Decided on March 23,1900



Francis W Maclean, K C I E C J - (1.) On the 23 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 12 or 14 of May. Ultimately he was committed to the Sessions Court at Bhagulpore, and convicted on the 3 January last of an offence under Secs.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 Criminal P. C. or that the arrest was properly made under Section 55 of the same Code.;

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