Section 29 of the Indian Arms Act is not unconstitutional and invalid and does not violate Article 14 of the Constitution on the ground of territorial discrimination of one and the same offence in different areas.

( 1 ) THIS is a Reference under Section 432 of the Code of Criminal Procedure by the Additional Sessions Judge, Third Special Court, Alipore. It arises out of a case under Section 19 (f) of the Indian Arms Act. It raises certain important principles and considerations, on the Constitution the Criminal Procedure Code and the Indian Arms Act.

( 2 ) IN the letter of reference the learned Judge says that the appeal before him has given rise to the question of constitutional validity of Section 29 of the Indian Arms Act. In his opinion he considers it to be necessary that the question should be referred to this Court for decision under Section 432, Criminal Procedure Code.

( 3 ) THE facts lie within a short compass. Keshab Naskar, the accused appellant was charged under Section 19 (f), Indian Arms Act, for having possessed without licence one dozen 12 bore live cartridges. On the 13th October. 1955 at Diamond Harbour river side, Keshab Naskar with several other persons, was caught by a police party in plain clothes. On search of the person of Keshab Naskar as many as 12 live cartridges were found. There was no license for the ammunitions. This led to the prosecution of Keshab Naskar under Section 19 (f) of the Indian Arms Act. The prosecution in fact was started after obtaining necessary sanction from the Additional District Magistrate, 24 Parganas under Section 29 of the Indian Arms Act.

( 4 ) THE defence was that there was no proper sanction as contemplated in Section 29 of the Indian Arms Act. The learned Assistant Sessions Judge found that proper sanction under Section 29 of the Indian Arms Act had in fact been obtained in this case. He, however, held further on the authority of the Full Bench case of the Allahabad High Court in Bhai Singh v. The State, that Section 29 o the Indian Arms Act was wholly unconstitutional and void. He further proceeded to observe that he was bound by the decision of the Allahabad High Court and as such even if he found that there was no proper sanction the prosecution would not have failed on that ground.

( 5 ) THE accused appellant made a grievance against the finding on this point. He contended that the learned Judge should not have decided that question himself but should have made a reference to the High Court under Section 432 of the Code of Criminal Procedure for decision on the point whether Section 29 of the Indian Anns Act was constitutional or not. The lower appellate Court expressed the view that the learned Assistant Sessions Judge should have made a reference under Section 432 of the Code of Criminal Procedure when he was of the opinion that Section 29 of the Indian Arms Act was unconstitutional. The lower appellate court also came to the view that being a court of appeal it had the same right as the trial court to make a Reference tinder Section 432 of the Code of Criminal Procedure. It came to the conclusion that it was necessary for the disposal of the case and the appeal before him, to determine the constitutional validity or otherwise of Section 29, Indian Arms Act. He expressed the view that it was necessary for the proper decision of the appeal now pending before him. Therefore he has made this Reference on the following point:"the point for decision is whether Sec, 29, Indian Arms Act is unconstitutional and invalid for making territorial discrimination of one and the same kind of offence. "

( 6 ) BEFORE proceeding to discuss the question raised on the Reference, it will be proper to emphasise at the out set the conditions required for such a Reference under Section 432 of the Code of Criminal procedure for some of them do not appear to have been observed. The governing words in that section are: (1) "where any court is satisfied that a case pending before it involves a question as to the validity of any Act. " that is the first condition. In other words, a court has to be satisfied that the question of the validity of an Act is raised in a case pending