{"id":181376,"date":"2010-11-19T00:00:00","date_gmt":"2010-11-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/md-imran-vs-state-of-bihar-on-19-november-2010"},"modified":"2016-12-17T21:33:47","modified_gmt":"2016-12-17T16:03:47","slug":"md-imran-vs-state-of-bihar-on-19-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/md-imran-vs-state-of-bihar-on-19-november-2010","title":{"rendered":"Md. Imran vs State Of Bihar on 19 November, 2010"},"content":{"rendered":"
Patna High Court<\/div>\n
Md. Imran vs State Of Bihar on 19 November, 2010<\/div>\n
Author: Smt. Mridula Mishra<\/div>\n
                  CRIMINAL APPEAL No.556 OF 2009\n                     ****             ****\n      Against the judgment and order dated 1.6.2009 and\n      8.6.2009 passed in Banka P.S. Case No. 291 of 2005\n      ( G.R. case No. 1055\/2005) passed by Sri Sunil\n      Kumar Srivastava, Ist. Additional Sessions Judge,\n      Banka;\n      SHANKAR SAHNI------------------------------------------------Appellant\n                                          Versus\n      THE STATE OF BIHAR-----------------------------------------Respondents\n                                           With\n                         CR. APP (DB) No.566 of 2009\n    1. BIJOY KUMAR MANDAL @ VIJAY KUMAR MANDAL\n    2. RANJAN KUMAR DAS------------------------------Appellants\n                                          Versus\n STATE OF BIHAR---------------------------------------------Respondents\n                                            With\n                         CR. APP (DB) No.596 of 2010\n BIKRAMA MANJHI-----------------------------------------------Appellant\n                                          Versus\n STATE OF BIHAR---------------------------------------------Respondents\n                                            with\n                          CR. APP (DB) No.648 of 2009\nRAJESH KUMAR SINGH-------------------------------------------Appellant\n                                          Versus\n STATE OF BIHAR---------------------------------------------Respondents\n                                            With\n                         CR. APP (DB) No.665 of 2009\n  1. JAI PRAKASH MANDAL\n  2. ANMOL PASWAN                                        Appellants\n                                          Versus\n STATE OF BIHAR---------------------------------------------Respondents\n                                            With\n                         CR. APP (DB) No.709 of 2009\n MD. IMRAN----------------------------------------------------Appellant\n                                             Versus\n STATE OF BIHAR---------------------------------------------Respondents\n                                               With\n                         CR. APP (DB) No.710 of 2009\n 1.       MUKESH KUMAR JHA\n 2.       SUMAN KUMAR SINGH\n 3.       RAJENDRA DAS\n 4.       KUMOD MANDAL                                      Appellants\n                                           Versus\n STATE OF BIHAR---------------------------------------------Respondents\n                             ---------\n<\/pre>\n
  For the Appellants:- Mr. Rana Pratap Singh, Ranjan Kr. Jha &
\n                        Mr. Kumar Kamal Nayan,Advocates
\n                                  2<\/span><\/p>\n
            For the State:- Mr. Ashwani Kumar Sinha, P.P.\n<\/p>\n
                      PRESENT
\n       THE HON’BLE JUSTICE SMT. MRIDULA MISHRA
\n       THE HON’BLE JUSTICE SHRIDHARNIDHAR JHA<\/p>\n
Mridula                   All appellants were charged under sections 414,149 of the
\nMishra,J-\n<\/p>\n
            Indian Penal Code, under section 21(b) of Narcotic Drugs and<\/p>\n
            Psychotropic Substance Act, 1985, section 25 (1-A), 25 (1-AA), 25 (1-<\/p>\n
            B) A, 26(i) and 35 of the Arms Act and also under Section 25(2) of the<\/p>\n
            Antiquities Art Treasure Act, 1972. The appellants have been convicted<\/p>\n
            by the judgment and order dated 01.06.2009\/08.06.2009 respectively<\/p>\n
            passed by the First Additional Sessions Judge, Banka in Banka P.S. case<\/p>\n
