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2017 Supreme(Pat) 1345
IN THE HIGH COURT OF JUDICATURE AT PATNA
VINOD KUMAR SINHA, J.
MD. SHAHABUDDIN - Appellant
Vs.
STATE OF BIHAR - Respondent
Criminal Appeal (SJ) No.549 of 2011
Decided On : 18-07-2017
Act Referred
CRIMINAL PROCEDURE CODE : S.216, S.323, S.161, S.313
INDIAN PENAL CODE : S.414
TELEGRAPH ACT : S.20, S.21
Headnote
ARMS ACT - [SECTION 25(1-B)(A), 26(1)/35] - [SECTION 25(1-B)(A), 26(1)/35] - [EXT. 1, 1/1, 1/2, 1/3, 1/4, 1/5, 1/6, 2, 2/1, 3, 3/1, 3/2, A TO A/6, B, C TO C/2] - THIS APPEAL IS DIRECTED AGAINST THE JUDGMENT AND ORDER DATED 17.03.2011, PASSED BY SHRI ROOP NARAIN TRIPATHI, LEARNED SPECIAL SESSIONS JUDGE, SIWAN, IN SESSIONS TRIAL NO. 286 OF 2009, BY WHICH HE HAS CONVICTED THE APPELLANT UNDER SECTIONS 25(1-B)(A) AND 26(1)/35 OF ARMS ACT AND FURTHER SENTENCED HIM TO UNDERGO R.I. FOR THREE YEARS AND TO PAY A FINE OF RS. 2,000/- UNDER SECTION 25(1-B)(A) OF ARMS ACT AND IN DEFAULT OF PAYMENT OF FINE, R.I. FOR TWO MONTHS. APPELLANT HAS FURTHER BEEN SENTENCED TO UNDERGO R.I. FOR FIVE YEARS WITH A FINE OF RS. 2,000/- UNDER SECTION 26(1)/35 OF THE ARMS ACT AND IN DEFAULT OF PAYMENT OF FINE R.I. FOR TWO MONTHS. BOTH THE SENTENCES WERE DIRECTED TO RUN CONCURRENTLY. HOWEVER, LEARNED TRIAL COURT HAS ACQUITTED THE APPELLANT FROM CHARGES UNDER SECTIONS 414 OF INDIAN PENAL CODE, 1860 SECTION 20 AND 21 OF THE INDIAN TELEGRAPH ACT AND SECTION 26(3) OF THE ARMS ACT.
Fact of the Case:
THE PRESENT CASE HAS BEEN LODGED ON THE SELF STATEMENT DATED 24.04.2005 OF S.I., RANVIJAY SINGH (P.W. 2) THAT ON RECEIVING INFORMATION FROM JANTA DARBAR OF THE DISTRICT MAGISTRATE, SIWAN, AND IN THE LIGHT OF DECISION TAKEN FOR DISTRICT ADMINISTRATION, HE ALONG WITH A.S.I., AYODHYA PRASAD AND ARBIND KUMAR KHAN, S.I. VED PRAKASH MAHTO OF SIWAN TOWN POLICE STATION, S.I. BIRENDRA KUMAR, DY. S.P. (HEADQUARTER), SIWAN, EXECUTIVE MAGISTRATE, DISTRICT TRANSPORT OFFICER AND OTHER OFFICERS AND JAWANS OF STF PROCEEDED TO RAID THE GUEST HOUSE OF THE APPELLANT IN VILLAGE - PRATAPPUR AND WHEN HE REACHED THERE, HE SAW THE OFFICERS OF FOREST DEPARTMENT, IN PRESENCE OF EXECUTIVE MAGISTRATE, SHRI B.K. JHA, WERE GETTING THE LOCKS OF GUEST HOUSE OPENED. IT IS ALSO THE CASE OF PROSECUTION THAT DURING SEARCH IN PRESENCE OF WITNESSES, A BULLET PROOF JACKET, FOUR TELESCOPIC RIFLES SIGHT DEVICES, ONE NIGHT VISION DEVICE, TWO WALKY TALKY, RIFLE CLEANER, FORTY SIX CARTRIDGES OF DIFFERENT BORES WERE RECOVERED FROM A ROOM SITUATED ON THE FIRST FLOOR OF THE GUEST HOUSE. APART FROM ARMS AND AMMUNITION'S, FOREIGN CURRENCY NOTES OF DIFFERENT DENOMINATIONS WERE ALSO RECOVERED. THEREAFTER, A SEIZURE LIST WAS PREPARED IN PRESENCE OF THE WITNESSES AND A COPY OF THE SAME HAS BEEN HANDED OVER TO THE FATHER OF THE APPELLANT.
Finding of the Court:
FROM THE EVIDENCE DISCUSSED ABOVE, IT APPEARS THAT P.W. 2, HAS SUPPORTED THE PROSECUTION CASE AS STATED IN THE WRITTEN REPORT AND HIS EVIDENCE FINDS FURTHER SUPPORT FROM THE EVIDENCE OF P.W. 1 P.W. 4 AND P.W. 5, WHO ARE THE POLICE WITNESSES AND HIS EVIDENCE FINDS FURTHER SUPPORT FROM THE EVIDENCE OF P.W. 3, SHRI B.K. JHA AND P.W. 7, MIRZA ARIF RAZA AND EVIDENCE IN CHIEF OF P.W. 3, CLEARLY SHOWS THAT DURING THE SEARCH ARTICLES SUCH AS TELESCOPIC SIGHT DEVICES, CARTRIDGES, FOREIGN CURRENCIES BULLET PROOF JACKET ETC. WERE RECOVERED AND HE IDENTIFIED HIS SIGNATURE ON SEIZURE MEMO AND P.W. 7 HAS ALSO SUPPORTED THE PROSECUTION CASE ABOUT THE SEARCH & SEIZURE AND STATED ABOUT THE SEIZURE OF TELESCOPIC SIGHT DEVICES, CARTRIDGES, FOREIGN CURRENCIES BULLET PROOF JACKET ETC., AND FURTHER STATED THAT SEIZURE LIST WAS PREPARED AND HE IDENTIFIED HIS SIGNATURE ON SEIZURE LIST.
