GOPAL PRASAD, J.:–Heard. Two appeals are being heard together and disposed off by common order as two appeals arise in Sessions Trial No. 688/692 of 2010/2011 passed by Sri Ajay Kumar Srivastava, learned 2nd Additional Sessions Judge, East Champaran, Motihari, by which both appellants convicted for offence under Sections 4(b)(i) of Explosive Substance Act and sentenced to imprisonment for ten years along with fine of Rs. 5000/- each and in default of payment of fine, to under rigorous imprisonment for three months. Further they were convicted for offence under Sections 25(i)a of Arms Act and sentenced to rigorous imprisonment for five years along with fine of Rs. 5,000/- (five thousand) and in default of payment of fine further sentenced to rigorous imprisonment for three months. Further they were convicted for offence under Section 26 of the Arms Act and sentenced to undergo rigorous imprisonment for three years along with fine of Rs. 3000/- (Three thousand) each and in default of fine further sentenced to under imprisonment for one month. All the sentenced shall run concurrently. 2. The prosecution in the First Information Report that on the written report of informant, namely, Lokesh Kumar Singh, the then Assistant Commandant 13th B.N. S.S.B. Pantoka, gave a written report to S.H.O, Raxaul Police Station, alleging therein that on 01.06.2009 he received secret informant that two Nepali persons are shifting rental house at Kaudihar Chowk and they are possessing explosive and bomb. After getting such information, the S.S.B. searching party under leadership of informant reached at the spot at Bikash Vihar near Kaudihar Chowk and found that two persons were ready to shift with some belongings to some where else. It is further alleged that S.S.B. searching party requested the accused persons to get check their belongings and in presence of two independent witnesses namely, Dhruv Prasad and Neyaz Alam, the searching party checked their belongings and found that they were possessing explosive substance like Gelating three packets (600) grams approx) gun power 100 gms, safety fuse 1/2 meter, other explosive (while power 250 gms) one Honda shine motor cycle, one nokia mobile besides normal house hold belongings. On interrogation they disclosed that they belongs to Madhesi Mukti Tigers Association of Nepal and above contraband items belongs to them. On interrogation they disclosed that they belongs to Madhesi Mukti Tigers Association of Nepal and above contraband items belongs to them. They also informed that some other persons related to this party are residing in Mauze Mohalla in Raxaul and they are possessing arms and ammunition and explosives. On the said information S.S.B. searching party reached that location with apprehended persons and on search further arms, ammunition and materials related to bomb, i.e. 9 M.M. ball, rifle, sulphuric acid urea gun powder etc. were recovered in presence of two independent witnesses. Both of them admitted their guilt. On the written report of the informant, F.I.R. lodged. Thereafter, investigation proceeded and charge sheet submitted, cognizance was taken and case was committed to the court of sessions. During trial eleven witnesses have been examined and trial court after taking into consideration the evidence of witnesses convicted the appellants as mentioned above. 3. Learned counsel for the appellants however contended that out of eleven witnesses examined P.W. 1 and 2 are seizure list witnesses. P.W. 3 to 9 are the members of the raiding party. P.W.10 is informant and P.W. 11 is the I.O., though, P.W. 1 and 2 have not supported the prosecution case regarding recovery of seized articles. It is further submitted that article seized has not been produced before the court nor article seized were sealed or marked with distinction at the time of seizure, nor Sergeant Major who examined the arms were examined nor Sergeant Major and expert of Forensic Science Laboratory have come to depose nor report of article seized has been produced and hence prosecution has not been able to prove the charges and report has only formally been proved by the I.O. and sanction prosecution has formally been proved by the I.O. 4. Learned counsel for the State however supported the order of conviction and sentence and asserted that witnesses have supported the prosecution case regarding search and seizure of the article and the same was sent to Sergeant Major and Forensic Science Laboratory and report has been proved. 5. However the prosecution case that informant that F.I.R. lodged on the basis of written report of Assistant Commandant 13th B.N. S.S.B. Pantoka that on secret information two persons apprehended and from their possession arms, ammunitions and explosive substance were recovered, seizure list prepared. Thereafter, the matter was reported the police. 5. However the prosecution case that informant that F.I.R. lodged on the basis of written report of Assistant Commandant 13th B.N. S.S.B. Pantoka that on secret information two persons apprehended and from their possession arms, ammunitions and explosive substance were recovered, seizure list prepared. Thereafter, the matter was reported the police. On the basis of written report, F.I.R. lodged. Police after investigation submitted charge sheet. However, P.W. 1 and 2 are the independent seizure list witnesses who have not been supported the prosecution case. P.W. 3 to 10 are the raiding party and have supported the prosecution case that explosive substance, arms and ammunitions were recovered and the persons who are apprehended and from their possession arms were seized disclosed their names as Parmatama Yadav and Mukesh Kumar. P.W. 10 is informant and stated that he prepared seizure list with regard to seized article marked as Exhibit 2 to 2/1 and has prved written report marked as Exhibit-3. P.W. 11 is the I.O. has stated that written report was given to the Officer-in-Charge, Raxaul and Officer-in-Charge endorsed the investigation and endorsement has been marked as Exhibit-4. He has stated that during investigation, some cartridges, explosive substance was handed over to him which was sent to Sergeant Major and explosive substance was sent to Forensic Science Laboratory, Patna and received report has been formally proved. The report of Sergeant Major and F.S.L. report have been marked as Exhibit-5 and 6. However, neither Sergeant Major nor expert from the F.S.L. was examined to prove the report or neither to face cross-examination nor arms or explosive substance were ever produced nor has been marked as exhibit. However, neither in the evidence of the I.O. nor there is any detailed report of the article which was sent to Sergeant Major for examination and there is no report whether arms were effective or not nor article seized have ever been produced before the court. 6. However, neither in the evidence of the I.O. nor there is any detailed report of the article which was sent to Sergeant Major for examination and there is no report whether arms were effective or not nor article seized have ever been produced before the court. 6. However, mere prove or formal report of expert without producing article and without examination of the Sergeant Major, it is difficult to suggest that what articles were seized and whether article seized were sent to or which article were sent for examination, nor expert has come to depose or the accused get opportunity to cross-examine and report is only corroborative part of evidence and in absence of the Sergeant Major or expert from Forensic Science Laboratory, accused persons got prejudice as they could not get opportunity to get examine. Neither article seized has been proved nor marked or sealed nor it has been stated that they were sent to Sergeant Major after due marking or seal nor expert has come to depose that articles seized were examined by him and were found to be effective or part of fire arms nor the expert has been examined and hence it is difficult to hold in the situation articles were seized of fire arms or explosive substance. The trial court misdirected itself in holding that articles seized were explosive substance or fire arms in absence of non-examination of Sergeant Major and article seized having been produced before the court. Without examination of expert and producing the fire arms, order of conviction and sentence can not sustain in absence of clear evidence that articles seized were firm arms or explosive substance. Moreover, sanction has been formally proved. 7. Hence order of conviction and sentence cannot sustain as the prosecution has not been able to prove the charges and articles seized were examined and non-examination of expert has caused prejudice to the appellant. Accordingly, order of conviction and sentence recorded by the trial court is hereby set aside and two appeals are allowed. Both the appellants, namely, Mukesh Kumar Sah @ Mukesh Sah, and Pramatama Yadav @ Parmatma Prasad Yadav, who are in custody, be set at liberty forthwith, if not required to be detained in any other case. ?