Mullick, Ag. C.J.

1.This is an appeal by the Local Government against the acquittal of Ghulam Hussain, Ghulam Nabi and Muhammad Husain who were convicted by the City Magistrate of Patna for offences u/s 19(a) and 19(f) Arms Act, but were acquitted in appeal by the Sessions Judge of Patna.

2. The history of the case is this: In or about 1924 it was suspected at Patna that an illicit traffic in contraband arms was being carried on an extensive scale and a number of officers of the Criminal Investigation Department were placed on duty to investigate. Sub-Inspector Brij Behari Lal, a native of Meerut, in the United Provinces joined the Criminal Investigation Department at Patna on 24th March 1924, and was deputed to take over the investigation on 29th March of that year. Sub-Inspector Muhammad Taki, also a native of the United Provinces, joined the department in April 1921 and he says that he first made the acquaintance of the accused Ghulam Husain in or about that month and of Ghulam Nabi 10 or 12 days later and of the accused Muhammad Husain several months afterwards. Sub-Inspector Mathura Prasad, also a native of the United Provinces, did not take any part in the investigation till about February 1925. It is the case of the prosecution that these three police officers soon obtained the confidence of the accused and of one Ghulam Rasul the father of the accused Ghulam Nabi, and had some dealings in opium and cocaine with them. Brij Behari says that, about June 1924 he showed Ghulam Nabi a case of opium obtained from the Criminal investigation Department.

3. He also says that between April 1924 and June 1925 he at various times sold both opium and cocaine to the accused. Evidence as to these transactions has been given to show the manner in which the police officers got into touch with The accused and put themselves on sufficiently confidential terms with them to induce them to sell to them the revolver which is the subject of the present charge on the 28th June 1925. The first time Brij Behari Lal saw a revolver in the possession of the accused was on 29th March 1924. He next saw another revolver (Ex. l) which is the subject of the present case on the 21st May l924. In April 1924, he look an advance from the Criminal Investigation Department of a sum of Rs. 180 and with this money on 18th June he purchased in the presence of Sub-Inspector Muhammad Taki a revolver from four persons, namely, Moghul, Ghulam Rasul, Ghulam Husain and a man called Wazir.

4. It appears to have been the practice of the police officers to make a declaration before the City Magistrates every time they obtained an advance in notes from their Department. The object of this was to keep some record in the office of The City Magistrate of the number of the notes so that they might be identified if subsequently passed to the vendors of an unlicensed weapon. In the case of the above advance of Rs. 180 no declaration was made but it appears that about a year later on 25th June 1925 a complaint was made by the police officers for the prosecution of the persons who had sold the revolver. The result of that case has not been disclosed.

Next it is alleged that in or about October 1924, Brij Behari Lal went to the Punjab to carry on his investigations about the export of arms from there and there is evidence that he was assisted by Ghulam Husain and Ghulam Nabi for several months and that he obtained letters from Ghulam Hasain introducing him to three persons in Calcutta who he says were interested in the sale of firearms. It is suggested by Brij Behari Lal that these letters were given in order to assist him in buying unlicensed revolvers but the letters themselves may equally well support the inference that they were given in order to assist him in carrying on an illicit trade in opium and cocaine. At this time Brij Behari was going under the name of Rambarat and Muhammad Taki was going under the name of Ghulam Murtaza. As will be seen later Mathura Prasad when he joined the inquiry took the name of Kesho Babu a rich banker of Benares. The letter Ex. 1 is dated the 12th August 1924 and purports to have been addressed by Ghulam Husain to a lady. It begins "Dear Madam" and proceeds to state that the writer

is sending herewith Rambarat and requests the lady to kindly attend to him and do the needful for him without the least possible shrinking.

The letter then proceeds as follows:

As regards the price he will pay you in cash. My signatures that are with you are the same as in the present one. You can tally if you please. This letter I am giving him very gladly. Kindly see that the charges are reasonable.

5. The next letter (Ex. 2) is addressed to a man called Zahur a tailor in Calcutta. In it the writer asks Zahur to introduce Rambarat to Nankhu a betel-seller. The third letter (Ex, 3) is addressed to Nankhu and informs him that Rambarat is going to make purchases and that he should accept whatever Rambarat may give him as reward. The writer further asks that Nankhu is not to fail in introducing him to "Madam."

