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2012 DIGILAW 703 (GAU)

Md. Moinul Haque v. State of Assam

2012-06-06

P.K.MUSAHARY

body2012
JUDGMENT Hon'ble Mr. Justice P.K. Musahary 1. I have heard Mr. HRA Choudhury, learned Senior counsel assisted by Mrs. A. Begum for the convict/petitioner and also Mr. D. Das, learned Addl. P.P. Assam, for the State respondent. The facts leading to the filing of this petition are that the petitioner was convicted under Section 25(1)(a) of the Arms Act, 1959, and sentenced to serve R.I. for 3 years and pay fine of Rs. 1,000/- only and in default R.I. for 3 months, which would run separately, by the learned Sub-Judicial Magistrate, Hojai, Sankardev Nagar, vide judgment dated 20.11.03 passed in GR No. 203/1990, against which he preferred an appeal before the learned Sessions Judge, Nagaon being Crl. Appeal No. 55 (N)/03. The said appeal was dismissed by the learned Additional Sessions Judge, Nagaon, vide judgment dated 22.4.2004 upholding the conviction and sentence passed by the learned trial court. The convict petitioner further challenges the appellant court's order by filing the present petition. 2. Now coming to the prosecution story, it is to state that one ASI of Police while looking for a criminal, searched the house of the petitioner and recovered/seized one handmade pipe gun, dagger and other incriminating articles from his almirah. The accused petitioner failed to produce his licence in respect of the gun recovered from his house. He, however, explained that his brother-in-law named Budu, who is a known dacoit, gave him the said arms. Arms were seized by preparing the seizure list in presence of some witnesses and it was sent for scientific test. The Scientific Officer, Ballistics Division, found the fire arm serviceable designed to fire 12 bore shot gun cartridges. The ASI of Police who searched the house of the accused petitioner submitted a written FIR and he himself conducted the preliminary investigation. During investigation he recorded the statement of witnesses and sent the seized articles to Ballistics Division. After obtaining the prosecution sanction from District Magistrate, another ASI of Police, Sri Akkash Ali, submitted a charge-sheet under Section 25(1)(a) of the Arms Act. The accused petitioner was convicted and sentenced by the learned trial court and the appeal filed by him was also dismissed by the appellate court below as already narrated earlier. 3. Mr. After obtaining the prosecution sanction from District Magistrate, another ASI of Police, Sri Akkash Ali, submitted a charge-sheet under Section 25(1)(a) of the Arms Act. The accused petitioner was convicted and sentenced by the learned trial court and the appeal filed by him was also dismissed by the appellate court below as already narrated earlier. 3. Mr. Choudhury, learned Senior counsel, urged before this Court the following points seeking quashment of the impugned conviction and sentence - (i) The conviction and sentence as awarded by the court below are vitiated inasmuch as the informant police ASI, who lodged the FIR against the accused petitioner, investigated the case, which is not permissible under the existing criminal law. (ii) The informant ASI entrusted in himself the task of investigation thereby causing prejudice to the petitioner and vitiated the entire proceeding for which the conviction and sentence is liable to be set aside and quashed, (iii) The provisions of Section 25(1)(a) of the Arms Act are not attracted on the facts and circumstances of the case, (iv) The petitioner is not liable under Section 25(1)(a) of the Arms Act inasmuch as he had no conscious possession of the seized fire arms. The articles were not seized in presence of independent witnesses and PW 2 did not support the prosecution case in respect of seizure of the seized articles. (v) The prosecution failed to examine Akkash Ali, ASI of Police, the 2nd I.O. who completed the investigation and submitted the charge-sheet, (vi) the learned courts below failed to notice or take into consideration that on the basis of evidence on record two views are possible; one against the accused petitioner and the other in his favour and the Court, as per the established law, is to accept the possible view of innocence and thereby order acquittal. 4. Mr. Das, learned Addl. P.P., countered the above submission by arguing that there is no law that a police officer who lodged the FIR can not authorize himself and undertake investigation. The points raised by the learned counsel for the petitioner, according to Mr. Das, call for no consideration by a revisional court. 4. Mr. Das, learned Addl. P.P., countered the above submission by arguing that there is no law that a police officer who lodged the FIR can not authorize himself and undertake investigation. The points raised by the learned counsel for the petitioner, according to Mr. Das, call for no consideration by a revisional court. On the face of the evidence on record proving the recovery of unauthorized fire arms from the almirah of the petitioner and the seized fire arm tested serviceable in the scientific test, the learned trial court committed no wrong in convicting and sentencing the petitioner and similarly the learned appellate court also rightly upheld the order of conviction and sentence dismissing the appeal. He argues that there being concurrent findings with reasoned judgment and order, no interference with the impugned order of conviction and sentence is warranted and the present petition is liable to be dismissed. 