            No. 291 of 2005           (G.R. case No. 1055 of 2005) and have been<\/p>\n
            sentenced to undergo Rigorous imprisonment for two years for<\/p>\n
            conviction under Sections 414, 149 of the Indian Penal Code, R. I for<\/p>\n
            ten years and fine of Rs. 1, 00000\/- and in default of payment of fine R.<\/p>\n
            I. for two years for conviction under section 21(b) of the N.D.P.S. Act.<\/p><\/blockquote>\n
            The appellants have further been sentenced R.I. for ten years and fine of<\/p>\n
            Rs.5, 000\/-, in default of payment of fine R.I. for one year for conviction<\/p>\n
            under Section 25 (1-A) read with section 35 of the Arms Act. They have<\/p>\n
            also been sentenced R.I. for life and fine of Rs.10,000\/-, in default of<\/p>\n
            payment of fine R.I. for one year for conviction under Section 25 (1-A<\/p>\n
            A) read with Section 35 of the Arms Act and for their conviction under<\/p>\n
            Section 25 (1-B) A,      read with section 35 of the Arms Act R. I. for
\n                      3<\/span><\/p>\n
three years and fine of Rs.5,000\/- in default of payment of fine R.I. for<\/p>\n
six months. The appellants have also been sentenced to undergo R.I. for<\/p>\n
seven years each and fine of Rs.5,000\/-, in default of payment of fine<\/p>\n
R.I. for six months for their conviction under Section 25(2) of the<\/p>\n
Antiquities Art and Treasure Act, 1972. The appellants have preferred<\/p>\n
these appeals against the judgment of conviction and order of sentence<\/p>\n
passed by the trial Court.\n<\/p>\n
         Shri D.K.Sinha, Officer In-charge of Banka Police Station was<\/p>\n
informed on Telephone by the Superintendent of Police, Banka at about<\/p>\n
12.30 A.M. on 13.9.2005, since he received secret information that a<\/p>\n
gang of smugglers is traveling by road, through Katoria and going to<\/p>\n
Deoghar with huge amount of ancient antiquities, arms, ammunitions<\/p>\n
and Heroin. These articles, they are carrying from Bhagalpur to<\/p>\n
Calcutta, which will be handed over to the International gang of<\/p>\n
smugglers. The Officer In-charge of Banka P.S. was informed by the<\/p>\n
Superintendent of Police that the gang of smuggler can pass through<\/p>\n
Katoria road at any time in the night, as such an action is needed to be<\/p>\n
taken to apprehend them and for that a raiding party be formed under<\/p>\n
the leadership of Sub-Divisional Police Officer, Banka. Sri D.K.Sinha,<\/p>\n
Officer In-charge of Banka P.S. (P.W.8) made a station diary entry and<\/p>\n
proceeded from the police station with constable No. 156 (Driver)<\/p>\n
towards the residence of Sub Divisional Police Officer, where Officer
\n                      4<\/span><\/p>\n
In-charge of Barahat P.S. Raj Kishore Singh ( P.W.10), Security Guards<\/p>\n
of the Superintendent of Police, Banka, Constable No. 39 Satyendra<\/p>\n
Kumar Yadav (P.W.5), Constable No. 74 Dipak Kumar (P.W.6),<\/p>\n
Constable No. 62 Abinash Kumar Jha (P.W.7) and Constable No. 336<\/p>\n
Sajan Kumar ( P.W.9) also came. The raiding party headed by Baliram<\/p>\n
Kumar Choudhary, Sub Divisional Police Officer ( not examined)<\/p>\n
proceeded      at 1.30 A.M. and reached near a pulia situated half<\/p>\n
kilometers away from village      Kakwara. The Police party started<\/p>\n
checking the vehicles passing through that road and at about 3 A.M. a<\/p>\n
Tata Indica Car bearing registration No. WB-02J-9829 came there,<\/p>\n
which was asked to stop. The car stopped but the passengers sitting<\/p>\n
inside the car tried to flee away, they were chased and apprehended by<\/p>\n
the police party.    All six persons sitting inside the vehicles were<\/p>\n
apprehended and on interrogation disclosed their names. They were<\/p>\n
Kumod Mandal, Lallan Kumar Mandal, Mukesh Kumar Jha, Suman<\/p>\n
Kumar Singh, Rajendra Das and Md. Imran. Mukhiya of village<\/p>\n
Kakwara, Upendra Narain Singh (not examined) along with some<\/p>\n
villagers also came there and in presence of two witnesses, namely,<\/p>\n
Upendra Narayan Singh (P.W.1) and Rana Kumar Singh ( P.W.2)<\/p>\n
