The main legal point established in the judgment is the application of Section 107 of the Government of India Act to set aside a conviction that lacked foundation in the evidence or findings.

JUDGMENT

Rankin, C.J. - The appellant Manmatha Nath Biswas was on 27th April last convicted of an offence against Section 19(f), Arms Act-viz., of having in his possession or under his control a revolver and six cartridges on 18th February. He was tried by the Chief Presidency Magistrate sitting as a Special Magistrate under the Bengal Emergency Powers Ordinance, 1931. Another man, Lalit Mohan Singha was tried together with him. The prosecution evidence was as follows: That these two persons had been seen at about 5 p.m. on 27th January standing and talking together for fifteen minutes in front of the office of a newspaper called "Liberty" in the Upper Circular Road, after which they went together to the Sealdah crossing and separated, that some three weeks afterwards, viz., at about 6-30 p.m. on 18th February, they were again seen near to the same spot, but on the east side of the street where there are railway lines; that they loitered and talked together there for about an hour, after which they proceeded northwards along the street till they came to the crossing of Rani Swarnamoyee Road, where there is a petrol shop, that they stopped and loitered in front of that shop till a little before 9 p.m. when Sub-Inspector Chowdhury challenged Lalit and arrested him after a severe struggle: that the appellant Manmatha at once began to run away, but was stopped in a few yards by aconstable and did not resist arrest.

2. Both were there and then searched. In Lalit's right hand pocket was found a revolver wrapped in paper and in his left hand pocket were the six cartridges. Upon the appellant Manmatha nothing incriminating was found. The revolver was in working order and the cartridges fitted it. I should here carefully add that Sub-Inspector Choudhury says that the movements of the accused gave him the impression that they were waiting for some one and that opposite the petrol shop they were pointing this way and that moving about restlessly. Sub-Inspector Roy says that opposite the Medical School their movements became suspicious." It appears that they had been pointed out to the officers as persons suspected of smuggling arms. The Special Magistrate convicted both accused u/s 19(f), Arms Act, and convicted Lalit u/s 20 also. He sentenced Lalit to six years rigorous imprisonment u/s 20 and the appellant to two years u/s 19(f) expressly acquitting him u/s 20. As regards the appellant, the Magistrate took the view that:

there cannot be a shadow of doubt that he was aware of Lalit's possession of the revolver, His presence at the place in question in Lalits company shows that he was aiding and abetting and sustaining him.

3. He does not however convict the appellant of abetment. He says that Section 34, I.P. C, applies to the case apparently because:

the circumstances show that they both had the same common object, viz., to possess the revolver for the purpose of committing terrorist crime or for furthering terrorist crime, e.g., by selling the revolver to some anarchist.

4. Accordingly he arrives at the conclusion that Lalit who had the revolver in his own pocket possessed it in such a manner as to show an intention to conceal it; that the appellant had the revolver in Lalit's pocket, but not in such a manner as to show an intention to conceal it. On 15th April, the prosecution case having closed, the trial was adjourned to the 25th for defence if any and argument. On the 25th no lawyer appeared for the accused. They were convicted on the 27th and the present appeal by Manmatha was signed and forwarded from jail on 23rd May. Under the Ordinance an appeal from a Special Magistrate is to be brought within seven days, Section 33(2) and this Bench has recently held that in view of" the terms of Section 29, Lim. Act, Section 5 thereof cannot be applied to extend the time prescribed by the Ordinance. We are therefore prohibited by Section 3, Lim. Act, from entertaining this appeal.

5. Mr. S.K. Basu for the appellant accordingly prays in aid our