CRIMINAL APPEAL No.556 OF 2009
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Against the judgment and order dated 1.6.2009 and
8.6.2009 passed in Banka P.S. Case No. 291 of 2005
( G.R. case No. 1055/2005) passed by Sri Sunil
Kumar Srivastava, Ist. Additional Sessions Judge,
Banka;
SHANKAR SAHNI------------------------------------------------Appellant
Versus
THE STATE OF BIHAR-----------------------------------------Respondents
With
CR. APP (DB) No.566 of 2009
1. BIJOY KUMAR MANDAL @ VIJAY KUMAR MANDAL
2. RANJAN KUMAR DAS------------------------------Appellants
Versus
STATE OF BIHAR---------------------------------------------Respondents
With
CR. APP (DB) No.596 of 2010
BIKRAMA MANJHI-----------------------------------------------Appellant
Versus
STATE OF BIHAR---------------------------------------------Respondents
with
CR. APP (DB) No.648 of 2009
RAJESH KUMAR SINGH-------------------------------------------Appellant
Versus
STATE OF BIHAR---------------------------------------------Respondents
With
CR. APP (DB) No.665 of 2009
1. JAI PRAKASH MANDAL
2. ANMOL PASWAN Appellants
Versus
STATE OF BIHAR---------------------------------------------Respondents
With
CR. APP (DB) No.709 of 2009
MD. IMRAN----------------------------------------------------Appellant
Versus
STATE OF BIHAR---------------------------------------------Respondents
With
CR. APP (DB) No.710 of 2009
1. MUKESH KUMAR JHA
2. SUMAN KUMAR SINGH
3. RAJENDRA DAS
4. KUMOD MANDAL Appellants
Versus
STATE OF BIHAR---------------------------------------------Respondents
---------
For the Appellants:- Mr. Rana Pratap Singh, Ranjan Kr. Jha &
Mr. Kumar Kamal Nayan,Advocates
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For the State:- Mr. Ashwani Kumar Sinha, P.P.
PRESENT
THE HON’BLE JUSTICE SMT. MRIDULA MISHRA
THE HON’BLE JUSTICE SHRIDHARNIDHAR JHA
Mridula All appellants were charged under sections 414,149 of the
Mishra,J-
Indian Penal Code, under section 21(b) of Narcotic Drugs and
Psychotropic Substance Act, 1985, section 25 (1-A), 25 (1-AA), 25 (1-
B) A, 26(i) and 35 of the Arms Act and also under Section 25(2) of the
Antiquities Art Treasure Act, 1972. The appellants have been convicted
by the judgment and order dated 01.06.2009/08.06.2009 respectively
passed by the First Additional Sessions Judge, Banka in Banka P.S. case
No. 291 of 2005 (G.R. case No. 1055 of 2005) and have been
sentenced to undergo Rigorous imprisonment for two years for
conviction under Sections 414, 149 of the Indian Penal Code, R. I for
ten years and fine of Rs. 1, 00000/- and in default of payment of fine R.
I. for two years for conviction under section 21(b) of the N.D.P.S. Act.
The appellants have further been sentenced R.I. for ten years and fine of
Rs.5, 000/-, in default of payment of fine R.I. for one year for conviction
under Section 25 (1-A) read with section 35 of the Arms Act. They have
also been sentenced R.I. for life and fine of Rs.10,000/-, in default of
payment of fine R.I. for one year for conviction under Section 25 (1-A
A) read with Section 35 of the Arms Act and for their conviction under
Section 25 (1-B) A, read with section 35 of the Arms Act R. I. for
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three years and fine of Rs.5,000/- in default of payment of fine R.I. for
six months. The appellants have also been sentenced to undergo R.I. for
seven years each and fine of Rs.5,000/-, in default of payment of fine
R.I. for six months for their conviction under Section 25(2) of the
Antiquities Art and Treasure Act, 1972. The appellants have preferred
these appeals against the judgment of conviction and order of sentence
passed by the trial Court.