search was made but nothing was recovered from their possession.<\/p>\n
When the Dikky of the Car was searched, from there following articles<\/p>\n
were found:-\n<\/p>\n
                     5<\/span><\/p>\n
         (i)            a leather bag fully sealed with Heroin, on which<\/p>\n
DOUBLE TIGER, HEROIN MADE IN THAILAND, 100% POISON,<\/p>\n
SPECIAL NO.1 NET WEIGHT 1 POUND, Mag. 4.4.2005,<\/p>\n
Exp.4.4.2007<\/p>\n
         (ii)           A country made carbine, whole made of iron and<\/p>\n
on the body of which AUTOMATIC BLAST KARBIAN written and on<\/p>\n
the magazine base MADE IN CHINA, written.\n<\/p>\n
         (iii)          Country made Carbine, whole made of Iron.\n\n         (iv)           Magazine of country made carbine-four.\n\n         (v)            Magazin of country made carbine-two\n\n         (vi)           One stand of country made carbine made of iron.\n\n         (vii)          One country made pistol of.32 bore made of iron,\n\n<\/pre>\n
half automatic control, fitted with fiber butt and on the left side of the<\/p>\n
body PITR & BRATTA, MADE IN ITALAY, written and in the right<\/p>\n
side AUTOMATIC PISTOL 9 round, mentioned on the barrel STATE<\/p>\n
PROPRIETY OF THE ITALY Government, written and no. 7273<\/p>\n
mentioned on the magazine.\n<\/p>\n
         (viii)         A country made 9 m.m. half automatic pistol, on<\/p>\n
which Automatic Pistol, MADE IN ITALAY NO.2200 and HAVEN<\/p>\n
CONN,9 mm, 9 round mentioned and no. of Magazine mentioned as<\/p>\n
7700.\n<\/p>\n
         (ix)           One magazine of pistol of 9 mm. made of iron on\n                      6<\/span>\n\n\n\n\nwhich Magazine No. 7700 mentioned.\n\n         (x)             One magazine of pistol made of iron on which\n\n7273 is mentioned (.32 bore)\n\n<\/pre>\n
         Since the passengers traveling in Indica Car did not give any<\/p>\n
satisfactory answer regarding the ownership and possession of those<\/p>\n
recovered articles, as such a seizure list was prepared. On the seizure list<\/p>\n
the signature of accused persons and independent witnesses ( P.W.1 and<\/p>\n
P.W.2) were taken. The apprehended passengers also disclosed during<\/p>\n
interrogation that their other counter-parts have come to Banka from a<\/p>\n
passenger vehicle with seven ancient idols of goddess and god, who are<\/p>\n
at present waiting at Katoria ( Banka) Bus stand and they will proceed<\/p>\n
to Deoghar by Bus in the early morning. On the basis of this confession<\/p>\n
the Officer In-charge of Banka P.s. along with the police party<\/p>\n
proceeded for Katoria Bus stand (Banka) and reached there at 4.30 A.M.<\/p>\n
In the middle of the bus stand six persons were found waiting with two<\/p>\n
bags. These six persons also tried to run away, seeing the police party<\/p>\n
but they were apprehended with the help of armed force. The<\/p>\n
apprehended persons disclosed their names as Bojy Kumar Mandal,<\/p>\n
Ranjan Kumar Das, Anmol Paswan, Jai Prakash Mandal, Shankar Sahni<\/p>\n
and Rajesh Kumar Singh. The apprehended persons from the Bus stand<\/p>\n
were also identified by the persons who were earlier apprehended<\/p>\n
traveling in Indica Car. Nothing was recovered from the possession of
\n                     7<\/span><\/p>\n
persons apprehended at bus stand, but while searching          two bags,<\/p>\n
antique idols of goddess Sita and one antique idol of Bhagwan Ram<\/p>\n
fully made of Metal and an ancient idol of Pujari fully, made of metal,<\/p>\n
one ancient idol made fully of metal of a person sitting with folded<\/p>\n
hands, one ancient idol of yellow colour and one black engraved stone<\/p>\n
old picture of Bhagwan Budha including two figures of disciples and<\/p>\n
below the said picture of five ladies and on the back side of the idol<\/p>\n
something engraved in ancient language were recovered. Here also a<\/p>\n
seizure list was prepared in presence of two independent witnesses<\/p>\n
Manikant Choudhary (P.W.3) and Raj Kumar Choudhary (P.W.4),<\/p>\n
which was signed by the apprehended accused persons and the copy of<\/p>\n
