Patna High Court
MD. MAUSAM and ANRversusSTATE OF BIHAR
- Decided
- Disposal
- CONSIGNED
- Bench
- PURNENDU SINGH
Holding
The appeal is allowed and the conviction under Sections 25(1‑AA) and 26(2) of the Arms Act is set aside because the prosecution failed to prove guilt beyond reasonable doubt.
Summary
The appellants MD Mausam and the late MD Naushad were convicted under Sections 25(1‑AA) and 26(2) of the Arms Act for allegedly operating a mini‑gun factory at their house, based on a police raid and seizure of pistols and manufacturing equipment. The prosecution’s case relied solely on police officers who conducted the raid, with no independent witnesses and inconsistencies in their testimony regarding the location and possession of the seized items. The High Court examined whether the prosecution had established the essential ingredients of the offences, including conscious or constructive possession and compliance with Section 100 of the CrPC for search and seizure, and whether the prior sanction under Section 39 of the Arms Act was valid. It held that the lack of independent corroboration, procedural lapses, and failure to prove possession rendered the evidence insufficient to meet the standard of proof beyond reasonable doubt. Consequently, the conviction was set aside and the appeal was allowed, discharging the appellant from bail liability and ordering a refund of any fine paid.
Issues considered
- Whether the prosecution proved the elements of offences under Sections 25(1‑AA) and 26(2) of the Arms Act, particularly conscious/constructive possession and manufacture of prohibited arms.
- Whether the search and seizure complied with the procedural safeguards mandated by Section 100 of the Criminal Procedure Code.
- Whether the prior sanction under Section 39 of the Arms Act was valid and sufficient.
- Whether the conviction can stand in view of the evidentiary deficiencies and procedural irregularities.
Legislation cited
- Arms Act, 1959 — s. 25(1‑AA), 26(2), 39, 7
- Code of Criminal Procedure, 1973 — s. 100(6), 374(2)
Subjects
- Arms Act
- possession
- search and seizure
- Section 100 CrPC
- sanction under Section 39
- constructive possession
- reasonable doubt
- conviction overturned
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.71 of 2010
======================================================
1. MD. MAUSAM
2. Md. Naushad (Died)
Both sons of Md. Jamal. Resident of Village, Mirazapur, Bardah, P.S.
Muffasil, District, Munger
... ... Appellant/s
Versus
STATE OF BIHAR
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Ms. Aditi Sharma, Amicus Curiae
For the Respondent/s : Mr. Satya Narayan Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
CAV JUDGMENT
Date : 28-04-2026
During the pendency of this appeal, the appellant
no.2 had died and as such the present appeal stood abated as
against him and therefore, now, this appeal is restricted only
with respect to appellant no.1.
2. Heard Ms. Aditi Sharma, learned Amicus Curiae
and Mr. Satya Narayan Prasad, learned APP for the State.
3. The present appeal has been filed under Section
374 (2) of the Code of Criminal Procedure challenging the
judgment of conviction dated 19.12.2009 and order of sentence
dated 21.12.2009 passed by the Additional District and Sessions
Judge, Fast Track-III, Munger in S.T. No.174 of 2006 arising
out of Munger Muffasil P.S. Case No. 137 of 2006 whereby and
whereunder the appellant no.1 has been convicted for the
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offence punishable under Section 25(1-AA), 26(2) of the Arms
Act and has been sentenced to undergo Simple Imprisonment
for seven years along with a fine of Rs.500/- and in default of
payment of fine to further undergo simple imprisonment for 15
days for the offence under Section 25(1-AA) of the Arms Act.
The appellant has been sentenced to undergo simple
Imprisonment for five years along with a fine of Rs.500/- and
in default of payment of fine to further undergo simple
imprisonment for 15 days for the offence under Section 26(2) of
the Arms Act. Both the sentences were directed to run
concurrently.