Shri D.K.Sinha, Officer In-charge of Banka Police Station was
informed on Telephone by the Superintendent of Police, Banka at about
12.30 A.M. on 13.9.2005, since he received secret information that a
gang of smugglers is traveling by road, through Katoria and going to
Deoghar with huge amount of ancient antiquities, arms, ammunitions
and Heroin. These articles, they are carrying from Bhagalpur to
Calcutta, which will be handed over to the International gang of
smugglers. The Officer In-charge of Banka P.S. was informed by the
Superintendent of Police that the gang of smuggler can pass through
Katoria road at any time in the night, as such an action is needed to be
taken to apprehend them and for that a raiding party be formed under
the leadership of Sub-Divisional Police Officer, Banka. Sri D.K.Sinha,
Officer In-charge of Banka P.S. (P.W.8) made a station diary entry and
proceeded from the police station with constable No. 156 (Driver)
towards the residence of Sub Divisional Police Officer, where Officer
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In-charge of Barahat P.S. Raj Kishore Singh ( P.W.10), Security Guards
of the Superintendent of Police, Banka, Constable No. 39 Satyendra
Kumar Yadav (P.W.5), Constable No. 74 Dipak Kumar (P.W.6),
Constable No. 62 Abinash Kumar Jha (P.W.7) and Constable No. 336
Sajan Kumar ( P.W.9) also came. The raiding party headed by Baliram
Kumar Choudhary, Sub Divisional Police Officer ( not examined)
proceeded at 1.30 A.M. and reached near a pulia situated half
kilometers away from village Kakwara. The Police party started
checking the vehicles passing through that road and at about 3 A.M. a
Tata Indica Car bearing registration No. WB-02J-9829 came there,
which was asked to stop. The car stopped but the passengers sitting
inside the car tried to flee away, they were chased and apprehended by
the police party. All six persons sitting inside the vehicles were
apprehended and on interrogation disclosed their names. They were
Kumod Mandal, Lallan Kumar Mandal, Mukesh Kumar Jha, Suman
Kumar Singh, Rajendra Das and Md. Imran. Mukhiya of village
Kakwara, Upendra Narain Singh (not examined) along with some
villagers also came there and in presence of two witnesses, namely,
Upendra Narayan Singh (P.W.1) and Rana Kumar Singh ( P.W.2)
search was made but nothing was recovered from their possession.
When the Dikky of the Car was searched, from there following articles
were found:-
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(i) a leather bag fully sealed with Heroin, on which
DOUBLE TIGER, HEROIN MADE IN THAILAND, 100% POISON,
SPECIAL NO.1 NET WEIGHT 1 POUND, Mag. 4.4.2005,
Exp.4.4.2007
(ii) A country made carbine, whole made of iron and
on the body of which AUTOMATIC BLAST KARBIAN written and on
the magazine base MADE IN CHINA, written.
(iii) Country made Carbine, whole made of Iron.
(iv) Magazine of country made carbine-four.
(v) Magazin of country made carbine-two
(vi) One stand of country made carbine made of iron.
(vii) One country made pistol of.32 bore made of iron,
half automatic control, fitted with fiber butt and on the left side of the
body PITR & BRATTA, MADE IN ITALAY, written and in the right
side AUTOMATIC PISTOL 9 round, mentioned on the barrel STATE
PROPRIETY OF THE ITALY Government, written and no. 7273
mentioned on the magazine.
(viii) A country made 9 m.m. half automatic pistol, on
which Automatic Pistol, MADE IN ITALAY NO.2200 and HAVEN
CONN,9 mm, 9 round mentioned and no. of Magazine mentioned as
7700.
(ix) One magazine of pistol of 9 mm. made of iron on
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which Magazine No. 7700 mentioned.
