Partly allowed

Md. Nasrullah @ Naushad @ Nanhu @ Md. Naushad v. The State Of Bihar

Recovery of semi-manufactured parts of country-made pistols – pistol bodies, slides, magazines, barrels and butt grips

Patna HC23 Aug 2019CR. APP (SJ)/2357/2017

Download

Case brief

AI extract

What is this about?

Appeal against conviction under various provisions of the Arms Act for recovery of semi-manufactured pistol parts, magazines, slides, bodies and barrels from the appellant's house. The court held the recovered components satisfied the definition of firearm and the search and seizure was duly proved, but set aside the convictions requiring proof of prohibited arms or other unproved ingredients.

What did the court decide?

Convictions under Sections 25(1-A), 25(1-AA) and 26(2) of the Arms Act set aside; conviction under Section 25(1-B) and 26(1) confirmed; appellant directed to be released forthwith if not wanted in any

Md. Nasrullah @ Naushad @ Nanhu @ Md. Naushad Vs The… — Criminal Trial and Appeal | Patna HC (2019)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) No.2357 of 2017

¶2

Arising Out of PS. Case No.-28 Year-2014 Thana- MUNGER MUFFASIL District- Munger

¶3

======================================================

¶4

Md. Nasrullah @ Naushad @ Nanhu @ Md. Naushad, Son of Late Lal Mohammad, resident of Village Chakasim, P.S. Mufasil, District- Munger.

¶5

The State of Bihar

¶6

... ... Appellant/s Versus ... ... Respondent/s

¶7

====================================================== Appearance : For the Appellant/s : Mr. Pankaj Kumar Sinha, Adv. Mr. Kamal Kishore Jha, Adv. For the Respondent/s : Smt. Abha Singh, APP ======================================================

¶8

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT

¶9

Date : 23-08-2019

¶10

1. Appellant, Md. Nasrullah @ Naushad @ Nanhu @ Md. Naushad has been found guilty for an offence punishable under Section 25(1-A) of the Arms Act and sentenced to undergo R.I. for five years as well as to pay fine appertaining to Rs.500/- in default thereof to undergo S.I. for one month, additionally, under Section 25(1-AA) of the Arms Act and sentenced to undergo imprisonment for seven years as well as to pay fine appertaining to Rs.500/-in default thereof to undergo S.I. for one month additionally, under Section 25(1-B) of the Arms Act and sentenced to undergo R.I. for three years as well as to pay fine appertaining to Rs.500/- in default thereof to undergo S.I. for one month additionally under Section 26(1) of the Arms Act and sentenced to undergo S.I. for six months, under Section 26(2) of the Arms Act and sentenced to undergo R.I. for five years as well as to pay fine

¶11

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 2/22

¶12

appertaining to Rs.500/-in default thereof to undergo S.I. for one month, additionally, with a further direction to run the sentences concurrently, with a further direction that the period having undergone during course of trial be set off in accordance with Section 428 of the Cr.P.C., vide judgment of conviction dated 12.07.2017 and order of sentence dated 17.07.2017 passed by Additional Sessions Judge,IInd Munger in Sessions Trial No.163/2016 arising out of Muffasil P.S. Case No.28/2014.

¶13

2. Anil Kumar Singh (PW.6) recorded his self statement at the house of appellant lying at village-Buxim on 06.02.2014 disclosing therein that so many villagers that of Bardah, Mubarakchak, Banaudha, Chakasim, Suturkhana, Sujabalpur and others been actively involved in manufacturing illegal arms, supply of illegal arms to the outfit organization, antisocial elements causing law and order problem on account thereof, happen to be on vigil. In the aforesaid background, after having been informed confidentially by a spy regarding storage of illegal arms and ammunition in huge quantity, by Md. Naushad in order to supply to the antisocial elements the superior police officials were informed and as per instruction, a raiding party was constituted. The raiding party arrived at the house of the Naushad (Appellant). At that very moment, two persons who came out from

¶14

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 3/22

¶15

the out succeed in their disappearance over motorcycle. Having bustle over arrival of police personnel, one person came out from the house who, tried to slip and during course thereof, was apprehended. On query, he disclosed himself to be Naushad the appellant. Then thereafter, the persons having assembled there were requested to become seizure list witness but, none of them came forward on account thereof, some of the members of the raiding party have been identified as seizure list witness and in whose presence, the house was searched and during course thereof, the articles so enumerated in the seizure list have been seized for that, seizure list have been prepared, a copy thereof has been served upon the appellant who also put his signature.