BRIEF FACTS OF THE CASE
4. Prosecution case in brief, is that according to the
written report of the Officer-Incharge, Muffasil Police Station,
Munger is that on 21.6.2004 at 15.40 P.M. he received
confidential information that a Mini Gun Factory is being run in
the house of Md. Naushad, Md. Mausam and Md. Afroz at
village Bardah, whereupon the informant along with police
personnel proceeded for raid, and the raid was conducted at 4:30
P.M. at the said house after reaching village Bardah whereupon
7-8 persons fled from the house after seeing the police and
though the police chased them it was of no avail, and thereafter
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the villagers were called upon to join the search but they did not
appear, and upon search of the house of accused Naushad,
equipments for running Mini Gun Factory, two unasembled
pistols and blank cartridges were recovered. The seizure list was
prepared on the spot. In absence of any independent witnesses,
the members of the raiding party namely S.I. B.P. Mahton and
A.S.I. Gopal Prasad were made witnesses to the seizure list.
5. On the basis of the statement of the written report
of the informant, the F.I.R being Munger Muffasil P.S. Case
No. 137 of 2006 was registered for the offences under sections
25(1-A), 25(1-AA), 25(1-b), 26(I), 26(2) and 35 of the Arms
Act. After institution of the FIR, the police proceeded with the
investigation and after completion of investigation, charge-sheet
was submitted. Thereafter, the trial court took cognizance of the
offence against the appellants. Upon committal of the case to the
Court of Sessions for trial, and after completion of the trial, the
appellants were convicted.
ARGUMENT ON BEHALF OF THE Amicus Curiae
6. Learned amicus curiae, submitted that the
impugned judgment of conviction and sentence is unsustainable
both in law and on facts. The prosecution case originates from a
written report on the basis of which, a formal FIR was lodged at
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Muffasil Police Station, followed by submission of charge-
sheets and committal of the case to the Court of Sessions.
Charges were framed under various provisions of the Arms Act,
alleging recovery of illegal arms and manufacturing equipment
from a house said to be belonging to the accused persons.
However, the prosecution case suffers from serious infirmities,
as the alleged informant was not examined during the trial
despite being available, and no independent witnesses were
produced to support the alleged search and seizure. The entire
case rests upon official witnesses whose testimonies are
inconsistent and unreliable. It is further submitted that the
prosecution has failed to establish the place of occurrence and
the manner of recovery in a cogent and credible manner. The
witnesses have admitted in cross-examination that they were
unaware of the boundaries of the house and could not specify
from which exact location the alleged recoveries were made.
The evidence also indicates that the police personnel were
stationed outside the premises and did not directly witness the
alleged seizure. Furthermore, no seal or identification mark was
affixed on the seized articles, and the seizure list itself appears
doubtful. Crucially, no material has been brought on record to
show that the alleged arms or articles were recovered from the
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conscious possession of the petitioners, particularly when the
premises is said to be a joint house and several persons
allegedly fled from the spot.
7. Learned counsel further submits that even the
expert evidence don’t support the prosecution case, as the
sergent officer did not give any conclusive opinion regarding the
effectiveness of the alleged firearm and no live cartridges were
produced for examination. The learned Trial Court itself found
several charges not proved and acquitted the petitioners of those
offences, yet erroneously convicted them under Sections 25(1-
AA) and 26(2) of the Arms Act without sufficient legal
evidence. The appellant remained on bail throughout the trial
and never misused the liberty granted to him. In view of these
facts, it is submitted that the prosecution has failed to prove its
case beyond reasonable doubt, and the petitioner is entitled to
be acquitted, as the trial court has miserably failed to appreciate
the evidence, leading to failure of justice and therefore, the
conviction of the appellant under Section 25(1-AA), 26(2) of the
Arms Act is liable to be set aside.
ARGUMENT ON BEHALF OF THE STATE
8. Per Contra, learned APP appearing for the State
while opposing the appeal submitted that the learned District
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court, after considering all the evidences on record and exhibits
submitted on behalf of the parties during the course of trial, has
rightly convicted the appellant for said offences, as the offences
alleged against the appellant appears to be serious in nature and
also constitutes cognizable offence.
ANALYSIS AND CONCLUSION
9. Heard the parties.
10. I have perused the lower court records and
proceedings and also taken note of the arguments canvassed by
learned counsel appearing on behalf of the parties.
11. The learned trial court, on the basis of materials as
collected during the course of investigation, passed the
Judgment of conviction dated 19.12.2009 and order of sentence
dated 21.12.2009 for the offences under Section 25(1-AA),
26(2) of the Arms Act.