6. The learned City Magistrate has taken these letters to mean that Rambarat was to be assisted to carry on a trade in illicit arms but upon the letters as they stand it does not follow that this conclusion is the only one that can be drawn. It is equally possible that Rambarat was engaged in some other kind of illicit trade in which Ghulam Husain was trying to assist. But what the letters do show beyond all question is that Brij behari had within the space of something like six months completely gained the confidence of Ghulam Husain and that Ghulam Husain had no suspicion that Rambarat was not his real name or that he was a member of the Criminal Investigation Department.

Proceeding now to the next transaction in Patna we find that Brij Behari Lal returned from the Punjab some time about February 1925, for he says that on the 18th February of that year a second firearm was purchased by him in the presence of both the other Sub-Inspectors. This time the firearm was a pistol and the vendors were three men called Fazlu Rahman, Azizul Rahman and Jadu Sao and the price paid was Rs. 130. Brij Behari deposes that on that very day he took an advance of Rs. 130 from the Criminal Investigation Department and made a declaration in the City Magistrates office in which the numbers of the notes which comprised this amount were recited.

7. The next step taken by Brij Behari Lal was on 21st February 1925 when he took an advance of Rs. 500 from his department. The evidence is that this money was never used and was refunded to the department because the firearms which were intended to be purchased were not available.

8. The next proceeding is a most important one for the purposes of this case. It is alleged that on the night of the 24th March Brij Behari went to The shop of Ghulam Nabi at Patna and entered into negotiations with Ghulam Rasul the father of Ghulam Nabi and with the accused Ghulam Husain for the purchase of a revolver. The evidence is that Ghulam Husain and Ghulam Rasul were both present at the shop. The learned City Magistrate has recorded Brij Beharis deposition in somewhat involved language where he speaks of the persons from whose possession the revolver was actually obtained on that day. He says that the revolver was obtained from Ghulam Rasul through Ghulam Husain. He probably means that it was delivered to Brij Behari by Ghulam Rasul with the consent of or in the presence of Ghulam Husain.

9. The point does not, however, matter very much because it is established that Brij Behari did get possession of the revolver on that day. He says that he and Sub-Inspector Mathura Prasad who was then passing off under the assumed name of Kesho Babu were both present in the shop and that he (Brij Behari) said that the revolver must be shown to Ghulam Murtaza in order that his opinion might be taken on the condition of the weapon. After some demur the weapon was handed over to Brij Behari and he went away with it. leaving, as hostage Kesho Babu. There can be no doubt that the revolver was then taken to Mr. Bruce who was Brij Beharis superior officer.

10. Mr. Bruce handed the revolver to a photographer about 11 oclock on 25th and caused several photographs to betaken of it which are now before us, Brij Behari in the meantime came back and although it appears that Ghulam Rasul and Ghulam Husain were somewhat alarmed at the disappearance of the revolver he was able to calm their fears and to obtain permission for Kesho Babu to go away. He himself remained with these two accused till Inspector Muhammad Taki, passing off as we have already seen as Ghulam Murtaza, came with the revolver about 1 oclock and returned it to Ghulam Rasul. That ended the transaction on that day.

11. Apparently no immediate step was taken to purchase it but it is said that Ghulam Husain assured Brij Behari that he could get delivery at any time he pleased.

12. Brij Behari says that he then had other business and went away to Calcutta, and returned some time in June to Patna. He went to Ghulam Nabi and asked for the revolver and Ghulam Nabi said that nothing could be done until Ghulam Husain had fixed the price and that he had already written to him to come to Patna. The City Magistrate has found as a fact that Ghulam Husain came to Patna somewhere between the 19th and the 23rd June 1925. He has arrived at this finding firstly on the evidence of Brij Behari himself, and secondly, upon the evidence of certain ticket collectors who proved the issue of a third class ticket on or about the 19th from Gidhour for Patna and the issue of a similar ticket on or about the 23rd from Patna to Gidhour.

