The main legal point established in the judgment is the requirement for the prosecution to prove that the accused was aware of the existence of arms and that the arms were found in the joint occupation or under the joint control of the accused, as per Section 35 of the Arms Act.

JUDGMENT :

DEEPAK ROSHAN, J.

1. Heard learned counsel for the parties.

2. The instant Revision application is directed against the judgment dated 22.02.2003 passed by learned 6th Additional District and Session Judge, Palamau in Criminal Appeal No. 148 of 1999, whereby the learned appellate court has dismissed the appeal and confirmed the judgment of conviction dated 30.11.1999 with modification in sentence passed by Judicial Magistrate, 1st Class, Palamau Daltonganj whereby the Petitioner was found guilty and convicted under section 25(1-B)a/35 of Arms Act and was sentenced to undergo R.I. for 3 years in G.R. Case 1333/1998.

The Appellate Court while confirming the judgment of conviction modified the sentence to the extent that the petitioner was directed to undergo R.I. for one year and it was further directed that the period for which accused person had undergone custody be adjusted in sentence.

3. The prosecution case in short is that on 13.11.1998 at about 8:30 pm the informant Sachindra Kumar Jha, Officer In-charge, Chhatarpur Police Station made his self-recorded statement alleging therein that at about 8:00 p.m. he got confidential information that in village Kawal some persons have assembled and making preparation to commit dacoity. It is further alleged that during search one fire arm was recovered from the possession of Jagan Mushar and from another accused, Fokan Mushar a chura and one live cartridge was recovered. It is further alleged that nothing was recovered from the possession of Kunwar Mushar, Kamlesh Baitha and Umesh Singh, but it is alleged that they were associates of accused persons from whom arms were recovered and they were planning for dacoity. Further, articles were seized by the police and accordingly seizure list was prepared in presence of witnesses namely Mandip Paswan and Chandradip Paswan.

On the basis of the written report, the instant case was registered and after investigation police submitted charge-sheet. Accordingly, charge was framed against the accused person for which he pleaded not guilty and claimed to be tried and finally the he was convicted.

4. Ms. Apurva Pathak, learned Amicus submits that the ingredients of Section 35 of the Arms act, are not fulfilled, inasmuch as, the prosecution is required to prove that the accused has satisfied both the essentials; first that the arms or ammunition shall be found in any premise, vehicle or other place in the joint occupation or under the joint control of several persons and second that each of such persons in respect of whom there is reason to believe that he was aware of the existence of the arms or ammunition in the premises, vehicle or other place.

Learned amicus contended that the prosecution has not proved by leading evidence that this petitioner was having knowledge that the arms were kept in the place of occurrence. Learned Amicus further referred the case of Akhilesh Singh vs. State of Jharkhand, 2013 SCC Online Jhar 994, wherein this Court has held as under:

“13.......It is evident from the plain reading of this section that the question of being aware of existence of arms and ammunitions in the premises from where they had been recovered, comes for consideration only when it is alleged that the said premises was in joint occupation or under the joint control of such person. If there is nothing on the record to suggest that the premises, vehicle or place where the recovery was made, was in joint possession or joint control of such person, the question of second ingredient, i.e. awareness of existence of arms and ammunitions in the premises, vehicle or place, does not come into picture at all. This clearly leads to the conclusion that if there is nothing to show that the person was in joint occupation or joint control over the premises, vehicle or place from where the recovery of the arms and ammunition was made, he cannot be made liable for the offences under the Arms Act with the help of Section 35 of the said Act, even if he was aware of