BANCHHANIDHI PATRA Vs. STATE

JUDGEMENT

(1.) THIS is a petition, in revision, against the appellate judgment of the Sessions judge of Cuttack maintaining the conviction of the petitioner under Section 5 of the Telegraph Wires (Unlawiul Possession) Act 1950 passed by a 1st Class magistrate of Cuttack, but reducing the sentence to a fine of Rs. 500/ -. At the time of the admission of this revision petition notice was issued to the petitioner to show cause why the sentence may not be enhanced to a substantive sentence of imprisonment and he was also given an opportunity to show cause against his conviction. The petition was heard like a regular criminal appeal and questions of fact and law were both fully argued.

(2.) THE petitioner is a cloth dealer of Ramgarh in Tangi P. Section On 28-3-1954, his house was searched by the Police and two copper wire bundles (M. Os. 1 and 2) were seized from the verandah of his house. The petitioner was present at the time of the seizure and he produced before the Police Officer a cash-memo (Ext. 2) in support of his case that the wires were purchased from a firm at Berhampur. The seized bundles of copper wire were sent to the Engineering Supervisor, telegraphs, Cuttack (P. W. 4) who after examining the same stated that they were of the gauges 200 lbs. per mile and 300 lbs. per mile respectively and belonged to the Telegraph Department. He found one sleeve joint in one piece and one brittania joint in another piece. He further stated that the wires could neither be imported or exported by private persons, nor were they available in the market. The petitioner took the plea that the wires were purchased by his son (D. W. 1) from the shop of Dinabhandliu subodhi and Sons' of Ganjam, at Berhampur, and produced Ext. 2 a cash memo, in support of his plea. This explanation was given to show that his possession of the wires was lawful, but the lower appellate court rejected that explanation mainly because the said cash-memo (Ext. 2) was issued in favour of one Natabar moharana. Moreover P. W. 5 who was a clerk of the firm of Dinabandhu Subodhi and Sons appeared as prosecution witness (P. W. 5) and stated that the goods sold under the cash-memo were copper scrap and not copper wires and that the firm of Dinabandhu Subodhi and Son never dealt in copper wires at all.

(3.) THE Telegraph Wires (Unlawful Possession) Act, 1950 came into force on 28-121950. Section 2 (b) of that Act defined telegraph wires as "copper wire of any one of the following gauges commonly used in telegraph lines, namely, one hundred and fifty pounds, per mile, two hundred pounds per mile or three hundred pounds per mile". Section 3 of the Act cast a duty on every person in possession of telegraph wires to make declaration within six months from the commencement of the Act to the prescribed authority, giving an accurate description of the quantity of telegraph wires in his possession. Section 4 required a person in possession of telegraph wires exceeding ten lbs. in weight to have the wires converted into ingot within one year from the commencement of the Act. There is a proviso to this section which permits a person in possession of telegraph wires to sell them to such authority as may be prescribed by rules made under the act. Section 5 which is the penal section for unlawful possession of telegraph wires may be quoted in full ; "5. Penalty for unlawful possession of telegraph Wires:-- Whoever is found or is proved to have been in possession of any quantity of telegraph wires which the Court has reason to believe to be, or to have been the property of the Posts and Telegraph Department of the Central government shall, unless he proves that the telegraph wires came into his possession lawfully, be punishable with imprisonment for a term which may extend to five years, or with fine, or with both". There is a proviso to this section also but that is not material tor the present purpose. Section 7 prohibited a court from taking cognizance of an offence under that Act except on a complaint in writing by an officer specially empowered by the Central Government. The present case was started on a complaint filed by the circle Inspector, Police, Sadar Cuttack. He, is one of the Officers duly authorised to file such complaint by virtue of notification No. SRO-1247 dated 19-7-1952 (See gazette of India, Notification dated 19-7-1952, in Part 2, Section 3 at page 1122 ).