Patna High Court
Akash Singh @ Sangram Singh @ BhaijiversusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SHAILENDRA SINGH
Holding
The convictions under Sections 399, 402, 414 IPC and the Arms Act were set aside and the appellants were acquitted of all charges.
Summary
The Patna High Court heard two criminal appeals arising from the same conviction for offences under Sections 399, 402, 414 of the IPC and Sections 25(1A), 26, 35 of the Arms Act. The trial court had sentenced the appellants to several years of rigorous imprisonment and imposed fines, based largely on the recovery of firearms and a motorcycle from their possession during a police raid. The appellants contended that the prosecution failed to prove that the seized weapons were properly sealed at the spot, that the chain of custody was broken, and that there was no evidence of an assemblage for the purpose of dacoity. The Court examined the inconsistencies in police testimony, the absence of independent witnesses, and the lack of a seizure memo showing proper sealing. Concluding that the recovery of firearms was not proved beyond reasonable doubt and that the essential elements of Sections 399 and 402 IPC were not established, the Court acquitted the appellants of all charges and set aside the conviction and sentence.
Issues considered
- The prosecution proved beyond reasonable doubt the recovery and proper sealing of firearms seized from the appellants.
- Whether the alleged assemblage of the accused was for the purpose of committing dacoity under Sections 399 and 402 IPC.
- Whether the evidence satisfied the requirements for conviction under Section 414 IPC (possession of stolen property).
- Whether the lack of independent witnesses and contradictions in police testimony vitiated the prosecution case.
- Whether the trial court erred in upholding the convictions despite procedural lapses in the seizure process.
Legislation cited
- Arms Act — s. 25(1A), 26, 35
- Indian Penal Code — s. 399, 402, 414
Subjects
- dacoity
- arms seizure
- sealing of firearms
- chain of custody
- benefit of doubt
- criminal procedure
- IPC sections 399 402 414
- Arms Act sections 25 26 35
- acquittal
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.129 of 2014
Arising Out of PS. Case No.-352 Year-2012 Thana- GORAUL District- Vaishali
======================================================
1. Naresh Ray @ Nanhki, S/O Sri Davendra Ray, Resident of Village
Mangurathi, P.S. Mahua, District Vaishali.
2. Md. Habib @ Md. Habib Miya, S/O Salim Miya, Resident of Village
Maudah Chatur, P.S. Patepur, District Vaishali.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 360 of 2014
Arising Out of PS. Case No.-352 Year-2012 Thana- GORAUL District- Vaishali
======================================================
Akash Singh @ Sangram Singh @ Bhaiji, S/o Late Vijay Bahadur Singh, R/o
Village- Rampur, P.S. - Murabad Shahpur, Dist- Jaunpur, (U.P.).
... ... Appellant/s
Versus
The State of Bihar ... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (SJ) No. 129 of 2014)
For the Appellant/s : Mr. Nagendra Kumar Singh, Amicus Curiae.
For the State : Mr. Abhay Kumar, APP
(In CRIMINAL APPEAL (SJ) No. 360 of 2014)
For the Appellant/s : Mr. Nagendra Kumar Singh, Adv.
Mr. Bijay Kr. Pathak, Adv.
For the State : Mr. Abhay Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 12-02-2026
Both the criminal appeals have arisen out of the same
judgment; hence, they are being decided together by a common
judgment.
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
2/26
2. These appeals have been preferred against the
judgment of conviction dated 12.02.2014 and the order of
sentence dated 18.02.2014 passed by the court of the learned Ad
hoc Additional District and Sessions Judge-II, Hajipur, Vaishali,
in Sessions Trial No. 274 of 2013 arising out of Goraul P.S. Case
No. 352 of 2012, whereby and whereunder the appellants
Naresh Rai @ Nanhki and Akash Singh @ Sangram Singh @
Bhaiji were convicted for the offences under Sections 399, 402,
and 414 of the Indian Penal Code (in short, ‘IPC’) and also for
the offences under Sections 25(1A) and 26 of the Arms Act. By
the same judgment, the appellant Md. Habib @ Md. Habib Miya
has been convicted for the offences under Sections 399 and 402
of the IPC and Sections 25(1A) and 26 of the Arms Act.
