Full Judgment Text
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PETITIONER:
SUPDT. & REMEMBRANCER OF LEGAL AFFAIRS WEST BENGAL
Vs.
RESPONDENT:
ANIL KUMAR BHUNJA & ORS.
DATE OF JUDGMENT23/08/1979
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
SHINGAL, P.N.
REDDY, O. CHINNAPPA (J)
CITATION:
1980 AIR 52 1980 SCR (1) 323
1979 SCC (4) 274
CITATOR INFO :
RF 1986 SC2045 (45)
RF 1990 SC1962 (7)
ACT:
Arms Act 1959 (4 of 1959)-S. 29(b)-Scope of-Giving of
fire-arms for limited purpose of repairs-Whether amounts to
delivery of ’possession’-Great caution and discernment
necessary in the application of the ratio of cases decided
under the Arms Act of 1878 to those under the present Act.
Words & Phrases-"Possession" meaning of-S. 29(b) Arms
Act, 1959.
HEADNOTE:
The prosecution alleged that the police officers of the
appellant state while investigating a case discovered a
workshop run by a mechanic who was then actually working on
a revolver. Several other guns, revolvers and rifles were
found in the workshop and all these fire-arms were seized.
The mechanic claimed to have received one of the guns so
seized from a gun-licensee and the rest from respondents 1
to 4 for repairs. The mechanic had no valid licence under
the Arms Act to keep or repair these fire-arms but
respondent No. 4 however possessed licences under the Act to
run the business of repairing and dealing in fire-arms. The
police charge-sheeted the mechanic, the gun licensee and
respondents 1 to 4, for having committed offences under
Sections 25(1)(a) and 27 of the Act.
The Magistrate held that there were materials to make
out a prima facie case under s. 25(1)(c) of the Act against
the gun-licensee and under s. 29(b) of the Act against the
mechanic and charged them accordingly. As regards
Respondents 1 to 4 taking the view that giving of the arms
to the mechanic by the respondents for the limited purpose
of repairs, did not amount to delivery of ’possession’ of
those arms within the meaning of s. 29(b) of the Act, he
discharged the said respondents.
The appellant’s criminal revision against the said
order, was dismissed, the High Court holding that
Respondents 1 to 4 could not be said to have delivered the
fire-arms into the ’possession’ of the mechanic within the
meaning of s. 29(b) of the Act, because the respondents
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possessed valid licences for repairs as well as for sale of
fire-arms and had given only ’temporary’ custody of those
arms to the mechanic for the limited purpose of carrying out
the repair job, while the effective control over those arms
all the time remained with the respondents.
In appeal to this Court it was contended on behalf of
the appellant-State that the question whether a person is in
possession of a fire-arm or had transferred and delivered it
to another, is largely one of fact; that in the instant
case, the mechanic was not a servant or employee of the
respondents but was independently running his own business
of repairing fire-arms; that the fire-arms were handed over
by the respondents to the mechanic to be repaired at the
latter’s residence-cum-workshop which was not the
respondent’s licensed place
324
of business; that the mechanic had no licence for repairing
or keeping fire-arms and the respondents were either aware
of this fact or did not ascertain it before delivering the
fire-arms to him, that ’possession’ within the purview of s.
29(b) means immediate possession and consequently, delivery
of even temporary possession and control to an unauthorised
person falls within the mischief of the section; that in the
circumstances of the instant case there was a clear prima
facie case not only under s. 29(b) but also under s. 30 read
with s. 5 of the Act, against the Respondents and
consequently the Magistrate was not justified in discharging
them.
On behalf of the Respondents it was contended that the
mechanic was only in temporary custody of the fire-arms for
the limited purpose of repairing them, as an agent of the
owners, who being licencees in Form IX entitled to repair
and keep these fire arms, throughout remained in their
lawful possession and control. The delivery of possession
contemplated by s. 29(b) is something more than entrusting
the arms to an ’agent’ for the limited purpose of repairs.
Allowing the appeal,
^
HELD: 1. "Possession" is a polymorphous term which may
have different meanings in different contexts. It is
impossible to work out a completely logical and precise
definition of "possession" uniformly applicable to all
situations in the contexts of all statutes. "Possession"
implies a right and a fact; the right to enjoy annexed to
the right of property and the fact of the real intention. It
involves power of control and intent to control. [328D-E]
"Possession" is not a purely legal concept but also a
matter of fact, and the broad test for determining whether a
person is in possession of anything is whether he is in
general control of it. [328H-329A]
Salmond’s Jurisprudence 11th Edn. p. 52 referred to.