(x) One magazine of pistol made of iron on which
7273 is mentioned (.32 bore)
Since the passengers traveling in Indica Car did not give any
satisfactory answer regarding the ownership and possession of those
recovered articles, as such a seizure list was prepared. On the seizure list
the signature of accused persons and independent witnesses ( P.W.1 and
P.W.2) were taken. The apprehended passengers also disclosed during
interrogation that their other counter-parts have come to Banka from a
passenger vehicle with seven ancient idols of goddess and god, who are
at present waiting at Katoria ( Banka) Bus stand and they will proceed
to Deoghar by Bus in the early morning. On the basis of this confession
the Officer In-charge of Banka P.s. along with the police party
proceeded for Katoria Bus stand (Banka) and reached there at 4.30 A.M.
In the middle of the bus stand six persons were found waiting with two
bags. These six persons also tried to run away, seeing the police party
but they were apprehended with the help of armed force. The
apprehended persons disclosed their names as Bojy Kumar Mandal,
Ranjan Kumar Das, Anmol Paswan, Jai Prakash Mandal, Shankar Sahni
and Rajesh Kumar Singh. The apprehended persons from the Bus stand
were also identified by the persons who were earlier apprehended
traveling in Indica Car. Nothing was recovered from the possession of
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persons apprehended at bus stand, but while searching two bags,
antique idols of goddess Sita and one antique idol of Bhagwan Ram
fully made of Metal and an ancient idol of Pujari fully, made of metal,
one ancient idol made fully of metal of a person sitting with folded
hands, one ancient idol of yellow colour and one black engraved stone
old picture of Bhagwan Budha including two figures of disciples and
below the said picture of five ladies and on the back side of the idol
something engraved in ancient language were recovered. Here also a
seizure list was prepared in presence of two independent witnesses
Manikant Choudhary (P.W.3) and Raj Kumar Choudhary (P.W.4),
which was signed by the apprehended accused persons and the copy of
the seizure list was handed over to them. All accused persons were
arrested. The arrested accused persons disclosed that in their business of
Smuggling of antique idol, one Sanjoy Kumar Mandal, Promod Kumar
Singh and D.K. alias Daniel are also involved. They disclosed that five
other persons who are also presently at Bhagalpur and are members of
the gang, their names are not known to them.
The of Officer In-charge (P.W.8) himself recorded his
fardbeyan at the place of occurrence itself on 13.9.2005 at about 5.45
A.M. in the morning and formal First Information Report was instituted
on that date at 10 A.M. The First Information Report was instituted for
offence under Sections 414, 149 IPC, Section 25 (1) (b)/25(1-A)/25(1-
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AA)/25(1B)/26/35 of the Arms Act, U/s 21(2) of the N.D.P.S. Act and
under section 25(1) (2) of the Antiquities and Art Treasure Act against
fifteen accused persons. One of the accused D.K. alias Daniel remained
absconding, as such on submission of the charge-sheet, though
cognizance was taken against all 15 accused persons but only 14
accused persons faced trial. Out of 14 accused persons, Accused no. 13
Pramod Kumar Singh and Accused 14 Sanjoy Kumar Mandal were
acquitted by the trial Court.
The prosecution examined 13 witnesses to prove the charges
framed against the accused persons. P.W. 1 Upendra Narain Singh
P.W.2, Raj Kumar Singh, P.W.3, Mani Kant Choudhary and P.W.4 Raj
Kumar Choudhary were seizure list witnesses. None of them supported
the case of prosecution regarding seizure of prohibited arms, heroine
and antique idols in their presence. Though, they identified their
signature on the seizure list but they deposed that it was taken on the
plain-sheet of the paper and no seizure was made in their presence.
Accordingly, these four witnesses were declared hostile. In this way,
there is no evidence regarding seizure of prohibited arms, ammunitions,
heroine and antique idols in presence of independent seizure list
witnesses.
