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2006 Supreme(Gau) 580
IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari, J.
Md. Amsor Ali
Vs.
State of Assam
Decided On : 26.06.2006
The central legal point established in the judgment is the requirement to prove conscious possession of a prohibited firearm under Section 25(1)(a) of the Arms Act, 1959, and the inadequacy of evidence in establishing the same.
Headnote:
Arms Act - Possession of Prohibited Firearm - Section 25(1)(a) of the Arms Act, 1959 - Summary: The court discussed the provisions of Section 25(1)(a) and Section 25(1A) of the Arms Act, 1959, highlighting that possession of a prohibited firearm is an offence under Section 25(1A) and not under Section 25(1)(a). The court emphasized the importance of proving conscious possession and the inadequacy of evidence in convicting the accused-petitioner under the mentioned sections.
Fact of the Case:
The accused-petitioner was convicted under Section 25(1)(a) of the Arms Act, 1959 for possession of a hand-made pistol. The prosecution's case was based on the recovery of the pistol during a search at the accused's house.
Finding of the Court:
The court found that the evidence presented by the prosecution was inadequate to prove conscious possession of the prohibited firearm by the accused-petitioner. The court also criticized the handling of the case by the lower courts, highlighting the lack of scrutiny of the evidence and relevant laws.
Issues: The key issue was whether the accused-petitioner was in conscious possession of the prohibited firearm, as required under Section 25(1)(a) of the Arms Act, 1959.
Ratio Decidendi: The court emphasized the need for the prosecution to prove conscious possession of the prohibited firearm and criticized the lack of scrutiny by the lower courts in upholding the conviction.
Final Decision: The revision petition was allowed, and the accused-petitioner was held not guilty of the offence under Section 25(1)(a) and/or Section 25(1A) of the Arms Act, 1959, leading to his acquittal.
I.A. Ansari, J.
1. By the impugned judgment and order, dated 3.8.2002, passed, in Criminal Appeal No. 30(N)/2001, the learned Sessions Judge, Nagaon, has dismissed the appeal preferred by the accused-petitioner and has upheld thereby the judgment and order, dated 24.8.2001, passed, in G.R. Case No. 1634/1999, by the learned Judicial Magistrate, Nagaon, convicting the present accused-petitioner under Section 25(1)(a) of the Arms Act, 1959, and sentencing him to suffer imprisonment for 2 (two) years.
2. The case against the accused-petitioner, as unfolded at the trial, may, in brief, be described, thus : On 6.2.1999, at about 6 P.M., a search was conducted, at the house of the accused-petitioner, at Barbeel Kocharigaon. The search led to the recovery of a hand-made pistol. This pistol was, vide seizure list (Ext. 1), seized by the police in the presence of the witnesses. On 8.9.1991, an Ejahar was lodged by the Police Officer, who had seized the said pistol, and a case was registered against the accused-petitioner under Section 25(1)(a) of the Arms Act, 1959. During the course of investigation, the said pistol was examined by a ballistic expert, whose finding was that the seized material was a fire-arm and is in serviceable condition. On completion of investigation, police laid charge-sheet against the accused-petitioner under Section 25(1)(a) of the Arms Act, 1959.
3. To the charge framed under Section 25(1)(a) of the Arms Act, 1959, at the trial, the accused-petitioner pleaded not guilty. In support of their case, prosecution examined as many as 7 (seven) witnesses. The accused-petitioner was, then, examined under Section 313 Cr.P.C. and in his examination aforementioned, the accused-petitioner denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. Having found the accused-petitioner guilty of the charge framed against him, the learned trial court convicted him accordingly arid passed sentence against him as mentioned hereinabove. As the appeal preferred by the accused-petitioner also failed, he has, now, come to this Court with the help of the present revision petition challenging the legality of his conviction and the sentence passed against him.
4. I have heard Mr. P. Katoky, learned Counsel, appearing on behalf of the accused-petitioner, and Mr. D. Das, learned Additional Public Prosecutor, Assam, appearing on behalf of the State respondents.
5. While considering the present revision, what is important to point out is that it is PW 5, a Sub-Inspector of Police, who had allegedly conducted search at the house of the accused-petitioner and seized the pistol. The evidence of PW 5 is, therefore, of great value. On perusal of the evidence of PW5, 1 notice that according to PW5, on 6.9.1999, he along with his staff went to the house of the accused-petitioner and, on conducting a search there, found a hand-made gun there and seized the same by seizure list, which is Ext-1. PW5 has also deposed that Nakul Ch. Deka (PW 4) and Md. Giasuddin (PW 1) were witnesses to the said seizure.
6. What is, now, pertinent to note is that in his cross-examination, PW 5 has admitted that in the seizure list, he has not mentioned as to where the said pistol was found. In fact, even in his evidence, PW 5 has not deposed or clarified as to where he had found the said pistol. The evidence of PW 5 is, thus, wholly vague, particularly, when the accused-petitioner is, admittedly, not the sole occupant of the house, where the fire-arm was allegedly found.
7. While considering the above aspects of the case, it is also worth noticing that according to the prosecution's case, the accused-petitioner had been found in possession of a hand-made pistol, which is a prohibited fire-arm. Possession of a prohibited fire-arm is an offence under Section 25(1A) of the Arms Act, 1959.
8. In view of the fact that the prosecution's case against th
