DHAMALU PANDEY @ AJAY KUMAR PANDEYversusSTATE OF BIHAR

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (SJ) No.756 of 2009
======================================================
DHAMALU PANDEY @ AJAY KUMAR PANDEY S/O- Dinanath Pandey
R/O Vill- Lohathi, P.S- Kateya, Distt- Gopalganj
                                                    ... ... Appellant/s
                                    Versus
STATE OF BIHAR
                                                 ... ... Respondent/s
======================================================
Appearance :
For the Appellant/s    :     Ms. Muskan Singh, Amicus Curiae
For the Respondent/s   :     Mr. Ramchandra Singh, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL JUDGMENT
 Date : 22-01-2026

                   Heard learned Amicus Curiae for the appellant

 and learned Additional Public Prosecutor for the State.

                   2. The present appeal is directed against the

 judgment of conviction and order of sentence dated 12.08.2009

 passed by learned 3rd Additional District and Sessions Judge,

 Gopalganj in Sessions Trial No. 259 of 08 / 18 of 2009, arising

 out of Kateya P.S. Case No. 74 of 2006                  whereby and

 whereunder the appellant has been convicted for the offences

 punishable under Sections 25(1-b)(a), 26(1) and 26(2) of the

 Arms Act and Section 414 of IPC. The appellant has been

 sentenced to undergo rigorous imprisonment for three years

 under     Section     25(1-b)(a)   of   the Arms Act,         rigorous

 imprisonment for seven years under Section 26(1) of the Arms

 Act and rigorous imprisonment for seven years under Section

 26(2) of the Arms Act. The appellant has further been sentenced
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         to undergo rigorous imprisonment for three years under Section

         414 of IPC. All the sentences have been directed to run

         concurrently.

                             3. According to self statement recorded by

         informant, namely, Sardendu Sarat, Officer-in-charge, Kateya

         Police Station, on 02.05.2006 at 18 hrs. at village Belitola, it

         was asserted that he received secret information that dreaded

         criminal, namely, Dhamalu Pandey (appellant) is at the house of

         Pankhi Mishra with his associates and if raid is not conducted at

         the earliest, they would commit a major crime. On the said

         information, he registered Sanha No. 26 and he along with

         raiding team, after informing the senior officer, proceeded and

         after reaching Phulwaria P.S., he held a discussion with

         S.D.P.O., Hathua and after preparing the action plan and reached

         at the house of Pankhi Mishra along with raiding party at about

         04:30 P.M. and saw that after seeing the police, a man made an

         attempt to escape with the carbine hanging in his neck and the

         said man was apprehended between the house of Pankhi Mishra

         and the Garage and he disclosed his name as Sanjay Pandey, but

         by then the villagers arrived and the said person disclosed his

         name as Dhamalu Pandey. In presence of villagers namely,

         Baijnath Mishra and Jagarnath Mishra search was conducted
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         and from his possession 9 mm carbine was recovered and in the

         magazine of said carbine 10 rounds of live cartridge of 9mm

         were loaded, one country made loaded pistol of 0.315 was

         recovered and on unloading the same one live cartridge of 0.315

         was recovered and a Nepali Khukhari were also recovered.

         Besides, Nokia mobile and golden color Bajaj CT100

         Motorcycle         (without        number)          bearing   Chassis   No.

         DUFCMH29090, Engine No. DUMCMH68260 was also

         recovered. When query was made to the apprehended accused,

         he failed to produce valid document regarding the seized article

         and seizure list was prepared.

                             4. On the basis of self statement recorded by

         informant, namely, Sardendu Sarat, Officer-in-charge, Kateya

         Police Station, Kateya P.S. Case No. 74 of 2006 was registered

         under Section 414 of the IPC and Sections 25(1-b)a and 26 of

         the Arms Act. Routine investigation followed. Statement of

         witnesses came to be recorded and on the completion of

         investigation, charge sheet has been submitted against the

         appellant and others under Section 414 of the IPC and Sections

         25(1-b)a and 26 of the Arms Act. Thereafter, the learned trial

         court took cognizance. The case was committed to the court of

         sessions after following due procedure. The learned trial court
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         framed charges against the appellant under Section 414 of the

         IPC and Sections 25(1-b)(a) and 26 of the Arms Act. Charges

         were read over and explained to the appellant to which he

         pleaded not guilty and claimed to be tried.

                             5. In order to bring home guilt of accused

         persons, prosecution has examined altogether three witnesses.

         PW-1 Rajeshwar Prasad, PW-2 Sri Krishna Ram, PW-3

         Sharatendu Sharat (informant of the case).

