- (1.) THIS appeal, at the instance of the State of West Bengal, is directed against the judgment and order of the Assistant sessions Judge, Jalpaiguri, acquitting the accused respondent Mahendra Singh of the charges under sections 25/27 of the Arms Act. 1959. The facts relevant for the purpose of disposing of the appeal can be put in a narrow compass.
(2.) ON 8. 9. 68 the accused- respondent was arrested for having been found in possession of a pistol, some bullets and other articles for which a case was registered against him with the Siliguri police Station by Sri Rameswar Singh, town Sub-Inspector of Police. The accused was forwarded to Court on 9. 9. 68 with a forwarding memo. Sub-Inspector s. N. Dutta who took up the investigation, examined witnesses, took sanction from the Deputy Commissioner for proceeding with the case and after completion of investigation submitted charge-sheet against the accused on 31. 1. 69. The learned Sub-divisional Magistrate took cognisance and transferred the case to another learned Magistrate for disposal. During the pendency of the case, the case record, along with other records, was destroyed in a fire on January 8, 1870. Under orders of the learned Sessions Judge, Darjeeling, the case record, which contained the depositions of certain witnesses recorded during the committal enquiry, was reconstructed. The accused was thereafter committed to the Courts of Sessions to stand his trial under Section 25 (1) (a) and 27 of the arms Act, 1959. Several witnesses were examined to prove the case of the pro-section including the sanction accorded by the Deputy Commissioner. The learned Assistant Session Judge who tried the case formulated the following two points for decision : - (1) Whether sanction under section 39 of the Arms Act was taken before prosecution was started and (2) Whether the prosecution was able to prove the charges against the accused beyond all reasonable doubt.
(3.) THE decision of the learned assistant Sessions Judge on the first point was that the prosecution was initiated on and from 9. 9. 68 without requisite sanction and hence the prosecution was null and void. While deciding the first point the learned Judge made an ancillary observation that as the re-cord was not reconstructed in presence of the accused, the accused could not get the opportunity to contradict the witnesses with reference to their statements originally recorded by the learn-ed Magistrate, thereby causing great prejudice to him. In the above view of the matter, he did not enter into the merits of the case and acquitted the accused. The principal point, therefore, that falls for determination in this appeal is whether the acquittal of the accused, on the ground that the sanction was not proper and valid, is legally maintainable. Before we take up the legal aspect of this question certain facts are required to be detailed.;