¶16

3. As is evident, after registration of Mufassil P.S. Case No.28/2014 investigation commenced and by concluding the same, charge sheet has been submitted followed with trial, meeting with ultimate result, subject matter of instant appeal.

¶17

4. Defence case as is evident from mode of crossexamination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. However, nothing has been adduced in defence.

¶18

5. In order to substantiate its case the prosecution has examined altogether seven PWs who are PW.1- Ravindra

¶19

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 4/22

¶20

Mahto, PW.2- Prashant Kumar, PW.3- Dinesh Kumar Singh, PW.4- Mukesh Kumar, PW.5- Awadh Kishore Prasad, PW.6- Anil Kumar, PW.7- Rajvansh Singh as well as has also exhibited Ext.1 Series- Signature of seizure list witnesses, Ext.2- Report submitted by the Sergeant Major, Ext.3- Sanction order, Ext.4 Series- Seizure list, Ext.5- Self statement of the informant, Ext.6- Endorsement thereupon, Ext.7- Four pages containing description of the notice. Material exhibits have also been produced and exhibited which are Ext.I to CL(Ext.1 to 150)- 150 butt grip, Ext.CLI to CCXI(Ext.151 to 211)- 61 semi manufactured pistols, Ext.CCXII to CCCCXI(Ext.212 to 411) -20 semi manufactured magazines, Ext.CCCCXII to CCCCLI(Ext.412 to 451)- 40 semi manufactured pistol's slide, Ext.CCCCLII to CCCCLXXVI(Ext.452 to 476)- 25 pistol's body, Ext.CCCCLXXVII to DLXXVI(Ext.477 to 576)- 100 pistol's body, Ext.DLXXVII-DCXVI(Ext.577 to 616)- 100 semi manufactured pistols with slide, Ext.DCXVII to DCXXXVI(Ext.617 to 631)- 25 pistols body, Ext.DCXXXXII to DCLXXXXI(Ext.632 to 791)- 150 semi manufactured pistol's slide, Ext.DCCLXXXII to MLXXXV(Ext.792 to 1085)- 294 semi manufactured pistols, Ext.MLXXXVI to MMXXVI (Ext.1086 to 2026)- 33 piece of Rs.100/-, 37 piece of Rs.500/-,

¶21

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 5/22

¶22

428 piece of Rs.100/-, 85 piece of Rs.50/-, 75 piece of Rs.20/-, 267/- piece of Rs.10/-, 16 piece of Rs.5/-., Ext.MMXXVII to MMXXXV(Ext.2027 to 2035)- 7 wrapper of vodafone and 2 wrapper of airtel, Ext.MMXXVI to MMXXVII(Ext.2026 to 2027)- Two mobile of carbon company, Ext.MMXXVIII (Ext.2028 to 2029)- Two SIM Airtel, Ext.MMXXX(2030)- 1 SIM vodafone, Ext.MMMXXXI- 1 SIM Airtel. As stated above, nothing has been adduced in defence.

¶23

6. Manifold argument has been raised on behalf of appellant in order to assail judgment impugned. The first and foremost argument happens to be that the article so recovered in its physical form could not be considered to be the firearms whereupon, the prosecution happens to be illegal and in likewise manner, the finding. Furthermore, it has also been submitted that the article so recovered had not been properly assessed, examined and in likewise manner, there happens to be no connecting evidence for want of any specific mark having put at the end of the informant or, any of the member of the raiding party at the spot in order to properly identify the seized articles. Apart from this, it has also been submitted that there happens to be conflicting version coming from the mouth of the prosecution witnesses over proper sealing of the article and that being so, the evidence of

¶24

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 6/22

¶25

search and seizure, on account of inconsistency as has become unreliable.