                             6. Prosecution has relied upon following

         documentary evidence on record:-

                                                      Ext. 1- Investigation Report
                                                      Ext. 2- Seizure list
                                                      Ext. 3- Self written
                                        statement (informant)
                                                      Ext. 4- Signature of
                                        informant on the formal FIR



                              7. Defence of the appellant as gathered from the

         line of cross examination of prosecution witnesses as well as

         from the statement under Section 313 of the Cr.P.C. is that of

         total denial. However, they did not enter into defence.

                              8. After hearing the parties, the learned trial

         court convicted the appellant and sentenced him as indicated in

         the opening paragraph of the judgment.

                              9. Following submissions have been made on
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         behalf of learned Amicus Curiae for the appellant:-

                              Learned Amicus Curiae for the appellant has

         submitted that judgment of conviction and order of sentence

         passed by the concerned court is without discussing the material

         available on record. It has been submitted that the whole case of

         prosecution is based on recoveries. It has been further submitted

         that there are two seizure list witnesses Baidyanath Mishra and

         Jagarnath Mishra and they have not been examined in the

         present case. It has further been submitted that the very crux of

         the prosecution case has become doubtful as the person before

         whom the seizure list was prepared, has not been examined at

         all. In this way, the core aspect of the offence has not been

         proved in absence of any seizure list witnesses as the case is

         based on seizure list of recovered arms. It has further been

         submitted that the examination of investigating officer is very

         much essential to establish the place of occurrence but in the

         present case the investigating officer has not been examined and

         the truthfulness of the present case can only be established if

         boundary of place of occurrence is necessarily to be established

         and in absence of investigating officer, the same can not be

         proved as he is the competent witnesses and if investigating

         officer is not examined, the defence has been prejudiced from
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         the several aspects of the cross-examinations with regard to

         pertaining questions which might have been put before the

         investigating officer and same cannot be put up as he is not

         examined. It has further been submitted that the arms and

         ammunition were sent to ballistic expert but the manner in

         which the arms were tested is full of infirmities. It has further

         been submitted that fire arms were not tested by the ballistic

         expert but by virtue of physical features he has justified that

         arms which were recovered, were found in effective condition.

         It has further been submitted that ballistic expert has admitted

         during the course of cross-examination that he has not been

         taken specialized training of examining arms.          In this way,

         prosecution has not proved its case beyond reasonable doubt.

         The learned trial court has passed the impugned judgment of

         conviction and order of sentence without applying judicial

         mind. In the light of aforesaid facts and circumstances of the

         case, impugned judgment of conviction and order of sentence is

         liable to be set aside.

                              10. The learned Amicus Curiae for the appellant

         has highlighted that the concerned District Magistrate has

         granted the sanction report in a routine manner.

                              11. The learned Amicus Curiae for the appellant
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         has placed reliance on the decision of Jagtar Singh Vs State of

         Punjab in which the court has observed that in absence of

         checking for a firing pin it cannot be ascertained that a shot

         could be fired and therefore, the weapon cannot be stated to be a

         firearm in working condition.

                              12. In the present case, there is no description of

         arms which are recovered and have been tested and it has been

         admitted by the ballistic expert that he has not tested the

         firearms through firing and has reached to the conclusion that

         firearms were in working condition and there is no explanation

         regarding firing. Thus, the finding of the Sergeant Major that the

         weapons were in working condition, was without having any

         substance of actual testing and his opinion was solely based on

         physical verification of the arms.

                              13. Learned Amicus Curiae for the appellant has

         highlighted that PW-1 who is also a member of raiding party

         and in para 5 he has admitted that he cannot point out the

         boundary of place of occurrence. It has further been submitted

         that PW-2 is a sergeant major and he has nothing to do with the

         place of occurrence. In this way, the place of occurrence is

         already in question and the competent witness who can give the

         boundary of the place of occurrence is the investigating officer
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         and he has not been examined. It is the cardinal principle of

         criminal law that prosecution has to prove the case beyond the

         reasonable doubt and the statement of PW1 as well as PW3 are

         quite divergent on the point of apprehension of appellant. On the

         point of apprehension of appellant, PW3 has stated that the

         appellant was apprehended with the help of PW1 between Dalan

         and street. On the same point, PW1 has stated that appellant was

         apprehended between shop and garage. The statement of PW1

         and PW3 are quite divergent on the place where the appellant

         was apprehended. In this way, the prosecution has not proved its

         case beyond the reasonable doubt.