2.1. The appellants Naresh Rai @ Nankhi and Akash
Singh @ Sangram Singh @ Bhaiji have been sentenced to
undergo seven years of rigorous imprisonment each for the
offence under Section 399 of the IPC, seven years of rigorous
imprisonment each for the offence under Section 402 of the IPC,
and three years of rigorous imprisonment each for the offence
under Section 414 of the IPC. They have been further sentenced
to undergo seven years and five years of rigorous imprisonment
each for the offences under Sections 25(1A) and 26 of the Arms
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
3/26
Act, respectively.
2.2. The appellant Md. Habib @ Md. Habib Miya has
been sentenced to undergo seven years of rigorous imprisonment
for the offence under Section 399 of the IPC and has been
further sentenced to undergo seven years of rigorous
imprisonment for the offence under Section 402 of the IPC. He
has also been sentenced to undergo seven years and five years of
rigorous imprisonment for the offences under Sections 25(1A)
and 26 of the Arms Act, respectively.
2.3. By the impugned order of sentence, all the
appellants have also been punished with a fine of Rs. 5,000/-
each for the offence under Section 399 of the IPC, Rs. 3,000/-
each for the offence under Section 402 of the IPC, and Rs.
3,000/- and Rs. 2,000/- each for the offences under Sections
25(1A) and 26 of the Arms Act, respectively. In default of
payment of fines, they have been directed to undergo simple
imprisonment for a period of three months additionally. All the
sentences of imprisonment have been directed to run
concurrently by the trial court.
2.4. All the appellants have been acquitted of the
offence under Section 35 of the Arms Act by the same impugned
judgment, and two co-accused persons, namely, Prem Singh and
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
4/26
Rajesh Kumar, who faced trial jointly with the appellants, have
been acquitted of the charged offences.
Prosecution Story : -
3. The substance of the prosecution story, as appears
from the FIR, is as follows:
As per the informant, on 07.11.2012 at about 8:30
P.M., Sanjay Kumar (PW-3), S.H.O. of Goraul Police Station,
received an information an from the S.H.O. of Mahua Police
Station that some miscreants had assembled at village
Husainakhurd and were planning to commit a crime. The S.H.O.
of Mahua Police Station requested him (PW-3) to reach village
Husainakhurd and told him that he (the S.H.O. of Mahua) had
also asked for help from the S.H.O. of Bhagwanpur Police
Station and requested him to reach the place of occurrence.
Accordingly, the police officials of the three police stations
proceeded to the place of occurrence, and as per the informant,
he reached Husainakhurd at about 9:30 P.M. In the meantime,
the S.H.O.s of Mahua and Bhagwanpur reached there along with
other police officials, and they came from three directions. Upon
seeing the police vehicles, five persons who were talking to each
other near the road started fleeing, and thereafter, they were
chased by the police personnel. Upon being chased, two of them
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
5/26
were apprehended, and during that course, local people also
gathered, and with their help, one more accused person was
apprehended, who sustained some injury caused by the local
people during the course of apprehending him.
3.1. As per the informant, in the presence of two
independent persons, namely, Anil Kumar Singh and Jitendra
Chaudhary, all three apprehended accused persons, who
disclosed their names as Naresh Rai @ Nanhki, Akash Singh @
Sangram Singh @ Bhaiji, and Md. Habib @ Md. Habib Miya,
were searched.
3.2. From the person of the accused Naresh Rai @
Nanhki, one Passion motorcycle of Hero Honda Company
bearing Registration No. BR-31K-6589 and one pistol loaded
with a magazine, on which “Made in USA” was written, were
recovered. The magazine contained four live bullets, and at the
bottom of the bullets, the mark “7.65 mm” was mentioned.
