REPORTABLE

                            IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1078 OF 2008

Mohmed Rafiq Abdul Rahim Shaikh                            ... Appellant(s)

Vs.

The State of Gujarat                                          ...Respondent(s)

WITH

CRIMINAL APPEAL No. 1901 OF 2008

J U D G M E N T

S.A. BOBDE, J.

The appellants in these appeals are Salim Shamsuddin Shaikh

in Criminal Appeal No. 1901 of 2008 (hereinafter referred to as A-2) and

Mohmed Rafiq Abdul Rahim Shaikh in Criminal Appeal No. 1078 of 2008

(hereinafter referred to as A-4).  The Criminal Appeals are filed against

the  final  Judgment  and  Order  dated  11.09.2007 passed  by  the  High

Court of Gujarat at Ahmedabad in Criminal Appeal Nos. 635 of 2004 and

912 of 2004 respectively.  Wherein, the High Court has dismissed both

the  appeals  and  upheld  the  conviction  and  sentence  passed  by  the

Additional  Sessions Judge,  Ahmedabad in  Sessions Case No.  46/1999

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and 190/2000.  A-4 and A-2 are convicted for offences committed under

Section  25(1)(A)  read  with  Section  35  of  the  Arms  Act,  1959  and

sentenced to undergo three years rigorous imprisonment and fine of Rs.

5000/-.  A-4 and A-2 are also convicted under Section 25 (1AA) read with

Section 35 of the Arms Act, 1959 and sentenced to undergo seven years

rigorous imprisonment and to pay a fine of Rs. 10,000/- each and in

default of making payment of fine to undergo six months imprisonment.

Both the sentences were ordered to run concurrently.

Facts

2. On 4.2.1993 at about 7 pm one blue colored Maruti Fronty car

without a number plate was stopped by Constable Manuji Knauji Rajput.

It was driven by Noormahammad Mahammadyasin Shaikh (herein after

referred to as A-1) in a drunken state. Apparently, a police inspector at

the  Dariapur  Police  Station  received  information that  A-1  was  in  the

business of transportation of illegal weapons together with Abduvahab

Abdulmajid Pathan (hereinafter referred to as A-3) and that there are

some cartridges in the Maruti Fronty car. The car was then searched.  

3. According to the prosecution six live cartridges were found in

the  backside  of  the  car  in  the  cavity  next  to  the  speaker.  These

cartridges had the name ‘L.V London’ on them and they were meant for

use  in  a  .45  revolver,  which  is  a  prohibited  bore.  The  rest  of  the

prosecution story deals with how the weapons have said to be recovered

from the house of  A-4.  

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Accused No. 2- Salim Shamsuddin Shaikh

4. A-2 who was nowhere near the car has been convicted by the

learned Sessions Court u/s 25(1)(a) & 25 (1AA) read with section 35 of

the Arms Act, 1959 for a period of seven years only because he was the

owner of the car Maruti Fronty registered as GCB 122.  

5. Section 25(1)(a) of the Arms Act, 1959 reads as follows:  

“(l)  Whoever  –(a)  manufactures,  sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his  possession for  sale,  transfer,  conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or (b) shortens the barrel of a firearm or converts an  immitation  firearm  into  a  firearm  in contravention of section 6; or  (d) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall  be punishable with imprisonment for  a term which shall not be less than three years but  which  may  extend  to  seven  years  and shall also be liable to fine.”

6. Section 25 (1A) of the Arms Act, 1959 reads as follows:

“Whoever acquires, has in his possession or carries  any  prohibited  arms  or  prohibited ammunition in contravention of section 7 shall be punishable with  imprisonment for  a term which shall  not  be  less  than five years,  but which may extend to ten years and shall also be liable to fine”.  

7. In effect, this section provides for the punishment of a person

who  has  in  his  possession,  etc.-prohibited  arms  or  prohibited

ammunition in contravention of Section 7. Section 7 prohibits possession

etc. of prohibited arms or ammunition it reads as follows:  

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“7. Prohibition of acquisition or possession, or of manufacture or sale, of prohibited arms or prohibited ammunition – No person shall-  

(a) acquire, have in his possession or carry; (b) …. (c) ….”1

8. Section 25 (1)(a) essentially makes a person who is found to

be  in  possession  for  sale,  transfer  etc.  of  any  prohibited  arms  or

ammunition in contravention of Section 5 punishable with imprisonment

for  a term, which  shall  not  be less  than three years  but  which  may

extend to seven years and shall also be liable to fine.

9. The crucial question vis- a -vis the conviction of A-2 is whether

he  was  found  in  possession  of  prohibited  ammunition:  the  six  live

cartridges seized from the Maruti Fronty car owned by him.  

