The mandatory requirements of the law regarding search and seizure, including the presence of independent witnesses and sealing of recovered materials, serve as safeguards against false implication and tampering.

JUDGMENT/ORDER :

Ahsanuddin Amanullah, J.

Heard learned counsel for the petitioner and learned APP for the State.

2. The petitioner has moved the Court under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') being aggrieved by the judgment and order dated 08.11.2017 passed by the District and Sessions Judge, Begusarai in Cr. Appeal No. 93 of 2017 by which the judgment and order of conviction and sentence dated 22.09.2017 passed by the Chief Judicial Magistrate, Begusarai in G.R. No. 1950 of 2016 arising out of Bachhwara P.S. Case No. 93 of 2016 has been upheld.

3. The petitioner along with co-accused Pramod Rai faced trial in G.R. No. 1950 of 2016 arising out of Bachhwara P.S. case No. 93 of 2016 (Tr. No. 799 of 2017) and, upon trial, was convicted under Sections 25 (1-B)a/ 35 as well as 26/35 of the Arms Act, 1959 and sentenced to undergo rigorous imprisonment of three years and fine of Rs. 5000/- for offence under Sections 25 (1-B)a/35 of the Arms Act and further rigorous imprisonment of three years and fine of Rs. 5000/- for offence under Sections 26/35 of the Arms Act. Criminal Appeal No. 93 of 2017 against the same was also dismissed by judgment and order dated 08.11.2017.

4. The petitioner along with co accused is alleged to have been caught and from the possession of the co-accused a loaded country made firearm with five cartridges is said to have been recovered.

5. Learned counsel for the petitioner submitted that the trial itself was not fit to proceed on the basis of the FIR and the supporting documents but unfortunately even after a full fledged trial where admittedly legal provisions have been flouted, both the Trial Court as well as the Appellate Court have failed to appreciate any such issue raised on behalf of the petitioner. It was submitted that there were no independent witnesses while making search and seizure under Section 100 of the Code and further, any arms and ammunition confiscated, captured or seized has to be in conformity with the requirement of Section 103 (3) of the Arms Rules, 2016. It was submitted that as per seizure list itself, witnesses were part of the raiding team, i.e., the police officers and no independent witness. Learned counsel submitted that the law requires that witnesses should be independent so as to prevent any chance of false implication. It was further submitted that in the deposition itself PW-4, at paragraph no. 18, has stated that nobody was called from the village to be witness to such search and seizure. It was submitted that even with regard to the requirement of law of sealing the weapons and arms, it has come in evidence that from the place of occurrence the arms were brought to the police station unsealed where it was handed over for being kept in the malkhana. For such proposition, learned counsel relied upon the decision of the Hon'ble Supreme Court in Sahib Singh v. State of Punjab, (1997) AIR SC 2417, the relevant being at paragraph no. 7. It was submitted that there was no recovery from the petitioner.

6. Learned counsel further drew the attention of the Court to the discussions made in the appellate order and submitted that the court has erred while dealing with the matter, inasmuch as, the submissions and arguments on behalf of the petitioner with regard to non-consideration of his case, based on the depositions of witnesses, have not been dealt with, muchless considered in the order.

7. Learned APP, upon going through the Lower Court Records, fairly submitted that neither independent witnesses were called nor any attempt was made to call them, as has come during deposition of witnesses themselves and further that the firearm and ammunitions allegedly recovered from the possession of the petitioner were not sealed at the place of occurrence, at least till the time it was deposited in the malkhana of the police station.

8. Having considered the facts and circumstances of the case and submissions of learned counsel for th