the seizure list was handed over to them. All accused persons were<\/p>\n
arrested. The arrested accused persons disclosed that in their business of<\/p>\n
Smuggling of antique idol, one Sanjoy Kumar Mandal, Promod Kumar<\/p>\n
Singh and D.K. alias Daniel are also involved. They disclosed that five<\/p>\n
other persons who are also presently at Bhagalpur and are members of<\/p>\n
the gang, their names are not known to them.\n<\/p>\n
             The of Officer In-charge (P.W.8) himself recorded his<\/p>\n
fardbeyan at the place of occurrence itself on 13.9.2005 at about 5.45<\/p>\n
A.M. in the morning and formal First Information Report was instituted<\/p>\n
on that date at 10 A.M. The First Information Report was instituted for<\/p>\n
offence under Sections 414, 149 IPC, Section 25 (1) (b)\/25(1-A)\/25(1-
\n                      8<\/span><\/p>\n
AA)\/25(1B)\/26\/35 of the Arms Act, U\/s 21(2) of the N.D.P.S. Act and<\/p>\n
under section 25(1) (2) of the Antiquities and Art Treasure Act against<\/p>\n
fifteen accused persons. One of the accused D.K. alias Daniel remained<\/p>\n
absconding, as such on submission of the charge-sheet, though<\/p>\n
cognizance was taken against all 15 accused persons but only 14<\/p>\n
accused persons faced trial. Out of 14 accused persons, Accused no. 13<\/p>\n
Pramod Kumar Singh and Accused 14 Sanjoy Kumar Mandal were<\/p>\n
acquitted by the trial Court.\n<\/p>\n
         The prosecution examined 13 witnesses to prove the charges<\/p>\n
framed against the accused persons. P.W. 1 Upendra Narain Singh<\/p>\n
P.W.2, Raj Kumar Singh, P.W.3, Mani Kant Choudhary and P.W.4 Raj<\/p>\n
Kumar Choudhary were seizure list witnesses. None of them supported<\/p>\n
the case of prosecution regarding seizure of prohibited arms, heroine<\/p>\n
and antique idols in their presence. Though, they identified their<\/p>\n
signature on the seizure list but they deposed that it was taken on the<\/p>\n
plain-sheet of the paper and no seizure was made in their presence.<\/p>\n
Accordingly, these four witnesses were declared hostile. In this way,<\/p>\n
there is no evidence regarding seizure of prohibited arms, ammunitions,<\/p>\n
heroine and antique idols in presence of independent seizure list<\/p>\n
witnesses.\n<\/p>\n
         The Informant D.K.Sinha, has been examined as P.W.8. He<\/p>\n
has supported the case of prosecution regarding the information given to
\n                     9<\/span><\/p>\n
him by the Superintendent of Police, Banka, making entry into the<\/p>\n
station diary as station Diary No. 236 (Ext.4) and as per direction of the<\/p>\n
Superintendent of Police, Banka, he proceeded to the residence of<\/p>\n
SDPO, Baban Mahto. The members of the raiding party were Raj<\/p>\n
Kishore Singh,Officer In-charge, Barahat (P.W.10) and other members<\/p>\n
were Satendra Kumar Yadav P.W.5, Dipak Kumar P.W.6, Abinash<\/p>\n
Kumar Jha P.W.7 and Sajjan Kumar P.W.9, all constables and working<\/p>\n
as guards at the residence of Superintendent of Police, Banka. The<\/p>\n
driver Sanajy Kumar Singh also accompanied them but he was not<\/p>\n
examined as witness. P.W.8 has also deposed on the point of search of<\/p>\n
Tata Indica Vehicle and seizure of prohibited arms as well Heroine kept<\/p>\n
in the bag as well as preparation of a seizure list in presence of the<\/p>\n
seizure list witnesses. However, from the deposition of P.W.8 there is<\/p>\n
nothing to show that while seizure of Heroine was made, mandatory<\/p>\n
provisions of search and seizure as provided under Sections 42, 43, 50,<\/p>\n
52,52A and 57 of the NDPS Act were observed. P.W.8 in para 22 of his<\/p>\n
deposition has stated that all seized articles were handed over to the<\/p>\n
Investigating Officer (P.W.11) who was also the Incharge of Malkhana.<\/p>\n
No where in the deposition of witnesses P.W.8, P.W.10,PW 11 or any<\/p>\n
other witnesses who are police personnel, it has come that following all<\/p>\n
mandatory procedures, the search and seizure of Heroine was made. The<\/p>\n
mandatory provision is that when any search and seizure is to be made
\n                     10<\/span><\/p>\n
