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2015 Supreme(Online)(KER) 12794
HIGH COURT OF KERALA
P.D.RAJAN, J
DAMODARAN – Appellant
Versus
STATE OF KERALA – Respondent
Crl.Rev.Pet/3106/2006
SRI.SUNNY MATHEW
The court emphasized that the non-sealing of seized weapons adversely affects their evidentiary value, leading to acquittal when reasonable doubt exists.
Headnote:
Arms - Conviction - Arms Act, 1959 - Sections 3, 25(1)(B)(a) - The court found that the non-sealing of seized arms at the point of collection significantly undermined the evidence's integrity, leading to reasonable doubt regarding the prosecution's case.
Fact of the Case:
The petitioner was accused of possessing unlicensed firearms, which were seized without sealing at the scene. He challenged the conviction citing insecurities in the seizure process and the delay in presenting evidence.
Issues: Did the failure to seal the seized firearms at the scene compromise the integrity of the evidence and the prosecution's case?
Ratio Decidendi: The non-sealing of seized items raises reasonable doubts about their identity and integrity, impacting the prosecution's burden to prove guilt beyond a reasonable doubt.
Final Decision: The conviction and sentence were set aside, and the petitioner was acquitted.
ORDER
The short question that arises for consideration is, whether non-sealing of the seized gun at the place of occurrence will affect the credibility of the seizure and there is possibility of tampering with the weapon seized?
2. The revision petitioner, who is the appellant in Crl.Appeal 276/2004 on the file of the Additional Sessions Judge-III, Kozhikode, challenges the judgment of conviction under Section 3 r/w 25(1)(B)(a) of the Arms Act, 1959 (hereinafter referred to as 'the Act'). He was accused in C.C.477/2001 of the Judicial First Class Magistrat-I, Perambra and convicted under r/w 25(1-B) of the Arms Act and sentenced to undergo rigorous imprisonment for six months and fine of Rs.5000/- in default of payment of fine, imprisonment for Crl.R.P.3106/062 three months. Against that he preferred an appeal which was dismissed by the appellate court. Being aggrieved by that he preferred this revision petition.
3. The prosecution case is that on 14.03.2000 at
7.55 pm, the revision petitioner was found in possession of 3 country guns in his house VIII/321 of Koorachundu panchayat without licence. Accordingly, Koorachundu Police registered a case and after investigation, the Assistant Sub Inspector of Police laid charge before Judicial First Class Magistrate-I, Perambra. To prove the offence, prosecution examined PW1 to PW12 and marked Exts.P1 to P5. MO1 series and MO2 were admitted as material objects. Ext.D1 was marked by the accused. The trial court after analysing the evidence, convicted the accused.
4. The learned counsel appearing for the revision petitioner contended that MO1 series and MO2 were not sealed at the place of occurrence and there is delay of 3 months in producing the seized articles before court. Prosecution has not offered any explanation in whose Crl.R.P.3106/06 3 custody MO1 series and MO2 were kept. PW8 is residing near the Police Station and is a stock witness in several cases, therefore, Ext.P1 seizure is not believable. The search and seizure conducted without following the procedure formalities were not considered by the courts below.
5. Now the ground put forward by the petitioner is that, the seized weapons (MO1 series and MO2) were not sealed at the place of seizure itself, if so, what is the impact of non-sealing. The seizure of MO1 series and MO2 was made by PW1 while he was the Sub Inspector of Police, Koorachund. On the basis of reliable information he reached at the place of occurrence, at that time the revision petitioner ran away with MO1 and 2 through the back side of his work shop. The police party chased him and seized the arms from him. The seizure was made in the presence of independent witness. Reaching at the police station, he registered Crime 29/00. Ext.P1 is the seizure mahazar and Ext.P2 is the FIR. The seized arms were marked as MO1 series and MO2. During cross Crl.R.P.3106/06 4 examination, he admitted that MO1 and MO2 were not sealed at the place of occurrence. In Ext.P5, it is specifically mentioned that MO1 and MO2 were sealed in the Magistrate Court, and forwarded to PW11 District Armour for mechanical examination. The seizure mahazar was attested by PW8. The oral evidence of PW1 and PW8 show that MO1 series and MO2 were not sealed at the place of occurrence immediately after seizure, which support the case of the revision petitioner. In short, the weapons seized from the possession of revision petitioner were not packed and sealed at the spot and there is every possibility of tampering.
6. The impact of non-sealing of the weapon handed over to the police has been discussed by the apex court in Amarjit Singh V. State of Punjab (1995 SCC (Cri)
828). It was held as follows;
“The non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out.”
7. The impact of non-sealing was considered by the apex court in another decision inJasbir Singh v. State Crl.R.P.3106/065 of Punjab AIR (1998 SC 1660) wherein it was
