JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. 1. The present appeal is directed against the judgment and order of conviction and sentence dated 06.06.2006 and 07.06.2006 passed by learned Additional Sessions Judge, F.T.C-IV, Deoghar in S.T. No.12(B) of 2001/23 of 2006 whereby and whereunder, the sole appellant has been held guilty for the offence under section 25(1-B)(a) and 26 of ARMS ACT and sentenced to undergo R.I. of 2 years with fine of Rs.2,000/- for each of the offences with the default stipulation. Both the sentences have been directed to run concurrently. The appellant has been acquitted from the charges under sections 399 and 402 of INDIAN PENAL CODE . FACTUAL MATRIX 2. Factual matrix giving rise to this appeal is that on 09.10.2000 at about 11:55 PM, while S.I. J.K. Singh, the then Officer-in- Charge of Kunda Police Station along with S.I. Sawna Kharia, Hawaldar, Sri Chand Yadav, constable 274 Nagendra Singh, Constable 269 Sanjeev Ranjan Jha, Constable 104, Bhagrasan Yadav, constable 46 Bengali Rai, Chaukidar 7/9 Ratan Mohali, Chaukidar 7/12 Gopal Turi, Chaukidar 5/4 Fochan Mirdha, Chaukidar 4/6, Ganesh Mirdha were on patrolling duty, a secret information was received by S.I. J.K. Singh that some miscreants had assembled near Naulakha Mandir situated just adjacent to Manijore Pulia for committing dacoity. The informant along with other police constables and chaukidars went near the place of occurrence then the miscreants started fleeing away after seeing the police party. It is alleged that upon chase, out of six miscreants, three miscreants were apprehended on the spot and all the apprehended witnesses were searched in presence of two independent witnesses, namely, Raj Kumar Gupta(P.W.6) and Prabhu Nath Giri (P.W.7). It is alleged that from the possession of the appellant Abhay Kumar Singh Chauhan, one country made pistol was found concealed inside his pant loaded with live cartridges of .315 bore. It is further alleged that from the right side of his full pant two live cartridges of .315 bore were also recovered. Similarly, the country made pistol was recovered from Narayan Yadav @ Kakla and Prashant Sarkar @ Raja Sarkar, and live cartridges were also recovered, the seizure list was prepared at spot in the presence of independent witnesses. It is alleged that one motorcycle was recovered and prove bearing Chasis No. DFFBFM39759, Engine No.DFMBFM31090. No registration paper of the alleged motorcycle was recovered. It is alleged that one motorcycle was recovered and prove bearing Chasis No. DFFBFM39759, Engine No.DFMBFM31090. No registration paper of the alleged motorcycle was recovered. It is also alleged that one bagpiper wine and two old glasses and half burnt pieces of cigarettes were also recovered from the place of occurrence. The apprehended accused persons disclosed their name and their associates, who were present at the time of raid and the apprehended accused persons confessed that they were making plan to commit dacoity. On the basis of above information, the FIR being Deoghar (Kunda) P.S. Case No.288 of 2000 was registered for the offence under sections 399 and 402 of IPC and sections 25(1-B)(a) and 26 and 35 of ARMS ACT . After completion of investigation, charge-sheet was submitted against the accused. The case was committed to the court of Sessions where S.T. Nos.12(B) of 2001/23 of 2006 was registered. Three accused persons were charge-sheeted in this case under sections 399 and 402 of IPC ad 25(1-B)(a), 26 and 35 of ARMS ACT , showing investigation pending against three accused persons i.e. co- accused, namely, Sanjay Kumar Singh and two unknown persons. Before pronouncement of judgment, the present appellant and other co-accused Prashant Kumar were declared absconder, therefore, the judgment against co-accused, namely, Narayan Yadav @ Kapla has been passed prior to this impugned judgment. Later on, the present appellant was apprehended and faced trial. The appellant has denied the charge levelled against him and claimed to be tried. After conclusion of trial, the impugned judgment of conviction and order of sentence has been passed, which has been assailed in this appeal. 3. Learned senior counsel for the appellant assailing the impugned judgment and order has vehemently argued that the recovery of country made pistol along with live cartridges is absolutely false and fabricated story. Learned trial court after appreciating the prosecution evidence has disbelieved the prosecution story in part as regards offence under section 399 and 402 of IPC is concerned, the appellant was acquitted thereunder, in absence of any cogent and reliable evidence. Learned trial court after appreciating the prosecution evidence has disbelieved the prosecution story in part as regards offence under section 399 and 402 of IPC is concerned, the appellant was acquitted thereunder, in absence of any cogent and reliable evidence. It is further submitted that learned trial court has failed to consider that none of independent seizure list witnesses have proved any recovery of any firearms from the possession of present appellant, there is no materials on record to show that the said country made pistol and cartridges were sent for ballistic examination in order to ascertain that it was functional or not and unless and until it is proved that firearm was in working condition, no conviction can be held for the offence under section 25(1-B)(a) ARMS ACT . It is further submitted that the learned trial court has recorded no findings about the applicability of section 26 of ARMS ACT in the present case. The ingredients of which is absolutely absent. The alleged search and seizure from the person of the appellant cannot be categorized as concealment of firearm. Therefore, conviction and sentence of the appellant in absence of any evidence regarding the working condition of the alleged pistol is absolutely illegal and the appellant deserve to be acquitted from the charge under sections 25(1- B)(a) and 26 of ARMS ACT , therefore, the impugned judgment and order of conviction and sentence is fit to be set aside and this appeal may be allowed. 