Iqbal Ahmad, J.
1. This is a reference by the learned Sessions Judge of Saharanpur recommending that the conviction of Balbir Singh and Juri, applicants, under Section 26(1)(i), Forest Act (16 of 1927), be set aside. Balbir Singh holds a licence for a muzzle-loading gun. The licence is for the protection of crops from wild animals. On 29th September 1932 at 6-30 in the morning he was going from his native village Suridhar to another village called Joli. He was going on the District Board road which runs through the Government reserve forest. He was carrying his muzzle-loading gun on his shoulder. The gun was loaded and had a percussion cup. The other applicant named Juri was also found accompanying him. On these facts the applicants were charged under Sub-clause (i), Section 26(1), Forest Act, which provides that any person who in contravention of any rules made in this behalf by the Local Government hunts or shoots shall be punishable with imprisonment or with fine or with both. Balbir Singh's defence was that he was not hunting in the forest nor was he passing on the road with the intention of hunting or shooting and that as the gun was already loaded, he did not think it necessary to discharge it before he left his native village for village Joli. Juri's explanation was that be was going to his village Joli and met Balbir Singh in the way and accompanied him. The learned Magistrate convicted the applicants and sentenced each of them to a fine of Rs. 50. In the course of his judgment be made the following observation:
There may not have been a deliberate intention to go on a hunting expedition, but from the fact that the gun was not only loaded but had a cap on it ready for firing, I am satisfied that the accused were on their way from Suridhar to Joli and took the gun along on the chance of meeting with game on the way. This amounts to hunting.
2. I am unable to agree with the learned Magistrate. Section 26, Forest Act, penalises hunting and shooting in the reserve forests in contravention of the rules made by the Local Government. I am not aware of any provision of law that prohibits a man from going on a District Board road, that passes through reserve forests with a loaded gun. From the mere fact that a loaded gun was being carried by Baibir Singh, it does not necessarily follow that he was going on the road with the intention of shooting. Apart from this what is made penal by the Forest Act is not the intention to shoot, but actual shooting itself. In the present case it is not alleged that either of the applicants was found shooting or hunting in the forest. Every person who holds a licence for a gun has the right to go armed with it at any and every place, unless he is prohibited by some rule, having the force of law, from going there with the arm for which he holds the licence. There is nothing on the record to show that Balbir Singh had gone in pursuit of wild animals. There is further nothing on the record to disprove the statement of Juri that he was going to his village Joli and met Balbir Singh on the way. The mere fact that one of the applicants was carrying a loaded gun with him was no ground for convicting the applicants under Section 26(1)(i), Forest Act. The result is that I accept the reference, set aside the conviction of both the applicants and direct that the fine if realized be refunded to them.