5. I have noticed that the convict petitioner has not denied the fact of search of his house by police and recovery/seizure of the fire arms from his almirah. He has also not questioned the report (Ext. 4) of the Scientific Officer, Ballistic Division on serviceability of the seized fire arms. The objection of the petitioner is confined to authority of the informant, ASI of Police, who entrusted himself and undertook the investigation and the manner in which the seizure list was prepared in absence of independent witness. 6. Before coming to the legal questions raised, it is felt necessary to scan the evidence of some important witnesses. PW 1, Md. Habibur Rahman, was the VDP Secretary. He made significant statement before the court that the accused had a quarrel on the date of occurrence and informed the local police about the same and accordingly, the police came to the house of the accused in the early morning. The police recovered the hand-made fire arm and other things from the house of the accused. As per the evidence of this witness, the accused married a 2nd wife from village Jamuna. The brother of Safia Begum (wife of the accused) who was known as Budu was a dacoit. He used to visit the house of the accused. Budu's house is situated nearby the house of the accused on the other side of the road. Budu kept his second wife at her house at Jamuna village. The brother of Safia Begum (wife of the accused) who was known as Budu was a dacoit. He used to visit the house of the accused. Budu's house is situated nearby the house of the accused on the other side of the road. Budu kept his second wife at her house at Jamuna village. Due to this the accused had quarrel with his first wife. The key of the almirah was with his first wife Safia Begum The police asked Safia Begum to open the lock and accordingly she opened the lock. On opening the almirah the incriminating articles were found and seized. The seizure and preparation of seizure list was made in presence of VDP Secretary, Habibur Rahman and some villagers present at the time of search and seizure of the articles. 7. The evidence of PW 1 has been corroborated by PW 3, Sri Krishna Kanta Gogoi, Habildar of Police. PW 4, Sri Abisranta Konwar, Police ASI and informant of this case, who investigated the case at the initial stage, corroborated the evidence of PW 1 in all material particulars except in regard to the condition of the almirah from which the seized articles were recovered. He categorically stated that the almirah was without any door. Therefore, there is a contradiction in the evidence of aforesaid prosecution witnesses in regard to the condition of the almirah. 8. Apart from the above contradiction, it is to be noted that PW 2, Mustt. Safia Begum did not support the prosecution. She denied that her accused husband due to family dispute was taken into custody by the police. She also admitted that the police raided her house but nothing incriminating was recovered. She also sated that the police obtained her signature on a piece of white paper and the police did not interrogate her. Interestingly, this witness was not declared hostile. No prayer was made to that effect by the prosecution at the time of recording her evidence. The defence naturally declined to cross-examine this witness. The learned trial court as well as the learned appellate court did not deal with this aspect of the case. There is no discussion in the impugned judgment whether the prosecution story as regards the recovery of seized articles is believable. The defence naturally declined to cross-examine this witness. The learned trial court as well as the learned appellate court did not deal with this aspect of the case. There is no discussion in the impugned judgment whether the prosecution story as regards the recovery of seized articles is believable. There is also no discussion whether on the face of evidence of PW 1, 3 and 4 on one side and PW 2 on the other side who was not declared hostile, whose evidence should be treated reliable and acceptable for recording conviction. I will come on this point at the later stage of the judgment. 