Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.733 of 2013 ====================================================== 1. Md. Gulab Ahmad, son of Md. Geyas Ahmad. 2. Md. Shahnawaz @ Sunny @ Shahnawaz, son of Md. Afsar Ali. 3. Md. Sintu, son of Md. Abdul Wahid. All resident of mohalla-Barahpura, Police Station-Ishakchak, District- Bhagalpur. Versus .... .... Petitioner/s The State Of Bihar .... .... Respondent/s ====================================================== Appearance: For the Petitioner/s : Mr. Mannan Khan, Adv. Mr. Md. Najmul Hoda, Adv. : Mr. A.A. Khan, For the State ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. ORDER 4. 18-09-2013 The learned trial court presided over by Sri Bijendra Kumar Ray, Judicial Magistrate, 1st Class, Bhagalpur had convicted all the three above named petitioners for an offence punishable under Section 25(1-B) a / 35 of the Arms Act and directed each of them to undergo R.I. for three years as well as also fined each of them Rs.5000/- in default thereof to undergo imprisonment of three months additionally, under Section 26(1)/35 of the Arms Act sentencing each of them to undergo R.I. for 2 years as well as also fined Rs.5000/- each in default thereof to undergo additional imprisonment for a term of three months with a further direction to run the sentences concurrently was
Legal Reasoning
challenged by petitioner, Md. Gulab Ahmad under Cri. Appeal No.4 of 2013 while Md. Shahnawaz @ Sunny @ Shahnawaz, -2- Md. Sintu under Cr. Appeal No.138 of 2012 which was heard and dismissed by a common judgment dated 01.06.2013 by Ad hoc Additional Sessions Judge, IIIrd, Bhagalpur, leading to instant revision petition. 2. P.W.-8, Niraj Kumar Singh, Officer-in-charge of Tilka Manjhi O.P. recorded his own fardbeyan on 21.08.2012 at about 06:00 P.M. west to Champa Nalapul divulging the fact that the Senior Superintendent of Police, after getting confidential information regarding suspected arrival of notorious criminal, Sunny directed him to conduct raid and intercept him on account of which raiding party was constituted and they arrived at Champa Nalapul, the entrance point, where they began to inspect the vehicles and during course thereof, JH 12A 8628 was intercepted having occupied by three persons who on query disclosed their respective identity and on personal search, it has been disclosed that from the possession of Sunny a loaded pistol, mobile, golden chain, cash appertaining to Rs.3000/- was seized. From possession of Gulab Ahmad a loaded pistol was seized. From the possession of Md. Sintu magazine along with cash appertaining to Rs.1500/-, mobile was seized. The aforesaid seizure was made in presence of two seizure list witness, Pramod Kumar as well as Md. Ansar Khan by way of seizure list. -3- 3. After registration of Nath Nagar P.S. Case No.149 of 2012, the petitioners were charge sheeted whereupon trial commenced and concluded in a manner, the subject matter of instant revision. 4. While assailing the successive judgments of conviction and sentence, it has been submitted on behalf of petitioners that they have fallen victim to arbitrariness as well as highhandedness of police. Learned counsel for the petitioners denied the factum of recovery of arms and ammunition and pleaded that it is out and out case of plantation. Then coming to merit of the case, it has been submitted that driver of the vehicle neither been made accused nor cited as a witness vehicle was also not seized. It has also been submitted that none of the seizure list witness have come forward to support the case of the prosecution. 5. It has further been submitted that malafide of the police is itself evident from the fact that the date of occurrence as per prosecution, happens to be on 21.08.2012 at 06:00 P.M., the FIR was seen by the learned Chief Judicial Magistrate on 22.08.2012 while the charge sheet was filed on 23.08.2012 in haphazard manner and that happens to be reason behind that several pot holes are visible in the prosecution case. 6. During course of examination of witnesses although -4- PW-2, a formal witness had exhibited the arms and ammunition, magazine but golden chain, cash, mobile set were not produced to connect the petitioners regarding recovery so made in terms of prosecution. Non-production thereof is suggestive of the fact that the firearms and ammunitions, magazine were not at all recovered and seized from the possession of petitioners. 7. It has further been submitted that Investigating Officer of this case, PW-9, Umesh Lal Rajak had gone to the place of occurrence, detailed the same but had not mentioned the fact that who had pointed out the place of occurrence because of the fact that he was not at all member of the raiding party. It has further been submitted that he failed to acknowledge presence of large number of shop at both sides of alleged place of occurrence and in likewise manner he failed to examine any of the shopkeepers. 8. The most surprising feature, as argued happens to be absence of identification mark over the seized arms and ammunition. None of the prosecution witness had narrated that seized articles were ever sealed. The Investigating Officer had not disclosed that he was handed over charge of seized articles then how, the articles were produced before ballistic expert in sealed cover. So submitted that the prosecution case suffers from so -5- many fatal infirmities and on account thereof, the judgment of conviction and sentence recorded by the learned trial court as well as concurred by the learned appellate court is not maintainable. 9. On the other hand, the learned Additional Public Prosecutor while supporting the concurrent finding of fact submitted that witnesses are firm and consistent over search and seizure and as no glaring defect is visible in the successive judgments therefore the revisional jurisdiction is found to be ousted for the purpose of re-appreciating the evidence on record. It has also been submitted that petitioners are dreaded criminal and on account thereof, the sentence so inflicted against them are appropriate. 10. From the lower court record, it is evident that altogether nine PWs have been examined who are all police officials. The two seizure list witnesses were not at all examined in this case by the prosecution. 