The Informant D.K.Sinha, has been examined as P.W.8. He
has supported the case of prosecution regarding the information given to
9
him by the Superintendent of Police, Banka, making entry into the
station diary as station Diary No. 236 (Ext.4) and as per direction of the
Superintendent of Police, Banka, he proceeded to the residence of
SDPO, Baban Mahto. The members of the raiding party were Raj
Kishore Singh,Officer In-charge, Barahat (P.W.10) and other members
were Satendra Kumar Yadav P.W.5, Dipak Kumar P.W.6, Abinash
Kumar Jha P.W.7 and Sajjan Kumar P.W.9, all constables and working
as guards at the residence of Superintendent of Police, Banka. The
driver Sanajy Kumar Singh also accompanied them but he was not
examined as witness. P.W.8 has also deposed on the point of search of
Tata Indica Vehicle and seizure of prohibited arms as well Heroine kept
in the bag as well as preparation of a seizure list in presence of the
seizure list witnesses. However, from the deposition of P.W.8 there is
nothing to show that while seizure of Heroine was made, mandatory
provisions of search and seizure as provided under Sections 42, 43, 50,
52,52A and 57 of the NDPS Act were observed. P.W.8 in para 22 of his
deposition has stated that all seized articles were handed over to the
Investigating Officer (P.W.11) who was also the Incharge of Malkhana.
No where in the deposition of witnesses P.W.8, P.W.10,PW 11 or any
other witnesses who are police personnel, it has come that following all
mandatory procedures, the search and seizure of Heroine was made. The
mandatory provision is that when any search and seizure is to be made
10
the purpose of seizure has to be disclosed. The accused will be given
option whether he wants to be searched by the Police Officer or he
wants to be presented and examined by any Magistrate. The samples of
the seized articles were to be prepared in accordance with the provisions
under the Act and immediately sent for its chemical examination to
Forensic Science Laboratory. The remaining article has to be kept in
Malkhana after taking permission from the competent authority, in
accordance with the provisions under the Act. The only evidence so far
the offence under the NDPS Act is that a black bag was seized from the
Dikky of Car in which sealed Heroine weighing one pound was
recovered. The Forensic Science Laboratory report No. 802 dated
9.4.2008 (Ext.8) indicates that vide memo No. 1048/2005 dated
7.10.2005 a parcel through special messenger Constable No. 405 Shiv
Kumar Ram was received in the office of Forensic Science Laboratory
on 29.10.2005. The sample which was dispatched through special
messenger on 7.10.2005, reached in the office of FSL after 22 days on
29.10.2005. The special messenger, who carried the sample to FSL, has
not been examined as witness to explain the delay of 22 days in between
the dispatch and receiving the sample by the FSL. Ext.8 Forensic
Science Report discloses that Heroin along with glucose was detected in
the white crystalline powdery Substance contained in the leather packet
described. The FSL report does not disclose that what was the
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percentage of Heroine and the glucose. On the basis of this report, it is
quite difficult to say that whether sampling was done in accordance with
law and whether without any tampering the sample reached at FSL, for
its chemical examination. The evidence on record is completely silent
on all these points. There is no evidence on record that Indica Car
bearing registration no. WB-02J-9829 was hired by the passengers
traveling in it or any of them was owner of the Car. There is no
document on record in support of the ownership of the vehicle. There is
nothing on record to show that the passengers who were traveling in a
car had any knowledge regarding the presence of NDPS substance in the
dikky of the Car. Six persons were travelling in the car, unless there is
evidence that they had knowledge regarding the presence of such
articles in the vehicles, it cannot be presumed that recovery was made
from there possession.