Apart from these articles, one mobile set of Nokia Company
containing a SIM of Idea Company was also recovered from his
possession.
3.3. From the person of Akash Singh @ Sangram
Singh @ Bhaiji, one pistol with a loaded magazine containing
three live bullets was recovered, and at the bottom of the bullets,
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
6/26
the mark “7.65” was mentioned. The said firearm was recovered
from the waist of the said accused. Apart from these firearms,
some other articles, such as a golden locket, an election identity
card belonging to one Abhishek Kumar Singh, and two deposit
receipts of the State Bank of India and Union Bank of India,
were also recovered.
3.4. From the possession of the apprehended accused,
Habib Miyan, one loaded country-made pistol of .315 bore,
containing one live bullet marked “8 mm KF,” was recovered.
3.5. As per the informant, all three apprehended
accused, who are the present appellants, could not produce
documents justifying their possession of the seized materials and
could not give satisfactory answers for keeping these articles in
their possession. When they were asked about the details of the
remaining two accused persons who managed to escape, they
revealed their names as Prem Singh and Rajesh Kumar and also
stated that all of them had assembled at the alleged place with
the intention of looting motorcycles.
3.6. As per the informant, a seizure list (Ext-1) was
prepared in respect of all the recovered articles at the place of
recovery, upon which the signatures of two independent persons
were also taken. One copy of the same was provided to the
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
7/26
apprehended accused persons, and thereafter, the accused
persons and the recovered articles were handed over to the
concerned jurisdictional police officials.
3.7. The informant, Sanjay Kumar, the S.H.O. of
Goraul Police Station, recorded his self-statement on the same
day of the arrest of the accused and recovery of the articles at
22:30 hours at Husainakhurd, the place of occurrence,
describing the above-mentioned prosecution story. On that basis,
the formal FIR (Ext-2) bearing Goraul P.S. Case No. 352 of
2012 was registered for the offences under Sections 399, 402,
and 414 of the IPC and also under Sections 25(1B)(a), 26, and
35 of the Arms Act against the five named accused, including
the appellants, which set the criminal law in motion.
4. After completion of the investigation, all the
appellants, along with the other named accused persons, were
charge-sheeted for the same offences as mentioned in the FIR.
5. After taking cognizance of the alleged offences, the
learned Magistrate, finding the major offences to be triable by
the Court of Sessions, committed the case of the appellants to
the Sessions Court for trial.
6. All the appellants were charged with offences under
Sections 399, 402, and 414 of the IPC, and the appellant Akash
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
8/26
Singh @ Sangram Singh @ Bhaiji and two co-accused persons
were separately charged with the offence under Section 35 of the
Arms Act.
6.1. In addition to these offences, the appellants were
charged with offences under Sections 25(1A), 26(2), and 35 of
the Arms Act. All the said charges were read over and explained
to the appellants by the trial court, to which they pleaded not
guilty and claimed to be tried.
7. During the course of the trial, the prosecution
examined a total of nine witnesses, who are as follows:
Sl. No. Name Relevancy
PW-1 Rabindra Kumar The then Police officer and a
Sharma member of the raiding party
PW-2 Jagat Kishore Prasad The then SHO of Bhagwanpur
police station and a member of the
raiding party
PW-3 Sanjay Kumar Singh The informant and the then SHO
of Goraul Police station
PW-4 Md. Ayub The then SHO of Mahua P.S. and
a member of raiding party
PW-5 Isteyak Khan The then Head Constable of
Goraul P.S. and a member of
raiding party.
