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Ahmed HosseIn Vs. the Queen-empress - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal692
AppellantAhmed Hossein
RespondentThe Queen-empress
Excerpt:
arms or ammunition - possession of or control over--search, legality of--sanction to prosecute--code of criminal procedure (act v of 1898), sections 55,103 and 165--arms act (xi of 1878), sections 19, 20, 25, 29 and 30. - .....the whole constituting, in point of numbers, a small army of about sixty men. their object was to search for arms in the house of the prisoner. they reached his house at daybreak; they surrounded the house, went in, and at once arrested the prisoner and had him photographed. some of the witnesses say--photographed with a constable holding him by the hand or arm--and then proceeded to search the house. the police had no search-warrant, nor is there anything to show upon what charge the prisoner was arrested. the search lasted practically throughout the day, with the result that the stocks of two guns, some loaded and unloaded gun and revolver cartridges, a ramrod, a box of percussion caps, and a gun (sic) with reloading implements for cartridges, and some empty powder flas(sic) were.....
Judgment:

Francis W. Maclean, K.C.I.E., C.J.

1. On the 23rd of April 1899, the Assistant Magistrate of Purneah proceeded to search the house of the prisoner, who appears to be a man of position and means, and took with him two Superintendents of Police, several Inspectors of Police and a number of constables and chowkidars, the whole constituting, in point of numbers, a small army of about sixty men. Their object was to search for arms in the house of the prisoner. They reached his house at daybreak; they surrounded the house, went in, and at once arrested the prisoner and had him photographed. Some of the witnesses say--photographed with a constable holding him by the hand or arm--and then proceeded to search the house. The Police had no search-warrant, nor is there anything to show upon what charge the prisoner was arrested. The search lasted practically throughout the day, with the result that the stocks of two guns, some loaded and unloaded gun and revolver cartridges, a ramrod, a box of percussion caps, and a gun (sic) with reloading implements for cartridges, and some empty powder flas(sic) were found on the premises. The articles so found must be taken to be arms and ammunition, within the meaning of the Arms Act, XI of 1878, and they must be taken to have been in the possession of the prisoner within the meaning of Sub-section (f) of Section 19 of that Act. The prisoner was removed in custody.

2. What subsequently took place is involved in some little obscurity. The materials before us do not enable us to say definitely when any proceedings against the prisoner were first instituted, or whether the sanction required by Section 29 of the Arms Act was given before those proceedings were instituted or what, in the first instance, was the precise charge made against the prisoner, and the learned Deputy Legal Remembrancer, who appeared for the Crown, has not been able to enlighten us upon these points. The prisoner, however, appears to have been kept in custody for nearly a fortnight, until he was released on bail by an order of this Court, about the 12th or 14th of May. Ultimately he was committed to the Sessions Court at Bhagulpore, and convicted on the 3rd January last of an offence under Sections 19 and 20 of the Arms Act of 1878, and sentenced to six weeks' rigorous imprisonment and a fine of Rs. 500. Both the assessors were for acquitting the prisoner.

3. I must say, I am at a loss in the absence of explanation, to understand the action of the Police in this matter. I do not understand upon what charge the appellant was arrested, why he was photographed, what right the Police had to photograph him, least of all in custody, or in the absence of a search-warrant under what authority the search was made. It is not suggested that the search was made under Section 25 of the Arms Act, though I notice in his questions to the assessors the Sessions Judge puts it as a search under Section 25, whilst in his judgment he treats the search as one made under Section 165 of the Criminal Procedure Code. No attempt has been made at the Bar to treat the search as one made under Section 25 of the Arms Act, and the learned Deputy Legal Remembrancer has not been able to assist us in elucidating the reasons for the action of the Police, which appears to me to have been high-handed and arbitrary. It is equally unfortunate that the prisoner was detained in custody so long and not allowed out on bail, until he was released on bail by an order of this Court, which indicates clearly that this Court thought it was a case for bail. We have heard no argument that the search was properly made under Section 165 of the Code of Criminal Procedure or that the arrest was properly made under Section 55 of the same Code.

4. With respect to the question of whether or not any previous sanction had been given under Section 29 of the Arms Act I am not unmindful of the suggestion that the charge here was, in the first instance, in respect of an alleged offence under Section 20 and not of one under Section 19; but Sections 19 and 20 are so interwoven that it is difficult to see how an offence can be committed under the first paragraph of Section 20, unless an offence under one of the enumerated sub-sections in Section 19 has also been committed. It is not suggested, save in the Sessions Judge's questions to the assessors, that the charge here was an offence under the second paragraph of Section 20 of the Arms Act. Nor could it have been successfully, for the provisions of Section 25, were not complied with in this case.

5. As regards the charge under Section 20, I entertain a grave doubt whether the evidence is sufficient to justify a conviction under that section, and whether the first paragraph of that section applies to a case such as the present. The accused is entitled to the benefit of that doubt, and in my opinion the conviction under Section 20 is not sustainable.

6. The accused, however, must be taken to have had in his possession or, under his control, arms and ammunition as defined by the Arms Act of 1878 within the meaning of Sub-section (f) of Section 19 of that Act, and in my opinion the conviction under that section must be confirmed. I think, however, that the sentence passed was far too severe, and that under the circumstances of the case, a much more lenient sentence would have met the justice of the case. I understand that the prisoner has already undergone some days of rigorous imprisonment before he was again admitted to bail by this Court; and in my opinion, the imprisonment he has already undergone is an ample punishment for the offence which he has committed. In the result, then, the conviction under Section 20 must be set aside and that under Section 19 must be sustained, and the sentence must be the number of days of rigorous imprisonment, which the prisoner has already undergone. The prisoner, then, will be at once discharged and the fine of Rs. 500 must be remitted, and, if paid, must be refunded.


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