10. We have no hesitation  in  saying that  the  conviction  of  this

Accused under Section 25 (1AA) is wholly unwarranted since he was not

in  possession of  the prohibited ammunition at  all,  much less  for  the

purpose of sale which is a requirement for attracting the provision of 1  Prohibition of acquisition or possession, or of manufacture or sale, or prohibited arms or prohibited ammunition –

No person shall –

(a) acquire, have in his possession or carry ; or

(b) [ [ Note:  Subs.  by  Act  42  of  1988,  s.  4  (w.e.f. 27-5-1988)  ] use, manufacture,] sell, transfer, convert, repair, test or prove ; or

(c) expose or offer for sale or transfer or have in his possession for sale, transfer,  conversion,  repair  test  for  proof,  any prohibited arms or prohibited ammunition  unless  he  has  been  specially  authorized  by  the  Central Government in this behalf.

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Section 25 (1AA).  It reads as follows:  

“(1AA)  Whoever  manufactures,  sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his  possession for  sale,  transfer,  conversion, repair,  test  or  proof  any  prohibited  arms  or prohibited  ammunition  in  contravention  of section  7  shall  be  punishable  with imprisonment  for  a  term which  shall  not  be less than seven years but which may extend to  imprisonment  for  life  and  shall  also  be liable to fine.”

11. It is nobody’s case that A-2 was found in actual possession of

the cartridges.  The cartridges were recovered from a car,  which was

driven by A-1 in a drunken state. A-2 was nowhere near the car. A- 2 was

arrested only because he was found to be the registered owner of the

car during the course of investigation. This fact of ownership has not

been contested by A-2 since he on his own made an application for his

car  as  the  registered  owner  and  the  Court  in  fact  granted  this

application.  

12. The only question is whether the A-2 can be said to have been

in possession of the six cartridges found in the Maruti Fronty car?  

13. The Trial Court has merely on the basis of the uncontested fact

that A-2 is the owner of the car convicted him for a period of seven

years u/s 25(1)(a), 25 (1AA) read with Section 35 of the Arms Act, 1959.

The High Court upheld that conviction. The Courts below have not even

rendered a finding that A-2 is in constructive possession of the six live

cartridges recovered from the car.  It  might  be remembered that  this

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Accused was neither in the car when it was apprehended nor anywhere

near the car.  

14. The  prosecution  has  not  led  any  evidence  to  establish  the

complicity of A-2. There is no evidence that this accused knew what A-1

was carrying in the car or that he had kept the prohibited ammunition in

the car. There is no evidence to establish the knowledge or even the

consent of   A-2.

15. The question whether A-2 had any control over either the car

or the cartridges found in the car does not even arise for consideration.

Without any evidence of the proximity of A-2 with the car, or how he

handed over the prohibited ammunition to A-1 or how he kept them in

the car makes it difficult to imagine how he could have been convicted

for possession of prohibited ammunition.  

16. It is thus clear that this accused cannot be said to have been

in possession of the six live cartridges allegedly recovered from the car.

A-2 cannot have said to be in possession- actual or constructive. It may

be of some consequence, that A-2 is an estate cum car broker who dealt

in  used cars and may have given the car,  as claimed by him in his

defense  to  A-1  who  wanted  to  purchase  it.  The  Trial  Court  has

disbelieved this defense only on the ground that A-2 continued to be the

registered owner of the car.  

17. It is also not possible to sustain the conviction of the Accused

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u/s 35 of the Arms Act, 19592 that renders each of the several people

who  may  have  been  found  in  joint  occupation/  joint  control  of  any

premises, vehicle or other place, as if the accused has committed the

offense alone.

18. We fail to see how the conviction of A-2 is sustainable u/s 35 of

the Arms Act,1959 since it is not even the prosecution’s case, that the

A-1 and A- 2 were found in joint  control  or occupation of  the Maruti

Fronty car from which the prohibited ammunition was recovered.  

19. We do not take the view that a remote location of the firearm

of  ammunition or  recovery  from a remote place would exonerate an

accused in all cases. But it is necessary to prove that the accused was in

conscious possession at some point in time before the discovery and

retained control of the objects at the time of the recovery.  

20. In Gunwantlal vs.  The State of Madhya Pradesh3,  this Court

held that a person cannot be charged with the offences unless it can be

shown that he had the knowledge that any sort of prohibited item was

present in his house.  

“5.  ***********  In  some cases under  Section 19(1)(f) of the Arms Act, 1878 it has been held

2 35. Criminal responsibility of persons in occupation of premises in certain cases – Where any arms or ammunition in respect of which any offence under this Act has been or is being committed are or is found in any premises, vehicle or other place in the joint occupation or under the joint control of several persons, each of such persons in respect of whom there is reason to believe that he was aware of the existence of the arms or ammunition in the premises, vehicle or other place shall, unless the contrary is proved, be liable for that offence in the same manner as if it has been or is being committed by him alone.

