JUDGMENT

SARKARIA, J.:—Whether the giving of fire-arms by a person holding a licence for repairing and dealing in fire-arms for repairs to a mechanic who holds no such licence, but does the repair job at his workshop at a place different from the factory or place of business of the licence-holder, amounts to "delivery of those arms into the possession of another person" within the contemplation of Section 29 (b) of the Arms Act, 1959 (for short, called the Act), is the principal question that falls to be answered in this appeal by special leave directed against a judgment, dated August 16, 1971, of the High Court of Calcutta. It arises in these circumstances:

On or about April 17, 1971, the Calcutta Police while investigating a case, went to premises No.4, Ram Kanai Adhikari Lane in Calcutta, and, on the ground floor of the building, they discovered a workshop run by Mrityunjoy Dutta, who was then working on a revolver. In the said premises, the police found several other guns, revolvers and rifles. All these fire-arms were seized by the police.

2. Mrityunjoy Dutta claimed to have received one of the guns so seized from one Matiar Rahaman gun-licensee and the rest from respondents 1 to 4 for repairs. Mrityunjoy Dutta had no valid licence to keep or repair these fire-arms under the Act. Respondents 1 to 4, however, were holding licences under the Act to run the business of repairing and dealing in fire-arms.

3. On April 17, 1970, (1971?) the police charge-sheeted Mrityunjoy Dutta, Matiar Rahaman and respondents 1 to 4 to stand their trial in the Court of the Presidency Magistrate, in respect of offences under Sections 25 (1) (a) and 27 of the Act.

4. The trial Magistrate, while considering the question of framing charges, held that there were materials to make out a prima facie case under S.25 (1) (c) of the Act against Mrityunjoy Dutta and under Section 29 (b) of the Act against Matiar Rahaman, and charged them accordingly. So far as respondents 1 to 4 are concerned, the Magistrate took the view that the giving of the arms to the accused Dutta, by respondents 1 to 4 for the limited purpose of repairs, did not amount to delivery of possession of those arms within the meaning of Section 29 (b) of the Arms Act (Act IV/ 1959), and in the result, he discharged the respondents by an order, dated November 17, 1971.

5. Aggrieved, the State of West Bengal filed a Criminal Revision against the Magistrates order before the High Court, contending that delivery of the arms into the possession of a person who did not have a valid licence for repairs of fire-arms, is not only a contravention of the provisions of Section 5 of the Act, but also amounts to delivery of fire-arms by the respondents into the possession of Mrityunjoy Dutta and, as such, the respondents were prima facie liable for an offence under Section 29 (b) of the Act.

6. The Division Bench of the High Court, who heard the revision, dismissed it with the reasoning that respondents 1 to 4, could not be said to have delivered the fire-arms concerned into the possession of Mrityunjoy Dutta within the meaning of Section 29 (b) of the Act, because the respondents who possessed valid licences for repairs as well as for sale of fire-arms, had given only temporary custody of those arms to Mrityunjoy. Dutta for the limited purpose of carrying the repair job, while the effective control over those arms all the time remained with the respondents. In its view, there is no delivery of possession of the fire-arms so long as control over the arms and the authority to use those arms is not transferred to the custodian.

7. Hence, this appeal.

8. The whole case pivots around the interpretation and application of the term possession, used in Section 29 (b) of the Act.

9. Learned counsel for the appellant-State contends that the question whether a person is in possession of an arm or 54 had transferred and delivered it to an another, is largely one of fact. It is submitted that in the instant case, there w