the purpose of seizure has to be disclosed. The accused will be given<\/p>\n
option whether he wants to be searched by the Police Officer or he<\/p>\n
wants to be presented and examined by any Magistrate. The samples of<\/p>\n
the seized articles were to be prepared in accordance with the provisions<\/p>\n
under the Act and immediately sent for its chemical examination to<\/p>\n
Forensic Science Laboratory. The remaining article has to be kept in<\/p>\n
Malkhana after taking permission from the competent authority, in<\/p>\n
accordance with the provisions under the Act. The only evidence so far<\/p>\n
the offence under the NDPS Act is that a black bag was seized from the<\/p>\n
Dikky of Car in which sealed Heroine weighing one pound was<\/p>\n
recovered. The Forensic Science Laboratory report No. 802 dated<\/p>\n
9.4.2008 (Ext.8) indicates that vide memo No. 1048\/2005 dated<\/p>\n
7.10.2005 a parcel through special messenger Constable No. 405 Shiv<\/p>\n
Kumar Ram was received in the office of Forensic Science Laboratory<\/p>\n
on 29.10.2005. The sample which was dispatched through special<\/p>\n
messenger on 7.10.2005, reached in the office of FSL after 22 days on<\/p>\n
29.10.2005. The special messenger, who carried the sample to FSL, has<\/p>\n
not been examined as witness to explain the delay of 22 days in between<\/p>\n
the dispatch and receiving the sample by the FSL. Ext.8 Forensic<\/p>\n
Science Report discloses that Heroin along with glucose was detected in<\/p>\n
the white crystalline powdery Substance contained in the leather packet<\/p>\n
described. The FSL report does not disclose that what was the
\n                     11<\/span><\/p>\n
percentage of Heroine and the glucose. On the basis of this report, it is<\/p>\n
quite difficult to say that whether sampling was done in accordance with<\/p>\n
law and whether without any tampering the sample reached at FSL, for<\/p>\n
its chemical examination. The evidence on record is completely silent<\/p>\n
on all these points. There is no evidence on record that Indica Car<\/p>\n
bearing registration no. WB-02J-9829 was hired by the passengers<\/p>\n
traveling in it or any of them was owner of the Car. There is no<\/p>\n
document on record in support of the ownership of the vehicle. There is<\/p>\n
nothing on record to show that the passengers who were traveling in a<\/p>\n
car had any knowledge regarding the presence of NDPS substance in the<\/p>\n
dikky of the Car. Six persons were travelling in the car, unless there is<\/p>\n
evidence that they had knowledge regarding the presence of such<\/p>\n
articles in the vehicles, it cannot be presumed that recovery was made<\/p>\n
from there possession.\n<\/p>\n
         P.W.5 Satendra Kumar Yadav, P.W.6 Dipak Kumar, P.W.7<\/p>\n
Abinash Kumar Jha and P.W.9 Sajjan Kumar were the members of the<\/p>\n
raiding party. None of these witnesses have stated anything about the<\/p>\n
search and seizure of Heroine observing special provisions provided<\/p>\n
under the NDPS Act. In fact from deposition of these witnesses, it<\/p>\n
transpires that they have no knowledge that when and where samples<\/p>\n
were prepared. Whether the left over recovered Heroine was kept at<\/p>\n
Malkhana, observing the provisions under the Act. The evidence of
\n                      12<\/span><\/p>\n
these witnesses indicates that the same procedure was followed for<\/p>\n
search and seizure of Heroine and prohibited arms as well as for seizure<\/p>\n
and search of the antique idols. P.W.6 has deposed that all seized<\/p>\n
articles were kept in a bag and he has no knowledge that when the<\/p>\n
reports were prepared.\n<\/p>\n
         It is well settled that the provisions of the NDPS Act being<\/p>\n
draconian in nature, unless there is evidence in support of this fact that<\/p>\n
observing all provisions and safeguards provided under the Act, the<\/p>\n
accused has been found guilty of the offence under the NDPS Act, the<\/p>\n
accused is to be held innocence.        Unless, allegations observing all<\/p>\n
mandatory provisions under the Act are proved, conviction is not<\/p>\n
sustained.\n<\/p>\n