In the instant case although the respondents held
licences in Form IX for repairing and dealing in fire-arms
at the place of business, factory or shop which was
specified in Column 3 of their licences, they handed over
the fire-arms to the mechanic who had no such licence to be
repaired at the latters own workshop. Since that workshop
and the repairing business being run therein, was in the
exclusive control and occupation of the mechanic, the
inference would be that by handing over the fire-arms to the
mechanic for repair the respondents had divested themselves
for the time being not only of physical possession but also
of effective control over those fire-arms. The respondents
had not done anything to ascertain whether the mechanic was
legally authorised to retain those fire-arms even for the
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limited purpose of repairing them. Prima facie the materials
before the Magistrate showed that the respondents had
delivered the fire-arms in question into the possession of
the mechanic without previously ascertaining that he was
legally authorised to have the same in his possession, and
as such, they appeared to have committed an offence under s.
29(b) of the Act. [330B-C, 330G-331A]
3. By allowing the fire-arms to be removed to a place
other than the place of business or factory specified in
Column 3 of the licences in Form IX, the respondents
contravened condition (1)(c) of the licence, amounting to an
offence punishable under s. 30 of the Act. [331 B-C]
325
The materials before the Magistrate, prima facie
disclosed the commission of offences under Sections 29(b)
and 30 of the Act by Respondents 1 to 4. The Magistrate was
thus clearly in error in discharging these respondents.
[331D]
4. The ratio of cases decided under the Old Arms Act
(Act 11 of 1878) should not be blindly applied to cases
under the Act of 1959 which has in several aspects modified
or changed the law relating to the regulation of arms.
[331H]
5. Trial of summons case as a warrant case does not
amount to an illegality but is a mere irregularity that does
not vitiate the trial unless there is a prejudice.
[333 B]
6. Case remitted to trial Magistrate with direction to
frame charges in respect of offences under Sections 29(b)
and 30 of the Act against Respondents 1 to 4 and to proceed
further with the trial. [333C]
Manzur Hussain v. Emperor, AIR 1928 All. 55(1); Sadh
Ram v. State, AIR 1953 HP 121; Emperor v. Harpal Raj, ILR
XXIV All. 454; A. Malcom v. Emperor, AIR 1933 Cal. 218;
Emperor v. Koya Hansji, 14 Bom. L.R. 964; Parmeshwar Singh
v. Emperor, AIR 1933 Pat. 600; Murli v. Crown, AIR 1929 All.
720; Tola Ram v. Crown, ILR 16 All. 276; held inapplicable.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 98
of 1973.
Appeal by Special Leave from the Judgment and Order
dated 16-8-1972 of the Calcutta High Court in Criminal
Revision No. 85/72.
M.M. Kshatriya, G.S. Chatterjee and D.N. Mukherjee for
the Appellant.
A.K. Gupta for Respondents 1 and 3.
H.K. Puri for Respondents 2 and 4.
The Judgment of the Court was delivered by
SARKARIA, J.-Whether the giving of fire-arms by a
person holding a licence for repairing and dealing in fire-
arms for repairs to 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, 1972, 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
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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 re-
326
volver. In the said premises, the police found several other
guns, revolvers and rifles. All these fire-arms were seized
by the police.
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.
On April 17, 1970, 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.
The trial Magistrate, while considering the question of
framing charges, held that there were materials to make out
a prima facie case under Section 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.
Aggrieved, the State of West Bengal filed a Criminal
Revision against the Magistrate’s 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.
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.
327
Hence, this appeal.
The whole case pivots around the interpretation and
application of the term "possession", used in Section 29(b)
of the Act.
