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2020 DIGILAW 73 (JHR)

Raj Kumar Dutta v. State Of Jharkhand

2020-01-14

RAJESH KUMAR

body2020
JUDGMENT Rajesh Kumar, J. - Heard the parties. 2. The present appeal is directed against the judgment of conviction dated 28.04.2006 and order of sentence dated 29.04.2006 passed by Shri Chandra Prakash Asthana, Addl. Judicial Commissioner, No.-VI, Ranchi in Spl. Case No.02 of 2004(N), whereby the appellant has been convicted under Sections 25(1-B)A and 26 of the Arms Act and sentenced to undergo rigorous imprisonment for two years with a fine of Rs.1000/- and in default thereof, further undergo simple imprisonment of three months for each section. It has been ordered that the sentence will run consecutively. It appears that the appellant has remain in custody from 18.04.2004 to 12.05.2006 i.e. more than two years. 3. Bariatu P.S. Case No.61 of 2004, corresponding to Spl. Case No.02 of 2004 (N) has been registered on 18.04.2004 on the selfstatement of Akhilesh Kumar Singh, officer-in-charge of Bariatu Police Station. As per the FIR, on 18.04.2004 the informant (P.W.1-Akhilesh Kumar Singh) has got confidential information that the appellant is involved in sale and purchase of Ganja, Fire Arms and Cartridges. It has been note down in the police station diary and requisition has been sent by memo no.256 of 2004 for deputation of Magistrate. Along with Magistrate and police party, the raid has been conducted on 18.04.2004. Large quantity of Ganja, Fire Arms with cartridges has been recovered from the possession of the appellant which were kept in his house. 4. On the basis of FIR, investigation has been conducted and appellant has been charge-sheeted under Sections 25(1-B)A and 26 of the Arms Act and also under Sections 20 and 22 of the N.D.P.S. Act. Cognizance was taken and charge had been framed under above sections to which the appellant pleaded not guilty and claimed to be tried. 5. To substantiate the prosecution story, ten witnesses have been examined. P.W.1-Akhilesh Kumar Singh is the officer-in-charge of Bariatu Police Station and informant of the case. P.W.2-Ashok Kumar Pandey is an independent witness who put his signature on the seizure list. P.W.3-Badrinath Choubey has proved his signature on the seizure list. P.W.4-Gopalji Jha has proved the forwarding letter issued by F.S.L., Ranchi and the report of F.S.L. on the point of Ganja. P.W.5-Raj Kishore Prasad is the Police Inspector who was member of the raiding party. P.W.2-Ashok Kumar Pandey is an independent witness who put his signature on the seizure list. P.W.3-Badrinath Choubey has proved his signature on the seizure list. P.W.4-Gopalji Jha has proved the forwarding letter issued by F.S.L., Ranchi and the report of F.S.L. on the point of Ganja. P.W.5-Raj Kishore Prasad is the Police Inspector who was member of the raiding party. P.W.6-Ravikant Prasad is the S.I. and a member of the raiding party and put his signature on the seizure list. P.W.7-Randheer Kumar, P.S.I, O/C Sadar, is also a member of raiding party. P.W.8-Vijay Kumar Choudhary has made the enquiry report. P.W.9-Nand Kishore Singh is the investigating officer of the present case. P.W.10-Ashok Kumar Sinha has proved the Ext.-12 and supported the prosecution sanction report. 6. Various Exts. have been marked showing the recovery of the Fire Arms, Cartridges and Ganja. After considering the evidence, the appellant has been acquitted from the charges under Sections 20 and 22 of the N.D.P.S. Act but he was convicted under Sections 25(1-B)A and 26 of the Arms Act. 7. Counsel for the appellant has thrown limited challenge to the impugned judgment. As per the counsel for the appellant, the narrative itself suggests that the appellant can be convicted only under Section 25(1-B)A of the Arms Act and ingredients of Section 26 of the Arms Act is not made out. The appellant has remained in custody for more than two (02) years and has deposited the fine amount, and as such, he has already served out the sentence for conviction under Section 25(1-B)A of the Arms Act. 8. To buttress his point, the counsel for the appellant has relied upon Paras-7 to 10 of the judgment of Patna High Court reported in the case of Chandan Sonkar vs. State of Bihar, (1997) 2 ECriC 118 (Pat) . The relevant paras are quoted hereinbelow:- "7. Before appreciating the submission of the learned counsel, it would be useful to look into the provisions of Section 26(3) of the Arms Act which reads as under:- "26. The relevant paras are quoted hereinbelow:- "7. Before appreciating the submission of the learned counsel, it would be useful to look into the provisions of Section 26(3) of the Arms Act which reads as under:- "26. Secret contraventions.