FAZAL MIR Vs. THE STATE

JUDGEMENT

(1.) THIS Rule is against an order dated the 26th November, 1965 passed by Shri L.C. Sen, Additional Sessions Judge, Murshidabad, dismissing an appeal from an order dated the 3rd November, 1965, passed by Shri S. Niyogi, Magistrate 1st Class, Kandi, convicting the present :petitioner under Section 5 of the Telegraph Wires (Unlawful Possession) Act, 1950 and sentencing him to suffer rigorous imprisonment for one year. The caroused Lal Bibi, who is the wife of the present petitioner, did neither file any appeal before the Sessions Judge Murshidabad nor prefer any motion in this Honourable Court.

(2.) THE fasts leading on to the present Rule may be put in a short comas. The prosecution case is that on the 6th September, 1964, P.W. 1, A.S.I.N.N. Baul and P.W. 7, S.I.P.B. Das, lien attached to the Kandi Police station, leached upon suspicion the house of the accused. petitioner Fazal Mir at Jiadara, P.S. Kandi and recovered two bundles of copper -wire, Exts. I and II respectively weighing about 605 grammas, bound within the folds of a Kantha, on a mach inside a room of the house having only one door and no window. Besides P.Ws. 1, 5 and 7 of the police group, P.Ws. 2 and 8 who belonged to the locality, witnessed the search. Neither the petitioner Fazal Mir nor his wife, the co -accused, could produce any permit or authority to possess those copper -wires. The Wires were sent to the Posts and Telegraph Department for examination by expert and P. W4, Bisweswar Mukherjee, an Assistant Engineer in the Posts and Telegraph Department, submitted a report (Ext. 4) stating inter alia that the said type of wire is exclusively used by the Posts and Tele, graphs Department for line communication and belongs to the prohibited category of telegraph wires not available in the open market. P.W. 5, A.K. Chakraborty, 0.C. Kandi Police -station, made the investigation and submitted the charge -sheet to P.W. 6, Jitendra Chandra Kar, the Circle Inspector of Police at Kandi, who was authorized to lodge the complaint under the Telegraph Wires (Unlawful Possession) Act, 1950. On 21.12.64, the charge -sheet along with the formal complaint by the said C.I. were filed in Court and the petitioner and the co accused were thereafter placed on their trial before the trying Magistrate to answer a charge under Section 5 of the Telegraph Wires (Unlawful Possession).Act, 1950.

(3.) THE defence case inter alia is that the accused petitioner is not guilty; that the present case is a false one and that the copper, wires were planted in the house of the accused -petitioner toy the police in collusion with one Nurul Islam who was attracted towards the petitioner's wife, the co accused in this, case, and for which there was enmity between the accused -petitioner and the said Nurul Islam. The further defence of the cocooned Lal Bibi, who is not before us, was that she was living separately from her husband and as such she had no possession of the copper, wires in question as alleged or at all.