12. During the trial, the prosecution has examined
altogether seven witnesses, namely:
(i) (P.W.-1),- Bimal Singh, SI of Police
(ii)(P.W.-2),- Chandradeep Rajak, the S.I. and
Member of Raiding party
(iii) (P.W.-3),- Gopal Prasad
(iv) (P.W.-4) ,- Ashok Kumar Sinha
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(v) (P.W.-5),- Bindeshwar Prasad Mahto
(vi) (P.W.-6),- Suresh Prasad Singh, I.O
vii) (P.W.-7).- Ram Pratap Singh
13. The prosecution has also relied upon following
document exhibited during the course of trial:-
(i) Seizure List (Exhibit-1),
(ii) Signature of Gopal Prasad on Seizure List
(Exhibit 1/1)
(iii) Report of sergent Major (Exhibit-2)
(iv)Writing and signature of Seizure List
(Exhibit - 3 to 3/2)
(iv) Fardbeyan (Exhibit 4)
(v) Signature of District Magistrate on sanction
report (Exhibit ½)
(vi) Writing and signature on Formal First
Informant Report (Exhibit 5)
14. It would be apposite to discuss the
oral/documentary evidences. The evidence of the prosecution
witnesses (PWs) can be summarized as follows:
(i) PW1- The witness has deposed that on 21.06.2004,
while posted at Muffasil Police Station, he received secret
information regarding that an illegal mini gun factory operating
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at the house of Md. Jamal. Acting upon such information, he,
along with other police officials, conducted a raid at about 4:30
PM. Upon arrival, 7–8 persons fled from the premises and could
not be apprehended due to rain and muddy conditions. He has
further stated that villagers present there disclosed the names of
the fleeing persons. During the course of search and seizure,
materials used for manufacturing illegal arms, including half-
made pistols and blank cartridges, were recovered and seized,
and a seizure list was prepared accordingly.
In his cross-examination, the witness stated that the
accused persons were residing in the same house with separate
families, and there was only one entry to the said house, and that
he could not disclose the names of the villagers who had
provided the information.
(ii) PW-2- The witness has deposed that on
21.06.2004 while posted at Muffasil Police Station, the Officer-
in-Charge received secret information that illegal arms were
being manufactured at the house of Md. Naushad and others at
village Bardah, following which a police team conducted a raid
around 4:30 PM upon reaching, 7–8 persons fled from the house
and could not be apprehended due to rain and slush, and during
the search and seizure, materials and equipment of a mini gun
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factory were recovered and seized.
In cross-examination he admitted that he could not
disclose who had provided the information, had not seen or
identified any accused, and was present outside the house during
the raid while the seized articles were recovered from a room.
(iii) PW 3- This witness has deposed deposed that on
21.06.2004, upon receipt of secret information by the Officer-in-
Charge of Muffasil Police Station at about 3:40 PM regarding
illegal manufacture of arms in the house of the accused persons
at village Bardah, he accompanied the police party to the spot
and conducted a raid around 4:30 PM, during which 7–8
persons fled away. He stated that villagers disclosed the names
of the fleeing persons and that materials relating to a mini gun
factory were recovered during the search, for which a seizure
list was prepared in his presence and signed by him, and he
identified the seized articles before the Court.
In cross-examination, he admitted that no independent
witness was present as all witnesses were members of the
raiding party and he could not clearly specify the exact place of
recovery.
PW-4- This witness has deposed that on 7.7.2004,
seized articles of Muffasil P.S. Case No. 157/2004 were brought
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for examination by A.S.I. Surendra Singh. He described the
articles, identified the report (Ext. 2) as written by Constable
Bipin Singh and himself, and stated that the I.O. had asked
regarding the effectiveness of the seized pistol, which was found
non-effective, and therefore he did not give his opinion.
(v) PW-5- This witness has deposed that on 21.6.2004
at 4:30 P.M. a raid was conducted at the house of Md. Naushad
on the basis of information, during which the criminals fled
upon seeing the police. Two illegal half-made pistols and Mini
Gun Factory equipment were recovered. He identified the
seizure list (Ext. 3) written by A.S.I. Bimal Singh, the signature
of Officer-Incharge Navin Kumar (Ext. 3/1), and his own
signature (Ext. 3/2).
In cross-examination, he stated that he was the sole
raiding party member witness to the seizure list, could not tell
the boundary of the house, and that no woman or child was
found therein.