-(1) Whenever does any act in contravention of any of the provisions of Sections 3, 4, 10 or 12 in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and also with fine. (2) Whoever does any act in contravention of any of the provisions of Sections 5, 6, 7 or 11 in such as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle, or may any other means of conveyance, shall be punishable with imprisonment for term which shall not be less than five years but which may extend to ten years and also with fine. (3) Whoever on any search being made under Section 22 conceals or attempts to conceal any arms or ammunition, shall be punishable with imprisonment for a term which may extend to ten years and also with fine". From bare perusal of the aforesaid section, it is manifest that mere holding or possessing firearms is not enough but the possession of firearms must be in such a manner which would indicate the intention of the person to conceal the same so that the public servant may not know the concealment of the firearms. 8. A similar question arose for consideration before a Bench of Lahore in the case of Channan Singh v. The Crown, (1925) AIR Lahore 395 (2) . The Prosecution story in that case was that the gun was kept on a charpoy (cot) upon which the accused was sitting and was covered with a dotahi (clothe). The question before their Lordships was as to whether the accused was guilty of having committed an offence under Section 20 of the Indian Arms Act, 1878 (now Section 26 of the Arms Act, 1959). The question before their Lordships was as to whether the accused was guilty of having committed an offence under Section 20 of the Indian Arms Act, 1878 (now Section 26 of the Arms Act, 1959). Their Lordships held as under:- "It is clearly proved that the gun in question was found in possession of the appellant but it appears to me very doubtful whether he can be convicted under Section 20 of the Arms Act. That section only applies where the possession is such that as to indicate an intention that such act may not be known to any public servant as defined in the Indian Penal Code, or to any person employed upon a railway or to the servant of any public carrier. In the present case the gun was upon a charpoy upon which Channan Singh was sitting and was covered with a dotahi. It was held by Kenisngton, J. in Ibrahim v. Crown (1), following Crown v. Azu (2) and Ahmed Hussen v. Queen Empress (3) that Section 20 of the Arms Act applies only to cases where the import or export of arms is attempted and not to every case of possession or concealment of arms. I am not aware that this ruling has ever been dissented from by this Court and am disposed to agree with it. When a man is in illegal possession of arms, he does not usually carry them openly but takes some steps to conceal them from the public. Something more than a mere ordinary concealment should be established in order to bring the possession within the meaning of Section 20." 9. In the case of Pabitar Singh v. State,1969 BLJR 845 a Bench of this Court was considering the question whether conviction under Section 26 of the Arms Act was justified. In that case, the prosecution story was that on raid being conducted in the house of the accused person, the concealed gun was found in the kitchen room lying in between two bricks. A tin containing flour in a bag covered with a brass thali was placed thereon. On a search of the bed room of the quarter 12 bore cartridges were found kept in a small cloth behind a framed picture of Lord Shiva which was handing from a wall and resisting on three iron nails fitted in the wall. A tin containing flour in a bag covered with a brass thali was placed thereon. On a search of the bed room of the quarter 12 bore cartridges were found kept in a small cloth behind a framed picture of Lord Shiva which was handing from a wall and resisting on three iron nails fitted in the wall. In the facts and circumstances of that case, this Court held as under:- " .The present charges are confined to clause (a) of the aforesaid section, that is to say, concealment of the country-made gun in such a manner as to indicate an intention that it may not be known to any public servant. Mere concealment is not enough. The Prosecution has to prove that the concealment was with the intention