PW-6 Sakaldeep Prasad The then Sub-Inspector of Goraul
P.S. and the Investigating officer
PW-7 Dhananjay Sharma The then In-charge of Malkhana
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
9/26
of Goraul P.S., who produced the
seized articles before the trial
court
PW-8 Jagatpati Prasad Karn The then Sergeant Major, posted
at police line Hajipur, who
mechanically examined the seized
firearms and gave his report as a
Ballistic Expert
PW-9 Manoj Kumar A formal witness who proved the
prosecution’s sanction given by
the concerned Collector.
8. In addition to the above-mentioned ocular
evidence, the prosecution produced, proved, and exhibited the
following documents as documentary evidence:
Sl. No. Relevancy
Ext-1 Seizure list
Ext-2 Self-statement of the informant (PW-3)
Ext-2/1 An Endorsement on Ext-2
Ext-3 & 3/1 The petitions dated 20.11.2012 & 07.12.2012
Ext-4 Signature of the sergeant Major (Ballistic
Expert) upon the report
Ext-5, 5/1 & 5/2 Signatures on the report of the Sergeant Major
Ext-6 Signature of the I.O. over the sealed cover/the
inquiry report
Ext-7 Examination Report
Ext-8 After inspection, exhibits were put in bags, and
written notes on the bags
Ext-9 Prosecution sanction order
Ext-10 Initial signature of one namely, Rajiv Ranjan
Prasad on the prosecution sanction order
9. In addition to the above ocular and documentary
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
10/26
evidence, the prosecution also produced the seized articles
before the trial court and got them marked as material objects,
which are as follows:
Sl. No. Relevancy
Material Ext-I Semi Automatic pistol
Material Ext-I/a Semi Automatic pistol
Material Ext-II Magazine of pistol
Material Ext-II/a Magazine of pistol
Material Ext-III One country made pistol
Material Ext-IV to IV/g Five live cartridges of 7.65 mm bore
and two empty cartridges and one
cartridge of 8 mm bore
Material Ext-8 One bag made of cloth, in which the
arms were kept
10. After the completion of the prosecution evidence,
the statements of the appellants were recorded under Section
313 of the Cr.P.C., giving them an opportunity to explain the
material circumstances appearing against them from the
prosecution evidence, which were denied by them, and they
claimed themselves to be innocent. They mainly took the plea
that they had been falsely implicated in the case in connection
with the alleged recovery of the firearms and other articles.
11. The appellants did not adduce any evidence, either
ocular or documentary, in their defence.
Submission on behalf of the appellants:-
12. Mr. Nagendra Kumar Singh, learned counsel
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
11/26
appearing for the appellant in Cr. Appeal No. 360 of 2014,
submits that from the allegations in the prosecution story
mentioned in the FIR, the alleged offences punishable under
Sections 399, 402, and 414 of the IPC, for which the appellant,
Akash Singh @ Sangram Singh @ Bhaiji, has been convicted,
are not made out, as the prosecution did not adduce any
evidence to show that the said appellant and other co-accused
persons had assembled at the alleged place to make preparations
for loot or dacoity. Insofar as the recovery of firearms from the
possession of this appellant and others, as well as their presence
at the alleged place, is concerned, there are serious
contradictions among the testimonies of the prosecution
witnesses, particularly with respect to the direction in which the
appellant and other co-accused persons started fleeing upon
seeing the police party. Further, with regard to the position in
which the appellants were first noticed by the police party,
contradictory statements were made by the prosecution
witnesses, as some stated that the accused persons were on a
motorcycle, whereas others stated that they were in a standing
position and talking to each other. Learned counsel further
submits that, as per the description of the place of occurrence
given by the Investigating Officer and other prosecution
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
12/26
witnesses, there are several houses on both sides of the alleged
road from where the accused persons, including the appellant,
were apprehended, and for coming and going, there were only
two directions, the eastern and western sides. However, as per
the prosecution story, the police party had surrounded the
accused from three sides; therefore, it was not possible for them
to run in either direction of the road. In this regard, there are
serious contradictions among the testimonies of the prosecution
witnesses, as some stated that the appellant and the accused
persons tried to run towards the eastern side, while others stated
that they tried to run towards the western side. Therefore, the
alleged attempt to run by the accused persons, including the
appellant, was not possible towards both sides. If the
prosecution story is believed that the accused persons were
surrounded from three sides, then the alleged attempt to run in
either direction becomes inherently improbable and inconsistent
with the overall narrative.