(vi) PW-6- This witness has deposed that he was also
a member of the raiding party and had gone to village Bardah
with police force. Members A.S.I. Gopal Prasad and S.I. B.P.
Mahton were made witnesses and two country-made pistols,
blank cartridges, and Mini Gun Factory equipment were
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recovered. The seizure list was prepared by A.S.I. Bimal Singh
at the instance of Officer-Incharge Navin Kumar. He described
the house as a joint house of Md. Naushad, Md. Mausam, Md.
Afroz, and Md. Jummal, with equipment recovered from
multiple rooms. He identified the District Magistrate’s signature
on the sanction report (Ext. 1/2).
In cross-examination, he stated that the Jeep could not
reach the place of occurrence and they went on foot, no villager
was asked about the accused’s house, and at 25 feet from the
place of occurence they saw persons fleeing whom they could
not identify.
(vii) PW-7- This witness has deposed that the fleeing
persons names were not known. No independent village
witnesses from village Bardah told the names of Md. Naushad
involved in the incident. He identified the signature of Officer-
Incharge, Muffasil P.S., and the writing of Navin Kumar. He is a
formal witness who identified the formal F.I.R. of Officer-
Incharge, C.O., Muffasil P.S., which is marked as Ext. 5.
15. On the basis of materials surfaced during the trial,
the appellant/accused was examined under Section 313 of the
Cr.PC by putting incriminating circumstances/evidences
surfaced against him, which he denied and shows his complete
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innocence.
16. It would be apposite to discuss the
oral/documentary evidences as available on record to re-
appreciate the evidences for just and proper disposal of the
present appeal.
17. It would be appropriate to reproduce the provision
of Section 25(1-AA) and 26(2) of Arms Act for the sake of
convenience and better understanding of the facts, which is as
under:-
“25(1-AA) Whoever manufactures, sells,
transfers, converts, repairs, tests or proves, or exposes or
offers for sale or transfer or has in his possession for sale,
transfer, conversion, repair, test or proof, any prohibited
arms or prohibited ammunition in contravention of section
7 shall be punishable with imprisonment for a term which
shall not be less than 9[ten years] but which may extend to
imprisonment for life and shall also be liable to fine.
26(2) Whoever does any act in contravention of
any of the provisions of section 5, 6, 7 or 11 in such manner
as to indicate an intention that such act may not be known
to any public servant or to any person employed or working
upon a railway, aircraft, vessel, vehicle or any other means
of conveyance, shall be punishable with imprisonment for a
term which shall not be less than five years but which may
extend to ten years and also with fine.”
18. It is a settled position that the prosecution must
adduce cogent evidence to establish that the accused had
indulged in the manufacture, sale, or transfer of prohibited arms
or ammunition in contravention of Section 7 of the Act to
convict the accused under Sections 25(1-AA) and 26(2) of Arms
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Act. Reference can be drawn in this regard from the judgment
passed by the Apex Court in case of Samir Ahmed Rafiqahmed
Ansari vs. State of Gujarat, (Criminal Appeal Nos. 992–993 of
2016), wherein it has been held as under-
“7.Section 25(1AA) of the Arms Act deals with
manufacture, sale, transfer etc. of the prohibited arms. In this case,
the prosecution has not adduced any evidence to show that the
appellant-accused had indulged in manufacturing of arms or
prohibited ammunition in contravention of section 7. Since the
prosecution has not adduced any evidence to substantiate the
allegation of manufacture, in our view, the conviction of the
appellant-accused under Section 25(1AA) cannot be sustained.”
I. ON THE POINT OF SANCTION UPON
SATISFACTION OF AUTHORITY
19. In the present case, Ext. 1/2, which bears the
signature of the District Magistrate, has been brought on record
through the testimony of P.W.-6, indicating that sanction was
accorded by the competent authority. In the absence of any
material to suggest that the sanction was granted mechanically
or without application of mind, and there being no effective
challenge to its authenticity in cross-examination, Ext. 1/2 can
be treated as sufficient prima facie proof of a valid sanction for
prosecution as required under Section 39 of the Arms Act, 1959.
It is also to be presumed that, while granting such sanction, the
competent authority had applied its mind to the materials placed
before it and formed the requisite “reason to believe” for
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according approval. A principle which finds support in the law
laid down by the Hon’ble Supreme Court in case of A.S.