11. PW-9 happens to be the Investigating Officer who was not a member of the raiding party and on account thereof, his evidence is to be dealt with separately. PW-2 is the witness who had simply produced the material exhibit while PW-7 is Lalanji Jha, the Sergeant Major who had examined the arms and ammunition and found it to be effective. -6- 12. From the evidence of PW-2, it is apparent that he had produced the material exhibit having duly wrapped and sealed containing Nath Nagar P.S. Case No.149 of 2012. During cross- examination at para-11 he had narrated that neither signature of any of the accused nor of police official is over the material exhibit. 13. PW-7, the Sergeant Major had stated that Officer-in- charge of Tilkamanjhi Police Station on 22.07.2012 produced material exhibit in sealed condition which he examined and found to be effective one. During cross-examination at para-11 he had stated that after examination of the articles he had sealed it and returned back to the Officer-in-charge. In para-15 of his cross- examination he had stated that he had put his signature with date
Legal Reasoning
over the arms. 14. PW-9, the Investigating Officer during his examination-in-chief at para-10 had stated that he had obtained permission from the learned Chief Judicial Magistrate for examination of arms and ammunition. Then thereafter he had handed over the seized arms and ammunition to the Sergeant Major after having sealed. During cross-examination at para-25 he had stated to be read in continuation of para-23 and 24 that seized arms and ammunition was taken away by them in sealed -7- condition. Then at para-50 had stated that he had taken control of all the seized articles and kept at Police Station. In para-51 he had stated that he is not aware with the mobile, cash and chain although he is well aware of the fact that aforesaid items are material exhibit. 15. PW-8 is the informant. During course of examination-in-chief he had supported the factum of search and seizure of arms, ammunition, cash, mobile set, golden chain, preparation of seizure list and had also identified (arms and ammunition) in court, but surprisingly during his examination-in- chief he had not spoken regarding handing over of aforesaid items. During course of cross-examination at para-24 he had stated that self-statement, seized material and along with accused were handed over to Officer-in-charge of Nath Nagar Police Station. 16. In para-25 he had stated that Officer-in-charge, Nath Nagar Police Station had kept the seized article in Police Station Malakhana. From his evidence, it is apparent that he had not spoken with regard to putting up any sort of identification mark over the arms and ammunition nor he divulged that after search and seizure the arms and ammunition were wrapped and sealed. PW-1, PW-3, PW-4, PW-6 in spite of being members of the -8- raiding party have not stated that arms and ammunition so recovered and seized from the possession of petitioners was ever wrapped and sealed. However, PW-5, one of the member of the raiding party unsuccessfully tried to patch up by stating under para-7 that arms and ammunition were sealed at the place of occurrence itself however, at para-37 he had himself demolished the aforesaid disclosure. In AIR 1998 SC 1660 Jasbir Singh v. State of Punjab it has been held:-
Decision
“3.What is contended by the learned counsel for the appellant is that the prosecution evidence itself shows that the pistol and cartridges alleged to have been recovered from the appellant did not have any number or some distinctive mark on them and after their seizure by the police they were sealed. Thus the identity of the weapon and the cartridges seized and the weapon and cartridges produced before the Court was not established by the prosecution. Having gone through the evidence, we find that contention raised on behalf of the appellant is correct and, therefore, deserves to be accepted. The pistol and the cartridges did not have any mark or any number on them and after seizing the same police had not thought it fit to wrap them and apply a seal over them. No explanation in that behalf was given by the prosecution witnesses. This aspect was not considered by the trial Court. As the identity of the incriminating articles has not been established by the prosecution, we allow this appeal, set aside the conviction of the appellant both under Section 5 of the TADA Act and 25 of the Arms Act and acquit him of all the charges levelled against him.” 17. Now coming to the evidence in the backdrop of aforesaid legal requirement as pointed out by the Hon’ble Apex Court, it is evident from the evidence of PW-7 that after examination of the material exhibit he had put his signature, -9- however from the evidence of PW-2 it is apparent that the arms and ammunition so produced in court never contain so. As per evidence of PW-9, the Investigating Officer in continuity of his cross-examination under para-23, 24 had stated that they have taken away the seized arms and ammunition however is found contradicted from the evidence of PW-8, the informant. 18. As per evidence of PW-1, para-10 all the seized articles were kept over the Chowki by the side of shop. In para-11 he had stated that only one seizure list was prepared. PW-3 in para-17 had disclosed that the seizure list was prepared at Nath Nagar Police Station with regard to seized arms and other articles. PW-4 in para-11 had stated that Pramod Kumar Sharma and Laddu had signed over the seizure list. In para-30 and 31 he failed to recognize the arms and ammunition independently so recovered from the accused. PW-5 in para-34 had stated that accused were searched out independently one by one and seizure list was accordingly prepared one by one. In the background of the inconsistent evidence over the manner of search as well as preparation of seizure list coupled with deficiency persisting in the prosecution case more particularly having failed to connect the identity of the seized arms and ammunition from the possession of the accused in -10- consonance with the material exhibit made during trial, it looks unsafe to rely upon the evidence. Consequent thereupon, the successive finding having on this very score appears to be unsustainable. Hence are set aside. Petition is allowed. Petitioners are directed to be released forthwith if not wanted in any other case. (Aditya Kumar Trivedi, J.) PATNA HIGH COURT Dated the 18th day of Sep., 2013 PRAKASH NARAYAN/A.F.R.