Issues: WHETHER THE SEARCH AND SEIZURE MADE BY THE POLICE WAS LEGAL AND VALID.
Ratio Decidendi: THE EVIDENCE OF THE POLICE WITNESSES CANNOT BE DOUBTED MERELY ON THE GROUND THAT THEY ARE PUBLIC OFFICERS RATHER THEIR EVIDENCE NEEDS TO BE SUBJECTED TO STRICT SCRUTINY AS FAR AS POSSIBLE AND MAY BE CORROBORATED WITH THE OTHER MATERIAL PARTICULARS. THEIR DESIRE TO SEE THE SUCCESS OF THE CASE BASED ON THEIR INVESTIGATION, REQUIRES GREATER CARE TO APPRECIATE THEIR TESTIMONY.
Final Decision: APPEAL DISMISSED.
For the Appellants :Mr. Y.V. Giri, Sr. Advocate Ms. Fauzia Shakil and Mr. Humayun Ahmad Khan, Advocates.
For the Respondent: Mr. Abhimnayu Sharma, A.P.P.
Vinod Kumar Sinha, J.
This appeal is directed against the judgment and order dated 17.03.2011, passed by Shri Roop Narain Tripathi, learned Special Sessions Judge, Siwan, in Sessions Trial No. 286 of 2009, by which he has convicted the appellant under Sections 25(1-B)(a) and 26(1)/35 of Arms Act and further sentenced him to undergo R.I. for three years and to pay a fine of Rs. 2,000/- under Section 25(1-B)(a) of Arms Act and in default of payment of fine, R.I. for two months. Appellant has further been sentenced to undergo R.I. for five years with a fine of Rs. 2,000/- under Section 26(1)/35 of the Arms Act and in default of payment of fine R.I. for two months. Both the sentences were directed to run concurrently. However, learned Trial Court has acquitted the appellant from charges under Sections 414 of Indian Penal Code, 1860 Section 20 and 21 of the Indian Telegraph Act and section 26(3) of the Arms Act.
2. The present case has been lodged on the self statement dated 24.04.2005 of S.I., Ranvijay Singh (P.W. 2) that on receiving information from Janta Darbar of the District Magistrate, Siwan, and in the light of decision taken for District Administration, he along with A.S.I., Ayodhya Prasad and Arbind Kumar Khan, S.I. Ved Prakash Mahto of Siwan Town police station, S.I. Birendra Kumar, Dy. S.P. (Headquarter), Siwan, Executive Magistrate, District Transport Officer and other officers and jawans of STF proceeded to raid the guest house of the appellant in village - Pratappur and when he reached there, he saw the officers of forest department, in presence of Executive Magistrate, Shri B.K. Jha, were getting the locks of guest house opened. It is also the case of prosecution that during search in presence of witnesses, a bullet proof jacket, four telescopic rifles sight devices, one night vision device, two walky talky, rifle cleaner, forty six cartridges of different bores were recovered from a room situated on the first floor of the guest house. Apart from arms and ammunition's, foreign currency notes of different denominations were also recovered. Thereafter, a seizure list was prepared in presence of the witnesses and a copy of the same has been handed over to the father of the appellant. Further prosecution case is that father of the appellant disclosed that the seized arms and arms accessories, ammunition's belong to his son but no valid paper regarding the aforesaid articles were produced.
3. On the basis of the self statement, Hussainganj P.S. Case No. 42 of 2005 was registered, under Section 414 Indian Penal Code and 25 (1-b)(a), 26 of the Arms Act as well as under Section 13(1) FEMA, 1999 and section 20 and 21 of the Indian Telegraph Act, 1985.
4. It further appears from the perusal of the record that on a petition filed on behalf of the Assistant Director, Directorate Enforcement, FEMA, Kolkata learned Chief Judicial Magistrate, Siwan directed the investigating officer of this case to hand over the seized foreign currencies to the Assistant Director, Enforcement Directorate and the same was handed over to Sri A.K. Mohanti, Assistant Director, Enforcement Directorate, FEMA Koltaka for investigation. As such the appellant has not been put on trial for the offences under the FEMA in the present case.
5. Initially, charges were framed against the appellant under Section 25 (1-B)(a), 26 of the Arms Act as well as under Section 414 Indian Penal Code and under sections 20 and 21 of the Indian Telegraph Act in the court of Spl. Judicial Magistrate, Siwan and trial was proceeded before the Spl. Judicial Magistrate, Siwan in which 07 witnesses were examined by the prosecution. However, at the stage of argument, a petition under Section 216 Cr.P.C., 1973 was filed on behalf of prosecution for alteration of charge i.e. to add the charges under Sections 25 (1)(1-a) and 35 of the Arms Act and Section 122 Indian Penal Code. Learned Spl. Judicial Magistrate, Siwan, partly allowed the petition and charge under section 35 of the