Learned counsel for the appellant-State contends that
the question whether a person is in possession of an arm or
had transferred and delivered it to another, is largely one
of fact. It is submitted that in the instant case, there
were three stark facts which more than any other,
unmistakably showed that the respondents had given
possession of these fire-arms to Mrityunjoy Dutta: (a)
Mrityunjoy Dutta was not a servant or employee of the
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respondents, but was running his own business of repairing
fire-arms. (b) The fire-arms were handed over to Mrityunjoy
Dutta to be repaired at his own residence-cum-workshop which
was not the respondents licensed place of business, and was
in the exclusive control and occupation of Dutta. (c)
Mrityunjoy Dutta had no licence for repairing or keeping
fire-arms and the respondents were either aware of this fact
or did not ascertain it before delivering the fire-arms to
him. It is maintained that "possession, within the purview
of Section 29(b) means immediate possession, and
consequently, delivery of even temporary possession and
control to an unauthorised person falls within the mischief
of the Section. It is further urged that the delivery of
fire-arms for repairs to the unlicensed mechanic for
repairs, to be carried out at a place other than the factory
or place of business specified in the licence of the owners,
will amount to an offence under Section 30 read with Section
5 of the Act also.
As against this, Mr. Anil Kumar Gupta has addressed
lengthy arguments to support the judgments of the Courts
below. The sum and substance of his arguments is that the
mechanic, Dutta, was only in temporary custody of these arms
for the limited purpose of repairing them, as an agent of
the owners, who being licensees in Form IX entitled to
repair and keep these fire-arms, throughout remained in
their lawful possession and control. It is maintained that
the delivery of possession contemplated by Section 29(b) is
something more than entrusting the arms to an agent for the
limited purpose of repairs. In support of this contention,
Mr. Gupta has cited several decisions. Particular reliance
has been placed on Manzur Hussain v. Emperor Sadh Ram v.
State; Emperor v. Harpal Rai; A. Malcom v. Emperor; Emperor
v. Koya Hansji; Parmeshwar Singh v.
328
Emperor; Gunwantlal v. State of Madhya Pradesh; and Sullivan
v. Earl of Caithness.
Reference was also made to Halsbury’s Laws of England, Vol.
25, Third Edition, page 874, and Salmond’s Jurisprudence,
11th Edition.
It was next contended that even if the term
"possession" in Section 29(b) is susceptible of two
interpretations, the one favourable to the accused be
adopted. In this connection reference has been made to
Woodage v. Moss.
The last submission of Mr. Gupta is that since these
criminal proceedings have been brooding over the heads of
the respondents for the last eight years, this Court should
not, even if it reverses the opinion of the courts below,
direct the Magistrate to frame charges against the
respondents and to proceed with the trial. It is emphasised
that in any event, the offence disclosed against the
respondents was purely technical.
"Possession" is a polymorphous term which may have
different meanings in different contexts. It is impossible
to work out a completely logical and precise definition of
"possession" uniformly applicable to all situations in the
contexts of all statutes. Dias & Hughes in their book on
Jurisprudence say that if a topic ever suffered from too
much theorizing it is that of "possession". Much of this
difficulty and confusion is (as pointed out in Salmond’s
Jurisprudence, 12th Edition, 1966) caused by the fact the
possession is not purely a legal concept. "Possession",
implies a right and a fact; the right to enjoy annexed to
the right of property and the fact of the real intention. It
involves power of control and intent to control.
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(See Dias and Hughes, ibid)
According to Pollock & Wright "when a person is in such
a relation to a thing that, so far as regards the thing, he
can assume, exercise or resume manual control of it at
pleasure, and so far as regards other persons, the thing is
under the protection of his personal presence, or in or on a
house or land occupied by him or in any receptacle belonging
to him and under his control, he is in physical possession
of the thing".
While recognising that "possession" is not a purely
legal concept but also a matter of fact; Salmond (12th
Edition, page 52) describes "possession, in fact", as a
relationship between a person and a thing.
329
According to the learned author the test for determining
"whether a person is in possession of anything is whether he
is in general control of it".
In Gunwantlal (ibid), this Court while noting that the
concept of possession is not easy to comprehend, held that
in the context of Section 25(a) of the Arms Act, 1959, the
possession of a fire-arm must have, firstly, the element of
consciousness or knowledge of that possession in the person
charged with such offence, and secondly, he has either the
actual physical possession of the fire-arm, or where he has
not such physical possession, he has nonetheless a power or
control over that weapon. It was further recognised that
whether or not the accused had such control or dominion to
constitute his possession of the fire-arm, is a question of
fact depending on the facts of each case. In that
connection, it was observed: "In any disputed question of
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".
With this guiding criterion in mind, the Magistrate had
to see whether the facts alleged and sought to be proved by
the prosecution prima facie disclose the delivery of the
fire-arms by the respondents into the possession of
Mrityunjoy Dutta, without previously ascertaining whether
the recipient had any licence to retain and repair those
fire-arms within the contemplation of Section 29(b).
