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2013 DIGILAW 730 (PAT)

Ranjit Kumar Singh v. State of Bihar

2013-07-01

ADITYA KUMAR TRIVEDI

body2013
ORDER Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor. 2. Instant revision has been filed against an order dated 13.08.2010 passed by Sri Ranjit Prasad, Judicial Magistrate, 1st Class, Khagaria in G.R. No.615 of 1998, Trial No.1386 of 2010 holding the petitioner to be guilty for an offence punishable under Section 25(1-B)a as well as 26(i) of the Arms Act and further sentenced him to undergo R.I. for 3 years as well as with a fine of Rs.2000/- and in default thereof to undergo R.I. for 30 days so far offence under Section 25(1-B)a Arms Act is concerned and R.I. for a year as well as a fine of Rs.1000/- and default thereof to undergo R.I. for 15 days for an offence punishable under Section 26(i) of the Arms Act, as well as having Cr. Appeal No.25 of 2010 dismissed filed on his score vide order dated 29.08.2012 by the learned Sessions Judge, Khagaria confirming the judgment and sentence passed by the learned lower court. 3. Many fold argument have been raised on behalf of petitioner for the purpose of challenging the concurrent finding of the successive courts below. The first happens to be that PW-1 and 2 who happens to be the seizure list witnesses did not support, so far, recovery of illegal firearms along with cartridges are concerned from the possession of the petitioner. The second leg of argument happens to be that none of the PWs have asserted that soon after seizure of arms and ammunitions so alleged, proper identification marks were put on the seized arms and ammunition. They have not deposed that the seized arms and ammunition were ever sealed and so referring the decision reported in AIR 1998 SC 1660 , it has been submitted that it cannot be construed that the material exhibits which were produced before the court during course of trial happens to be the same which were allegedly seized from the possession of the petitioner. It has further been submitted that successive courts while adjudicating upon the matter have had overlooked the same and on account thereof, made the judgment of successive courts vulnerable and are fit to be set aside. 4. It has further been submitted that successive courts while adjudicating upon the matter have had overlooked the same and on account thereof, made the judgment of successive courts vulnerable and are fit to be set aside. 4. On the other hand, the learned Additional Public Prosecutor opposed the prayer and submitted that so far question of recovery is concerned, mere having PW-1 and 2 declared hostile is not going to change the scenario because of the fact that they have admitted their presence over the seizure list. Not only this, by not cross-examining the informant PW-3 as well as one of the member of raiding party PW-5, it is apparent that petitioner had not intended to challenge the factum of recovery of the legal firearms and ammunition from his possession. In the aforesaid background, it has been submitted that the decision so cited and relied upon by the learned counsel for the petitioner is found non-applicable. It has further been submitted that the seized article was produced in court in sealed condition and that is evident from the evidence of PW-8 during cross-examination itself and while having the material exhibit of those articles through PW-9, the Investigating Officer, the petitioner did not challenge / raised / cross-examined this witness on that very score. It has further been submitted that virtually none of the prosecution witness right from PW-3 to PW-9 has been challenged by way of cross-examination on this very aspect and on account thereof, the petitioner cannot seek any benefit because of the fact that it happens to be own lapses of the petitioner on this score. So the instant revision is fit to be dismissed. 5. While the informant, Ashok Kumar Singh along with raiding party as per instruction of the superior police official along with raiding party had gone to conduct raid at the house of Md. Moium Khan, an accused of Maheshkhut P.S. Case No.176 of 1997, he found one person coming out from his house in suspicious circumstance and on account thereof, he was apprehended. On search a country made loaded pistol along with charger having five live cartridges were recovered for which seizure list was prepared. The self-statement was recorded, investigation commenced and concluding the same, charge sheet was submitted. 6. On search a country made loaded pistol along with charger having five live cartridges were recovered for which seizure list was prepared. The self-statement was recorded, investigation commenced and concluding the same, charge sheet was submitted. 6. During conduction of trial, it is also apparent that altogether nine PWs have been examined in support of the prosecution case, although the petitioner during course of trial had declined the factum of seizure of firearms and ammunition but failed to produce any witness. During trial, it is apparent, that petitioner had taken it in casual manner on account of which certain evidence remained intact on account of non-cross examination of thePW-3, informant as well as PW-5 Narendra, one of the member of the raiding party. 