Holding

A conviction under Sections 25(1)(a) and 25(1AA) read with Section 35 requires proof of actual or constructive possession, knowledge and control, which were absent; therefore the appellants' convictions were set aside.

Summary

The appellants, Salim Shamsuddin Shaikh (A‑2) and Mohmed Rafiq Abdul Rahim Shaikh (A‑4), were convicted under Sections 25(1)(a) and 25(1AA) read with Section 35 of the Arms Act, 1959 for possession of prohibited ammunition found in a car owned by A‑2 and in a bungalow occupied by A‑4. The prosecution relied solely on the fact that A‑2 was the registered owner of the car and that A‑4's name appeared in municipal records as the occupier of the house, without any evidence of actual or constructive possession, knowledge, or control over the weapons. The Supreme Court held that ownership or occupancy alone does not satisfy the requirement of conscious possession and intent required under the Act, and that Section 35 cannot be invoked where joint occupation or control is not proved. It further observed that A‑2 was not present at the time of seizure and A‑4 was in prison during the raid, making any inference of possession untenable. Consequently, the Court set aside both convictions and allowed the appeals.

Issues considered

Whether mere ownership of a vehicle can establish possession of prohibited ammunition under Sections 25(1)(a) and 25(1AA) of the Arms Act.
Whether constructive possession can be imputed to a person who was not in actual control of the vehicle or premises.
Whether a person detained in prison can be held to have joint occupation/control of a premises for purposes of Section 35.
What level of knowledge and intention is required to sustain a conviction under the cited provisions.

Legislation cited

Arms Act, 1959s. 25(1)(a), s. 25(1AA), s. 35, s. 7

Subjects

Arms Actpossessionconstructive possessionjoint occupationSection 25Section 35criminal liabilityownershipknowledgeintent

Judgment

166 [2018]REPORTS
SUPREME COURT 11 S.C.R. 166 [2018] 11 S.C.R.

A MOHMED RAFIQ ABDUL RAHIM SHAIKH
v.
THE STATE OF GUJARAT
(Criminal Appeal No. 1078 of 2008)
B SEPTEMBER 13, 2018
[S. A. BOBDE AND L. NAGESWARA RAO, JJ.]
Arms Act, 1959 – ss. 25(1)(a), 25(1AA) r/w s. 35 – Prohibition
of acquisition or possession, or of manufacture or sale, or
prohibited arms or prohibited ammunition – On facts, cartridges
C
found in the car driven by accused A-1 in a drunken state – A2 was
the owner of the car – Disclosure made by A1 about some more
arms hidden in a bungalow of which A4 was shown as the occupier
in the records – Weapons and live cartridges found inside the cellar
of that house – A3 had stored the weapons and later on gave to A1
D from the cellar – Conviction of A2 and A4 for commission of offence
u/ss. 25(1)(a), 25(1AA) r/w s. 35 by the courts below – Sustainability
of – Held: Not sustainable – As regards A2, 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 – Accused was neither in the car when it was
E
apprehended nor anywhere near the car – A-2 was arrested only
because he was found to be the registered owner – It is not even the
prosecution’s case nor the courts below have rendered a finding
that A-2 was in constructive possession of the live cartridges
recovered from the car – Conviction of A2 u/s. 25(1AA) wholly
F unwarranted – As regards, A4 he was not in possession or occupation
of the house for almost three months as he was in detention – There
is no evidence that the house was locked from the outside – Window
of the room, which led to the cellar, was said to be locked from
inside and an iron gate that had a lock on the outside had to be
broken – Prosecution could not establish intention and
G
consciousness of the A4 of the arms and ammunition found in A4’s
house – Thus, A4 was not in constructive possession of the firearms
and conviction wholly unwarranted.
Gunwantlal vs. The State of Madhya Pradesh (1972) 2
SCC 194 : [1973] 1 SCR 508 – referred to.
H
166
MOHMED RAFIQ ABDUL RAHIM SHAIKH v. STATE OF 167
GUJARAT

Case Law Reference A
[1973] 1 SCR 508 referred to Para 20
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1078 of 2008.
From the Judgment and Order dated 11.09.2007 of the High Court B
of Gujarat at Ahmedabad in Criminal Appeal No. 912 of 2004.
WITH
Criminal Appeal No. 1901 of 2008.
Sanjay Jain, Saleem, S. S. Rawat, Advs. for the Appellant.
C
Shubharanshu Padhi, Ms. Mamta Singh for Ms. Hemantika Wahi,
Advs. for the Respondent.
The Judgment of the Court was delivered by
S. A. BOBDE, J. 1. The appellants in these appeals are Salim
Shamsuddin Shaikh in Criminal Appeal No. 1901 of 2008 (hereinafter D
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 E
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 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 F
(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. G
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
H
168 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 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.
B 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.
C
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
D 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,
E 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
F
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.”
G 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
H to ten years and shall also be liable to fine”.
MOHMED RAFIQ ABDUL RAHIM SHAIKH v. STATE OF 169
GUJARAT [S. A. BOBDE, J.]

7. In effect, this section provides for the punishment of a person A
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:
“7. Prohibition of acquisition or possession, or of
manufacture or sale, of prohibited arms or prohibited B
ammunition – No person shall-

(a) acquire, have in his possession or carry;
(b) …. C
(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,
D
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.
E
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
Section 25 (1AA). It reads as follows:
F
“(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,
1
Prohibition of acquisition or possession, or of manufacture or sale, or prohibited
arms or prohibited ammunition –
No person shall – G
(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. H
170 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 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.”
B 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
C 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
D 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 Accused was neither in the car when it was apprehended nor
E 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
F 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
G 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
H
MOHMED RAFIQ ABDUL RAHIM SHAIKH v. STATE OF 171
GUJARAT [S. A. BOBDE, J.]

of some consequence, that A-2 is an estate cum car broker who dealt in A
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 B
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 C
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 D
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 E
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 that the word “possession”
means exclusive possession and the word “control” means
F
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
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 G
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
H
172 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 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
B
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.”
C 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;
D
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
E 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 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
F
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.
G 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
H to be silver.
MOHMED RAFIQ ABDUL RAHIM SHAIKH v. STATE OF 173
GUJARAT [S. A. BOBDE, J.]

26. The details of the seizure are not strictly relevant for a decision A
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
B
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 which
the entry was gained was locked from inside. There is nothing to show C
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 D
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 E
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.” F
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 G
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.
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 H
174 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 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
B
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
C accordance to Section 35 of the Arms Act, 1959.
33. Both the appeals are allowed accordingly.

Nidhi Jain Appeals allowed.
D

E

F

G

H