Deka, J.
1. These are three connected matters in the sense that the same party of Police and search witnesses raided the houses of the accused persons on the morning of 6-3-53 in a village and Incriminating articles, consisting of gun-powder, cartrides and unlicensed arms, to wit, a single barrelled muzzle loading gun, were alleged to have been recovered from the houses of the accused persons, and as such, on a report made by the C. I. D. Sub-Inspector, prosecution was sanctioned against the accused persons under Section 19(f) of the Indian Arms Act, and the accused petitioners were convicted by the trial Magistrate, who unsuccessfully appealed to the Additional Sessions Judge.
Three petitions were made lay three accused persons to this Court, on the basis of which three separate rules were issued on the Deputy Commissioner to show cause why the convictions and sentences should not be set aside.
2. There is particularly one point that was common to these cases as argued by the learned advocate for the petitioners arid it was that the search being irregular that is, not being in strict compliance with Section 103, Cr. P. C., no conviction could have been based on the basis of such an irregular search. It is because of this that I am giving one judgment to cover the three revision petitions. Of course, I propose to discuss the merits Of the cases separately later.
3. What is common to all these cases is that ; the two independent search witnesses Lalibhung Karki Chetri and Parsuram Sarma (both Ne alis just as the accused are) who are alleged to have accompanied the Police party, deposed in the Court that they were not present during the actual search, and that the seizure list in each case was signed by them at the request of the police officers at the house of one Ranbanadur Nepali.
Assuming, for argument's sake, that the statements are correct, though the truth thereof is challenged by the prosecution, it is to be determined whether the cases should fail because of that lacuna alone. The learned advocate for the accused, has drawn my attention to the case reported in Ram Prasad v. Emperor AIR 1938 Pat 403(FB)(A). There, of course, the point under consideration was not as to whether the conviction could be based on an irregular search, but whether an accused could be convicted under Section 187, I. P. C. for not signing a seizure-list alleged to be prepared under Section 103, Cr. P. C. There, what was held was that unless the witness took specific part in the search he need not be considered to be one of the search-witnesses, and his refusal to sign the seizure-list on that basis could not be held to be an offence coming under Section 187, I. P. C.
What, however, incidentally appears from the judgment of their Lordships was that they considered the duties of the search witnesses as appeared distinctly from the decision of the Bombay High Court reported in Binkar Niianu v. Emperor AIR 1930 Bom 169(B). I have considered the case reported in AIR 1930 Bom 169(B), & I am in complete agreement with that decision. Their Lordships observed in course of the aforesaid judgment that
Where the failure to comply with the provisions of Section 103 leaves the evidence in an unsatisfactory condition, so that there is reasonable doubt as to whether the offending articles were really in the possession of the accused, the conviction ought not to be sustained.
4. What is really intended by Section 103, Cr. P.C. is that it should be strictly followed to the extent it is possible to ensure that, the incriminating articles were recovered as alleged and it leaves no room for doubt. The reason is that it forms a material part of the evidence that is necessary in matters of conviction for alleged possession of incriminating articles.
Mr. Chaudhuri further placed before me a recent case reported in Sultan Khan v. The State 59 Cal WN 381 (C) and what was held therein was that in course of a search when certain outsiders entered a room wherefrom some offending articles were alleged to be recovered, without having their persons searched, it would undoubtedly raise some doubt as to the criminality of the accused for possession of the same, and, therefore, the accused would be entitled to the benefit of the doubt.
Here, of course, that is not the case, because no outsiders are alleged to have entered the rooms or the houses in question. The relevant point, however, is more correctly answered in one of the decisions of the Calcutta High Court reported in Remembrancer, Bengal v. Mfamtaz Uddin Ahmed ILR (1947) 1 Cal 439(D). This was a judgment of Roxburgh and Ormond, JJ. It was an appeal against acquittal. What Roxburgh, J., says at one place is
The learned Additional Sessions Judge, on appeal, acquitted the accused on the ground that in making a search, Mr. Mclnerny had not complied with the provisions of Section 103 of the Code of Criminal Procedure in that he had not had the assistance of two or more respectable witnesses of the locality at the time when ho made the search. He says with reference to Section 103 of the Code of Criminal Procedure : 'The provisions of this section are mandatory, and the failure to carry out this rule must give to the defence a very strong argument against conviction.'
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We are of opinion that the reasons given by the learned Additional Sessions Judge for the acquittal are totally wrong, not to say absurd and confused.
5. His Lordship goes on to discuss the point by saying that
in recent experience it has been seen that there is some notion prevalent that, if the search is defective, ipso facto the evidence as to the search is inadmissible, and a case based upon the search must necessarily fail.
This point was thoroughly discussed by his Lordship and reliance had been placed on the judgment of Sir Lawrence Jenkins in the case of 'Bar-Indra Kumar Ghose v. Emperor' ILR 37 Cal 487(E) and it has been held that the evidence as to recovery of the article is not inadmissible, nor the conviction based upon such evidence is illegal, but what is required is that it may only be reasonable to view with more than ordinary caution the evidence of those persons who made the illegal search.
6. In an earlier decision of a Special Bench of the Calcutta High Court, reported in Hari Narayan Chandra v. Emperor AIR 1928 Cal 27 at p 35(F), where a grievance was made as to failure of the prosecution to put two search witnesses into the witness-box, their Lordships observed:
There is no substance in the grievance sought to be made out. Be those things as they may, the important question is whether or not the incriminating articles were in the house when the policy went to search it. If this is so, as we must find it to be so, it would not matter in the least, whatever irregularities might have been committed in the conduct of the search.