13. The price of the revolver having been settled at Rs. 130, Brij Beharis next step was to take an advance of this sum from his Department and he Says that on the 27th June he got 13 ten rupee notes and made a declaration in the office of the City Magistrate of the numbers of these notes. He then arranged with the District Police to be in waiting at Khajekullan police station, which is about 720 feet from the shop of Ghulam Nabi and with the other two Sub-Inspectors he proceeded that night to Ghulam Nabis shop to take delivery. It is said that a constable named Abdul Razak belonging to the District Police also went with him but as it was raining Ghulam Nabi would not give delivery that day. Why rain should have prevented the delivers of the revolver on that day is explained by Brij Behari who says that it is the habit of those who deal in unlicensed firearms never to keep their engagements so that the chance of detection may be lessened. Brij Behari states that finding he could not set delivery that day he and his two companions returned home and the District Police were called off.

14. On the next night he repeated the visit by arrangement and Abdul Razak was again made to accompany him. Brij Behari says that when he and the other two Sub-Inspectors entered Ghulam Nabis shop Ghulam Nabi and Muhammad Husain were present and the revolver and a picket containing 15 cartridges were shown to him. Ghulam Nabi, however, said that it would not be safe to deliver the weapon till the light in the Standard Medical Hall which is a druggists shop on the other side of the road about 15 feet from Ghulam Nabis shop was put out and the three Sub-Inspectors retired with a promise that they would come back later. About 11 oclock the Sub-Inspector returned, and on entering the shop Ghulam Nabi brought from an inner room the revolver (Ex. 1) and the packet of cartridges and then Brij Behari Lal handed over to Ghulam Nabi the 13 ten rupee notes which he had received from his department. Ghulam Nabi handed the notes to Muhammad Husain who put them in his pocket. The party then came out and sat on a charpai outside the verandah of the shop and Mathura Prasad slipped away saying that he was going to fetch an ekka. He took the opportunity to make a signal to Abdul Razak who was waiting at the corner of a road which is described as the ghat road about 100 feet off. Abdul Razak at once gave information to the District Police who were waiting at the thana, and a force consisting of Sub-Inspector Muhammad Ishak, Sub-Inspector Jamuna Prasad and several constables appeared on the scene and found Brij Behari and Muhammad Taki seated with Ghulam Nabi on the charpai with Muhammad Husain standing up close by, and on the charpai were lying the revolver (Ex. 1) and the cartridges. The persons of both Muhammad Husain and Ghulam Nabi were at once searched and in Muhammad Husains pocket were found the 13 notes and on Ghulam Nabis person were found two packets of a substance which looked like opium, a knife and some other things. On the charpai there were also two packets of cocaine (not two phials as has been stated by the learned Sessions Judge). Ghulam Nabis explanation was that the two Sub-Inspectors had come to buy a shawl from him, but Muhammad Ishak took Ghulam Nabi and Muhammad Husain into custody and also (apparently for the sake of appearances) the two Sub-Inspectors Brij Behari and Muhammad Taki. Mathura Prasad, who was with the Inspectors party, was not arrested.

15. The accused were then lodged in jail, and on 30th June a formal complaint was made by Brij Behari for the prosecution of Ghulam Nabi and Muhammad Husain for offences under the Arms Act.

No mention was made in this complaint of Ghulam Husains complicity, but the police proceeded to carry on an investigation and on the 13th August in submitting a final charge sheet against Ghulam Nabi and Muhammad Husain they also reported that there was a case against Ghulam Husain and applied for the District Magistrates sanction which is necessary u/s 29, Arms Act, for the prosecution of this man. That sanction was not given till the 17th August, but the record of the City Magistrates Court shows that no evidence was recorded in the case against any of the accused until after that date.

16. The trial was protracted for many months and ended in the conviction of the three accused under Sections 19(a) and 19(f), Arms Act, a consolidated sentence of two years rigorous imprisonment and a fine of Rs. 1,000 being passed on Ghulam Nabi, two years rigorous imprisonment and a fine of Rs. 1,000 on Ghulam Husain and six months rigorous imprisonment and a fine of Rs. 100 on Muhammad Husain.

The accused then appealed with the result that the learned Sessions Judge of Patna by his judgment dated 5th October 1926 acquitted the accused and expressed himself somewhat strongly regarding the behaviour of the three police officers. He found that there had been grave irregularities in the admission and exclusion of evidence in the trial Court and also that the evidence of the police officers was so contrary to all experience of human conduct that it could not be believed.