          The most surprising aspect of investigation is that Indica Car<\/p>\n
from which prohibited arms and ammunition as well as Psychotropic<\/p>\n
Substance is alleged to have been recovered, was not seized. It’s driver<\/p>\n
was not interrogated and apprehended. This lacuna is apparent from the<\/p>\n
evidence of P.W.8 and P.W.10 and P.W.11. There being complete<\/p>\n
absence of evidence on record, for proving charge under Section 21(b)<\/p>\n
of the NDPS Act, so far conviction of appellants under Section 21(b) is<\/p>\n
concerned, the finding recorded by the trial court, regarding appellants<\/p>\n
convictions and order of sentence is not sustainable and fit to be set<\/p>\n
aside. Accordingly, it is being set aside.\n<\/p>\n
                     13<\/span><\/p>\n
         All appellants have also been convicted under Sections 25 (1-<\/p>\n
A), 25 (1-AA), 25(1-B)A, 26(i) and 35 of the Act, Mr. Rana Pratap<\/p>\n
Singh, counsel representing some of the appellants, has submitted that<\/p>\n
conviction of appellants under Sections 25 (1-A), 25 (1-AA), 25(1-<\/p>\n
B)A,26 (i) and 35 of the Arms Act is illegal. Chapter V of the Arms Act<\/p>\n
1959 deals with the punishment for certain offences. Section 25(1) (b)<\/p>\n
of the Arms Act provides that whosoever shortens the barrel of a<\/p>\n
firearm, or converts an imitation firearm into firearms in contravention<\/p>\n
of Section 6 shall be punishable with imprisonment for a term which<\/p>\n
shall not be less than three years but which may extend to seven years<\/p>\n
and shall also be liable to fine. So far conviction under this section is<\/p>\n
concerned, there is no evidence to show rather there is no allegation<\/p>\n
against the accused- appellants regarding shortening of the barrel of the<\/p>\n
fire arms or converting an imitation fire arms into a fire arms in<\/p>\n
contravention of section 6. Despite the fact that none of the witnesses<\/p>\n
have deposed in this regard and there is no material evidence to show<\/p>\n
that the accused- appellants have done any such kind of act, they have<\/p>\n
been convicted under Section 25 (1) (b) of the Act.\n<\/p>\n
         So far conviction under Sections 25(1-A), 25 (1-AA) and 25(1-<\/p>\n
B) is concerned, that is in contravention of the provisions under the Act,<\/p>\n
as well as perverse, for having no such evidence on record. Section<\/p>\n
25(1-A) provides that whoever acquires, has in his possession or carries
\n                     14<\/span><\/p>\n
any prohibited arms or prohibited ammunition in contravention of<\/p>\n
Section 7 shall be punishable with imprisonment for a term which shall<\/p>\n
not be less than five years, but which may extend to ten years and shall<\/p>\n
also be liable to fine. The evidence on record indicates that some secret<\/p>\n
information was received by the Superintendent of Police, Banka and on<\/p>\n
his instruction, under the leadership of Sub Divisional Police Officer,<\/p>\n
(not examined) a raiding party was formed of which P.W.5, P.W.6,<\/p>\n
P.W.7, P.W.8, P.W.9      and P.W.10 were members. At the place of<\/p>\n
occurrence, which is near Pulia, at a distance of one Kilometer away<\/p>\n
from village Kakwara, at about 3.45 A.M. a Tata Indica Car coming<\/p>\n
from Katoria was stopped, six passengers traveling in the car,<\/p>\n
immediately tried to flee away. They were chased and apprehended. No<\/p>\n
documents have been brought on record in support of this fact that the<\/p>\n
arms recovered from the Dikky of the car were the prohibited arms, as<\/p>\n
no such report was obtained by the Investigating Officer from the<\/p>\n
competent authority. There is no document, or any proof of this<\/p>\n
allegation that the passengers who were apprehended were actually<\/p>\n
carrying these seized articles or they possessed the seized articles. In<\/p>\n
fact in the cross-examination P.Ws. 5, 6 and 7 have stated that they do<\/p>\n
not know, whether the car was hired by the apprehended persons or they<\/p>\n
were the owners of the Car. P.W.8, P.W.10 and P.W.11 have stated in<\/p>\n
their cross examination that the driver of the car was not interrogated.