Krishnan v. State of Kerala, reported in (2004) 11 SCC 576
wherein of “reason to believe” has been construed which is as
under:
“9. Under IPC, guilt in respect of almost all
the offences is fastened either on the ground of “intention”
or “knowledge” or “reason to believe”. We are now
concerned with the expressions “knowledge” and “reason
to believe”. “Knowledge” is an awareness on the part of
the person concerned indicating his state of mind. “Reason
to believe” is another facet of the state of mind. “Reason to
believe” is not the same thing as “suspicion” or “doubt”
and mere seeing also cannot be equated to believing.
“Reason to believe” is a higher level of state of mind.
Likewise “knowledge” will be slightly on a higher plane
than “reason to believe”. A person can be supposed to
know where there is a direct appeal to his senses and a
person is presumed to have a reason to believe if he has
sufficient cause to believe the same. Section 26 IPC
explains the meaning of the words “reason to believe” thus:
“26. ‘Reason to believe’.—A person is said
to have ‘reason to believe’ a thing, if he has
sufficient cause to believe that thing but not
otherwise.”
10. In substance, what it means is that a
person must have reason to believe if the
circumstances are such that a reasonable
man would, by probable reasoning, conclude
or infer regarding the nature of the thing
concerned. Such circumstances need not
necessarily be capable of absolute
conviction or inference; but it is sufficient if
the circumstances are such as creating a
cause to believe by chain of probable
reasoning leading to the conclusion or
inference about the nature of the thing.
These two requirements i.e. “knowledge”
and “reason to believe” have to be deduced
from various circumstances in the case.”
II. WHETHER MERE IRREGULARITY IN NON-
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COMPLYING WITH THE PROVISION OF SECTION 100
CR.P.C. CAN ASSUME SIGNIFICANCE IN AFFECTING
THE SEIZURE AND THE CREDIBILITY OF THE
PROSECUTION CASE?
20. It is well settled that the provisions of Section 100
Cr.P.C. are applicable to the search and seizure conducted in the
present case, by virtue of Section 4(2) of the Code of Criminal
Procedure, 1973, offences under special statutes are to be
investigated in accordance with the procedure prescribed under
the Cr.P.C., unless a contrary provision is made. Since the Arms
Act does not lay down any exhaustive procedure governing
search and seizure, in such circumstances, the safeguards
embodied under Section 100 Cr.P.C., particularly the
requirement of associating independent and respectable
inhabitants of the locality during search, would squarely apply.
In the present case, although the prosecution has asserted that
villagers were called to witness the search but refused to
participate, no effort appears to have been made to record their
names or such refusal in writing, nor is there any convincing
evidence to establish that sincere attempts were made to secure
independent witnesses. The entire search and seizure is thus
sought to be proved only through the testimony of police
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officials, which, in light of the admitted absence of independent
corroboration and the inconsistencies emerging in their cross-
examination, renders the recovery doubtful. However there is no
principle of law which mandates that the testimony of police
officials must be discarded or treated as inherently unreliable.
Their evidence is not vitiated merely by virtue of their official
status. However, as a matter of prudence, such evidence
particularly when the witnesses are connected with the
investigation ought to be subjected to careful scrutiny and
independent evaluation. The Apex Court dealing with the
situation as in the present case observed that police personnel
are competent witnesses, and their evidence cannot be doubted
solely on the ground that they belong to the police force in the
case of Anil @ Andya Sadashiv Nandoskar vs. State of
Maharashtra reported in (1996) 2 SCC 589. Furthermore, none
of the accused persons were apprehended at the spot, the
identity of the alleged fleeing persons has not been established,
and the recovery is from a house stated to be jointly occupied by
several persons without any clear evidence of exclusive or
conscious possession. In such circumstances, the non-
compliance with the procedural safeguards under Section 100
Cr.P.C. vitiates the very foundation of the prosecution case.
