STATE OF MAHARASHTRA Vs. BHIMSHA CHANBASAPPA KORE

JUDGEMENT

(1.) THIS appeal is filed by the State against the acquittal of the respondent Bhimcha Chanbasappa Kore by the Judicial Magistrate First Class, Court No. 1 Sholapur, in case No, 2669 of 1960 by his judgment dated 23-12-1960. The respondent was charged before the learned Magistrate with having committed a breach under section 19 (f) of the Indian Arms Act, in that he was found in possession of muzzle-loading gun in field S. No. 328/3 without a licence. The prosecution case was that the officer in charge of the police station at Valsang received information that a man in possession which is between the village Valasing and Chinaeneli. This was on 13-10-1960. On receipt of constable Pandurang More started to make inquiries. They went into the field and took with them two panchas, viz. , Lalkhan and Bhonge, from a neighbouring land. They saw a man sitting below a mango tree and he had a gun in his hand resting on his knees. On seeing them, the man tried to get up but was asked no to move. The gun was taken from him under a panchanama and the man holding the gun was asked whether he had a licence to which he replied in the negative. Then a personal search was taken of the man and of a search of the pocket of his coat, one matchbox containing capes was found. He had also a cloth-bag and in that cloth-bag some pellets having gunpowder. It is alleged that the palm of the man holding the gun was blackened and smelt of gunpowder.

(2.) THE learned Magistrate accepted the evidence of the prosecution that the accused was found actually in possession of gun, as alleged, and that the gun was seized from the accused. There was no dispute that the gun was not covered by a licence and, therefore, the find of the gun without a licence with the accused, was held to be established. The offence being under the Arms Act, prosecution could only be launched after obtaining the sanction of the requisite authorities. The sanction can be given by the authorities mentioned in section 29 of the Arms Act. In this particular case, the sanction was given by the Additional District Magistrate, Sholapur, by his order dated 29-10-1960, and that sanction is Exh. 8 in this case. It was contended before the learned Magistrate of the District under the Arms Act and the sanction given by the Additional District Magistrate was invalid and improper. It appears that the learned Magistrate accepted this contention and holding that the prosecution was not launched after obtaining the necessary sanction, passed an order of acquittal of the accused on that ground. The state has filed this appeal challenging his order of the learned Magistrate.

(3.) IN support of the appeal, it has been contended by the learned Assistant Government Pleader that an Additional District Magistrate is as much competent as the District Magistrate to give sanction for prosecution of a person who the arms Act under S. 29 of the Arms Act. It is pointed out that under Sec 10 (2) of the Code of Criminal Procedure, an Additional District Magistrate who is duly appointed by a State Government is entitled to exercise all or any of the powers of a District Magistrate either under the Code of Criminal Procedure or force. Thus it is urged that the Additional District Magistrate in the instant case could exercise the power of the District Magistrate under Section 29 of the Arms Act.