This undoubtedly represents one of the extreme opinions on the point, but what seems to be the ratio decidendi in all these cases is that a conviction is not illegal on the basis of recovery of offending articles, even though there may be certain irregularities in the matter of carrying out the search, as provided under Section 103, Cr. P. C.
7. Having regard, however, to the facts of this case, I do not think that there was much of irregularity in the search itself, as alleged. But since the point has been argued at good length, I have been obliged to refer to the above decisions only to state the law on the point. In this case, it is in evidence that the search was carried out under the supervision of the Police Inspector (C. I. D.), Mr. B.K. Das, and he had obtained the warrant from the Addl. Dist. Magistrate, Dhubri, to carry out the search. He deposes to have taken with him not only the C. I. D. Police Sub-Inspector, B. Sarma, who carried on the search himself, but Mr. B. Barua, Forest Ranger of Ranikhata, and two search witnesses Lalibhung Karki Chetri and Parsuram Sarma, who, however, subsequently gave a lie to the Court. He was not challenged in cross-examination that these two persons did not actually follow the search party, and it is for reasons best known to them that these two persons subsequently deposed to have only signed the seizure-lists in all these cases without being participants in the search, as alleged by the Police Inspector. The learned trial Magistrate was wrong in saying that since these two search witnesses took a hostile attitude to the prosecution, they should be treated as hostile and their evidence completely left out.
That is not the correct position in law. The learned Magistrate ordered the conviction of the accused persons on the basis of the search as carried out by B. Sarma, S. I., and relied on the evidence of B. Barua, Forest Ranger of Ranikhata. as an independent witness to the search. There could be no fault in basing his decision on the deposition of B. Barua as one of the eligible and dependable witnesses for the search. In this view, there is not much substance in what has been argued by the learned advocate for the petitioners, namely, that the search was bad and, as such, the conviction could not be maintained on the basis of such evidence as to the search.
8. Now I propose to deal with the individual cases.
9. In Revision Case No. 33 of 1955, accused Lal-bahadur Kerki Chetri was prosecuted on a charge of possessing without license some pun-powder weighing more than one-fourth of a seer The Expert who was examined, says that it was live gun-powder and highly explosive. What was found in his possession consisted of two packets of gunpowder and one-fourth seer of gun-powder contained in a bamboo chunga (barrel) which was recovered from inside his house.
What has been challenged in this case is that apart from B. Sarma, there was no other witness who witnessed the search, and what is cunvltined of B. Barua is that he did not enter the house, as admitted by him during the search, and, therefore, he could not be treated as a competent witness for the purpose. That he witnessed the recovery, is not challenged in the course of cross-examination, and even though he did not enter the house, it was quite probable that he might see the recovery of the offending articles from outside, because P. W. 4, Lallbung Karki Chetri, says that there was no wall in the house of the accused and, therefore, it was quite possible that this witness might have witnessed the recovery of the offending articles even from outside, without entering into the house.
The finding as to the recovery of these articles, therefore, is conclusive, if this witness is relieved who supports the Police witnesses and the conviction, therefore, of this accused, Lalbahadur Karki Chetri, cannot be challenged on any good ground. I accordingly maintain his conviction, but in view of the fact that short term imprisonment is of little avail, I direct that the sentence of this accused be reduced to one of a fine of Rs. 50/- in default, ten days' rigorous imprisonment, inasmuch as he is a first offender and has served a part of the sentence.
10. In Revision Case No. 34 of 1955, accused Omar Bahadur Chetri, and his son, Mahabir Neopani Chetri. were prosecuted under Section 19(f) of the Indian Arms Act for alleged recovery of one-fourth seer of gun-powder from the dwelling house of Omar Bahadur and Mahabir, both of whom were prosecuted for the offence. The learned trying Magistrate discussed the evidence and he was not satisfied with the search report as it nowhere laid down from where the offending articles were recovered, that is, from which part of the house, or whether from a box or any container, and if so, in whose possession the container was.
After discussing the evidence, he gave the benefit of doubt to the son, Mahabir. but convicted the accused Omar Bahadur, as Kart'a of the house, though no conscious possession was ascribed to him. The learned Magistrate could have given the benefit of doubt to both the accused if he was not satisfied about joint possession, as no case was clearly made out against any of them separately. Though the search was carried by one of the Police Officers, he was not found to be very competent in the matter of recording the details as to the recovery of the offending articles, which was very material, and since the evidence of conscious possession of the accused is very weak, and the finding of the appellate Court also does not seem to be based on any strong evidence, I think this accused is entitled to the benefit of doubt, and accordingly I direct that the conviction be set aside and the Rule made absolute.
11. In Criminal Revision No. 35 of 1955, two persons, namely, Kharga Bahadur Karki Chetri and his son, Nar Bahadur Karki Chetri, were prosecuted for possessing without license three live cartridges, a small quantity of gun-powder, and a single barrelled muzzle loading gun. The cartridges were recovered from an almirah opened by Kharga Bahadur, and the gun-powder and the single-barrelled muzzle loading gun were recovered from under the bedding of Nar Bahadur, where his wife was lying at the time of the search. The learned trial Magistrate found Nar Bahadur guilty under 6. 19(f) of the Arms Act for possessing the gun without licence and a small quantity of ammunition, and he was sentenced to three months' rigorous imprisonment.
On appeal, the conviction and sentence were upheld, I have looked into the evidence in this case, and the evidence on record fully makes out a case against the accused for illegal possession of the gun and a small quantity of ammunition without license I see no reason to interfere in the matter of conviction and sentence of this accused. The Rule is accordingly discharged.
12. The result is that in Rule 33 of 1955, the sentence is varied, Rule 34 of 1955 is made absolute, and Rule 35 of 1955 is discharged.