\n                      15<\/span><\/p>\n
Even the car was not seized. Except the oral evidence of prosecution<\/p>\n
witness, who are police Personnels, there is no evidence to show that<\/p>\n
actually any Indica car bearing registration No. WB-o2J-9829 was<\/p>\n
stopped and from its’ dikky alleged articles were recovered.<\/p>\n
           For conviction under Sections 25(1-A) of the Arms Act, it was<\/p>\n
essential to prove the acquisition, possession and carrying of prohibited<\/p>\n
arms and ammunitions by the accused persons. First of all, there is no<\/p>\n
documentary proof in support of this fact that the seized articles were<\/p>\n
prohibited arms and there is also no documentary or oral evidence to<\/p>\n
show that the apprehended persons actually had knowledge of<\/p>\n
prohibited arms kept in the Dikky of the car, in which they were<\/p>\n
traveling. In absence of such evidence conviction of the appellants<\/p>\n
under Section 25(1-A) of the Arms Act is perverse and fit to be set<\/p>\n
aside.\n<\/p>\n
           Similarly regarding conviction under Section 25 (1-AA) of the<\/p>\n
Arms Act, it has been submitted by the counsel representing the<\/p>\n
appellants that for conviction under this section, there must have been<\/p>\n
evidence      to show that the accused persons have indulged in<\/p>\n
manufacturing, sale, transfer, converting, repairing of the arms or they<\/p>\n
have tested, proved exposed or offered such arms for sale or transfer or<\/p>\n
had been its possession of prohibited arms and ammunition for sale,<\/p>\n
transfer, conversion, repair, test or proof, in contravention of section 7
\n                    16<\/span><\/p>\n
of the Arms Act. Only there being evidence in this regard they could<\/p>\n
have been convicted and sentenced for the offence. Since, there is no<\/p>\n
evidence on record to prove that the articles seized were the prohibited<\/p>\n
arms and ammunitions and also any proof in support of their being<\/p>\n
indulged in any of the actions mentioned under Section (25(1-AA) of<\/p>\n
the Act, they could not have been convicted and sentenced for the<\/p>\n
offence. The evidence of all witnesses including PWs. 5,6,7,8,9 and 10<\/p>\n
simply indicated that from the Dikky of the Tata Indica Car some arms<\/p>\n
and ammunitions were recovered and seized. So far seizure list<\/p>\n
witnesses are concerned; they have not supported the case of the<\/p>\n
prosecution regarding any seizure in their presence. The details of the<\/p>\n
articles as given in the First Information Report do not tally with the<\/p>\n
seizure list (Ext.5) and the deposition of witnesses like P.W.5,6,7,8,9<\/p>\n
and 10. Some of the articles which is mentioned in the First Information<\/p>\n
Report have not been mentioned in the seizure list, or in the deposition<\/p>\n
of witnesses.\n<\/p>\n
         The evidence of P.W.8 D.K.Sinha, the Officer In-charge of<\/p>\n
Banka Police Station, the informant of the case, do not show that when<\/p>\n
the accused persons were apprehended, they made any confessional<\/p>\n
statement regarding the possession of these prohibited arms, rather this<\/p>\n
has consistently been deposed by each of these witnesses that when the<\/p>\n
persons of these accused persons were searched nothing was recovered.
\n                     17<\/span><\/p>\n
P.W.8 in para 38 of his deposition has specifically stated that he has no<\/p>\n
knowledge that who was the actual owner of the Car as no document in<\/p>\n
this regard was produced by the accused persons. In para 39, he has<\/p>\n
stated that he did not interrogate the driver of the car and also did not<\/p>\n
record the statement of any accused persons. In para 14 of his deposition<\/p>\n
P.W.8, has specifically stated that seized articles were never produced<\/p>\n
by him before the Chief Judicial Magistrate and he has no knowledge<\/p>\n
whether these articles were ever produced before the Magistrate by the<\/p>\n
Investigating Officer. He has also stated in his deposition that no paper<\/p>\n
was recovered from the possession of the accused persons to show their<\/p>\n
ownership and possession regarding the seized articles.<\/p>\n
         Counsel of the appellants has also made a submission that a<\/p>\n
serious question can be raised regarding competence of P.Ws. 5,6,7 and<\/p>\n
9 to depose on any of the point relating to alleged occurrence, search,<\/p>\n
seizure and recovery because no document has been produced by the<\/p>\n
prosecution in support of the fact that they were the members of the<\/p>\n
raiding party, in fact all these witnesses have denied any knowledge<\/p>\n
about the constitution of the raiding party as they were never asked to<\/p>\n
sign any documents or any entry made in register before their departure<\/p>\n
for this purpose. The evidence of witnesses P.W.5,6,7 and 9 is that they<\/p>\n
were orally instructed to proceed for raid. P.W.8 in para 57 of his<\/p>\n
evidence has stated that the constitution of the raiding party had not
\n                     18<\/span><\/p>\n
been made at the police station as such, there is no such entry at the<\/p>\n
Thana and he had no knowledge that any such document was prepared<\/p>\n
to show that who were the members of the raiding party. P.W.8 has also<\/p>\n
stated in Para 64 of his deposition that he opened the Dikky of the car<\/p>\n