12.1. Learned counsel further submits that mere
recovery of firearms from the possession of the appellants and
co-accused persons does not attract the offences punishable
under Sections 399, 402, and 414 of the IPC. In support of this
submission, learned counsel has placed reliance upon the
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
13/26
judgment of this Court passed in the case of Sulo Thakur &
Ors. vs. State of Bihar, reported in 2006 (4) PLJR 190 and the
relevant paragraph No. 20, upon which reliance has been placed,
is reproduced as under:
20. As per the case and evidence, appellants
along with others at odd hours of the night
were found sitting, smoking in the verandah
of the Minna High School. On raid five
appellants were arrested and others,
succeeded in fleeing away. A country made
pistol with a live cartridge was recovered
from the possession of Appellant-Sulo
Thakur and two live cartridges from the
possession of Appellant-Abbas Mian. Empty
polythene of wine and ends of Biri and
cigarette were also found. This shows that
appellants and others had taken wine there.
Appellants who were arrested on spot
disclosed that they had assembled there and
were making planning for committing
dacoity. Their statements that they had
assembled there and were making plan to
commit dacoity were inadmissible in law. To
constitute offence under Section 399/402 IPC
the prosecution has to prove that appellants
had assembled for the purpose of committing
dacoity and they were making planning for
the same. In the present case, there is nothing
which goes to prove that the assemblage of
the appellants and others was for the purpose
of committing dacoity and they were making
planning for the same. Mere recovery of
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
14/26
pistol and cartridges is not enough to
constitute offence under Sections 399 and
402 IPC. In the present case, assemblage of
the appellants and others may be for making
merry or to commit offence other than
dacoity. So, in my view, offence under
Sections 399/402 IPC is not proved and it
fails.
12.2. Learned counsel further submits that as per the
FIR, the process of search and seizure of the alleged firearms,
motorcycles, and other articles from the possession of the
apprehended accused persons, including the appellant, was
conducted before two independent persons, namely, Anil Kumar
Singh and Jitendra Chaudhary, but they were not produced and
examined before the trial court, and in this regard, no
explanation has been given. It is the case of the prosecution that
the third accused was apprehended with the help of local people
who were in large numbers, but none of them was produced and
examined before the trial court. Hence, there is no independent
witness to prove the charged offences despite the availability of
independent witnesses. It is lastly submitted that all the material
prosecution witnesses, including the informant, did not say
anything in their evidence before the trial court that the seized
articles were sealed either at the place of recovery or at the
police station, which casts serious doubt on the allegations of the
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
15/26
prosecution. Further, copies of the Station Diary entries of the
three police stations, whose police officials were involved in
raiding the alleged place, were neither produced nor exhibited
by the prosecution to prove the action taken by the police
officials upon receiving the secret information regarding the
presence of the appellant along with the accused persons at the
alleged place of occurrence.
Submissions made by learned Amicus Curiae :-
13. As no one appears on behalf of the appellants in
Criminal Appeal (SJ) No. 129 of 2014, learned counsel
appearing for the appellant, namely, Akash Singh @ Sangram
Singh @ Bhaiji, in Criminal Appeal (SJ) No. 360 of 2014, is
requested to assist this Court as Amicus Curiae in Criminal
Appeal (SJ) No. 129 of 2014. Accordingly, he has made his
submissions in respect of the appellants, namely, Naresh Ray @
Nanhki and Md. Habib @ Md. Habib Miya, and his submissions
are almost the same as those stated above in respect of Criminal
Appeal (SJ) No. 360 of 2014.