4. On the other hand, learned Additional Public Prosecutor appearing for the State defending the impugned judgment of conviction and order of sentence of the appellant has submitted that there is no illegality or infirmity in the impugned judgment of conviction and order of sentence of the appellant. There is no substance in the points of argument raised on behalf of the appellant and no merits in this appeal, which is fit to be dismissed. 5. I have gone through the impugned judgment and order in the light of rival submissions of the parties and perused the record of the case. 6. It appears that altogether 11 witnesses have been examined and the prosecution has relied upon the following documentary evidences:- Material Ext.1- Country made pistol Material Material Ext.2 to Ext.2/VI- Goli (Cartridges) Material Ext.3- Empty(vacant) bottles of wine Material Ext.4- 2 Cell Torches (Everyday) Material Ext.5 to Ext.5/IV- Glasses ¼'kh'kk½ Material Ext. 6. It appears that altogether 11 witnesses have been examined and the prosecution has relied upon the following documentary evidences:- Material Ext.1- Country made pistol Material Material Ext.2 to Ext.2/VI- Goli (Cartridges) Material Ext.3- Empty(vacant) bottles of wine Material Ext.4- 2 Cell Torches (Everyday) Material Ext.5 to Ext.5/IV- Glasses ¼'kh'kk½ Material Ext. 6 to 6/II- half burnt pieces of cigarettes Ext. 7- Signature of Rajkumar Gupta on seizure list. Ext.7/1- Signature of Rajkumar Gupta on seizure list Ext.7/2- Signature of Prabhunath Giri on seizure list Ext.7/3- Signature of Prabhunath Giri on seizure list Ext.7/4- Signature of J.K. Singh on seizure list Ext.7/5- Signature of J.K. Singh on seizure list Ext.7/6- Signature of J.K. Singh on fardbayan. Ext.8- Fardbayan Ext.9- Sanction report. Ext.10-Forwarding of FIR to O/C Deoghar. Ext.11- Institution O/C Kunda P.S. Ext.12-Petition by Kunda P.S. for examination of country made pistol and live cartridges. Ext.13-Report of sergeant major Ext.14- Seizure list. Ext.14/1- Seizure list. 7. Out of total 11 witnesses, P.W. 6, Raj Kumar Gupta and P.W.7, Prabhunath Giri, who happens to be seizure list witnesses, have been declared hostile by the prosecution and they have simply admitted their signature on the seizure lists. P.W.9-Paltan Rawani and P.W.-10 Dilip Prasad Singh are formal witnesses, who have proved the sanction order for prosecution marked as Ext.9 and the fardbayan, which is marked as Ext.10, the endorsement of fardbayan marked as Ext.11, the forwarding letter for examination of seizure pistol marked as Ext.12 sergeant major with regard to the examination of the arms recoveredand the report of which is marked as Ext.13. P.W.11-Ramesh Kumar Yadav is a formal witness and he has proved the seizure list in the hand writing of S.I. Sawan Khariya marked as Ext.14 and 14/I. The important witnesses of the facts are P.W.1- Hawaldar, Sri Chan Yadav, P.W.2, Constable Bhagrasan Yadav, P.W.3 Constable Sanjeev Ranjan Jha, P.W.-4, Constable Bengali Rai and P.W.5 Constable Nagendra Singh and they were member of raiding party and police personnels, who have corroborated the contents of the FIR and specifically stated that the country made pistol and live cartridges were recovered from the possession of the present appellant, Abhay Kumar Singh Chauhan and the same has been seized in presence of independent witnesses, P.W.6 and P.W.7 and the seizure list was prepared. P.W.8, Janardan Kumar Singh is the informant of this case, who has proved the contents of the FIR and stated that he received confidential information about assemblance of some miscreants near Dangal for committing dacoity, then he along with other police personnels, namely, S.I. Sawna Kharia, Hawaldar, Sri Chand Yadav (P.W.1), constable 274 Nagendra Singh(P.W.5), Constable 269 Sanjeev Ranjan Jha(P.W.3), Constable 104, Bhagrasan Yadav(P.W.2), constable 46 Bengali Rai(P.W.4), Chaukidar 7/9 Ratan Mohali, Chaukidar 7/12 Gopal Turi, Chaukidar 5/4 Fochan Mirdha, Chaukidar 4/6, Ganesh Mirdha including two other independent witnesses reached at the place of occurrence but seeing the raiding party, the miscreants started fleeing away. Upon chase, three miscreants had been apprehended including the present appellant, however, three miscreants succeeded in fleeing away. On enquiry, the apprehended accused persons disclosed their name as Abhay Kumar Singh Chauhan (appellant), Narayan Yadav @ Kakla and Prashant Sarkar @ Raja Sarkar. Upon search in presence of independent witnesses, one country made pistol has been recovered from the waist of the accused, Abhay Kumar Singh Chauhan along with live cartridges and also two live cartridges from the right side of pant from this accused. The appellant did not produce any license for possession of arms and ammunition. From the place of occurrence, 5 empty glasses, 2 empty bottles of bagpiper wine and other incriminating articles were also recovered. The seizure list was prepared and this witness has proved his signature on the seizure list, which were marked as Ext.7/4, 7/5 and 7/6. He has identified the accused Abhay Kumar Singh Chauhan in the court. The articles, which have been recovered from the possession of the accused/appellant was not sealed due to the lack of sealed material and the same was wrapped in different clothes. 