after taking its key from the driver of the car but did not interrogate him.<\/p>\n
He had not sealed        the seized articles, and no such paper was<\/p>\n
immediately prepared by him to show that after seizure the articles were<\/p>\n
sealed, numbered and his signature was put on such seal, in<\/p>\n
corroboration this fact that the recovery was made at the relevant time.<\/p>\n
P.W.11 has also made similar statement in his deposition so far search,<\/p>\n
seizure and recovery is concerned. In Para 11 of his deposition, he has<\/p>\n
also stated that on the seized articles no number was mentioned.<\/p>\n
         P.W.11 is the Ramashray Sharma, Investigating Officer of the<\/p>\n
case. In para 9 of his deposition he has stated that seized fire arms were<\/p>\n
sent for its examination to Bhagalpur as there was no Sergeant Major at<\/p>\n
Barahat. He has not stated that any report was received by him which<\/p>\n
could have indicated that all these seized arms were in functional<\/p>\n
position and they are fire arms which could be categorized as prohibited<\/p>\n
fire arms. Regarding the seizure of Heroine in para 10 he has simply<\/p>\n
stated that seized Heroine was sent for its chemical examination at<\/p>\n
Forensic Science Laboratory besides this he has not stated anything to<\/p>\n
show that observing all legal formalities the seized article was sent for
\n                       19<\/span><\/p>\n
examination at Forensic Science Laboratory, Patna. In para 23 of his<\/p>\n
deposition, he has admitted that he did not investigate the case on these<\/p>\n
lines, as to who is the owner of the seized articles, though it was<\/p>\n
necessary for proving charge under Section 414 of the Indian Penal<\/p>\n
Code.\n<\/p>\n
         Counsel for the appellants submits that considering the<\/p>\n
evidence on record, it is apparent       that the appellants have been<\/p>\n
convicted under the aforementioned sections of the Arms Act without<\/p>\n
there being sufficient evidence to show that they were either owner or in<\/p>\n
possession of the articles for any illegal purposes as mentioned under<\/p>\n
Sections 25(1-A), (1-AA) and 25 (1-b) of the Arms Act, read with<\/p>\n
sections 26 and 35 of the Arms Act, as such the conviction of the<\/p>\n
appellant is completely against the evidence on record and contrary to<\/p>\n
provision under the Act, as such fit to be quashed.\n<\/p>\n
         Counsel for the appellants, regarding conviction of the<\/p>\n
appellants under Section 25(2) of the Antiquities and Art Treasures Act,<\/p>\n
1972, have submitted that for prosecuting any accused        for offence<\/p>\n
under this Act, it is mandatory that the sanction of the competent<\/p>\n
authority is taken,    unless the   sanction is obtained entire criminal<\/p>\n
proceeding and conviction is illegal. P.W. 11 the investigating Officer<\/p>\n
in paragraph 35 of his deposition has admitted that he did not make any<\/p>\n
attempt for obtaining sanction for prosecution and without any sanction
\n                      20<\/span><\/p>\n
the charge-sheet was submitted, cognizance was taken and trial was<\/p>\n
conducted in which judgment of conviction was passed by the trial<\/p>\n
Court. It has also been submitted that section 25 (2) of the Antiquities<\/p>\n
and Art Treasures Act, 1972 is the penal section for offences committed<\/p>\n
under the provisions of this Act. For conviction<\/p>\n
and punishment, there must be sanction as provided under section 26 of<\/p>\n
the Act and also it is essential that the articles seized be an antique item.<\/p>\n
For declaring any article as antique, it’s registration as an antique item is<\/p>\n
essential. Unless, an article is registered as provided under section 15 of<\/p>\n
the Antiquities and Art Treasures Act, no person can be held guilty<\/p>\n
under Section 25(2) of the Act, for commission of offence under<\/p>\n
Sections 13, 14 or 17 of the Act, which is punishable under Section<\/p>\n
25(2) of the Act. Considering the deposition of P.W.11 that there was no<\/p>\n
sanction for prosecution, initiation of criminal proceeding against the<\/p>\n
accused appellants under the provision of Antiquities and Art Treasures<\/p>\n
Act itself was illegal and without jurisdiction. On that count, the<\/p>\n
conviction and imposition of punishment is also illegal and bad, since,<\/p>\n
there is no documentary proof in support of these fact that the seized<\/p>\n
articles were the articles registered for its antiquity, appellantscould not<\/p>\n
have been convicted and punished under Section 25(2) of the Act.<\/p>\n
         Considering all these facts and evidence on record, the<\/p>\n
judgment of conviction passed by the trial Court for charges framed
\n                      21<\/span><\/p>\n
against the appellants is not sustainable, it is set aside. All appellants are<\/p>\n
in custody, they are directed to be released forthwith, if not wanted to<\/p>\n
remain in custody in connection with any other case.<\/p>\n
                                         (Mridula Mishra,J.)<\/p>\n
     Dharnidhar Jha,J:-\n<\/p>\n<\/p>\n
                                         (Dharnidhar Jha,J.)<\/p>\n
  Patna High Court
\n  Dated 19. 11.2010
\n  A.Kumar\/NAFR\n <\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-181376","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nMd. 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