1. In this case a Rule was issued on the District Magistrate to show cause why the conviction and sentence passed upon the petitioner for an offence under Section 19, Clause (f) of the Arms Act, should not be set aside.
2. It appears from the facts of the case as set out in the trial record that the petitioner was found with a gun in the village of Kharari at 6 o'clock one morning and that a Head Constable whose attention had been drawn by hearing of the gun fire went to the village. At the time of the Head Constable's arrival the accused was found re-loading the gun and there were some powder and shot and caps in paper parcels alongside of him.
3. The defence set up was that the gun belonged to the master of the accused and that the master of the accused was at the time in the village in which the accused was firing the gun. The lower Court, however, found on the evidence that the master of the accused was not in that village at all but was in a different village and that the accused was using the gun for his own proposes and that the gun had been lent to him by his master.
4. In support of the Rule it has been argued that the possession of the accused of the gun at that time at that place was really a possession on behalf of his master and, there-fore, no offence was committed and in support of this contention we have been referred to three cases. There, however, are in our opinion, clearly distinguishable form the present. The first case, In the matter of Kali Nath Singh 3 C.W.N.394, was a case in which a servant was carrying a gun for his master. It was not proved in that case that the servant was using the gun for his own purpose as in the present case. In that case it was held that such possession by the servant was really possession on behalf of his master, and in that view we agree.
5. The next is the case of Prabhat Chandra Chowdhury v. Emperor 12 C.W.N. 272; C.219; 3 M.L.T. 190; 7 Cr. L.J. 112; 7 C.L.J. 242 in which it was held that a man who had snatched up his brother's gun, his brother being absent from the house at the time, and fired at a mad dog whit the intention of killing it, had committed on offence under Section 19 of the Arms Act, such temporary possession not being a possession as contemplated by that section of the Act in infringement of the terms of the Act.
6. The third case of Queen-Empress v. Gungadin 22 A. 118 seems at first sight rather to support the case for the present petitioner; but on looking into the facts it is also clearly distinguishable. In that case the person prosecuted was a servant of a gentleman who had been exempted from the operation of the Arms Act by a Notification of the Government of India and the question which had to be decided in that case was, what acts on the part of the servant could be held to be acts which amounted to personal use on behalf of his master within the terms of the Notification and it was held that the use of the gun by the servant for the purpose of shooting game for the master might fairly be termed to be personal use of the gun for the master within the meaning of the Notification. We have not, however, any Notification to interpret in the present case and, in our opinion, the act of the petitioner was clearly an act in infringement of the terms of Section 19, Clause (f) of the Arms Act. He was himself in possession of the gun and was using it and he had no license for the same. The fact that his master had a license and the gun belonged to his master would not be sufficient to excuse the accused for the possession and use of the gun in the manner in which it is proved to have been used in this case.
7. The rule is, therefore, discharged.