It may be remembered that the case was at the stage of
framing charges; the prosecution evidence had not yet
commenced. The Magistrate had therefore, to consider the
above question on a general consideration of the materials
placed before him by the investigating police officer. At
this stage, as was pointed out by this Court in State of
Bihar v. Ramesh Singh, the truth, veracity and effect of the
evidence which the prosecutor proposes to adduce are not to
be meticulously judged. The standard of test, proof and
judgment which is to be applied finally before finding the
accused guilty or otherwise, is not exactly to be applied at
the stage of Section 227 or 228 of the Code of Criminal
Procedure, 1973. At this stage, even a very strong suspicion
founded upon materials before the Magistrate, which leads
him to form a presumptive opinion as the existence of the
factual ingredients constituting the offence alleged; may
justify the framing of charge against the accused in respect
of the commission of the offence.
330
Now, in the instant case, at that initial stage, it was
apparent from the materials before the Magistrate, that the
basic facts proposed to be proved by the prosecution against
the accused-respondents were as follows:
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(a) That the respondents held licences, inter alia, in
Form IX for repairing and dealing in fire-arms at the place
of business, factory or shop specified in the Column 3 of
their licences.
(i) The respondents handed over the fire-arms in
question to Mrityunjoy Dutta for repairs.
(ii) Mrityunjoy Dutta did not have any license for
repairing or dealing in fire-arms;
(iii) (a) Mrityunjoy Dutta was doing the repair job in
respect of these fire-arms at his own residence-cum-workshop
which was situated at a place different from the business
places specified in the licences of the respondents.
(b) The fire-arms in question were seized from the
workshop-cum-house in the occupation and control of
Mrityunjoy Dutta, when the latter was actually in the act of
repairing working on a revolver.
There is nothing in these materials to show that at the
time of the seizure of these fire-arms, any of the
respondents or any Manager of their concerns, was found
present and personally supervising the repair work that was
being done by the mechanic, Mrityunjoy Dutta.
These positive and negative facts, in conjunction with
other subsidiary facts, appearing expressly or by
implication from the materials which were before the
Magistrate at that initial stage were, at least, sufficient
to show that there were grounds for presuming that the
accused-respondents had committed offences under Sections
29(b) and 30 of the Act. Facts (iii) (a) & (b) listed above,
inferentially show that by handing over the fire-arms to
Mrityunjoy Dutta to be repaired at the latter’s independent
workshop, the respondents had divested themselves, for the
time being, not only of physical possession but also of
effective control over those fire-arms. There is nothing in
those materials to show that before handing over those fire-
arms to Mrityunjoy Dutta for repairs, the respondents had
done anything to ascertain that Mrityunjoy Dutta was legally
authorised to retain those arms even for the limited purpose
of repairing them. Thus, prima facie the materials before
the Magistrate showed that the respondents had delivered the
fire-arms in question into the possession of Mrityunjoy
Dutta, without previously ascertaining that he was legally
authorised to have the same in his pos-
331
session, and as such, the respondents appeared to have
committed and offence under Section 29(b) of the Act.
Further, by allowing the fire-arms to be removed to a
place other than the places of their business or factory
specified in Column 3 of their licences in Form IX, the
respondents appear to have contravened condition 1(c) of
their licence, the material part of which reads as under:
"(c) This licence is valid only so long as the
licensee carries on the trade or business in the
permises shown in Column 3 thereof.. "
Contravention of any condition of the licence amounts
to an offence punishable under Section 30 of the Act.
In sum, the materials before the Magistrate, prima
facie disclosed the commission of offences under Sections
29(b) and 30 of the Act by respondents 1 to 4. The
Magistrate was thus clearly in error in discharging these
accused-respondents.
We do not think it necessary to notice and discuss in
detail the various decisions cited by the counsel at the
bar, because, as mentioned earlier, the question whether a
particular person is or continues to be in possession of an
arm (in the context of the Act) is, to a substantial extent,
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one of fact. This question, often resolves into the issue:
whether that person is or continues to be, at the material
time, in physical possession or effective control of that
arm. This issue, in turn, is a mixed issue of fact and law,
depending on proof of specific facts or definite
circumstances by the prosecution.
