Persad Dahait vs Emperor

Fazl Ali, J.—The petitioner in this case is one Persad Dahait who has been convicted u/s 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.

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 u/s 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.

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 u/s 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 Sections 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.

The learned Sessions Judge, however, expressed the view that the irregularity would not affect the result of the search, if it was established by reliable evidence that anything incriminating was found on the premises searched. The learned Judge''s view of law is, in my opinion, correct as under the Act the offence u/s 19 would appear to be complete as soon as the accused is found in possession of arms "and ammunition in contravention of Section 14 or Section 15 of the Act and the commission of the offence is not dependent upon whether the search was or was not conducted in the manner provided by Sections 25 and 30. Indeed it is conceivable that there may be cases of an exceptional nature where in view of the exigencies of a situation demanding immediate action the provisions of Sections 25 and 30 cannot be strictly complied with and in such cases if unimpeachable evidence is offered by the prosecution to prove that the accused was in fact found to be in possession of certain incriminating articles, the prosecution cannot fail merely because the search WHS not made in strict accordance with the provisions of Section 25 or Section 30. It is, however, to be remembered that on the other hand the clear and unambiguous provisions of Sections 25 and 30 cannot be allowed to be normally disregarded so as to reduce those sections to a mere dead letter. These sections were enacted for the protection of the subject as well as to inspire confidence in the proceedings conducted by the Police Officers.

If these provisions are therefore disregarded and no reasonable excuse or justification is offered for not following them, the Court may well look with suspicion upon the entire proceeding and hesitate to convict the accused person upon the result of the search, unless the prosecution offers strong and unimpeachable evidence to remove the suspicion and the Court is convinced that the accused was in fact found to be in possession of the incriminating articles of which he is alleged to have been in possession. In this particular case there is unfortunately nothing on the record to show why the Divisional Inspector did not conduct the search in person and why he deputed a junior officer of the position of an Assistant Sub-Inspector to conduct it. Such evidence as has been adduced in the case shows that the Divisional Inspector himself remained at Gaunaha Railway Station which is about four miles from the place of the search and deputed various officers to conduct searches in the locality where the accused resides. There is no explanation whatsoever why he himself did not visit the locality. Turning now to the evidence adduced in the case, I find that out of the two search witnesses who are said to have been present at the time of the search, only one Gangadeo Misser has been examined by the prosecution.

This witness stated in his cross-examination that his house was about six or seven koses from the place of search and that he happened to be in the village of the accused on September 23, as he had gone there for the purpose of purchasing a bullock. In his examination-in-chief he no doubt stated that the gun was found buried in a drain in the courtyard of the petitioner, but in cross examination, he gave away the entire case of the prosecution and made a statement to the effect that the place where the gun was found was not enclosed and was accessible to others and the gun was not in fact found inside that portion of the house which was enclosed. The prosecution had to cross-examine this witness after the above statement was made, but nothing was elicited in cross-examination to show why this witness should make a false statement. As to the Assistant Sub-Inspector''s evidence, it was attacked on various grounds and particularly en the grounds that (1) the words "in the courtyard" noted in the search list against each item of the articles recovered appeared to have been added afterwards (2) that the search list did not bear the signature or the seal of the Sub-Divisional Officer and that it was not initialed by the Inspector of Police until September 26, 1934. As to the alleged interpolation, the learned Sessions Judge observes as follows in his judgment.

I am asked to notice that in the search list the words ''in the courtyard noted against each item appear to have added afterwards.'' It certainly looks as if they had been added afterwards. But it does not necessarily follow that the articles were not found in the courtyard. The A.S.I. may have realized after writing his search list that it was necessary to note the exact position in which the articles were found, and he may have made the additions in good faith in order to make his report quite clear.''

As to the other ground of attack, it is enough to say that it was based upon the statements made by the Divisional Inspector himself in his evidence. Such being the state of the evidence, it is not clear why the prosecution did not examine the only other search witness, but merely tendered him for cross examination. A. brief refence may be made here to a rough sketch of the house of the accused prepared by the Sub Inspector. This plan as has been pointed out by the learned Sessions Judge was unfortunately not prepared till November 12, and it is also conceded that the Assistant Sub-Inspector was not present when it was prepared. It is true that the Sub-Inspector who prepared the plan states in his evidence that he got his information from the search witnesses, but this fact was not noted in the diary and the search witnesses were not asked about it. The defence has also rightly emphasized the fact that the drain is not a usual place for keeping, a gun and there is nothing in the evidence of the Assistant Sub-Inspector or the search witness to show whether there was any sign of the gun having been recently kept at the place where it was found or the spot where the ground was dug present a normal appearance.

The accused in a long written statement which he has filed in the case, claimed to be a law-abiding subject and asserted that the map prepared by the prosecution was materially incorrect and prayed that the trying Magistrate himself should make a local inspection of the place to verify the truth of the assertion made by him. It appears, however, that no local inspection was made and the challenge thrown by the accused remained unanswered. On the whole therefore I am inclined to think that the prosecution has not established by clear and unimpeachable evidence that the gun and the flask of powder were recovered from a place which was not accessible to persons other than the inmates of the house belonging to the petitioner and the accused must, therefore, have the benefit of the doubt. I would therefore allow the application and set aside the conviction of the petitioner and the sentences passed on him. The accused will be set at liberty and the fine, if paid, will be refunded. Learned Counsel for the accused also argued that the Courts below had erred in law in presuming the accused to be in possession of the gun and the powder even though his other brothers and a number of servants also lived in the house. In support of this argument he has referred me to the decision of the Allahabad High Court in Kaul Ahir Vs. Emperor . I do not, however, consider it necessary to decide this question in view of the opinion which I have already expressed on the merits of the case.