ABANI MOHAN BHATTCHARJEE Vs. EMPEROR

JUDGEMENT

(1.) I have had the advantage of reading beforehand the judgment which my learned brother is about to deliver in these two appeals; I entirely agree with him in the conclusions reached by him in the reasonings on which those conclusions are based, and in the order which he proposes to make in these two appeals. Henderson, J.

(2.) The facts of the case out of which these appeals have arisen are briefly as follows: The appellant Probhat is a detenu who was interned at Faridpur, a village in the District of Burdwan. He ran away on 9 January 1932, and disappeared. On receipt of certain information a party of Police Officers raided No. 4 Ahiritola 1 lane the room where the absconder was expected to be found was vacant. The owner of the house Dhakaram made some inquiries and informed the Inspector P. W. 1 that the occupants of the room in question had removed to the house of Nagen Das (P.W. 6) in Sitala lane. The Inspector and some other Police Officers went there. On being summoned the appellant came out and was arrested. The Police then searched the room and recovered the revolver (Ex. 2) and air pistol (Ex. 3). It is the prosecution case that the room was in the occupation of both the appellants. Three charges were framed against the appellants?the first Under Section 19(f), Arms Act, read with Section 19(a) with reference to the revolver: the second Under Section 19(f) with reference to the air pistol and the third Under Section 120, B.I.P.C, setting out a conspiracy to commit the offences specified in the two former charges. The learned Magistrate convicted both the appellants on all three charges: he made the last two sentences concurrent with each other but consecutive to that passed on the first charge.

(3.) In appeal the following points have been pressed on behalf of both the appellants: (1) that the conviction on the third charge cannot be supported: (2) that no license was necessary for the air pistol; (3) that in any view only one offence Under Section 19(f) of the Act was committed. On behalf of Abani it is urged that he had nothing to do with the pistols and is entitled to an acquittal. On behalf of Probhat it was contended: (1) that the pistols were planted by the Police; (2) that possession has not been brought home to him. With regard to the first point it is to be noted that the Magistrate accepted the prosecution case in full and convicted both appellants of the specific offences Under Section 19(f): there was nothing left over to form the basis of a charge of conspiracy: the basis of that charge was an alleged agreement to do an illegal act. There is no evidence of any such agreement and this conviction is based solely upon an inference from the fact of possession. In these circumstances the conviction both of the specific offences and a conspiracy to commit them has very little meaning and the practical effect of imposing consecutive sentences is to punish the appellants twice over for one act. In view of the findings arrived at by the learned Magistrate we should not be prepared to uphold the conviction and sentence on the third charge. There are two branches to Mr. Mukherjee's argument on the second point: he contends firstly that an air gun or air pistol does not come within the definition of "arms" in Section 4 and secondly that air pistol of this particular type are exempted under the Government notification referred to by the learned Magistrate.