The question now is whether the learned Sessions Judges findings are so clearly wrong that our interference is necessary in appeal.

17. In an appeal by Government against an acquittal the accused starts with a doable presumption in his favour. Firstly there is the rule that it is for the prosecution to make out their case and that until they do so beyond all reasonable doubt the accused must be presumed to be innocent and, secondly, that the accused having succeeded in securing an acquittal from a Court a superior Court will not interfere until the Crown show conclusively that the inference of guilt is irresistible.

18. We have been taken at great length through the evidence in this case and we think that having regard to the position which the police officerS held at that time and their standing in the service and the punishment and disgrace which was bound to follow in the event of detection it is impossible to hold that they deliberately palmed off a revolver on two innocent men. The trial Court appears to have been greatly influenced by the statements made by Brij Behari Lal of his successes in the Punjab and Calcutta and the learned Magistrate appears to have assumed that Brij Behari, with the assistance of Ghulam Nabi and Ghulam Husain, actually bought other unlicensed firearms there but the evidence shows no such thing and is extremely vague and flimsy upon this point. The learned Magistrate thought that the evidence, such as it is, was admissible under Sections 14 and 15, Indian Evidence Act. We agree with the learned Sessions Judge that the learned Magistrate was under a total misconception of the law of evidence There was no question here whether the firearm (Ex. l) was found on the charpai of Ghulam Nabi by accident. There might have been a question whether Ghulam Nabi knew that the firearm was smuggled and whether he intentionally sold a smuggled firearm, but that issue was not clearly raised. Therefore to admit evidence of similar transactions if indeed there had been such evidence was altogether irregular and illegal. As a matter of fact there was no evidence at all of similar transactions and the question of admissibility does not really arise.

19. Then the learned Sessions Judge appears to have been strongly influenced by another obvious irregularity. The learned Magistrate allowed the officers of the Criminal Investigation Department to plead privilege in the matter of the alleged transactions in opium and cocaine between them on the one hand and the accused on the other from April 1924 up to March 1925. It is quite clear that as it was the intention of the prosecution to prove that the police officers had gained the confidence of the accused, the defence were entitled to know what were the particular circumstances under which that relationship was established, and if necessary to obtain details of the various alleged transactions in illicit cocaine and opium. There was a statement in the examination:in-chief of Brij Behari that the accused had purchased opium and cocaine from him but when the defence attempted to explore this allegation the Court immediately stopped further cross-examination on the ground of privilege.

20. It is quite clear that there was no privilege at all and the evidence was wrongly excluded, But fortunately in this case the exclusion has not made any appreciable difference. The purpose of the cross-examination was to shew that the police officers were not on confidential terms with the accused but to pursue that line became useless as soon as it was proved that the letters Exs. 1, 2 and 3 were obtained by Brij Behari from Ghulam Husain in the winter of 1924.

21. It is also to be noticed that at no period was it the defence of the accused that the money which was found on Muhammad Husains person was paid by the detectives as the price for a quantity of illicit cocaine. The learned Judge appears to have made a case in this respect which was not the case of the accused. The cross-examination with regard to previous sales would have been material if that had been the defence, but in the circumstances the exclusion of the evidence did not prejudice the accused.

Finally the learned Sessions Judge has also been much influenced by the fact that the City Magistrate after having taken the declaration of the 27th June 1925 regarding the notes proceeded to try the case himself. It does appear from the copy of the order sheet which has been produced before us that the City Magistrate had some knowledge of the case while it was under investigation and perhaps it would have been better if he had declined to try the case. But we do not think that there has been such prejudice to the accused that we must either acquit them or order a re-trial. It is obvious that the writing containing the numbers of the notes was not admissible by itself. The document cannot prove itself. But in this case evidence has been given by Brij Behari Lal that the notes which wore found in Muhammad Husains pocket were the notes which he received from the Criminal Investigation Department and which he showed to the City Magistrate on 27th June and the numbers of which were taken down by the City Magistrate in the declaration which has been objected to. This evidence is quite sufficient, if believed, to prove that the notes found in Muhammad Husains pocket at the arrest of the 28th June were the notes which the Sub-Inspector had obtained from the department on the 27th June.