At this preliminary stage, therefore, when the
prosecution has yet to lead evidence to prove all the facts
relevant to substantiate the ingredients of the charge under
Section 29(b) levelled against these respondents, a detailed
discussion of the principles enunciated in the cited
decisions, is apt to partake of the character of a
speculative exercise.
It will be sufficient to say in passing that almost all
the decisions of the High Courts cited before us were cases
under the ’Old’ Arms Act (Act 11 of 1878). The ratio of
cases decided under the ’Old’ Act should not be blindly
applied to cases under the Act of 1959 which has, in several
aspects modified or changed the law relating to the
regulation of arms. For instance under the ’Old’ Act,
repairing of arms without a licence, was not punishable, as
’repair’ was different and distinct
332
from manufacture. In Murli v. Crown and Tola Ram v. Crown it
was held that a person in temporary possession of arms
without a licence, for repairing purposes was not guilty
under Section 19 of the Act of 1878. But section 5 of the
present Act of 1959, has materially altered this position by
requiring the obtaining of a licence for-repairing fire-arms
(or other arms if so prescribed). Further, the word "keep"
occurring in Section 5 of the ’Old’ Act has been replaced by
the words "have in his possession" in the present Section.
Then in three of these cases, namely, Manzur Husain,
Sadh Ram v. State, Emperor v. Harpal Rai, the license-holder
sent his licensed firearm for repairs through a person who
had the license-holders’ oral authority, expressly or
impliedly given, to carry it to the repairer. It was held
that the carrier, though he held no licence to keep the
fire-arm, could not be said to be in "possession" of it, nor
could the license-holder be said to have parted with the
"possession" of the fire-arm or delivered its possession to
an unauthorised person. Similarly, in one of the cases
cited, the license-holder sent his fire-arm to the
Magistrate through his servant or agent for getting the
licence renewed. In that case also, it was held that the
servant was not guilty of any offence for having in his
possession or "carrying" a gun without a licence. The
possession was held to be still with the license-holder-
owner of the weapon.
The rule enunciated in these decisions has been given a
limited recognition in the Proviso to Section 3 of the Act
of 1959. Under this Proviso, if a licensed weapon is carried
to an authorised repairer by another having no licence, he
will not be guilty for carrying that fire-arm, if he has a
written authority of the license-holder for carrying that
weapon to a repairer. Similarly, for carrying a licensed
fire-arm to the appropriate authority for renewal of the
license, written authority of the owner of the weapon is
essential to bring him within the protection of the Proviso.
In some of these cases referred to by the counsel, a person
was carrying or was in custody of a licensed weapon for use
by the licensee. Now, the Proviso to Section 3 of the
present Act, protects such carriers or custodians of weapons
for use by the license holder, only if they do so in the
presence of the license-holder concerned. We have referred,
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by way of example, some of these changes brought about by
the Act of 1959, only to impress on the trial court that in
considering the application of the ratio of the cases
decided under the Act of 1878, to those under the present
Act great caution and discernment is necessary.
333
For all the reasons aforesaid, we allow this appeal and
set aside the orders of the Courts below whereby
respondents 1 to 4, herein, were discharged. Although
offences under Section 29(b) and 30 of the Act are summons
cases, the Magistrate has followed the warrant procedure,
obviously because an offence under Section 25 of the Act,
for which Mrityunjoy Dutta was being jointly tried with
Respondents 1 to 4, was a warrant case. Moreover, trial of a
summons case as a warrant case does not amount to an
illegality, but is a mere irregularity that does not vitiate
the trial unless there is prejudice. We therefore, send the
case back to the trial Magistrate with the direction that he
should frame charges in respect of offences under Sections
29(b) and Section 30 of the Act against the accused-
respondents 1 to 4 and proceed further with the trial in
accordance with law. We decline the submission made on
behalf of these respondents that on account of their
prolonged harassment and expense, which are the necessary
concomitants of protracted criminal proceedings extending
over eight years, they should not be put on trial now for
offences which, according to the counsel, are merely
technical. Even so, we think, this is a circumstance to be
taken into consideration by the trial court in fixing the
nature and quantum of sentence, in the event of the accused
being found guilty.
Before parting, with this judgment, we will however,
set it down by way of caution that the Magistrate while
assessing the evidence and recording his findings on its
basis with regard to proof or otherwise the factual
ingredients of the offences with which the accused may stand
charged, shall not allow himself to be unduly influenced by
anything said in this judgment in regard to the merits of
the case.
N.V.K. Appeal allowed.
334