9. Even assuming for the moment that the police party did recover the hand-made fire arms, it is necessary to find out what steps the concerned police officer connected with the investigation took and how the said seized fire arm was sent to the FSL/Scientific Ballistic Division. I have thoroughly gone through the record of the trial court( File - 'A' relating to GR No. 203/90). The prosecution claimed that the fire arm was seized on 11.4.90 and the seizure list was also prepared on the said date. The I.O. of the concerned police station made an application requesting the learned SDJM, Hojai, permission to send the seized pipe gun to the Director of FSL for test. The said prayer was allowed by the learned SDJM vide order dated 3.8.1990. The learned SDJM recorded in the said order that the seized pipe gun was packeted and sealed in his presence. He also directed the police to send the seized pipe gun to the Director, FSL with marked exhibit and authority slip. From the above order, it is quite clear that the police kept the seized pipe gun in their custody for 125 days from the date of seizure on 11.4.1990 till the date of production before the learned SDJM, on 3.8.1990. Whether the seized gun was kept by the I.O. ? Was it kept under a sealed cover while the seized article was in the custody of police ? There is nothing on record that the seized pipe gun was kept in sealed cover immediately after the seizure. Usually such seized fire arm should be kept in the Malkana with the order of the Magistrate concerned. The record does not reveal that the seized arm was kept in the Malkana. There is nothing on record that the seized pipe gun was kept in sealed cover immediately after the seizure. Usually such seized fire arm should be kept in the Malkana with the order of the Magistrate concerned. The record does not reveal that the seized arm was kept in the Malkana. If it was kept in the Malkana it should have been proved by the prosecution by producing the Malkana register. It was not done so and no evidence was led by the prosecution in that regard. The police officials, particularly PW 4, the informant and I.O. of the case, made no statement in that regard in their evidence before the trial court. 10. From the record, it appears that the seized pipe gun was sent to the Director, FSL at Guwahati and it was received at this office. But thereafter, the I.O. concerned informed the learned SDJM with a report that by mistake the authority certificate along with the exhibit was not sent to the Director, FSL at the time of sending the exhibit(MR 8/90). As a measure of correction the I.O. concerned requested the CJM to issue fresh authority certificate and send the exhibit to the Director of FSL. The learned SDJM accordingly gave his approval vide order dated 1.11.1990. The I.O. concerned informed the learned SDJM that the duplicate copy of the exhibit could not be submitted as the original forwarding report and authority certificate by mistake remained inside the exhibit and made a prayer for approval of the learned CJM to send the forwarding report to the Director, FSL, afresh. The approval was given by the CJM as reflected from his order dated 9.1.1991. From the above, there is no doubt that the prosecution,and for that matter the police officials concerned, did not take proper care and steps for keeping the seized arm under the safe custody in sealed cover till it was produced before the learned SDJM and even in dispatching the seized arm to the Director of FSL. The callousness of the Investigating Authority, as found above, cast doubt on the entire matter and the credibility of the prosecution. The callousness of the Investigating Authority, as found above, cast doubt on the entire matter and the credibility of the prosecution. The prosecution has failed to satisfy the Court that there was no chance of manipulation while the seized pipe gun was in the custody of the police for a long period of 125 days, more so when the prosecution offered no explanation for keeping the seized article with the police in a doubtful manner for a long period without the permission of the Magistrate concerned. What actually prevented the police from not producing the seized fire arm before the Magistrate is beyond the comprehension of the Court. It is an illegality to the discredit of the prosecution. Now coming to the evidence of PW 5, Sri Monaranjan Talukdar, Scientific Officer, FSL, Guwahati, I find in his evidence that he received the exhibit i.e. the seized arm on 22.3.1991 in sealed condition. He stated that a separate memo was given inside the box but there was no mention of any receipt or separate memo in Ext. 4. He tested the gun and prepared a report with his finding. He tested the gun on firing but it was not stated so in his report. From the evidence of PW 5, it is confirmed that the seized article was sent to the FSL much later. 11. The prosecution claimed that the recovery and seizure in presence of independent witnesses, particularly PW 1, VDP Secretary. PW 1 was the person who informed the police about the quarrel that took place between the accused and his wife and he called the police. He is a party to the raid and search police team. Being the VDP Secretary and a respectable person for calling the police to the house of the accused, he is not to be regarded as an independent witness to the search and seizure. There were as many as 4 seizure witnesses. They are from the same village who may be regarded as independent witnesses but none of them was examined by the prosecution to prove that the articles were seized and the seizure list was prepared at the place of occurrence in their presence. The prosecution has to prove that at the time of raid and search the independent witnesses were called by the police and they were present at the time of search and seizure. The prosecution has to prove that at the time of raid and search the independent witnesses were called by