that it may not be known to any public servant etc. In order to find the petitioner guilty under Section 26 of the Arms Act, the prosecution has, therefore, to prove some special circumstances from which the only reasonable inference should be that the concealment was from the public servant. Whether the inference as required under Section 26 is justified must depend upon particular circumstance of each case. In support of this proposition, reference can be made to decisions in Ganga Prasad v. Emperor, Chet Singh v. Emperor and Ram Chandra v. Rex. In all these cases, it has been laid down that there must be evidence of special concealment contemplated by Section 20 (now the new Section 26). 10. In the instant case, the only finding recorded by the learned Sessions Judge in paragraph 17 of the judgment is as follows:- " Further on consideration of the materials on record, I find and hold that the manner in which the firearms and ammunitions were kept concealed by the accused shows that there was the intention that such concealment of unlicensed firearms and ammunitions may not be known to any public servant. Hence, the charge under Section 26 (1) of the Arms Act is also established against the accused Chandan Sonkar". The learned Sessions Judge has not referred any evidence or material in his judgment which was available on record for coming to this finding that the concealment was with the intention that such concealment may not come to the knowledge of any public servant. The learned Sessions Judge has not referred any evidence or material in his judgment which was available on record for coming to this finding that the concealment was with the intention that such concealment may not come to the knowledge of any public servant. I myself analysed the evidence of the prosecution witnesses and found that it has not come in the evidence that the appellant was aware of the fact that a raid to be conducted by the police and in order to conceal the firearms from the raiding party the appellant concealed the said arms. In absence of such evidence, the conviction of the appellant under Section 26 (1) of the Arms Act is not justified. As stated above, the only allegation is that firearms were found in possession of the appellant which was wrapped in a cloth and was kept beneath the cot and the sofa. This itself is not sufficient to come to an inference that the concealment of the arms was with the intention that it may not be known to the public servant. The conviction of the appellant under Section 26 (1) of the Arms Act, in my opinion, cannot be sustained in law and is liable to be set aside." 9. Thus from mere perusal of the Sections and above decision, it is evident that the necessary ingredients for conviction under Section 26 of the Arms Act is ''concealment''. In the present case, there is no such allegation rather the allegation clearly shows that the petitioner was dealing these articles for sale and purchase. The ingredients of Section 25(1-B)A of the Arms Act is made out and accordingly he has been convicted. 10. Learned APP has oppose the prayer but he could not point out the allegation of concealment of arms which is necessary ingredients of Section 26 of the Arms Act. 11. Considering the evidence and material available on record, this Court finds that the ingredients of Section 26 of the Arms Act is not made out and as such the appellant is discharged from the said Section. Accordingly, the judgment of conviction dated 28.04.2006 and order of sentence dated 29.04.2006 passed by Shri Chandra Prakash Asthana, Addl. Judicial Commissioner, No.-VI, Ranchi in Spl. Case No.02 of 2004(N) is modified to the extent that conviction of sentence under Section 26 of the Arms Act is set aside. 12. Accordingly, the judgment of conviction dated 28.04.2006 and order of sentence dated 29.04.2006 passed by Shri Chandra Prakash Asthana, Addl. Judicial Commissioner, No.-VI, Ranchi in Spl. Case No.02 of 2004(N) is modified to the extent that conviction of sentence under Section 26 of the Arms Act is set aside. 12. Since the appellant has already served the sentence imposed upon him for conviction under Section 25(1-B)A of the Arms Act and as such he is discharged from the liability of his bail bond. 13. Accordingly, this appeal is disposed of with the aforesaid modification of the judgment of conviction dated 28.04.2006 and order of sentence dated 29.04.2006 passed by Shri Chandra Prakash Asthana, Addl. Judicial Commissioner, No.-VI, Ranchi in Spl. Case No.02 of 2004(N).