PERSAD DAHAIT Vs. EMPEROR

JUDGEMENT

(1.) The petitioner in this case is one Persad Dahait who has been convicted under Section 19(f), Arms Act, and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 100. The proceedings against the petitioner were instituted as the result of a house, search made by an Assistant Sub-Inspector on September 22, 1934, under a warrant issued by the Sub-Divisional Magistrate of Bettiath. The evidence of the Assistant Sub-Inspector is to the effect that he found an old muzzle loading gun and a flask of gunpowder buried inside the courtyard of the petitioner which was enclosed on all sides by a tatti wall more than a man's height. The gun was buried in a drain in the courtyard and the flask was buried in the ground south-east of the drain in the courtyard. This evidence has been accepted by the Courts below and they have held that though upon the evidence it has been established that the accused as well as his three brothers and 20 or 25 ploughmen were occupying the house when it was searched yet the accused must be presumed to be in possession of the articles in question as he is the managing member of the family and master of the house and the articles in question could not have been kept on the premises without his knowledge or connivance. The learned Sessions Judge who saw the gun describes it as "clumsily made" but serviceable and in his opinion it may have been kept as a precaution against the dacoits who often operate in the border tract where the accused lives.

(2.) The first point which was argued before me on behalf of the petitioner was that the trial was illegal, because the proceedings against the petitioner were commenced without the previous sanction of the District Magistrate as required under Section 29, Arms Act. There is, however, no substance in this contention, because it appears that in the first instance the sanction of the senior Deputy Magistrate who was acting for the District Magistrate for the time being had been obtained and afterwards when the Sub-Divisional Magistrate pointed out that the sanction of the District Magistrate de jure was necessary, his sanction was also obtained. Before the District Magistrate's sanction was obtained, the Sub- Divisional Magistrate had merely released the accused on bail, but when the sanction was duly obtained, he transferred the case to the second officer for disposal and the hearing of the case was commenced by the latter officer about three weeks after the date on which the case had been transferred to him. The next point which has been urged on behalf of the petitioner raises the question of the legality of the house search. It appears that the search warrant which had been issued in this case by the Sub-Divisional Magistrate of Bettiah authorised the Divisional Inspector of Police to search the house of the petitioner, but afterwards the Inspector endorsed the warrant to the Assistant Sub-Inspector and the search was conducted by the latter officer. Section 25, Arms Act, clearly provides that the search: shall be conducted by or in the presence of a Magistrate or by or in the presence of some officer specially empowered in this behalf by name or in virtue of his office by the Local Government.

(3.) Section 30 again provides that where a search is to be made under the Criminal Procedure Code or the Presidency Magistrates Acts, 1877, in the course of any proceedings instituted in respect of an offence punishable under Section 19, Clause (f), such search shall notwithstanding anything contained in the said Code or Act, be made in the presence of some officer specially appointed by name or in virtue of his office by the Local Government in this behalf and not otherwise. There is no doubt that in this case these provisions have been disregarded and this is conceded by the learned Sessions Judge who while dealing with the matter, observed as follows in his judgment: Then it is argued that the house search was illegal, because it was made by an. Assistant Sub-Inspector of Police, whereas Secs.25 and 30 of the Act require that such searches should be made by or in the presence of a Magistrate or some officer especially empowered in this behalf by the Local Government. This contention seems to be justified. It would appear that the Assistant Sub-Inspector of Police was not empowered to make such a search.