alone it cannot be inferred that these articles were delivered to the

tenant for his use. That was all that the prosecution was able to prove with reference to the gun in question. The learned Sessions Judge was right

in his view that the evidence on record did not disclose the delivery contemplated by Section 22, Arms Act. The appeal is dismissed.