Ramabhadran, CJ

[1] These are two appeals by the State of Himachal Pradesh under Section 417, Cr. P. C., against the orders of acquittal passed by Sri Devkinandan Magistrate first class, Nahan, in cases 26/3 and 27/3 of 1953 under Section 19(f), Arms Act, and Section 9, Opium Act, 1878, respectively. The appeals arise under the following circumstances:

[2] On 31-3-1953, the Ambala police, with the assistance of Nahan police, searched a house situated in Mohalla Rani Tal, Nahan Bazaar, said to be the property of Booti Nath, respondent. It was alleged that a 303 rifle along with 49 live cartidges were recovered from that house, in addition to hill opium, weighing 8 seers 13 chhataks, vide recovery memo. Ex. P. A. On the basis of these recoveries, two cases were started against the respondent, one under Section 19(f), Arms Act, and the other under Section 9, Opium Act, 1878. The cases were tried by Sri Devkinandan, Magistrate first class, Nahan. Although the two offences were tried separately, nevertheless, the witnesses in the two cases were common and both of them were disposed of on the same day i.e., 22-6-1954, by two almost identical judgments. The learned Magistrate came to the conclusion that the offences were not brought home to the respondent and accordingly acquitted him. Feeling aggrieved by the orders of acquittal, the State Government has filed these appeals under Section 417, Cr. P.C. Arguments in the two appeals were heard on the 17th instant. As I shall show presently, the trials were unsatisfactory in many ways and retrials are in my opinion, necessary in the interest of justice.

[3] As already stated, the gist of the prosecution case against the respondent was that his house was searched by the Ambala and Nohan police on 31-3-1953 and as a result of that search an unlicensed rifle with 49 live cartridges as well as 8 seers and 13 chhataks of hill opium were recovered therefrom. The respondent denied the recoveries. Consequently, two main points for determination arose: (1) Whether the house, which was searched by the police, belonged to or was in the possession and control of, the respondent? (2) If so, were the articles in question namely the rifle and cartridges in case No. 26/3 and hill opium, weighing 8 seers and 13 chhataks in case No. 27/3, recovered therefrom?

[4] I find that as far as the first point is concerned, the learned trial Magistrate has not considered this aspect of the case at all. Although the police and excise officers, who conducted the search, i. e,. Sarup Singh, Inspector of Police, Ambala, Chandan Singh, A. S. I Ambala, Bikram Prakash Singh S. I. Excise Intelligence Bureau, Punjab, & Negi Mohan Singh, S. I. Excise Nahan, had deposed that the house searched belonged to the respondent, no specific question in this regard was put by the learned Magistrate to the respondent, in spite of the fact that his statement was recorded on four different occasions, i. e. 7-1-1954, 14-1-1954, 15-1-1954 and 29-4-1954. I may point out that on 7-1-1954 when respondent was examined after the learned Magistrate had recorded the statements of the prosecution, witnesses, the following compound question was put to him:-

In case No. 26/3 of .1953.

Q. "Kya banduq Ex. P. 1. 303 may kartus ek bandlier se tumahre kabza se baramad hui--aur tumahre makan se?" The answer was: "Ji Nahin."

In case No. 27/3 of 1953.

Q. "Kya 31-3-1953 ko tumahre makan ki talashi per 8 seer 13 chhatak pahari afim jo ek thali zin khaki se 13 chhatak afim--aur ek thali markin safed se 8 seer afim pahari baramad hui?". The answer was: "Ji nahin."

[5] In view of the prosecution case that the house belonged to the respondent and his two wives. Mts. Bindi and Reli, were living in it, as well as his servant, Devi Ram, and his guest Dip Ram it was incumbent upon the learned Magistrate to examine the respondent on all these matters and give him an opportunity of admitting or denying these allegations. While discussing the case against the other acc