1. The appellant was charged as follows:
First.-That you, on or about 17th December 1932, at the crossing of Grand Trunk Road and Boral Lane at Hooghly, Bally, P.S. Chinsura, were going armed in contravention of Section 13, Arms Act, 1878 and thereby committed an offence punishable under Section 19(c), Arms Act, 1878 and within my cognizance,
Secondly,-That you, on or about 17th December 1932, at the same place had in your possession a fully loaded six chambered Revolver No. 78141 and four additional live cartridges in contravention of Sections 14 and 15, Arms Act, in such manner as to indicate an intention that the possession might not be known to any public servant as defined in the Indian Penal Code and thereby committed an offence punishable under Section 20, Arms Act, 1878 and within my cognizance.
2. He was convicted by the Special Magistrate of Chinsura under both Sections 19(e) and 20, Arms Act, 1878 and sentenced to six years' rigorous imprisonment under the latter section, no separate sentence being passed under Section 19(e). Since the accused was already undergoing a sentence of imprisonment, the sentence was to take effect at the expiry of the sentence which he was then undergoing. Section 13, Arms Act, provides that
no person shall go armed with any arms except under a license.
3. Section 14 provides that
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 license.
4. Section 19 provides the penalties for breaches of Sections 5, 6, 10 and 13 to 17. Thus, Sub-section (a) provides the penalty for manufacturing or selling arms in contravention of Section 5, Sub-section (c) for importing exporting arms in contravention of Section 6, Sub-section (d) for transporting any arms in contravention of S, 10, Sub-section (e) for going armed in contravention of Section 13, Sub-section (f) for having in possession or control any arms in contravention of Section 14 or Section 15. Section 20 provides that
whoever does any act mentioned in Clauses (a), (c), (d) or (f), Section 19 in such manner as to indicate an intention that such act may not be known to any public servant as defined in the Indian Penal Code or to any person employed upon a railway or to the servant of any public carrier, and whoever, on any search being made under Section 25, conceals or attempts to conceal any arms, may be punished with imprisonment for a longer term than is provided in Section 19,
5. The appellant was arrested on 17th December 1932 at about 9-30 p.m., at the junction of the Boral Lane with the Grand Trunk Road when cycling in company with another man. The police had special instructions to picket this road and be on the look-out for the appellant and other 'declared absconders.' They saw two man approaching the Grand Trunk Road, who slackened their speed near the crossing and appeared confused. This attracted the attention of the police who seized the handle of the appellant's cycle and forced him to dismount. They then challenged the appellant who was shivering, and he gave his name as Sachindra Nath Kar Gupta. On, searching him the police found a six-chambered revolver fully loaded, in a holster tied round his waist with a cloth under his shirt and coat. In the inner pocket of his coat they found a handkerchief in which were tied four live cartridges, and two manuscript seditious leaflets written in pencil, one in English and the other in Bengali. The revolver bore the number 78141 and was subsequently identified as the property of Mr. B.K. Roy, I.F.S., Divisional Forest Officer, Salem, Madras. At the end of October, 1932 he discovered that his revolver was missing, while he was at Bogra, and reported the loss to the police immediately. Mr. Roy's native district is Barisal, and he had been staying there during the middle, part of October 1932. He had left for Bogra about the 21st of the month.
6. The defence was that no revolver or ammunition had been found on the appellant when he was searched. But there is no doubt, from the evidence of the witnesses, including the search witnesses, that the articles mentioned were found in the possession of the appellant. The place where the search was made was brightly lighted, and the witnesses had a good opportunity of seeing what was discovered in the possession of the appellant. The appellant is an escaped convict, having escaped from the Midnapore Jail on the night of 7th February 1932, where he was undergoing seven years' rigorous imprisonment for an offence arising out of the Machuabazar Conspiracy Case. He had been at large for over ten months when re-arrested on 17th December. His native place is Barisal. The appellant possessed no license to carry arms. It has been argued on his behalf that upon the facts he ought to have been convicted under Section 19(e) and not under Section 20, because Section 13 alone, deals with the offence of carrying arms, without a license, and Section 14 is intended to be restricted to the offence of unlicensed possession of arms, and that this case clearly comes within the provisions of the former section. Consequently, as Section 19(e) is not mentioned in Section 20, the longest term of imprisonment which can be inflicted on the appellant is three years.
7. Further, it has been contended that Section 20 is not intended to be applied to ordinary cases of carrying or possessing personal arms, but is restricted to cases of exportation and importation of arms in bulk. This contention is founded on a number of cases in this and other High Courts. Thus, in Ahmed Hossein v. Queen-Empress (1900) 27 Cal 697, Sir Francis Maclean, C.J., doubted whether Section 20 was intended to apply to cases where there was possession of personal fire-arms. In Crown v. Azu (1907) 1 SLR 18, it was stated that cases under Section 20 generally occur where arms are illicitly imported or transported, and this view was followed in Ibrahim v. Emperor (1912) 9 PR 1912 Cr and in Gahna v. Emperor AIR 1914 Lah 280. However, in Chet Singh v. Emperor AIR 1926 Lah 262 this view of the sections was decided to be unsatisfactory and was expressly dissented from. It was held that each case of concealment of arms must be decided on its own facts, as to whether it falls under Section 19 or Section 20, Arms Act, but for Section 20 to apply, there must be some special indication of an intention to conceal possession of the arms from a public servant, railway official or public carrier. I have no doubt that this decision was right, and that the contention raised by the learned Counsel for the appellant cannot be supported.
8. It is true that Section 20 requires that there shall be evidence such as to indicate ah intention that the going armed' or possession of arms should not be known either to some public servant as defined in the Indian Penal Code, e.g., the police, or to some person employed by a railway or a public carrier. In this case, the revolver was stolen from Mr. Roy a few weeks before it was discovered in the possession of the appellant. The appellant himself was an escaped convict, and the police had received special instructions to picket the roads and look out for him. I have little doubt that this fact had been communicated to the appellant. The revolver was found in a holster tied with a cloth round his waist, and underneath his coat and shirt. When asked, he failed to account for it. In these circumstances, there was ample evidence of the intention required by Section 20.
9. The real distinction between the sections is, that Section 13 prohibits an unlicensed person from going armed with any kind of arms, that is to say, a person going armed with either a knife or a revolver comes within the provisions of the section. But with regard to firearms, a further offence may be committed, namely, having them in possession or under control, without a license. Section 14 covers this offence, and if this offence is committed with the intention referred to in Section 20, then a heavier punishment may be inflicted than for the simple offence under Section 14, the penalty for which is provided in Section 19(f). To be in possession or control of arms other than those mentioned in Section 14 is not an offence, though it is an offence to go armed with them, as provided in Section 13. Some confirmation of this view of the distinction to be drawn between the sections is provided by the recent Bengal Criminal Law (Arms and Explosives) Act (21 of 1932) in which, by Sections 3 and 4, it is provided that
whoever commits an offence under Clauses (c), (e) and (f), Section 19, if the offence is committed in respect of a fire-arm, may be punished with transportation for life or with imprisonment for a term which may extend to 14 years.
10. The result is, that in my opinion Section 20 was not intended to be restricted in its operation as argued on behalf of the appellant, but that an unlicensed person going armed with a revolver, may be convicted under either Section 13 or Section 14, Arms Act, and consequently, may be convicted under Section 20. Upon the facts stated, I see no reason to differ from the opinion formed by the learned Special Magistrate and this appeal therefore is dismissed.
11. I agree that the appeal should be dismissed for the reasons given by my learned brother.