Mullick, A.C.J:— (After stating the facts proceeded as follows): The question is whether the learned Sessions Judge's findings are so clearly wrong that our interference is necessary in appeal.

In an appeal by Government from an acquittal the accused starts with a double 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.

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 in Calcutta and the learned Magistrate appears to have assumed that Brij Behari with the assistance of Ghulam Nabi and Ghulam Husain actually bought other unlicenced 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 of the 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 (Exhibit 1) 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.

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. 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 show 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 Exhibits 1, 2 and 3 were obtained by Brij Behari from Ghulam Husain in the winter of 1924.

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 Hussain's 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 retrial. 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 were found in Muhammad Hussain's pocket were the notes which he received from the Criminal Investigation Department and which he showed to the City Magistrate on the 27th June and the numbers of which were taken down by the City Magistrate in the declaration which has been objected Jo. This evidence is quite sufficient if believed to prove that the notes found in Muhammad Hussain's pocket at the arrest of the 28th June were, the notes which the Sub-inspector had obtained from the Department on the 27th.

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 Hussain 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 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.

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 previous delaings 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 Hussain 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 is 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, (defence witness no. 5) has been called to show that he was present on the 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 Hussain has been called to show that about a year earlier which would be sometime 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's presence. The learned City Magistrate has examined this evidence very carefully and I agree with the reasons 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.

In my opinion the story of the prosecution with regard to the presence of Ghulam Rasul in the shop in Patna on the 25th March has not been shaken by the re-butting 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 the 17th August, 1925, was bad. The facts are these:—The complaint of the 30th June, 1925, made by Brij Behari did not ask for any proceedings against Ghulam Husain. Ghulam Husain, however, was under arrest in connection with another case and the police appear to have continued their investigations against him in the matter of the sale of the revolver (Exhibit 1) along with the case against Ghulam Nabi and Muhammad Husain and on the 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 Hussain 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 of the Arms. Act had been instituted against Ghulam Husain before the District Magistrate gave his sanction on the 17th August. On that date an application based upon the charge sheet of the 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 connection 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 the 13th August and that application was not considered by the Magistrate until the 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 of the Indian 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 been 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 them by the Criminal Procedure Code or any other law. In Emperor v. Kutru the opinion was expressed that “proceeding instituted” in sections 29 and 30 of the Arms Act means legal proceedings taken in court.

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 the 28th June. Having regard to the fact that it was he who was on the most intimate terms with Rambarat, that it was he who arranged for the delivery of the revolver on approval on the 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 the 28th June. It is also quite clear that upon the evidence on the record a conviction for abetment under section 109 of the Indian Penal Code read with section 19 of the Indian Arms Act would be justifiable if by any chance the substantive charges failed.

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 under section 19 of the Arms Act was, in my opinion, correct.

The result is that agreeing with the learned Sessions Judge we affirm the acquittal of Muhammad Hussain 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.:— I agree.