¶26

7. In its continuity, it has also been submitted that though, there happens to be disclosure in the self statement as well as during course of evidence of the informant that local inhabitants declined to become seizure list witness but, manner whereunder it has been flashed did not inspire confidence. That being so, no independent witness with regard to search and seizure has been at the end of the prosecution. Whosoever been examined are only police personnel and their evidence are, in the aforesaid facts and circumstances of the case, would be seen soaked with malafideness. Consequent thereupon, is fit to be rejected.

¶27

8. It has also been submitted that appellant has got no criminal antecedent and that being so, the recovery as alleged could not be perceived against the appellant. It has also been submitted that after going through the self-statement of the informant, it is crystal clear that informant suffers from biasness and that happens to be reason behind incorporation of the fact that the villagers of Bardah, Mubarakchak, Banaudha, Chakasim, Suturkhana, Sujabalpur and others are engaged in illegal trade of arms and ammunition. So, in totality the prosecution case lacks its

¶28

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 7/22

¶29

authentication credence whereupon be rejected. Consequent thereupon, appeal be allowed.

¶30

9. On the other hand, the learned APP while supporting the finding recorded by the learned lower court has submitted that all proper precaution has been taken up while coming to the conclusion that the prosecution witnesses have supported the search and seizure which was conducted on the basis of confidential information received by the informant along with production of the seized article by way of material exhibit an additional link to justify whereupon, the finding so recorded by the learned lower court did not attract interference.

¶31

10. In order to properly appreciate the evidence, first of all, the relevant provisions prescribed under Arms Act is to be considered. It is needless to say that without license as required under Section 3 of the Arms Act none is permitted to possess a firearm. So first of all one has to see how the firearm has been defined under arms act and its ancillary events and for that, relevant definitions are quoted below:-

¶32

Section 2(a) “accusation” with its grammatical variations and cognate expressions, includes hiring, borrowing, or accepting as a gift;- Section 2(e) “firearms” means arms of any description designed or adapted to discharge a projectile or projectiles of any kind by the action of any explosive or other forms of energy, and includes,-

¶33

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 8/22

¶34

(i) artillery, hand-grenades, riot-pistols or weapons of any kind designed or adapted for the discharge of any noxious liquid, gas or other such things,

¶35

(ii) accessories for any such firearms designed or adapted to disminish the noise or flash caused by the firing thereof,

¶36

(iii) parts of, and machinery for manufacturing, firearms, and

¶37

(iv) carriages, platforms and appliances for mounting, transporting and serving artillery; Section 2(g)- ”prescribed” means prescribed by rules made under this Act;

¶38

Section 2(h)- “prohibited ammunition” means any ammunition, containing, or designed or adapted to contain, any noxious liquid, gas or other such thing and includes rockets, bombs, grenades, shells, [missiles] articles designed for torpedo service and submarine mining and such other articles as the Central government may, by notification in the Official Gazette, specify to be prohibited ammunition;

¶39

Section 2(i) “prohibited arms” means-

¶40

(i) firearms so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty, or

¶41

(ii) weapons of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing,

¶42

and includes artillery, anti-aircraft and antitank firearms and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms; 11. Now in continuity with the Arms Act, Arms Rule has also to be seen in the present context:

¶43

Rule.3- Classification of arms and ammunitionFor the purposes of the Act and these rules,”arms” or “ammunition” shall be of the categories specified in columns 2 and 3 respectively of Schedule I and references to any category of arms or ammunition in these rules shall be construed accordingly.

¶44

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 9/22

¶45

Rule- 37. Prohibition of transport of arms

¶46

and ammunition.- (1) Save as herein otherwise provided, no person shall transport over India or any part thereof any firearms or ammunition or any arms of category V, except under and in accordance with the conditions of, a licence granted under these rules.