8. It further transpires that the Investigating Officer of this case has not been examined and the Sergeant Major, who is alleged to have conducted the examination of working condition of the firearms has also not been examined by the prosecution. 9. From the aforesaid discussions of oral as well as documentary evidences led by the prosecution, it is crystal clear that the appellant has been alleged to be apprehended on the spot with country made pistol and live cartridges but the independent seizure list witnesses have not corroborated the factum of any recovery of firearm from the possession of present appellant. From the aforesaid discussions of oral as well as documentary evidences led by the prosecution, it is crystal clear that the appellant has been alleged to be apprehended on the spot with country made pistol and live cartridges but the independent seizure list witnesses have not corroborated the factum of any recovery of firearm from the possession of present appellant. The more surprising fact is that the working condition of firearm and the cartridges has not been proved by the prosecution through any cogent evidence in this regard. No report from ballistic expert or forensic science laboratory has been received in this case and there is no other reliable evidence to prove that the said gun and cartridges were in working condition. Although, it is alleged by the witnesses that the said cartridges and pistol were sent to Sergeant Major for examination but the Sergeant Major has not been examined to prove his report. The Investigating Officer of this case has also not been examined which caused prejudice to the defence because this is the only I.O., who can explain on the point as to why the pistol and cartridges have not been sent for examination by expert. 10. The Hon’ble Apex Court in the case of Buta Singh Vs. State of Punjab reported in (1997) SCC (Cri) 1217 has observed in para 4 as under:- “4. We need not detain ourselves to consider the statements of PW 1 and PW 2, the recovery witnesses, as we find that the prosecution case suffers from a serious infirmity in this case. The objects allegedly seized from the appellant were not sent for any expert opinion either to the ballistic expert or to any armourer. There is no evidence on the record to show that the objects recovered from the appellant satisfied the definition of “arm” and “ammunition” or “firearm” as contained in the ARMS ACT . In the absence of any such evidence, the conviction of the appellant cannot be sustained. This appeal consequently succeeds and is allowed. The conviction and sentence of the appellant is set aside and he is hereby acquitted.” 11. In view of the above discussions and reason, the conviction and sentence of the appellant for the offence under section 25(1-B)(a) of ARMS ACT is not sustainable at all. This appeal consequently succeeds and is allowed. The conviction and sentence of the appellant is set aside and he is hereby acquitted.” 11. In view of the above discussions and reason, the conviction and sentence of the appellant for the offence under section 25(1-B)(a) of ARMS ACT is not sustainable at all. So far, the conviction under section 26 of ARMS ACT is concerned, the provision is extracted herein under:- 26. Secret contraventions. (1) Whoever does any act in contravention of any of the provisions of section 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 section 5, 6, 7 or 11 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 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.] The learned trial court has randomly convicted the appellant under section 26 of ARMS ACT without mentioning his guilt either under section 26(1), 26(2) or 26(3) specifically. As section 26(1) prescribe punishment for contravention of provisions of section 3, 4, 10 and 12 and section 26(2) prescribed punishment for contravention of provisions of sections 5, 6, 7 and 11 and section 26(3) prescribe punishment for contravention section 22. Thus the conviction of the appellant under section 26 of ARMS ACT is not valid. As section 26(1) prescribe punishment for contravention of provisions of section 3, 4, 10 and 12 and section 26(2) prescribed punishment for contravention of provisions of sections 5, 6, 7 and 11 and section 26(3) prescribe punishment for contravention section 22. Thus the conviction of the appellant under section 26 of ARMS ACT is not valid. In the instant case, there is alleged recovery of firearm from the pocket of wearing clothes of the appellant, no any such place of concealment has been identified by the raiding party to attract the provision of section 26 of ARMS ACT . 12. For the aforesaid discussions and reason, I find merits in this appeal, therefore, impugned judgment and order of conviction and sentence of the appellant passed by learned Additional Sessions Judge, F.T.C-IV in Deoghar in S.T. No.12(B) of 2001/23 of 2006 is, hereby set aside and this appeal is allowed. 13. The appellant is on bail, hence, he is discharged from liability of bail bond. The sureties are also discharged. 14. Pending I.A(s), if any, is also disposed of accordingly. 15. Let a copy of this judgment along with Trial Court Records be sent back to the trial court for information and needful.