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III ON THE POINT OF POSSESSION OF THE
ARMS
21. It is settled that the word 'possession' as
mentioned in Section 25 of the Arms Act, 1959 would simply
mean physical/constructive possession or 'conscious possession'
has already been the subject matter of many judicial decisions
and the law on the subject is no longer res integra. This court
deems it profitable to refer to the decision of the Supreme Court
in Gunwantlal v. State of Madhya Pradesh reported in (1972) 2
SCC 194, wherein while reading into the word 'possession', the
Constitution Bench has held there has to be an element of
intention, consciousness or knowledge. The relevant
observations are reproduced hereinunder:-
“5. What is meant by possession in the context of
this section? Is it that the person charged should be
shown to be in physical possession or is it sufficient
for the purposes of that provision that he has
constructive possession of any firearm or
ammunition in contravention of Section 3 which
prohibits him to be in such possession without a
licence. It may be mentioned that under Section 19
of the Arms Act, 1878, an offence corresponding to
Section 25(1)(a) is committed if a person had in his
or under his control any arms or ammunition in
contravention of Sections 14 and 15 of that Act. The
word “control” under Section 25(1)(a) has been
omitted. Does this deletion amount to the
Legislature confining the offence only to the case of
a person who has physical possession or does it
mean that a person will be considered to be in
possession of a firearm over which he has
constructive possession or over which he exercises
the power to obtain possession thereof when he so
intends? If the meaning to be given to the word
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“possession” is that it should be a physical
possession only, then certainly the charge as framed
on the facts of the prosecution case will not be
sustainable but if the meaning to be given to the
word “possession” is wider than that of actual or
physical possession then it is possible, if the
evidence produced by the prosecution is such as
would sustain a finding, that he had constructive
possession on September 17, 1966, when he handed
it over to Miroo and Miroo handed it over to
Chhaganlal because if it was not seized from
Chhaganlal, the appellant could have at any time
got back the physical possession of the revolver
through Miroo. The possession of a firearm under
the Arms Act in our view must have, firstly the
element of consciousness or knowledge of that
possession in the person charged with such offence
and secondly where he has not the actual physical
possession, he has nonetheless a power or control
over that weapon so that his possession thereon
continues despite physical possession being in
someone else. If this were not so, then an owner of a
house who leaves an unlicensed gun in that house
but is not present when it was recovered by the
police can plead that he was not in possession of it
even though he had himself consciously kept it there
when he went out. Similary, if he goes out of the
house during the day and in the meantime some one
conceals a pistol in his house and during his
absence, the police arrives and discovers the pistol,
he cannot be charged with the offence unless it can
be shown that he had knowledge of the weapon
being placed in his house. And yet again if a gun or
firearm is given to his servant in the house to clean
it, though the physical possession is with him
nonetheless possession of it will be that of the
owner. The concept of possession is not easy to
comprehend as writers of Jurisprudence have had
occasions to point out. In some cases under Section
19(1)(f) of the Arms Act, 1878 it has been held that
the word “possession” means exclusive possession
and the word “control” means effective control but
this does not solve the problem. As we said earlier,
the first precondition for an offence under Section
25(1)(a) is the element of intention, consciousness
or knowledge with which a person possessed the
firearm before it can be said to constitute an offence
and secondly that possession need not be physical
possession but can be constructive, having power
and control over the gun, while the person to whom
physical possession is given holds it subject to that
power and control. In any disputed question of
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possession, specific facts admitted or proved will
alone establish the existence of the de facto relation
of control or the dominion of the person over it
necessary to determine whether that person was or
was not in possession of the thing in question. In
this view it is difficult at this stage to postulate as to
what the evidence will be and we do not therefore
venture to speculate thereon. In the view we have
taken, if the possession of the appellant includes the
constructive possession of the firearm in question
then even though he had parted with physical
possession on the date when it was recovered, he
will nonetheless be deemed to be in possession of
that firearm. If so, the charge that he was in
possession of the revolver on September 17, 1966,
does not suffer from any defect particularly when he
is definitely informed in that charge that he had
control over that revolver. It is also apparent that
the words “on or before” were intended to bring
home to the accused that he was not only in
constructive possession of it on September 17, 1966,
but that he was in actual physical possession of it
prior to that date when he gave it to Miroo. It is
submitted, however, that the word “on or before”
might cause embarrassment and prejudice to the
defence of the accused because he will not be in a
position to know what the prosecution actually
intends to allege. From a reference of Form XXVIII
of Schedule 5 of the Code of Criminal Procedure,
the mode of charging a person is that he “on or
about”… did the act complained of. In view of the
forms of the charge given in the Schedule to the
Code, we think that it would be fair to the appellant
if the charge is amended to read ‘on or about’
instead of ‘on or before’ which we accordingly
order.”
