1. The appellant was licensed to possess and use a D.B.B.L. gun which bore the number 75,710. The accused had two houses, one in which he lived and the other in which apparently he kept his gun. The gun itself appears to have been kept in a gun case and the gun case was kept in an almyrah 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 almyrah with its doors closed but not locked. The only other article declared to have been found in that almyrah was M.O. 2, but whether M.O. 2 belonged to Kolandavelu or to anyone else there was nothing in evidence to indicate. The learned First Class Magistrate convicted the respondent under Section 22 of the Arms Act with having delivered the gun to Kolandavelu who admittedly had no licence to possess or use a firearm of that kind. On appeal the learned Sessions Judge acquitted the respondent holding that there was no proof of delivery as such within the meaning of Section 22 of the Indian Arms Act. Against that order of acquittal the Government have preferred this appeal.
2. 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 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 almyrah in the house in possession of Kolandavelu. There was nothing to show that Kolandavelu knew what were the contents of the almyrah, the doors of which were closed though not locked. There was nothing in evidence to indicate that Kolandavelu had the use of the almyrah with the express or implied permission of the accused. To reiterate there was nothing to indicate to whom M.O. 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 of the Arms Act. The appeal is dismissed.