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. 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