P.W.5 Satendra Kumar Yadav, P.W.6 Dipak Kumar, P.W.7
Abinash Kumar Jha and P.W.9 Sajjan Kumar were the members of the
raiding party. None of these witnesses have stated anything about the
search and seizure of Heroine observing special provisions provided
under the NDPS Act. In fact from deposition of these witnesses, it
transpires that they have no knowledge that when and where samples
were prepared. Whether the left over recovered Heroine was kept at
Malkhana, observing the provisions under the Act. The evidence of
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these witnesses indicates that the same procedure was followed for
search and seizure of Heroine and prohibited arms as well as for seizure
and search of the antique idols. P.W.6 has deposed that all seized
articles were kept in a bag and he has no knowledge that when the
reports were prepared.
It is well settled that the provisions of the NDPS Act being
draconian in nature, unless there is evidence in support of this fact that
observing all provisions and safeguards provided under the Act, the
accused has been found guilty of the offence under the NDPS Act, the
accused is to be held innocence. Unless, allegations observing all
mandatory provisions under the Act are proved, conviction is not
sustained.
The most surprising aspect of investigation is that Indica Car
from which prohibited arms and ammunition as well as Psychotropic
Substance is alleged to have been recovered, was not seized. It’s driver
was not interrogated and apprehended. This lacuna is apparent from the
evidence of P.W.8 and P.W.10 and P.W.11. There being complete
absence of evidence on record, for proving charge under Section 21(b)
of the NDPS Act, so far conviction of appellants under Section 21(b) is
concerned, the finding recorded by the trial court, regarding appellants
convictions and order of sentence is not sustainable and fit to be set
aside. Accordingly, it is being set aside.
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All appellants have also been convicted under Sections 25 (1-
A), 25 (1-AA), 25(1-B)A, 26(i) and 35 of the Act, Mr. Rana Pratap
Singh, counsel representing some of the appellants, has submitted that
conviction of appellants under Sections 25 (1-A), 25 (1-AA), 25(1-
B)A,26 (i) and 35 of the Arms Act is illegal. Chapter V of the Arms Act
1959 deals with the punishment for certain offences. Section 25(1) (b)
of the Arms Act provides that whosoever shortens the barrel of a
firearm, or converts an imitation firearm into firearms in contravention
of Section 6 shall be punishable with imprisonment for a term which
shall not be less than three years but which may extend to seven years
and shall also be liable to fine. So far conviction under this section is
concerned, there is no evidence to show rather there is no allegation
against the accused- appellants regarding shortening of the barrel of the
fire arms or converting an imitation fire arms into a fire arms in
contravention of section 6. Despite the fact that none of the witnesses
have deposed in this regard and there is no material evidence to show
that the accused- appellants have done any such kind of act, they have
been convicted under Section 25 (1) (b) of the Act.
So far conviction under Sections 25(1-A), 25 (1-AA) and 25(1-
B) is concerned, that is in contravention of the provisions under the Act,
as well as perverse, for having no such evidence on record. Section
25(1-A) provides that whoever acquires, has in his possession or carries
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any prohibited arms or prohibited ammunition in contravention of
Section 7 shall be punishable with imprisonment for a term which shall
not be less than five years, but which may extend to ten years and shall
also be liable to fine. The evidence on record indicates that some secret
information was received by the Superintendent of Police, Banka and on
his instruction, under the leadership of Sub Divisional Police Officer,
(not examined) a raiding party was formed of which P.W.5, P.W.6,
P.W.7, P.W.8, P.W.9 and P.W.10 were members. At the place of
occurrence, which is near Pulia, at a distance of one Kilometer away
from village Kakwara, at about 3.45 A.M. a Tata Indica Car coming
from Katoria was stopped, six passengers traveling in the car,
immediately tried to flee away. They were chased and apprehended. No
documents have been brought on record in support of this fact that the
arms recovered from the Dikky of the car were the prohibited arms, as
no such report was obtained by the Investigating Officer from the
competent authority. There is no document, or any proof of this
allegation that the passengers who were apprehended were actually
carrying these seized articles or they possessed the seized articles. In
fact in the cross-examination P.Ws. 5, 6 and 7 have stated that they do
not know, whether the car was hired by the apprehended persons or they
were the owners of the Car. P.W.8, P.W.10 and P.W.11 have stated in
their cross examination that the driver of the car was not interrogated.