Submissions made on behalf of the State:-
14. On the other hand, Mr. Abhay Kumar, learned APP
appearing for the State, has argued that the recovery of firearms
from the possession of the appellants was proved by the
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
16/26
prosecution witnesses, and from the manner in which the alleged
firearms and other articles, such as motorcycles, were recovered
from their possession, it can be easily inferred that all the
accused persons, including the appellants, had gathered at the
alleged place of occurrence to make preparations to commit the
offence of loot, and they were five in number. Therefore, the
offences for which the trial court convicted the appellants
clearly stood attracted in this matter. As far as the process of
sealing of the seized articles is concerned, it came in the
evidence of the Sergeant Major that all the seized articles were
in a sealed condition when they were brought before the trial
court, and they were also produced in a sealed condition. The
seizure memo was also proved before the trial court, and the
credibility of the prosecution story, particularly in respect of the
offences under the Arms Act, cannot be rejected merely on
account of the non-examination of two independent witnesses,
as the police officials who were part of the raiding party
appeared before the trial court and deposed, and their evidence
is sufficient to prove the recovery of firearms from the
possession of the appellants. As such, there is no illegality in the
impugned judgment, and the appeal lacks merit and is liable to
be rejected.
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
17/26
Consideration and Analysis : -
15. I have heard both sides, perused the evidence
adduced by the prosecution available on the record of the trial
court, and also taken into consideration the statements of the
appellants as well as the findings recorded by the trial court in
the impugned judgment. The instant matter mainly relates to the
alleged recovery of firearms from the possession of the
appellants. It is primarily on the basis of such alleged recovery
that the appellants were suspected to have been present at the
alleged place in preparation for committing dacoity. In respect of
the said recovery, the appellants have been charged with the
offences under Sections 25(1A), 26(2), and 35 of the Arms Act.
16. For attracting the offence under Section 25(1A),
where the allegation is that a firearm or firearms has/have been
recovered from an accused, such recovery must be proved
beyond reasonable doubt. If the recovery itself appears
suspicious, then the commission of other offences under
Sections 26 and 35 of the Arms Act may also be rendered
doubtful. To prove the recovery of firearms, the prosecution
must establish proper sealing of the seized firearms. Proper
sealing involves immediate packing, sealing, and labeling of the
firearms with case details and signatures of witnesses at the spot.
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
18/26
The procedure adopted must be proved through the seizure
memo, Malkhana register entries, and the testimony of the
seizing officer and independent witnesses. Improper sealing,
including the absence of specimen seal or gaps in the chain of
custody, creates material doubt and may lead to acquittal or
grant of benefit of doubt to the accused, as it raises the
possibility of tampering. When an illegal firearm is recovered by
the police or any competent authority, it must be immediately
packed and sealed at the place of recovery, and not later at the
police station. In exceptional circumstances, sealing at the police
station may be permissible, but such circumstances must be
clearly explained. After sealing, a detailed description such as
the type of firearm, number, markings, etc. must be recorded in
the seizure memo. The package must bear the signatures of the
investigating officer and, if possible, independent witnesses. The
label or slip must contain details such as the case number,
description of the firearm, name of the accused, and date of
seizure. A specimen of the seal used must be prepared
separately. If improper sealing occurs such as absence of seal,
broken seal, or lack of documentation it creates reasonable
doubt regarding the integrity of the evidence and raises the
possibility that the alleged weapon was planted, manipulated, or
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
19/26
tampered with. The primary responsibility to seal the seized
weapon lies upon the detecting officer or the officer effecting
the recovery.
In this regard, the judgment of the Hon’ble Apex
Court in the case of Amarjit Singh @ Babbu Vs. State of
Punjab reported in 1995 Supp (3) SCC 217 is important
wherein paragraph no.7 is reproduced as under:
"7. The entire prosecution case, thus, is clouded
with number of infirmities which compel this
Court not to accept such an unworthy evidence.
