Fazl Ali, J.The petitioner has been convicted u/s 19(e), Arms Act, and sentenced to pay a fine of Rs. 5. The Magistrate who convicted the petitioner states in his judgment that the offence committed by him was of a most technical character and he also says that it would be a bad precedent not to convict him however technical the offence committed by him may be.

It is contended on behalf of the petitioner that in the circumstances of the case no offence was really committed by him. It is conceded in the judgment of the trying Magistrate that the petitioner is a servant of one Ramnandan Prasad who possesses a license for the gun which was found with the petitioners that on the day in question Ramnandan Prasad had come to Barh with a large sum of money amounting to Rs. 22,000 and that the petitioner was brought to escort the money.

2. The trying Magistrate seems also to have accepted the evidence of Ramnandan Prasad that he had gone to a temple and left the inand some cartridges temporarily in charge of the petitioner who was guarding the money. In a case decided by the Allahabad High Court: Babu Ram Vs. Emperor , it was pointed out that in certain circumstances the possession of a gun by a servant would be tantamount to the possessor of the license-holder, and in my opinion having regard to the peculiar circumstances of this case and to all the findings which have been arrived at in favour of the accused, the petitioner should not have been convicted. Mr. Baldeo Sahay points out that the petitioner has been convicted of the offence u/s 19(e) which cannot be established unless it is proved that the petitioner went out armed with a gun.

3. He also cites the case: Sonaimathu Ambalam v. Emperor, AIR 1925 Mad 585 , in which it has been pointed out that the, offence of going armed with a firearm is considerably narrower than the offence of being in possession merely of firearms. It is unnecessary to discuss these points because in the special circumstances of the case it is evident that the petitioner was only in possession of the gun on behalf of his master who was in Barh and who had left the place where the petitioner was guarding his money for a short time only.

I would allow this application, set aside the judgment of the Court below and direct that the fine, if paid, be refunded.