                              14. Learned Additional Public Prosecutor

         appearing for the State has submitted that PW1 who is the

         member of raiding party and he has supported and corroborated

         the story of prosecution and he is one of the person who has

         apprehended the appellant along with PW3. PW3 who is the

         informant and he has also supported initial version of

         prosecution story in toto. PW2 who is sergeant major has also

         reiterated that the arms which were recovered from the place of

         occurrence were found effective. In this way, all the three

         witnesses (PW1, PW2 and PW3) have supported and

         corroborated the story of prosecution and while passing
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         judgment of conviction and order of sentence, the concerned

         court has discussed the material available on record and the

         sanction report given by the District Magistrate, Gopalganj is

         justified and legal and there is no reason to disbelieve the

         sanction report as the same is given by the said District

         Magistrate after perusing the material available on record. In

         this way, the judgment of conviction and order of sentence

         passed by the concerned court is justified and legal and there is

         no reason to interfere with the order passed by the concerned

         court.

                              15. The question which arises for consideration

         is:-

                                     "Whether offence under Sections 25(1-
                b)a, 26 (1), 26(2) of the Arms Act and Section 414 of the
                IPC is made out in the light of given facts and
                circumstances of the case or not ?"


                              16. I have perused the impugned judgment,

         order of trial court and trial court records. I have given my

         thoughtful consideration to the rival contention made on behalf

         of the parties as noted above.

                              17. It is necessary to evaluate, analyze and

         screen out the evidences of witnesses adduced before the trial

         court.
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                              18. PW-1 (Rajeshwar Prasad):- He has stated

         that on 02.05.2006 he was posted at Mirganj Police Station on

         the post of ASI. He got information that the SI Suresh Singh

         became injured on account of accident and he was hospitalized

         in Phulwaria Hospital. On the said information, he went to the

         Phulwaria hospital and raiding team was with him and SDPO,

         Hathua and SHO, Kateya (PW-3) also arrived there. Thereafter,

         SDPO, Hathua and SHO, Kateya made plan for conducting raid

         and PW1 was also asked to accompany them and thereafter all

         of them went to village Beli. He further stated that a man started

         fleeing from the dalan side of house of Pankhi Mishra hanging

         carbine around his neck. On being chased, he was apprehended

         between house and garage of Pankhi Mishra. He further stated

         that on query, the apprehended person disclosed his name as

         Sanjay Pandey and after that villagers reached there and in

         second time he disclosed his name Dhamalu Pandey (appellant).

         He further stated that search was conducted in the presence of

         two independent witnesses namely Baijnath Mishra and Jagnath

         Mishra and during course of search one loaded Carbine of 9 mm

         and one loaded country made Katta of .315 bore were recovered

         and from the left pocket of pant one Nokia mobile bearing

         mobile no.9934839953, one Nepali Khukhri and one CD 100
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         motorcycle (without number) were also recovered. He claims to

         identify the appellant who was present in the court. During

         course of cross-examination, PW1 has stated that at 3:00 PM he

         along with police officials proceeded to village Beli at the

         permission of Dy. SP. He proceeded with all the police officials

         on a jeep for conducting raid at 3:30 PM. In para 5, PW1 has

         stated that he cannot point out the boundary of place of

         occurrence and he has not conducted search of the appellant. He

         further stated that he had not put his signature on the seizure list

         as he was not asked to do so. He has denied the suggestion that

         as he was not a member of the raiding party, he had not put his

         signature. In para 6, he stated that he cannot point out the

         boundary of the Beli village. He further stated that seizure list

         was prepared by the SHO Sardendu Sarat (PW-3). In para-7, he

         stated that he cannot point out the distance between Phulwari

         Hospital and Beli village. He further stated that there was no

         well built road going towards Beli village and only there was

         Kharanja and Kacha road. He has denied that suggestion that

         nothing was recovered from the possession of the appellant. He

         has stated that he did not identify the appellant prior to the

         occurrence and he has denied the suggestion that he has given

         false evidence.
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                              18.1. From the perusal of evidence of PW1, it is

         clear that though PW-1 is a member of raiding party but in para

         5 he has stated that he can not point out the boundary of place of

         occurrence. Further, PW1 has stated that the appellant was

         apprehended between house and garage of Pankhi Mishra

         whereas PW3 has stated that the appellant was apprehended

         between dalan and house of Pankhi Mishra. In this way, on the

         point of place of apprehension of appellant, the statement of

         PW1 and PW3 are quite divergent and keeping in view the

         statement of PW-1 as deposed before the Court, it is neither

         convincing nor trustworthy.