These infirmities have been brushed aside by the
Designated Court by observing that since the
model number of the revolver was noted down,
the non-sealing of the revolver or the handing
over of the same to some other police official or
a private person, who has not been examined are
of no consequence. We are unable to agree and
subscribe to this view in a case of this nature.
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.
The report of PW 4 that the weapon is capable of
being fired is insignificant since it cannot be said
with certainty as to what was the condition of
the weapon at the time of the recovery, apart
from the evidence of PW 4 that he did not test-
fire the revolver."
17. In several cases involving recovery of firearms,
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
20/26
this Court has come across lapses in the sealing process on the
part of police officials, resulting in acquittal of the accused for
offences punishable under the Arms Act. Therefore, this Court
lays down the following guidelines, which must be adopted by
police officials in cases involving recovery of firearms:
(i) Whenever a police official acts upon secret
information to raid a particular place or person, such
information must be recorded in the General Diary (Rojnamcha)
of the police station. The same must be proved before the trial
court by exhibiting the relevant entry so as to justify the action
of the police and rule out fabrication of a false story of recovery.
(ii) After recovery of a firearm, the police officer
heading the raiding team must prepare the seizure memo at the
place of recovery. In exceptional circumstances, it may be
prepared at the police station or another secure place, but such
circumstances must be mentioned in the seizure memo. The
seizure memo must contain a complete description of the
recovered firearms and details of the persons present at the time
of recovery including the details of sealing process if taken on
the spot of recovery with specimen of used seal. Efforts must be
made to conduct recovery in the presence of independent
witnesses; if not possible sufficient reasons showing efforts
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
21/26
must be recorded in the seizure memo.
(iii) When the police party proceeds to a place on this
information that some persons have gathered with firearms,
upon reaching there, the police officials involved in the search
must get themselves searched before independent persons (either
other officials or private persons, if available). Details of such
search must be recorded in the seizure memo to rule out the
possibility of planting firearms, if due to reasonable reasons the
said search is not possible then the reasons must be recorded in
the seizure memo.
(iv) Thereafter, the seized weapons must be sealed at
the place of recovery by putting them in a cloth bag. A slip
containing details of all seized firearms and the names of
witnesses (including police officials and accused), along with
their signatures or thumb impressions, must be affixed with seal
on the outside part of the bag. One copy of such slip with
specimen of used seal must be kept inside the bag. A separate
specimen of the seal used must be prepared, and one copy of the
specimen must also be kept inside the bag. The sealing process
must be done before witnesses, and the adopted procedure must
be described in the seizure memo. After completion of sealing
procedure and preparation of the seizure memo, the accused and
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
22/26
seized articles must be produced before the jurisdictional
Magistrate at the earliest. The Magistrate must note whether the
articles are produced in sealed condition and also note other
relevant details, and such endorsement or note must form part of
the record.
(v) When the sealed firearms are produced before the
ballistic expert pursuant to court direction, the expert must
record the description and condition of the seal thereafter can
break it for examination, and thereafter must reseal the articles
by using his own official seal following the same procedure.
Apart from the examination findings, details and description of
the earlier sealing condition and present adopted procedure must
be mentioned in the expert report. The sealing slips relating to
earlier sealing procedure found outside and inside the bag at the
time of opening must also be kept and sealed in another bag by
expert with other relevant details.
(vi) During trial, when seized firearms are produced
before the court, the court after breaking the existing seal,
recording evidence and exhibiting the articles, must reseal them
using the court seal. The slips found inside or outside being
affixed to the bag must be proved and exhibited as documentary
evidence. The Malkhana Register showing deposit and condition
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
23/26
of seized articles at the time of depositing must also be
produced and exhibited.
