Research › Search › Judgment

Jharkhand High Court · body

2022 DIGILAW 652 (JHR)

Azim Ansari v. State of Jharkhand

2022-06-14

DEEPAK ROSHAN

body2022
JUDGMENT : Heard learned counsel for the parties. 2. The instant application has been preferred by the petitioners assailing the judgment dated 12.06.2004/12.08.2004 passed by the Addl. Judicial Commissioner, Fast Track Court, Ranchi in Criminal Appeal No. 15 of 2002 corresponding to T.R. No. 06 of 2003, whereby the appeal of the petitioners were dismissed and judgment of conviction and order of sentence, both dated 08.02.2002, passed by the learned Judicial Magistrate, Ist Class, Ranchi in G.R. No. 2840 of 1996 has been confirmed whereby the petitioners were convicted under Section 25 (1-B) (a) and 26 of the Arms Act and they were sentenced to undergo rigorous imprisonment for a period of two years six months and a fine of Rs.1,000/- and in default two months simple imprisonment under Section 25 (1-B) (a) and further same sentence was given under Section 26 of the Arms Act also. Both the sentences were directed to run concurrently. 3. The prosecution case in brief is that the informant was on round to maintain law and order duty along with his A.S.I. and a constable and while going towards market when they reached near the house of Durga Prasad, they saw two persons coming from front, who after seeing the informant and his associates, tried to flee away. They were chased and one was caught while fleeing away. The other threw away a six round loaded pistol there. The person caught was Shamim Ansari and from his possession one dagger and three cartridges were recovered which were seized. 4. Ms. Surbhi, learned Amicus, at the outset, submits that the seizure list witness has been declared hostile inasmuch as he has stated that he has signed on a blank paper and nothing has been recovered in his presence and that is the reason he has been declared hostile. Since entire case of the prosecution is based on the seizure, as such it was incumbent upon the prosecution to prove the seizure list and in absence of independent witness the same cannot be said to be proved. Since entire case of the prosecution is based on the seizure, as such it was incumbent upon the prosecution to prove the seizure list and in absence of independent witness the same cannot be said to be proved. She further referred to NARESH KUMAR ALIAS NITU Versus STATE OF HIMACHAL PRADESH reported in (2017) 15 SCC 684 , wherein the Hon’ble Apex Court has held that in a case of sudden recovery, independent witness may not be available, but if an independent witness is available and the prosecution initially seeks to rely upon him, it cannot suddenly discard the witness because it finds him inconvenient. In the present case, it appears that the independent witness has been declared hostile in the same manner and as such in that background the conviction of the petitioners should be set aside. Mr. S.K. Upadhyay, learned counsel for the petitioners further submits that the recovery of Dagger from Petitioner No. 2 is not an offence under the Arms Act and further admittedly three cartridges were recovered from Petitioner No.2, but in absence of any weapon the said three cartridges were useless, as such this aspect should have been considered by the trial court before deciding this case. He further submits that even otherwise the Petitioner No.1 remained custody for 256 days while Petitioner No.2 remained in custody for 175 days, as such, looking to the age of the accused persons and in the light of the fact that the trial court has not taken into account the facts mentioned above while delivering the judgment, the sentence should be modified for the period undergone. 5. Learned A.P.P. supports the judgment of the trial court and submits that it is an admitted case that three cartridges were recovered from the possession of Petitioner No.2 and no defence has been adduced by the accused that why they have been keeping three live cartridges. However, learned counsel failed to show any document with regard to sealing of the seized articles on the spot and marking of the seized articles. 6. However, learned counsel failed to show any document with regard to sealing of the seized articles on the spot and marking of the seized articles. 6. Having heard learned counsel for the parties and after going through the documents available on record, including the L.C.R. and judgments, it is clear that the seizure list witness, who was the sole independent witness, has been declared hostile and all other witnesses were police officials, as such in view of the fact that seizure list witness has been declared hostile, the basis of recovery cannot be said to be proved. There is nothing on record to show that the seized articles were sealed on the spot and that special marking was made on the sealed articles and that there was examination of the Sargent Major. These are the necessary procedure to prove the chain of offence. Now the law is well settled that non-sealing of the alleged weapon on the spot is a serious infirmity because in such a case possibility of tampering with the weapon cannot be ruled out. It goes without saying that apart from three live cartridges no weapon was recovered from Petitioner No.2 except one Dagger, which does not come under the definition of ‘Arms’ as per Arms Act. This aspect of the matter has not been considered by the learned trial court and even the appellate court had failed to look into the matter in the light of the fact that the seizure list witness has been declared hostile and that there is no document to suggest that articles were sealed and marked. In view of the aforesaid facts, the instant application deserves to be allowed. Consequently, judgment of conviction and order of sentence, both dated 08.02.2002, passed by the learned Judicial Magistrate, Ist Class, Ranchi in G.R. No. 2840 of 1996 and the judgment dated 12.06.2004 /12.08.2004 passed by the Addl. Judicial Commissioner, Fast Track Court, Ranchi in Criminal Appeal No. 15 of 2002 are quashed and set aside. 7. The petitioners shall be discharged from the liability of their bail bonds, subject to the fulfillment of the aforesaid condition. 8. Let copy of this order be communicated to the court below and also to the petitioners through the officer-in-charge of concerned police station. 9. Let the lower court record be sent to the court concerned forthwith.