15
Even the car was not seized. Except the oral evidence of prosecution
witness, who are police Personnels, there is no evidence to show that
actually any Indica car bearing registration No. WB-o2J-9829 was
stopped and from its’ dikky alleged articles were recovered.
For conviction under Sections 25(1-A) of the Arms Act, it was
essential to prove the acquisition, possession and carrying of prohibited
arms and ammunitions by the accused persons. First of all, there is no
documentary proof in support of this fact that the seized articles were
prohibited arms and there is also no documentary or oral evidence to
show that the apprehended persons actually had knowledge of
prohibited arms kept in the Dikky of the car, in which they were
traveling. In absence of such evidence conviction of the appellants
under Section 25(1-A) of the Arms Act is perverse and fit to be set
aside.
Similarly regarding conviction under Section 25 (1-AA) of the
Arms Act, it has been submitted by the counsel representing the
appellants that for conviction under this section, there must have been
evidence to show that the accused persons have indulged in
manufacturing, sale, transfer, converting, repairing of the arms or they
have tested, proved exposed or offered such arms for sale or transfer or
had been its possession of prohibited arms and ammunition for sale,
transfer, conversion, repair, test or proof, in contravention of section 7
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of the Arms Act. Only there being evidence in this regard they could
have been convicted and sentenced for the offence. Since, there is no
evidence on record to prove that the articles seized were the prohibited
arms and ammunitions and also any proof in support of their being
indulged in any of the actions mentioned under Section (25(1-AA) of
the Act, they could not have been convicted and sentenced for the
offence. The evidence of all witnesses including PWs. 5,6,7,8,9 and 10
simply indicated that from the Dikky of the Tata Indica Car some arms
and ammunitions were recovered and seized. So far seizure list
witnesses are concerned; they have not supported the case of the
prosecution regarding any seizure in their presence. The details of the
articles as given in the First Information Report do not tally with the
seizure list (Ext.5) and the deposition of witnesses like P.W.5,6,7,8,9
and 10. Some of the articles which is mentioned in the First Information
Report have not been mentioned in the seizure list, or in the deposition
of witnesses.
The evidence of P.W.8 D.K.Sinha, the Officer In-charge of
Banka Police Station, the informant of the case, do not show that when
the accused persons were apprehended, they made any confessional
statement regarding the possession of these prohibited arms, rather this
has consistently been deposed by each of these witnesses that when the
persons of these accused persons were searched nothing was recovered.
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P.W.8 in para 38 of his deposition has specifically stated that he has no
knowledge that who was the actual owner of the Car as no document in
this regard was produced by the accused persons. In para 39, he has
stated that he did not interrogate the driver of the car and also did not
record the statement of any accused persons. In para 14 of his deposition
P.W.8, has specifically stated that seized articles were never produced
by him before the Chief Judicial Magistrate and he has no knowledge
whether these articles were ever produced before the Magistrate by the
Investigating Officer. He has also stated in his deposition that no paper
was recovered from the possession of the accused persons to show their
ownership and possession regarding the seized articles.
Counsel of the appellants has also made a submission that a
serious question can be raised regarding competence of P.Ws. 5,6,7 and
9 to depose on any of the point relating to alleged occurrence, search,
seizure and recovery because no document has been produced by the
prosecution in support of the fact that they were the members of the
raiding party, in fact all these witnesses have denied any knowledge
about the constitution of the raiding party as they were never asked to
sign any documents or any entry made in register before their departure
for this purpose. The evidence of witnesses P.W.5,6,7 and 9 is that they
were orally instructed to proceed for raid. P.W.8 in para 57 of his
evidence has stated that the constitution of the raiding party had not
18
been made at the police station as such, there is no such entry at the
Thana and he had no knowledge that any such document was prepared
to show that who were the members of the raiding party. P.W.8 has also
stated in Para 64 of his deposition that he opened the Dikky of the car
after taking its key from the driver of the car but did not interrogate him.