18. Now, coming to the present case, it is necessary to
examine whether the proper sealing procedure was adopted or
not in present matter. As per the FIR based on the self-statement
of the SHO, Goraul P.S., three pistols were recovered from the
possession of the appellants; two were loaded with magazines
and one was loaded with a live bullet. Although the informant
mentioned preparation of the seizure memo at the spot but he
remained completely silent regarding sealing of the seized
firearms either at the spot or at the police station. PW-2, the
SHO of Bhagwanpur Police Station, in cross-examination
(paragraph 4), stated that he did not remember whether the
recovered firearms were sealed or not. PW-6, the Investigating
Officer, deposed in cross-examination that when he obtained the
seized firearms from the Malkhana on 08.12.2012 for ballistic
expert's examination, he did not remember whether they were
sealed or not. The informant also remained silent in his self-
statement which was basis of FIR and in chief examination of
his evidence regarding sealing of recovered firearms. Although
PW-8, the Ballistic Expert, stated that the articles were produced
before him in sealed condition but PW-7, the Malkhana in-
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
24/26
charge, stated in cross-examination (paragraph 6) that the seized
materials were sealed before him. It is not the prosecution case
that PW-7 was present at the place of recovery. As per the
Investigating Officer, the seized articles were taken from the
Malkhana on 08.12.2012 for ballistic examination. This
indicates that the firearms were sealed for the first time before
the Malkhana in-charge, and not at the spot or immediately after
recovery. Thus, there is sufficient material to show that the
alleged firearms were not sealed at the place of recovery and
remained unsealed until handed over for ballistic expert's
examination. Further, the prosecution failed to produce two
independent witnesses, namely Anil Kumar Singh and Jitendra
Chaudhary, to prove recovery and preparation of the seizure
memo. No plausible explanation was given for their non-
production. Additionally, though appellant Md. Habib Miyan
was allegedly apprehended with the help of several local persons
but none of them was examined as witness. Furthermore the
entry made in daily police diary by the SHO of concerned P.S. at
the time of proceeding to alleged place to conduct raid, was not
proved by producing the daily police diary (Rojnamcha) before
the trial court which also goes against the operation. There are
also material contradictions regarding the position and conduct
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
25/26
of the appellants when they were apprehended as per
prosecution. PW-1 stated that the accused were coming on
motorcycles and fled upon seeing the police. PW-3 stated they
were found being assembled near a house. PW-2 stated that
they were sitting and talking on the road. There is also
contradiction regarding the number of motorcycles, and further
the recovered motorcycle was not produced before the trial
court, which was material for proving the offence under Section
414 IPC.
Conclusion :-
19. In view of the above, this Court is of the
considered opinion that the prosecution remained fail to prove
the recovery of alleged firearms from the possession of
appellants beyond reasonable doubt. Since the offences under
Sections 399 and 402 IPC were primarily based on such
recovery, those charges also remain doubtful.
20. Accordingly, this Court is not persuaded to affirm
the conviction of the appellants for the alleged offences hence
they are acquitted of all charges, giving them the benefit of
doubt.
21. In the result, both appeals are allowed. The
impugned judgment of conviction and order of sentence are
Patna High Court CR. APP (SJ) No.129 of 2014 dt.12-02-2026
26/26
hereby set aside. The appellants are presently on bail;
accordingly, their bail bonds stand cancelled forthwith and their
sureties are discharged from their liabilities.
22. Let the trial court's records, along with a copy of
this judgment, be transmitted to trial court forthwith for
compliance and necessary action.
23. Let a copy of this judgment also be sent to the
Director General of Police, Bihar, who shall ensure compliance
with the sealing procedure keeping in view the guidelines
mentioned in paragraph no. 17 of this judgment, particularly
with regard to recovery of firearms, by issuing appropriate
directions to all SHOs of police stations.
(Shailendra Singh, J)
Rajiv/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 17.02.2026
Transmission Date 17.02.2026
Checking your session…
Lawyer court records for this case
Associated through the court’s case reference.