¶47

(2) Nothing in sub-rule (1) or in section 12 shall be deemed to apply to arms or ammunition-

¶48

(a) transported personally or as personal luggage, in reasonable quantities for his own use, by a person lawfully entitled to possess or carry such arms or ammunition;

¶49

(b) transported by a person licensed to manufacture such articles, for proof-testing, in a case or package legibly addressed to a Government establishment or to an establishment approved in this behalf by the Central Government, or re-transported by such establishment to such person;

¶50

(c) of category V, transported through an area where the Central Government has, by notification in the Official Gazette, applied section 4, or from such area to an area where section 4 does not apply, provided that the weapons are properly packed and labelled, showing clearly the description of the articles and the name and address of the consignee;

¶51

(d) transported by a licensed dealer for export or after import, in accordance with a licence for their export or import ----

¶52

(i) from the place of despatch to the port or other place of export, or

¶53

(ii) from the port of other place of import to the place of destination, or (iii) by transshipment in the port of import for re-export by sea or air;

¶54

(e) Transported ---

¶55

(i) by a person lawfully entitled to possess such articles, in reasonable

¶56

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 10/22

¶57

quantities for his own use from the premises of a licensed dealer, or for purposes of examination or repair or test to or from any such premises, or to the address of any other person lawfully entitled to possess such articles; or

¶58

(ii) by a licensed dealer, in a case or package legibly addressed to a person lawfully entitled to possess such articles, in compliance with an order given by such person for the supply of such articles, in reasonable quantities, for his own use or after carrying out necessary repairs thereto;

¶59

(f) being chlorates, transported for bona fide industrial, agricultural or medicinal purposes: Provided that ---

¶60

(i) transport of arms or ammunition under clause (d), clause (e) or clause (f) shall be subject to obtaining a certificate of no objection from the licensing authority at the destination of the articles as provided for in rule 50;

¶61

(ii) transport of arms or ammunition personally for any of the purposes stated in sub-clause (i) of clause (e) without using them through any area outside the area of validity of his possession licence, shall be subject to his obtaining a permit from the licensing authority at the starting place of transport; and

¶62

(iii) prior intimation of the transport of arms of category V under clause (c) or of chlorates under clause (f) shall be given to the officer-in-charge of the nearest police station or a Magistrate having jurisdiction over the place of despatch.

¶63

(3) The officer or magistrate receiving prior intimation under sub-clause (iii) of the proviso to sub-rule (2) shall immediately inform the District Magistrate, and if the articles are transported by rail the Superintendent of Railway Police having jurisdiction----

¶64

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 11/22

¶65

(i) over the place of destination, in the case of transport of chlorates, and

¶66

(ii) over the place of entry into the area where section 4 applies, in the case of transport of arms of category V.

¶67

Explanation.-- For the purpose of this rule, “transport” includes movement of arms or ammunition across any part of the country, but does not include movement of arms or ammunition by a licensed dealer from a warehouse, godown or any other similar place to his factory, shop or other place or business within the same village, town or city.”

¶68

SCHEDULE-I

¶69

(See r	ule 3)
Category Arms	Ammunition
1 2	3
1(a) Prohibited arms as defined in section 2(1) (i) and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms.	Prohibited ammunition as defined in section 2(1) (h) and such other articles as the Central Government may, by notification in the Official Gazette, specify to be prohibited ammunition.
[(b) Semi-automatic firearms, other than those included in categories I (c) and III(a), smooth-bore guns having barrel of less than 20" in length. (c) Blot action or semi-automatic rifles of .303" or 7.62 mm. Bore or any other bore which can chamber and fire service ammunition of . 303" or 7.62 mm, calibre; muskets, of .410" bore or any other bore which can fire .410" musket ammunition; pistols, revolvers or carbines of any bore which can chamber and fire .380" and . 455" rimmed cartridges or service 9mm, or .45" rimless cartridges.]	Ammunition for arms of category I (b) Ammunition for fire-arms of category I (c).
d) Accessories for any firearms designed or adapted to diminish the noise or flash caused by the firingthereof.	NIL