                              19. PW-2 ( Shri Krishna Ram) :- He is a

         Sergeant Major who examined the recovered items. On

         06.05.2006, he was posted as Sergeant Major in the head

         quarter. On that day, one country made Carbine of 9 mm bore

         along with one piece magazine containing ten cartridges of

         9mm bore, one country made pistol of 0.315 bore along with

         one cartridge of 0.315 bore were received by him in connection

         with Kateya PS Case No. 74/06 for examination. On

         examination of the same, he has opined that one piece country

         made Carbine of 9mm bore was found effective and ten pieces

         of cartridges of 9mm were also found effective and live. He
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         further opined that one country made pistol of 0.315 bore was

         also found effective and one cartridge of 0.315 bore was also

         found effective and he has prepared the verification report

         which is marked at Exhibit-1. In para 2, he has admitted that he

         has not taken any special training for examination of arms and

         ammunition as he has pointed out difference in efficiency of

         firing range between country made carbine and foreign carbine.

         He has also pointed out that he has not tested country made

         carbine on the basis of firing. There was no mark of firing on

         the cartridge so he made the opinion that same was effective and

         he has not pointed out any reference of firing sign on the report

         which has been prepared by him. There is difference between

         country made carbine and foreign carbine on the basis of

         structure. There is no mark of any company on country made

         Carbine. There is difference between country made carbine and

         foreign carbine on the basis of measurement. There is no

         lackness in bore. The seized country made carbine was not

         automatic. The country made carbine continues to fire till

         availability of the cartridge and for unloading the cartridge,

         trigger has to be pressed every time. For every shot, trigger has

         to be pulled. In para 5, he has stated that the seized carbine is

         not automatic.
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                              19.1. From the perusal of evidence adduced by

         the Sergeant Major (PW2), it is clear that he has physically

         verified the arms as he has already admitted in para 2 of his

         cross-examination that he has not tested country made carbine

         on the basis of firing. He had physically verified the arms which

         were recovered and he had given theoretical description by

         having seen the arms as he has already admitted that he has not

         taken specialized training for examination of arms. So, he has

         not conducted test upon the recovered arms and ammunition.

         Then, in absence of testing of arms, the very finding of Sergeant

         Major (PW2) that arms were found effective, is without having

         any substance and the contention of the learned Amicus Curiae

         for the appellant is quite tenable and sustainable in view of the

         judgment passed in the case of Jagtar Singh Vs. State of

         Punjab (supra), wherein it was observed that in absence of

         checking for a firing pin it cannot be ascertained that a shot

         could be fired and therefore, the weapon cannot be stated to be a

         firearm in working condition. Generally, arms and ammunition

         when they are recovered, they are sent to expert just to confirm

         whether they are effective or not on the basis test applicable to

         them but in present case, he has only physically verified the

         arms and ammunition which were given to him and keeping in
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         view the statement of PW-2 as deposed before the Court, it is

         neither convincing nor trustworthy.

                              20. PW-3 (Sardendu Sarad) :- He is the

         informant of the case. He has stated that he was posted as SHO,

         Kateya on 02.05.06. He has stated that he got secret information

         that absconded accused Ghamalu Pandey (appellant) had

         gathered along with other associates at village Beli Tola in the

         house of Pankhi Mishra. On the said information, he registered

         Sanha No. 26 and he along with raiding team, after informing

         the senior officer, proceeded and after reaching Phulwaria P.S.,

         he held a discussion with S.D.P.O., Hathua and after preparing

         the action plan and reached at the gate of Pankhi Mishra along

         with raiding party at about 04:30 P.M. saw that a man started

         fleeing away with the carbine hanging around his neck. He

         further stated that on               suspicion, the said person was

         apprehended with the help of PW-1, Rajeshwar Prasad in

         between dalan and house. Firstly, the apprehended person

         disclosed his name as Sanjay Pandey. Meanwhile, nearby people

         gathered and one of the person, namely, Baijnath Mishra and his

         brother disclosed that the apprehended person was Dhamalu

         Pandey (appellant). Search and seizure was conducted as per

         procedure and during course of search, one Carbine was
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         recovered and in the magazine of the said carbine 10 round live

         cartridges were loaded and one .315 loaded Katta (country made

         pistol) was also recovered along with one Nokia 1100 mobile as

         well as Nepali Khukhari and one CD 100 motorcycle (without

         number) were also recovered. When the document of seized

         items was being demanded, accused/appellant has not provided

         valid documents and thereafter seizure list was prepared for all

         the seized items in the presence of said witnesses. PW3 further

         stated that seizure list was prepared in his writing and his

         signature and witnesses namely Baijnath Mishra and Jagnath

         Mishra put their signature and seizure list stand exhibited as

         Exhibit-2. In para 2, PW3 has stated that he recorded his self

         statement regarding the occurrence at the place of occurrence.

