The importance of proving the seizure list and complying with necessary procedures to establish the chain of offence under the Arms Act, and the clarification that the recovery of a dagger does not fall under the definition of 'Arms' as per the Arms Act.

JUDGMENT :

Heard learned counsel for the parties.

2. The instant application has been preferred by the petitioners assailing the judgment dated 12.06.2004/12.08.2004 passed by the Addl. Judicial Commissioner, Fast Track Court, Ranchi in Criminal Appeal No. 15 of 2002 corresponding to T.R. No. 06 of 2003, whereby the appeal of the petitioners were dismissed and judgment of conviction and order of sentence, both dated 08.02.2002, passed by the learned Judicial Magistrate, Ist Class, Ranchi in G.R. No. 2840 of 1996 has been confirmed whereby the petitioners were convicted under Section 25 (1-B) (a) and 26 of the Arms Act and they were sentenced to undergo rigorous imprisonment for a period of two years six months and a fine of Rs.1,000/- and in default two months simple imprisonment under Section 25 (1-B) (a) and further same sentence was given under Section 26 of the Arms Act also. Both the sentences were directed to run concurrently.

3. The prosecution case in brief is that the informant was on round to maintain law and order duty along with his A.S.I. and a constable and while going towards market when they reached near the house of Durga Prasad, they saw two persons coming from front, who after seeing the informant and his associates, tried to flee away. They were chased and one was caught while fleeing away. The other threw away a six round loaded pistol there. The person caught was Shamim Ansari and from his possession one dagger and three cartridges were recovered which were seized.

4. Ms. Surbhi, learned Amicus, at the outset, submits that the seizure list witness has been declared hostile inasmuch as he has stated that he has signed on a blank paper and nothing has been recovered in his presence and that is the reason he has been declared hostile. Since entire case of the prosecution is based on the seizure, as such it was incumbent upon the prosecution to prove the seizure list and in absence of independent witness the same cannot be said to be proved. She further referred to NARESH KUMAR ALIAS NITU Versus STATE OF HIMACHAL PRADESH reported in (2017) 15 SCC 684, wherein the Hon’ble Apex Court has held that in a case of sudden recovery, independent witness may not be available, but if an independent witness is available and the prosecution initially seeks to rely upon him, it cannot suddenly discard the witness because it finds him inconvenient. In the present case, it appears that the independent witness has been declared hostile in the same manner and as such in that background the conviction of the petitioners should be set aside.

Mr. S.K. Upadhyay, learned counsel for the petitioners further submits that the recovery of Dagger from Petitioner No. 2 is not an offence under the Arms Act and further admittedly three cartridges were recovered from Petitioner No.2, but in absence of any weapon the said three cartridges were useless, as such this aspect should have been considered by the trial court before deciding this case. He further submits that even otherwise the Petitioner No.1 remained custody for 256 days while Petitioner No.2 remained in custody for 175 days, as such, looking to the age of the accused persons and in the light of the fact that the trial court has not taken into account the facts mentioned above while delivering the judgment, the sentence should be modified for the period undergone.

5. Learned A.P.P. supports the judgment of the trial court and submits that it is an admitted case that three cartridges were recovered from the possession of Petitioner No.2 and no defence has been adduced by the accused that why they have been keeping three live cartridges. However, learned counsel failed to show any document with regard to sealing of the seized articles on the spot and marking of the seized articles.

6. Having heard learned counsel for the parties and after going through the documents available on record, including the L.C.R. and judgments, it is clear that the seizure list witness, who was the sole independ