22. Subsequently, in case of Sanjay Dutt v. State
Through CBI, Bombay (II) reported in (1994) 5 SCC 410, a
Constitutional Bench of the Apex Court elucidated the meaning
of possession to be conscious possession and not mere custody,
lacking any knowledge or intention to use. It was observed, as
hereunder:-
“19. The meaning of the first ingredient of
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„possession‟ of any such arms etc. is not disputed. Even
though the word 'possession' is not preceded by any
adjective like 'knowingly', yet it is common ground that in
the context the word 'possession' must mean possession with
the requisite mental element, that is, conscious possession
and not mere custody without the awareness of the nature of
such possession. There is a mental element in the concept of
possession. Accordingly, the ingredient of 'possession' in
Section 5 of the TADA Act means conscious possession.
This is how the ingredient of possession in similar context
of a statutory offence importing strict liability on account of
mere possession of an unauthorised substance has been
understood. (See Warner v. Metropolitan Police
Commissioner, (1969) 2 A.C. 256 and Sambasivam v. Public
Prosecutor, Federation of Malaya, (1950) AC 458.”
IV. WHETHER THE PROSECUTION HAS
ESTABLISHED THEIR CASE BEYOND ALL
REASONABLE DOUBT?
23. In criminal jurisprudence, the prosecution is
required to prove its case beyond reasonable doubt. In the
present case, the evidence on record suffers from lack of
independent corroboration and procedural lapses which may
have prejudiced the appellant, however, it is a well settled law
that mere non-joining of an independent witness, where the
evidence of the prosecution witnesses may be found to be
cogent, convincing, creditworthy and reliable, cannot create
reasonable doubt on the version forwarded by the prosecution if
there seems to be no reason on record to falsely implicate the
appellant. Reference in this regard can be drawn from the
judgment rendered by the Apex Court in the case of Gian
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Chand vs State of Haryana, reported in (2014) 4 SCC (Cri)
226, in paragraphs No.34 and 35 which are reproduced
hereinafter:
“34. In Appabhai v. State of Gujarat
[1988 Supp SCC 241 : 1988 SCC (Cri) 559 : AIR
1988 SC 696] this Court dealt with the issue of non-
examining the independent witnesses and held as
under : (SCC pp. 245-46, para 11)
“11. … the prosecution case cannot be thrown out
or doubted on that ground alone. Experience
reminds us that civilised people are generally
insensitive when a crime is committed even in their
presence. They withdraw both from the victim and
the vigilante. They keep themselves away from the
court unless it is inevitable. They think that crime
like civil dispute is between two individuals or
parties and they should not involve themselves. This
kind of apathy of the general public is indeed
unfortunate, but it is there everywhere whether in
village life, towns or cities. One cannot ignore this
handicap with which the investigating agency has to
discharge its duties.”
35. The principle of law laid down
hereinabove is fully applicable to the facts of the
present case. Therefore, mere non-joining of an
independent witness where the evidence of the
prosecution witnesses may be found to be cogent,
convincing, creditworthy and reliable, cannot cast
doubt on the version forwarded by the prosecution if
there seems to be no reason on record to falsely
implicate the appellants”
24. In view of the foregoing discussion and upon
careful appreciation of the evidence on record, this Court is of
the considered opinion that the prosecution case is primarily
based on official witnesses with absence of independent
corroboration, coupled with certain procedural irregularities
pointed out during the course of trial. At the same time, the
prosecution has also led evidence relating to raid, seizure, and
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sanction, which cannot be wholly disregarded merely on
account of minor inconsistencies. However, in the facts and
circumstances of the present case, the evidentiary material
requires strict scrutiny as mandated in law. Accordingly, the
matter calls for an appropriate judicial determination on whether
the prosecution has been able to establish the guilt of the
appellant beyond reasonable doubt in respect of the charges
under Sections 25(1-AA) and 26(2) of the Arms Act.
25. The defence has neither cross-examined PW-6 on
the contents of the sanction order in any material particular
going to its validity, nor has it produced any evidence to
demonstrate that the arms were not placed before the District
Magistrate or that the relevant facts were withheld from him. In
the considered opinion of this Court, Exhibit-1/2 constitutes
sufficient proof of valid sanction under Section 39 of the Arms
Act, and the requirement of prior sanction has been duly
complied with in the present case.
