High Court Patna High Court

Md. Imran vs State Of Bihar on 19 November, 2010

Patna High Court
Md. Imran vs State Of Bihar on 19 November, 2010
Author: Smt. Mridula Mishra
                  CRIMINAL APPEAL No.556 OF 2009
                     ****             ****
      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
2

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
3

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
4

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:-

5

(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
                      6




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
7

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-
8

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
11

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
12

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.

13

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
14

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
16

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.
17

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