the police and they were present at the time of search and seizure. The informant PW 4 never stated in his evidence that he called the independent witnesses and on his call the seizure witnesses came to the house of the accused to witness the search and seizure. For want of such evidence in the deposition of the I.O. who led the police team in the raid and search, the prosecution cannot claim that all the seizure witnesses, including the VDP Secretary, can be accepted. There is no explanation by the prosecution why at least one of the witnesses to the search and recovery of the seized articles, particularly the fire arm, was not produced and examined during trial. The court, however, accepted the claim of the prosecution that search and seizure was made in presence of 4 (four) eye witnesses. This is not acceptable to me. There is a difference between witnessing the search and seizure of incriminating articles by police and obtaining the signatures of some local persons as seizure witnesses. The seizure list may be prepared in presence of independent local persons but it would not mean that the recovery/seizure of articles was made in presence of the seizure witnesses. Here lies the importance and necessity of examining the seizure witnesses to testify that they were present and witnessed the recovery and seizure of seized articles and they are not merely witnesses to preparation of seizure list. For want of such evidence, the deposition of the seizure witnesses could be discarded as bereft of evidentiary value. I am taking this view on the face of the evidence of PW 2, wife of the accused person, who, according to the prosecution, was present at the time of raid and search but she denied the very basic fact of recovery/seizure of the seized articles. She stated in her evidence that her signature was obtained by police on a piece of white paper and the police did not record her statement during investigation. This important witness deposed against the prosecution and the prosecution did not ask the court to declare her hostile to take the opportunity of cross examination and demolishing her evidence against the prosecution. The evidence of PW 2 has remained unimpeached. This important witness deposed against the prosecution and the prosecution did not ask the court to declare her hostile to take the opportunity of cross examination and demolishing her evidence against the prosecution. The evidence of PW 2 has remained unimpeached. The learned courts below could not appreciate the consequences of not getting the said PW 2 declared as hostile and not taking the opportunity of cross-examination and completely became oblivious about the same. 12. The law requires that before conducting a search the concerned police officer is bound to call upon some independent respectable people of the locality to witness the search. It may be dispensed with in case independent person is not available in a given case. In such a situation, if the police conducts the search, it can not be disbelieved simply on the ground that no independent and respectable witness was examined by the prosecution. Here is a case where the search was made in a village and it was possible to call and have the presence of independent and respectable persons of the village. The learned courts below put overemphasis and reliance on the evidence of the village VDP Secretary (PW1), who was not an independent witness in real sense as he was a party to the raid and search by police. In this regard reference may be made to the decision of the Apex Court in Sahib Singh -Vs.- State of Punjab, reported in AIR 1997 SC 2417 , wherein it has been observed and held in paragraph 7 as reproduced below- Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found --- as in the present case --- that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility. We next find from the record that the arms and ammunitions allegedly recovered from the appellant and seized were not packeted and sealed. In Amarjit Singh V. State of Punjab, 1995 Supp (3) SCC 217 this Court has observed that non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. From the record we further find that there is no evidence to indicate with whom the revolver was after its seizure by P.W. 3 till it was sent to the Arms Expert for testing through constable Baita Singh. This missing link also weakens the prosecution case. For all these infirmities we are of the view, that the appellant is entitled to the benefit of reasonable doubt. 13. I do not deem it necessary to examine the other legal questions raised by the learned counsel for the parties. On consideration of the materials, perusal of the case records and the evidence on record, I hold that the prosecution, apart from committing serious lapses underlined in the forgoing paragraphs of the judgment, miserably failed to establish the case against the convict petitioner. The petitioner is entitled to acquittal. The impugned order of conviction and sentence rendered by the courts below are hereby set aside and quashed. The convict petitioner stands acquitted. The bail bond stands discharged. The petition stands allowed. The records may be returned forthwith. Petition allowed.