26. Section 100(6) of the Code of Criminal Procedure,
1973 casts a mandatory obligation that a search shall be
conducted in the presence of independent and respectable
inhabitants of the locality, and the seizure list prepared in the
course of such search must be attested by such witnesses so as
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to ensure transparency and lend credibility to the recovery. The
provision is intended to act as a safeguard against arbitrary or
doubtful searches by requiring independent corroboration of the
police action. In such circumstances, the requirement under
Section 100(6) Cr.P.C. cannot be said to have been substantially
complied with, as the absence of independent attesting
witnesses and lack of corroboration renders the seizure list
unverified and weakens its evidentiary value. Consequently, the
alleged recovery of arms and manufacturing materials, forming
the foundation of the prosecution case under the Arms Act,
1959, becomes doubtful and fails to inspire confidence in the
absence of adherence to the procedural safeguards mandated by
law.
27. Upon a comprehensive appraisal of the evidence
on record and the settled legal principles governing the field, it
emerges that the prosecution case rests predominantly on the
testimony of official witnesses, with no independent
corroboration of the alleged search and seizure, thereby
necessitating a cautious and strict scrutiny of such evidence.
While it is well settled that the evidence of police officials
cannot be discarded merely on the ground of their official status,
the admitted non-compliance with the safeguards under Section
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100 Cr.P.C., particularly the failure to associate independent
witnesses or record their refusal, casts a serious doubt on the
credibility of the recovery, which forms the substratum of the
prosecution case. Further, none of the accused were
apprehended at the spot, the identity of the alleged fleeing
persons remains unestablished, and the recovery is from a house
stated to be jointly occupied could not establish the defacto
relation of control or dominion of the appellant to prove
constructive possession of the firearm in question. The case of
the appellant is squarely covered by the judgment of the Apex
Court in case of such as Gunwantlal (Supra) and Sanjay Dutt
(Supra). Moreover, in the absence of cogent evidence to
demonstrate that the accused were engaged in the manufacture,
sale, or transfer of prohibited arms in contravention of Section 7
of the Arms Act, the applicability of Sections 25(1-AA) and
26(2) becomes doubtful, as has been held by the Apex Court in
Samir Ahmed Rafiqahmed Ansari (Supra). Although the
prosecution has proved the factum of sanction under Section 39
of the Arms Act through Ext. 1/2, and such sanction cannot be
said to be invalid in the absence of any challenge to its
genuineness or application of mind, the same by itself does not
cure the substantive deficiencies in the prosecution case. In view
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of the cumulative effect of these infirmities, including
procedural lapses, lack of independent corroboration, and failure
to establish conscious possession or constructive possession,
and the essential ingredients of the offences alleged, being
absent, this Court is constrained to hold that the prosecution has
not been able to prove the guilt of the appellant beyond all
reasonable doubt, thereby entitling the appellant to the benefit of
doubt.
28. Accordingly, in view of the aforesaid discussions,
I am of the opinion that the prosecution has not been able to
establish the charges against the appellants beyond reasonable
doubt and the learned trial court has erred in recording
conviction. Accordingly, the present appeal is allowed.
29. The impugned judgment of conviction dated
19.12.2009 and order of sentence dated 21.12.2009 passed by
the Additional District and Sessions Judge, Fast Track-III,
Munger in S.T. No.174 of 2006 arising out of Munger Muffasil
P.S. Case No. 137 of 2006 is hereby set aside. Since the
appellant no.1 is on bail, as such, he is discharged from the
liability of his bail bond. The fine deposited by the appellant
no.1, if any, shall be refunded to him.
30. The Patna High Court, Legal Services Committee
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is, hereby, directed to pay a sum of Rs. 10,000/- (Rupees Ten
Thousand) to Ms. Aditi Sharma, learned Amicus Curiae, as
consolidated fee, for rendering her valuable professional
service.
31. Office is directed to send back the lower court
records along with a copy of the judgment to the learned District
Court forthwith.
(Purnendu Singh, J)
Sanjay/-
AFR/NAFR
CAV DATE 18.04.2026
Uploading Date 28.04.2026
Transmission Date 28.04.2026
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