J.N.Dubey, J.

1. It appears that on 21st September, 1971 at about 1.30 p.m. one Bans Narayan Das, Mukhiya of Gram panchayat Somali lodged an F.I.R at P.S. Kadwa stating that the applicant along with co-accused Gopal Mahto, Ramrati Devi and Ahilya Devi were melting copper wire in their house. The police raided the house of the applicants and found that the copper wire was being melted there. On seeing the police Ramrati Devi and Ahilya Devi threw the copper wire bundle in a nearby well. The police seized all the incriminating articles from the spot. A charge-sheet was submitted against all the five accused after investigation, on the basis of which they were tried by the Judicial Magistrate, 1st Class, Katihar.

2. Co-accused Gopal Mahto died during the pendency of trial and, as such, the trial proceeded against the remaining four persons. The Magistrate came to the conclusion that the prosecution has succeeded in proving its case beyond reasonable doubt and, accordingly, convicted them under sections 411 and 414, I.P.C. and Sec. 5 of the Telegraph Wires (Unlawful Possession) Act (for short the Act) and sentenced them to undergo one year R.I. u/s. 411, I.P.C. two years R.I. each u/s. 414, I.P.C. and sec. 5 of the Act and sentenced other co-accused for one year R.I. each u/s. 414, I.P.C. and sec. 5 of the Act. All the sentences were directed to run concurrently. The applicants and other co-accused filed appeal to the Sessions Judge, Katihar which was disposed of by 1st Additional Sessions Judge, Katihar on 20-9-1986. He while allowing the appeal of co-accused Ramrati Devi and Ahllya Devi in toto, allowed that of the applicants in part and set aside their conviction and sentence u/s. 411, I.P.C. Feeling aggrieved the applicants have filed this revision. Heard the learned counsel for the parties and perused the record.

3. F.I.R.st contention of the learned counsel for the applicants is that prosecution of the applicants was barred by section 7 of the Act. According to him no cognizance of the offence under this Act could be legally taken on the report of the Mukhiya and view to the contrary, of the courts below, is illegal. I find substance in the argument of the learned counsel for the applicants. According to the courts below Mukhiya being a public servant within the meaning of sec. 21. I.P.C. was quite competent to lodge report u/s. 7 of the Act. Originally under subsection (1) of section 7 provided that no court shall take cognizance of any offence punishable under this Act save on a complaint made by or under the authority of the Central Government or by an officer specially empowered in this behalf by that Government. Sub-sec. (1) of section 7 was amended on 7-8-1975. Now it provides that no court shall take cognizance bf any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is public servant within the meaning of sec. 21, I.P.C. In this case cognizance of the offence was taken under the unamended Act on 4-3-1974 and. therefore, the courts below were not right in saying the Mukhiya being a public servant was competent to lodge report under this Act. Under the unamended Act cognizance could be taken only on the complaint made by or under the authority of the Central Government or any officer specially empowered in this behalf by that Government or any officer specially empowered in this behalf by that Government. Admittedly. Mukhiya was not specially empowered by the Central Government to make complaint under this Act and therefore, the F.I.R. lodged by him cannot be considered as a complaint made by or under the authority of Central Government or by an officer specially empowered in this behalf by that Government and as such no cognizance could legally be taken on that basis.

4. The second contention of the learned counsel for the applicants is that there is no evidence on record to prove that the copper wire recovered from the possession of the