7. In the aforesaid background as well as taking into account the evidence of PW-4, PW-6, PW-9 the material witnesses, it is apparent that they happens to be intact and firm suggesting alleged of recovery of loaded firearms ammunition from the possession of the petitioner which happens to be the version of the prosecution. 8. However, from the evidence of these witnesses, it is crystal clear that none of the prosecution witness had on their own disclosed that after recovery of loaded firearm, charger loaded with five cartridges, any identifying mark was put over the same as well as it was ever put under wrapped sealed condition. On this score the evidence of PW-7 ballistic expert is to be taken into account who in para-6 of his cross-examination had stated that the seized articles were not produce before him in duly wrapped sealed condition. He also had not returned the same in sealed condition. When this evidence is taken together with the evidence of PW-8, who had produce the arms and ammunition, from para-2, it is apparent that he had stated that the articles which has been produced by him was handed over to him in sealed condition. That means to say, other than the case property was produced before the Court. 9. At this juncture, the evidence of PW-3 informant is to be taken into account who had not disclosed that during course of investigation he had ever produced the seized arms and ammunition to the Investigating Officer. He had not stated where he had kept the arms and ammunition so seized. 9. At this juncture, the evidence of PW-3 informant is to be taken into account who had not disclosed that during course of investigation he had ever produced the seized arms and ammunition to the Investigating Officer. He had not stated where he had kept the arms and ammunition so seized. His evidence on this score is further found fortified with the evidence of PW-9 Ranjeet Kumar, the Investigating Officer as well as one of the member of the raiding party, by having totally silent whether during course of investigation he was ever handed over with the custody of arms and ammunition, whether he had put any identifying mark over the same, whether it was produced before ballistic expert in wrapped sealed condition and whether during course of exhibiting the material exhibit in court, any case number happens to be affixed over it or any identifying mark was there on the basis of which he was able to identify the seized article in court approximately after two years from the date of occurrence. 10. In the aforesaid background, certainly the prosecution left the major part vulnerable and exposed and on account thereof there was every likelihood of plantation and in the aforesaid background, I do feel that the law propounded by the Hon’ble Apex Court in Jasbir Singh vs. State of Punjab as reported in AIR 1998 SC 1660 is found fully applicable. For better appreciation paragraph 3 thereof is incorporated below:– “3. What is contended by the learned counsel for the appellant is that the prosecution evidence itself shows that the pistol and the cartridges alleged to have been recovered from the appellant did not have any number or some distinctive mark on them and after their seizure by the police they were not sealed. Thus the identity of the weapon and the cartridges seized and the weapon and cartridges produced before the Court was not established by the prosecution. Having gone through the evidence, we find that the contention raised on behalf of the appellant is correct and, therefore, deserves to be accepted. The pistol and the cartridges did not have any mark or any number on them and after seizing the same police had not thought it fit to wrap them and apply a seal over them. No explanation in that behalf was given by the prosecution witnesses. This aspect was not considered by the trial Court. The pistol and the cartridges did not have any mark or any number on them and after seizing the same police had not thought it fit to wrap them and apply a seal over them. No explanation in that behalf was given by the prosecution witnesses. This aspect was not considered by the trial Court. As the identity of the incriminating articles has not been established by the prosecution, we allow this appeal, set aside the conviction of the appellant both under Section 5 of the TADA Act and 25 of the Arms Act and acquit him of all the charges levelled against him”. 11. After going through the successive judgments, it is apparent that both the courts have virtually have not dealt with this aspect. In sum and substance, the successive orders are found unsustainable in the eye of law on this score and accordingly are set aside. Petition is allowed. Petitioner as disclosed by the learned counsel for the petitioner, happens to be under custody as such, is directed to be released forthwith if not wanted in any other case.