3 (1972) 2 SCC 194  

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that  the  word  "possession"  means  exclusive possession  and  the  word  "control"  means effective control  but  this  does not  solve the problem.  As  we  said  earlier,  the  first precondition  for  an  offence  under  Section 25(1)(a)  is  the  element  of  intention, consciousness  or  knowledge  with  which  a person possessed the firearm before it can be said  to  constitute  an  offence  and  secondly that  possession  need  not  be  physical possession  but  can  be  constructive,  having power  and  control  over  the  gun,  while  the person to whom physical possession is given holds it subject to that power and control. 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 person over it necessary to determine whether that person was or was not in possession of the thing in question.”

21. We thus hold that the conviction of Salim Shamsuddin Shaikh

(A-2) cannot be sustained and we accordingly set it aside.  

Accused No. 4  -Mohmed Rafiq Abdul Rahim Shaikh

22. A-4 was implicated when A-1 is said to have disclosed to the

police  that  there  are  some  more  arms  hidden  in  another  location;

Bungalow 19 Satyam Society.  A-4 is  said to be guilty  as he was the

occupier of the said bungalow according to the Ahmedabad Municipal

Corporation records.  

The Search

23. The  police  entered  the  bungalow  in  the  presence  of  two

panchas and A-1. The house is a two-storied building with a cellar. The

police found a window, which was closed from inside. A-1 stated that the

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weapons and live cartridges found inside the cellar were stored there by

A-3.  

24. A-1 further stated that A-3 had given him the weapons from

the cellar. An iron door was broken through which the party entered the

room and found the automatic weapons and cartridges in the cellar as

stated by A-1. Additionally, in a gold bag an AK -47 rifle was found. In

another bag, seven kattas (country revolvers) were found. White metal

was found in another bag made from spun material.  

25. The Panchnama has the description of the weapons and the

cartridges found. There were about fifty live cartridges for the AK 47 rifle

and about fifty other live cartridges of 12 bore. Other cartridges were of

varying bores .38, 7.65 etc. Surprisingly, around 18-fired cartridges are

said to have been found. The white metal wire was found to be silver.   

26. The details of the seizure are not strictly relevant for a decision

of this case. A-4 has been convicted only on the basis of his admission in

the cross-examination, wherein he is shown as the occupier of the house

in  the  records  of  the  Ahmedabad  Municipal  Corporation.  It  is  not  a

disputed fact that A-4, was not present in the house nor had he been

present in the house for days before the recovery. In fact, it is not in

dispute that from 15.12.1992 – 7.1.1994 he was in prison.  

27. Therefore,  he  was  in  prison  when his  house was  raided  on

5.2.1993.  Strangely,  the  panchnama  does  not  state  that  the  room,

which led to the cellar from where the weapons were recovered, was

even locked from outside. It records that the window presumably from

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which the entry was gained was locked from inside. There is nothing to

show that the lock on the iron Gate was put there by A-4.  

28. Obviously, A-4 had not occupied this house from the date of

his detention i.e. 15.12.1992 that is about three months before the raid

took  place.  A-4  was  certainly  not  found  in  actual  possession  of  the

weapons or even the house in which the weapons and ammunition were

found.  

29. In Gunwantlal (supra) this Court has held in Para 5 that:

“5,  ****the  first  precondition  for  an  offence under  Section  25(1)(a)  is  the  element  of intention,  consciousness  or  knowledge  with which a person possessed the firearm before it can  be  said  to  constitute  an  offence  and secondly that possession need not be physical possession  but  can  be  constructive,  having power  and  control  over  the  gun,  while  the person to whom physical possession is given holds it subject to that power and control.”  

30. To bring home a charge it  was obviously  necessary for  the

prosecution to establish intention and consciousness of the A-4 of the

fire arms and ammunition found in A-4’s house. This was not done. But

even if one considers whether A-4 was in constructive possession the

charge and conviction cannot be sustained. For, in order to consider a

finding of  constructive possession it  is  necessary that  either  there is

proof  that  the  Accused  had  placed  the  weapons  or  was  at  least  in

control of the house in which they were found.

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31. In this case, the only proof relating to the alleged complicity of

the Accused is that he has not been in possession or occupation of the

house for almost three months as he was in detention. Strangely, there

is no evidence that the house was locked from the outside. The window

of the room, which led to the cellar, was said to be locked from inside.

Additionally,  an  iron  gate  that  had  a  lock  on  the  outside  had  to  be

broken. We consider it highly inappropriate in these circumstances to

uphold  a  conviction  of  constructive  possession  of  the  firearms  with

which A- 4 is not shown to have had any connection or control.  

32. We,  accordingly,  set  aside  the  conviction  of  Mohmed Rafiq

Abdul Rahim Shaikh (A-4) under Section 25 (1) (a) & 25 (1AA) read with

Section 35 of the Arms Act, 1959. Since the Accused was in jail it is not

possible  to  hold  that  he  was  in  joint  occupation  of  the  house  in

accordance to Section 35 of the Arms Act, 1959.  

33. Both the appeals are allowed accordingly.  

….………………………………..J. [S.A. BOBDE]

….………………………………..J.  [L. NAGESWARA RAO]

NEW DELHI  SEPTEMBER 13, 2018

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