¶70

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 12/22

¶71

II.Machinery for manufacture of Machinery for manufacture of proof testing of a firearm ammunition III. Firearms other than those in Ammunition for firearms other categories I, II and IV, namely:--than those in categories I, II and IV, namely:--(a)Revolvers and pistols. Ammunition for fire arms of category III (a) (b)Breech-loading rifles other than . Ammunition for fire arms of category 22 bore rifles mentioned in category III (b) III (c) below. (c).22 bore (low velocity) rifles Ammunition for fire arms of category using rimfire cartridges, breechIII (c) loading smooth-bore guns and airrifles. (d) Air-guns and muzzle-loading Ammunition for fire arms of category guns. III (d) IV. Curios and historical weapons Curios and historical ammunition other than those excluded under section 45 (c) V. Arms other than firearms: Sharp NIL edged and deadly weapons, namely---- swords (including swordsticks), daggers, bayonets, spears (including lances and javelins); battle-axes, knives (including kirpans and khukries) and other such weapons with blades longer than 9" or wider than 2" other than those designed for domestic, agricultural, scientific or industrial purposes, steel baton; "Zipo" and other such weapons called "life preservers"; machinery for making arms other than category II; and any other arms which the Central Government may notify under section 4. VI. (a) [Articles containing explosive or fulminating materials; fuses and friction tubes other than blank fire cartridges]. (b) Ingredients as defined in section 2(1) (b) (VII).

¶72

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 13/22

¶73

Note.---Parts and accessories of any arms or ammunition and charges for firearms and accessories for charges belong to the same category as the arms or ammunition.

¶74

12. From the definition of firearm as incorporated herein-above, it is evident that not only the assembled weapon is to be identified as firearm rather parts thereof and the machinery responsible for manufacturing also comes within the definition of firearm. From the evidence available on the record, it is evident that there happens to be non-seizure of complete weapon and so, one has to see whatever been recovered satisfy the definition of firearm or not and for that, two aspects are there. (a) The recovery (b) Identification thereof.

¶75

13. Because of the fact that during course of evidence of informant PW.6, the articles allegedly recovered from the house of the appellant has been produced, made as material exhibit and virtually, from the evidence of PW.6 it is also evident that no specific cross-examination is there questioning the identity of place. The alleged recovered article excluding the cash appertaining to Rs.102000/- which were recovered as is evident from the evidence, were subject to examination by the Sergeant Major, PW.3, Dinesh Kumar Singh. PW.3 during his examinationin-chief has stated that representative of the I.O. Rajbansh Singh, a Dy.S.P. brought the seized article in six sealed bags along with an order of learned CJM directing to examine the articles

¶76

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 14/22

¶77

accordingly, he examined the same, and submitted report relating to each bag:-

¶78

(1) Bag No.1 was opened whereupon half constructed country made pistol, 25 items of pistol body were found (Mark as 1 by him for proper identification)

¶79

(2) Bag No.2 has been opened and found 150 semi constructed slide. (Marked as 2 by him for proper identification)

¶80

(3) Bag No.3 has been opened and found items of semi constructed slide. (Marked as 3 by him for proper identification)

¶81

(4) Bag No.4 has been opened and found forty items semi constructed pistol slide and 25 items pistol body. (Marked as 4 by him for proper identification) (5) Bag No.5 has been opened and found 294 numbers of semi constructed barrel. (Marked as 5 by him for proper identification)

¶82

(6) Bag No.6 200 numbers of semi constructed magazine. (Marked as 6 by him for proper identification)

¶83

(7) Bag No.7 100 numbers of pistol body. (Marked as 7 by him for proper identification)

¶84

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 15/22

¶85

(8) Bag No.8 150 numbers pistol butt grip. (Marked as 8 by him for proper identification)

¶86

14. He has further recorded that after properly examining the aforesaid items, he had found the same happens to be part and parcel of the arms. After examination it was sealed in the bags and handed over. During cross-examination at para-5 he has specifically answered that in his report he has submitted that Item No.1 to 8 are parts of firearms. In para-6 he has further stated that he has not mentioned the mode of examination in his report. He has denied the suggestion that without examining those articles he has submitted the report.