22. The most important question, however, in this case is whether the incident of the 24th March has been established. If that evidence is believed there can be no doubt that Ghulam Husain and Ghulam Rasul, the father of Ghulam Nabi, were arranging to sell the revolver, Ex. 1, to Brij Behari on that day. (The judgment then dealt with the evidence and proceeded.) With regard to the circumstances under which the revolver was found on the charpai it has been strenuously contended by the learned Counsel for the respondents that no sane man would deliver a revolver, especially an unlicensed revolver, in the manner alleged or allow it to remain on the charpai so that it might be discovered by any one who came. The object of the detectives being to catch Ghulam Nabi in possession of the revolver, it is easy to see why they did not touch the revolver until the arrival of the raiding party. After all, inferences drawn from probabilities must give way to sworn testimony unless the inferences are irresistible and show that the, sworn testimony must be false and I certainly cannot agree with the learned Sessions Judge that upon the probabilities arising out of the acts of the Sub-Inspectors on the night of 28th Juno it would be fair to brand them as liars and perjurers of the most dangerous type, Inferences from conduct require to be extremely strong to support adverse conclusions of this kind.

This practically concludes the case of possession and sale so far as Ghulam Nabi and Muhammad Husain are concerned.

23. It is clear that upon this evidence, if believed, the conviction of Ghulam Nabi for the possession of an unlicensed revolver and its sale is fully justified.

With regard to Muhammad Husain the question arises whether he was merely a servant. He appears to be only 14 years of age and to have been living in the house of Ghulam Nabi as a dependent member of the family. It is true that he took the notes and put them in his pocket and that he was standing close by when the police arrested Ghulam Nabi but having regard to his age and the fact that he did not take part in any of the previous negotiations I think he should be given the benefit of the doubt and that he should be acquitted.

24. With regard to Ghulam Nabi there is one more fact which requires notice. Immediately on arrest he said that the two men, pointing to the detectives, had come to him to purchase a shawl. If it had been proved at the trial that there was some substance in this defence and that the two Sub-Inspectors either had had previous dealings in shawls with the accused or had arranged to buy a shawl on that night the possession of the 13 ten rupee notes by Muhammad Husain would have been explained. But unfortunately the accused have given no satisfactory evidence of any contract of this kind. They say that they are shawl merchants on a big scale in Patna. The learned trial Court says that they only sell shawls on commission, but in any event they have account books and a certain number of account books were actually seized by the police. A sum of Rs. 3,000 was also found in their cash box, so that it-is clear that they are men of business habits and that the sale of a shawl for Rs. 130 was not likely to escape entry in their account books. No such entry has been shown nor has any attempt been made to tender the account books. Instead of this a witness (D.W. 5). has been called to show that he was present on 26th June when two men whom he did not know arranged to buy a shawl from Ghulam Nabi and promised to come the next day. Another witness (No. 6) Muhammad Husain has been called to show that about a year earlier which would be some time in May or June 1925 he saw two men come and buy a shawl for Rs. 130 out of which Rs. 5 had already been paid as earnest-money and Rs. 125 was paid in the witness presence. The learned City Magistrate has examined this evidence very carefully and I agree with the reason given by him for distrusting it. There is the fact that the best evidence, namely, that of the account books, has not been produced, and in the absence of that evidence, oral evidence of this kind is of very little value.

25. Some notice must here be taken of the evidence of the search witness Hazari. This man attested the search list drawn up on the night of 28th June and says in his deposition that there was a man with a shawl. This is quits incorrect. The search list which he signed does not mention any shawl and Sub-Inspector Ishak is positive that there was no fifth man in or near the charpai with or without a shawl. The learned trial Magistrate has discussed this point and I agree with him that Hazari has either made a mistake or is intentionally giving false evidence.

Then there is the evidence of a quarrel between Brij Behari and Ghulam Nabi with regard to a woman named Raj Kumari. Evidence has been given by Raj Kumari, Naurangi Lal and Muhammad Husain on this point, but I agree with the learned City Magistrate that it has not been proved that Brij Behari had any relations with the woman and that in any event the quarrel does not account for a false case.