He had not sealed the seized articles, and no such paper was
immediately prepared by him to show that after seizure the articles were
sealed, numbered and his signature was put on such seal, in
corroboration this fact that the recovery was made at the relevant time.
P.W.11 has also made similar statement in his deposition so far search,
seizure and recovery is concerned. In Para 11 of his deposition, he has
also stated that on the seized articles no number was mentioned.
P.W.11 is the Ramashray Sharma, Investigating Officer of the
case. In para 9 of his deposition he has stated that seized fire arms were
sent for its examination to Bhagalpur as there was no Sergeant Major at
Barahat. He has not stated that any report was received by him which
could have indicated that all these seized arms were in functional
position and they are fire arms which could be categorized as prohibited
fire arms. Regarding the seizure of Heroine in para 10 he has simply
stated that seized Heroine was sent for its chemical examination at
Forensic Science Laboratory besides this he has not stated anything to
show that observing all legal formalities the seized article was sent for
19
examination at Forensic Science Laboratory, Patna. In para 23 of his
deposition, he has admitted that he did not investigate the case on these
lines, as to who is the owner of the seized articles, though it was
necessary for proving charge under Section 414 of the Indian Penal
Code.
Counsel for the appellants submits that considering the
evidence on record, it is apparent that the appellants have been
convicted under the aforementioned sections of the Arms Act without
there being sufficient evidence to show that they were either owner or in
possession of the articles for any illegal purposes as mentioned under
Sections 25(1-A), (1-AA) and 25 (1-b) of the Arms Act, read with
sections 26 and 35 of the Arms Act, as such the conviction of the
appellant is completely against the evidence on record and contrary to
provision under the Act, as such fit to be quashed.
Counsel for the appellants, regarding conviction of the
appellants under Section 25(2) of the Antiquities and Art Treasures Act,
1972, have submitted that for prosecuting any accused for offence
under this Act, it is mandatory that the sanction of the competent
authority is taken, unless the sanction is obtained entire criminal
proceeding and conviction is illegal. P.W. 11 the investigating Officer
in paragraph 35 of his deposition has admitted that he did not make any
attempt for obtaining sanction for prosecution and without any sanction
20
the charge-sheet was submitted, cognizance was taken and trial was
conducted in which judgment of conviction was passed by the trial
Court. It has also been submitted that section 25 (2) of the Antiquities
and Art Treasures Act, 1972 is the penal section for offences committed
under the provisions of this Act. For conviction
and punishment, there must be sanction as provided under section 26 of
the Act and also it is essential that the articles seized be an antique item.
For declaring any article as antique, it’s registration as an antique item is
essential. Unless, an article is registered as provided under section 15 of
the Antiquities and Art Treasures Act, no person can be held guilty
under Section 25(2) of the Act, for commission of offence under
Sections 13, 14 or 17 of the Act, which is punishable under Section
25(2) of the Act. Considering the deposition of P.W.11 that there was no
sanction for prosecution, initiation of criminal proceeding against the
accused appellants under the provision of Antiquities and Art Treasures
Act itself was illegal and without jurisdiction. On that count, the
conviction and imposition of punishment is also illegal and bad, since,
there is no documentary proof in support of these fact that the seized
articles were the articles registered for its antiquity, appellantscould not
have been convicted and punished under Section 25(2) of the Act.
Considering all these facts and evidence on record, the
judgment of conviction passed by the trial Court for charges framed
21
against the appellants is not sustainable, it is set aside. All appellants are
in custody, they are directed to be released forthwith, if not wanted to
remain in custody in connection with any other case.
(Mridula Mishra,J.)
Dharnidhar Jha,J:-
(Dharnidhar Jha,J.)
Patna High Court
Dated 19. 11.2010
A.Kumar/NAFR