¶87

15. The learned counsel for the appellant even during course of argument failed to suggest what kind of test has been prescribed/to be followed during course of examination of the parts of the arms so seized. A firearm is brought to its existence by having collection/assemblage of so many components/parts and those components are to be manufactured. After assemblage of those components, a weapon has full-fledged identity. The weapons are being manufactured in a factory having duly licensed and in likewise manner, it is also being prepared outside in an illegal manner by the unscrupulous persons applying their own skill. This unauthorized mode of manufacture of firearm

¶88

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 16/22

¶89

is prohibited in the eye of law and that happens to be reason behind while defining firearms, it has got such broad meaning. In the aforesaid background, PW.3 at least during course of crossexamination would have been suggested, that the items which he had examined were neither the parts of the firearm nor, firearm could be manufactured by way of assemblage thereof. That being so, the evidence of the PW.3 inconsonance with the material exhibits is found satisfying the ingredients of the firearms so incorporated under Section 2(c) of the Arms Act.

¶90

16. The second question for determination is whether there happens to be authentic search and seizure, legal requirements have been followed during course thereof?

¶91

17. From the evidence available on the record, it is evident that there happens to be specific disclosure at the end of the prosecution that one person who was apprehended outside the house after coming out from the house was apprehended and who disclosed his identify as the appellant and in his presence, his house was searched and during course thereof, the exact location from where the articles were seized including Rs.102000/- and odd, even from the locker having in the lower part of a rack, has been disclosed and then seizure list have been prepared corresponding to location of the search and seizure. Furthermore,

¶92

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 17/22

¶93

when the evidence of the I.O. PW.7 has been gone through, it is evident that those location including the locker having at the lower part of the rack in a wall has properly been disclosed. That being so, it gives positive impression that the house of the appellant was searched and during course of investigation same was properly inspected by the investigating officer whose appointment was in the background of quantum of recovery in order to ward of any kind of misrepresentation as, the informant happens to be the SI while the investigating officer happens to be the Dy.S.P so appointed by the superior police officials. It is also evident that copy of all the seizure list have been served upon the appellant and, there happens to be no disclosure at the end of the appellant that his signature has been taken in otherwise manner, the place of seizure does not belong to him, house having joint occupation, he has individually been identified as an accused. None of the witnesses including the informant PW.6 has been suggested that the house is being jointly shared nor, they have been crossexamined on that very score. PW.1 and PW.2 properly substantiated the search and seizure. So, it is evident that the house was exclusively under the domain of the appellant and, it was being used as a storage of the illegal firearms. It is also evident from the seizure list that there happens to be description of

¶94

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 18/22

¶95

number of the Indian Currency having recovered from the possession of the appellant. Furthermore, it has also been disclosed in the self-statement that seeing the number of the recovered article during course of preparation of seizure list, sealing of the articles, to some extent mark has been put and on that very score. PW.6, the informant during his examination-inchief at para-4 has stated that all the recovered articles were sealed at the spot itself, PW.7 the I.O. at para-1 (examination-in-chief) at page number 4 has stated that accused as well as seized articles were produced before the Magistrate on 07.02.2014 whereupon, the accused remanded to judicial custody while the recovered articles were directed to be examined by the Sergeant Major. In likewise manner, PW.3 during course of evidence, has stated that all the articles were produced before him in sealed condition. After examining the articles, he prepared the report and then, returned the articles after putting his seal. While exhibiting all the material exhibits at the end of PW.6, which begins from para-5, with regard to some bags, as it was in torn condition, seal was not found but, in majority of the bags the seal has been found. The most surprising feature is that no cross-examination has been made on that very score save and except that the seal was not indicating the mark. Occurrence is of the year 2014, material

¶96

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 19/22

¶97

exhibits has been made on 17.12.2017 covering more than three years. Then in that circumstance, there would have been proper minute observation which, as is evident from the deposition neither the learned counsel nor the witness nay the court have taken cared of.

¶98

18. Now coming to the status of the witnesses, PW.1 and PW.2 apart from being members of the raiding party, are also seizure list witnesses who have substantiated the factum of recovery on search, declination of the local people to become seizure list witnesses whereupon, they were directed by the O/c to become seizure list witness and in that capacity, have put their signature. Nothing incriminating has been found in order to dislodge their testimony. PW.3 is the Sergeant Major and his report, as discussed herein above happens to be in affirmative. PW.4 and 6 are another members of the raiding party under leadership of the PW.6 who became informant. Having substantiated the prosecution version regarding recovery of the arms, cash during course of search for that, seizure list was prepared, copy thereof was handed over to the accused recovered articles, were sealed at the spot itself and during course of crossexamination, nothing substantial has been gained at the end of the appellant.

