WIRELESS INSPECTOR CANNANORE Vs. MUHAMMAD KUNHI

JUDGEMENT

(1.) THE Wireless Inspector, Cannanore has come up in appeal against the order of acquittal passed by the Sub Divisional Magistrate, hosdrug on the accused who was prosecuted before the Second Class Magistrate, kasaragod under S. 20a of the Indian Telegraph Act, 1885, and S. 3 and 6 of the indian Wireless Telegraphy Act, 1933 for using a broadcast radio against the conditions of the licence possessed by him. THE licence issued to the accused was licence No. P79556 dated 2-3-63 which gave him the authority to use the radio for domestic purposes only. But in contravention of this condition of the licence, he was found using the radio for commercial purposes in the Ajmeera hotel from 6-1-54 to 9-1-64. THE offence was detected by Pwl the wireless licence Inspector attached to the head post office, Cannanore. On 9-1-64 when he visited the Ajmeera Hotel it was found that the accused was operating the radio set there, for commercial purposes. Accordingly a case was taken under the above sections of the Indian Telegraph Act and the Indian Wirless telegraphy Act.

(2.) THE accused admitting the possession of the radio under a licence, stated that it was never operated from the hotel; but it is true that the radio was kept in the hotel. It was taken for repair some days back and after repair, instead of taking it home it was taken to the hotel and so it happened to be there when Pwl went there. In other words, the allegation that the radio was used for commercial purposes was alone denied. THE learned magistrate accepted the case of the prosecution, convicted the accused under s. 20a of the Indian Telegraph Act and S. 3 and 6 of the Indian Wireless telegraphy Act and sentenced him to pay a fine of Rs 100/- under the former act; but no separate sentence was awarded under the latter Act. In appeal to the Sub Divisional Magistrate, Hosdrug, the conviction and sentence were set aside on the short ground that the prosecution has not succeeded in showing that any of the conditions of the licence was violated. In the lower appellate court the accused took up the position that the burden is on the prosecution to show that any of the conditions of the licence was violated, by the production and proof of the said conditions before court. THE prosecution on the other hand maintained that the conditions are printed on the reverse of the licence itself and so long as the licence is with the accused and it is not produced by him, it is not possible for them to prove the fact. THEy relied on other materials to bring home the guilt of the accused; but the appellate Magistrate was not prepared to accept such evidence as proof of the guilt of the accused and he has accordingly acquitted him. It is under these circumstances that he has come up in appeal before this court.