26. Then Ghulam Nabi has also given evidence to show that his father was in Amritsar in March 1925 and not in Patna as is alleged by Brij Behari. With regard to this the relevant evidence is that of two witnesses examined on commission at Amritsar on 7th May 1926. One is Ghulam Muhammad who says that about 27th March 1925 Ghulam Rasul purchased a large quantity of silk yarn from his shop, but no books are produced and the witness memory, in the face of the evidence given for the prosecution, cannot be relied upon. The other witness is a Muhammadan physician named Hakim Ali Muhammad, who proves certain entries dated 24th, 25th and 26th March 1925, in his register and says that on those dates he treated Ghulam Rasul for cold and fever. The learned City Magistrate has shown that the books could easily have been written up to suit this case and that the witness admitted that two or three blank registers of this kind are always in his possession. It is also in evidence that, although the register is supposed to be inspected by a certain gazetted officer, no proof has been given of any such inspection in April 1925.

27. In my opinion the story of the prosecution with regard to the presence of Ghulam Rasul in the shop in Patna on 25th March has not been shaken by the rebutting evidence given by the defence.

There remains the case of Ghulam Husain. The first objection taken with regard to it is that the sanction given by the District Magistrate on 17th August 1925 was bad. The facts are these: The complaint of 30th June 1925, made by Brij Behari, did not ask for any proceedings against Ghulam Husain. Ghulam Husain, however, was under arrest in connexion with another case and the police appear to have continued their investigations against him in the matter of the sale of the revolver (Ex. 1) along with the case against Ghulam Nabi and Muhammad Husain and on 13th August they submitted a charge sheet in which they reported to the City Magistrate that the case was complete not only against Ghulam Nabi and Muhammad Husain but also against Ghulam Husain. They had no authority to prosecute Ghulam Husain without sanction, but in my opinion, no proceeding within the meaning of Section 29, Arms Act, had been instituted against Ghulam Hussain before the District Magistrate gave his sanction on 17th August. On that date an application based upon the charge sheet of 13th August was made by the police to the District Magistrate and he accorded formal sanction for the prosecution of Ghulam Husain Although Ghulam Husain had been in custody in connexion with another case and, although the police had been investigating the case against him, the first application by the police for proceedings against him in Court was made on 13th August and that application was not considered by the Magistrate until 17th August on which date he assumed jurisdiction over Ghulam Husain and examined some evidence for the prosecution. In the meantime sanction had already been received from the District Magistrate, and I think that the provisions of Section 29, Arms Act, were complied with. No judicial or legal proceedings had been taken against Ghulam Husain before the 17th. It is true that the police had coon investigating the case against him, but I think they were empowered to do this without the sanction of the District Magistrate. As in the case of a suit, a proceeding is instituted when, for the first time, the adjudication of a Court of competent jurisdiction is sought. "Proceedings" in Section 29 mean legal proceedings in Court and not searches or arrests or investigations made by the police in exercise of the powers conferred upon thorn by the Criminal Procedure Code or any other law. In Motilal Vs. Bishambhar Nath, , the opinion was expressed that "proceeding instituted" in Sections 29 and 30, Arms Act, means legal proceedings taken in Court.

28. Then as regards the merits of the case against Ghulam Husain: it is to be observed that he is charged with possession and sale on 28th June. Having regard to the fact that it was ho who was on the most intimate terms with Rambarat, that it was he who arranged for the delivery of the revolver on approval on 25th March, and that it was he who settled the price between the 19th and the 23rd June, the inference is irresistible that he had control over the revolver and was in joint possession of it on 28th June. It is also quite clear that, upon the evidence on the record, a conviction for abetment u/s 109, I.P.C. road with Section 19, Arms Act would be justifiable if by any chance the substantive charges failed.

29. In my opinion the evidence is quite sufficient to show that both Ghulam Nabi and Ghulam Husain were in possession of the revolver in March and in June 1925 and that they sold the same to Brij Behari Lal.

Therefore the conviction of Ghulam Husain by the City Magistrate u/s 19, Arms Act, was in my opinion, correct.

30. The result is that, agreeing with the learned Sessions Judge, we confirm the acquittal of Muhammad Husain: but disagreeing with him, we set aside the acquittal of Ghulam Husain and Ghulam Nabi and restore the convictions entered by the City Magistrate and affirm the sentences passed by him.

Wort, J.

31. I agree.