¶99

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 20/22

¶100

19. PW.7 is the I.O. of the case, who has stated that

¶101

he has been informed by the O/c that as per order of the S.P., he has been entrusted with the investigation of Mufassil P.S. Case No.28/2014 whereupon, he took up investigation. He came to the police station where recorded statement of the witnesses and then, proceeded to the place of occurrence which happens to be the house of the appellant having two rooms and then, he fully detailed the same, the veranda, projection having inside the room, veranda, the locker having at the lower part of the rack, and further identified the house by specific boundary. Then thereafter, he returned back to the police station, took charge of the accused, seized articles and then produced before the learned CJM. After getting an order, got the seized article examined by the sergeant manor. Procured the sanction order. Procured the report from sergeant major, and then, after completing the investigation, submitted charge sheet. During course of cross-examination at para-2 he has been cross-examined on para-11 of the case diary. By way of attracting the same, a query has been made whether on such disclosure it could be confined that the seized article has been seen by him. In para-6, he has also stated that on the 6^th of February, 2014 itself he was entrusted that the investigation, whereupon he visited the place of occurrence on the same date

¶102

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 21/22

¶103

had examined some of the independent witnesses regarding which, there happens to be suggestion that no villagers by such name remain. During course of examination as is evident from para-12, he has further stated that during intermediary period, he had not investigated the case for some period as was engaged in law and order. Then at para-15 he has stated that after examination by the sergeant major, the articles were again sealed. In para-16 he has stated that he had not found criminal antecedent of the appellant.

¶104

20. Now coming to the finding recorded by the learned lower court, it is evident that appellant has been convicted for an offence punishable under Section 25(1-A), 25(1-AA), of the Arms Act which happens to be related with acquisition or possession of arms and ammunition prohibited as prescribed under Section 7 of the Act. Prohibited arms has been defined under Section 2(i) as incorporated herein-above. Neither the PW.6, informant nor PW.7, the I.O. nay the PW.3, the sergeant major during course of evidence has stated that the seized articles happen to be the part of prohibited arms and so, there happens to be no violation of Section 7 of the Act and consequent thereupon, the finding so recorded by the learned lower court relating to Section 25(1-A), 25(1-AA) of the Arms Act is not at all found

¶105

Patna High Court CR. APP (SJ) No.2357 of 2017 dt.23-08-2019 22/22

¶106

duly substantiated. However, the finding so recorded by the learned lower court with regard to 25(1-B) of the Arms Act is found duly substantiated and to that extent is confirmed. In likewise manner, there happens to be no evidence in order to substantiate the ingredients of Section 26(2) of the Arms Act whereupon, the finding relating thereto also being annulled retaining the finding with regard to Section 26(1) of the Arms Act.

¶107

21. Consequent thereupon, the appeal is partly allowed. Because of the fact that appellant happens to be under custody since 07.02.2014 that being so, he might have completed the period of sentence and if so, is directed to be released forthwith, if not wanted in any other case. If not, then release will be effected after saturation of the period of sentence.

¶108

(Aditya Kumar Trivedi, J.)

¶109

Prakash Narayan
AFR/NAFR	AFR
CAV DATE	NA
Uploading Date	03.09.2019
Transmission Date	03.09.2019

Md. Nasrullah @ Naushad @ Nanhu @ Md. Naushad v. The State Of Bihar

Case brief

What is this about?

What did the court decide?

Md. Nasrullah @ Naushad @ Nanhu @ Md. Naushad v. The State Of Bihar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Angad Kumar Yadav Vs The State Of Bihar

Heera Devi and Anr. Vs The State Of Bihar

Suresh Kurmi and Ors. Vs The State Of Bihar

Rabbu Yadav and Anr. Vs The State Of Bihar

Md. Sunny @ Mardin @ Sanny Vs The State Of Bihar

Ranjeet Kumar Sah Vs The State of Bihar