         He has further stated that self written statement was in his

         writing and signature and the same stands marked as Exhibit-3.

         On the basis of his self written statement, formal FIR has been

         registered and he put signature and his signature stands mark as

         Exhibit-4. He further stated that he handed over the charge of

         investigation to SI, K.P. Singh. He stated that the appellant

         appeared in the court and he identified him. In para-6, he has

         stated that he cannot point out as to who has been ordered to

         encircle the house of Pankhi Mishra. In para 7, PW3 has given
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         following        description of the boundary of the place of

         occurrence :-

                         East :- Pucca House of Pankhi Mishra
                         West :- Garage of Pankhi Mishra
                         North :- Road
                         South:- there is a house but he cannot point out
         the owner of the said house.


                              PW3 further stated that within three minutes

         after     the    vehicle      was     stopped       accused/appellant   was

         apprehended in the street which is situated in the boundary of

         Pankhi Mishra. He further stated that he has not pointed out any

         street in the seizure list and he has not pointed out the name of

         Dhamalu Pandey in the seizure list. It is wrong to suggest that

         nothing was recovered from the possession of Dhamalu Pandey

         (appellant).

                              20.1. From the perusal of evidence adduced by

         PW-3, it is clear that though he has supported the story of

         prosecution but during the course of cross-examination, he is

         unable to point out the southern boundary of the place of

         occurrence as he did not point out the name of person whose

         house is situated in south direction and he has also not pointed

         out the name of Dhamalu Pandey (appellant) in seizure list. On

         the point of place of apprehension of appellant the statement of

         PW 1 is quite divergent. PW1 who is also member of raiding
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         party and he can be categorized as a factual witness but on the

         point of place of apprehension of appellant, PW1 has stated

         appellant was apprehended between house and garage which

         was totally inconsistent with the evidence adduced by PW3 and

         keeping in view the statement of PW-3 as deposed before the

         Court, it is neither convincing nor trustworthy.

                         21. Apart from that, the Investigating Officer of this

         case has not been examined who is the material witness on the

         point of identifying the place of occurrence.

                         22. In Behari Prasad Vs. State of Bihar reported in

         (1996) 2 SCC 317, the Hon’ble Supreme Court held that though

         non-examination of the Investigating Officer may not always be

         fatal where it causes prejudiced to the accused, it becomes a

         significant infirmity, as observed in the judgment which reads as

         under:-

                                              "We may also indicate here
                                   that it will not be correct to contend
                                   that if an Investigating Officer is not
                                   examined in a case, such case should
                                   fail on the ground that the accused
                                   were deprived of the opportunity to
                                   effectively cross examine the witnesses
                                   for the prosecution and to bring out
                                   contradictions in their statements
                                   before the police. A case of prejudice
                                   likely to be suffered by an accused
                                   must depend on the facts of the case
                                   and no universal straight jacket
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                                   formula should be laid down that non
                                   examination of investigating Officer
                                   per se vitiates a criminal trial. These
                                   appeals, therefore, fail and are
                                   dismissed. The appellants who have
                                   been released on bail should be taken
                                   into custody to serve out the
                                   sentence."

                      23. Applying this principle to the present matter, this

         Court finds that the omission to examine the Investigating

         Officer has, in fact, caused serious prejudice to the defence. The

         prosecution version suffers from contradictions and omissions in

         the statements of the witnesses and the only person who could

         have clarified or explained such contradictions was the

         Investigating Officer.

                      24. The failure to examine the Investigating Officer

         also means that the place of occurrence has not been duly

         established. At this point, it would be relevant to take note of the

         decision passed by the Hon'ble Supreme Court in the case of

         Syed Ibrahim versus State of Andhra Pradesh, reported in

         (2008) 10 SCC 601, wherein it has been held that "when place

         of occurrence itself has not been established, it would not be

         proper to accept the prosecution side.

                              25. In the present case, the Investigating Officer

         has not been examined. No seizure-list witness has been
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         examined. The place from where the accused/appellant was

         apprehended has not been specifically proved, and the person at

         whose house accused/appellant was apprehended, has also not

         been examined. The Sergeant Major has not received any

         special training regarding the examination of recovered arms.

         He has not specified the method or methodology adopted by

         him while examining the allegedly illegal recovery of the arms;

         rather, he examined it only by observing the external features of

         the material and his report merely reflects that he examined the

         arm and ammunition by visual verification.

                              26. Further, the whole prosecution story is

         based on recovery of arms and ammunition and two witnesses

         who are the witnesses of seizure-list, have not been examined.

         The very crux of the prosecution story is based on the

         examination of seizure-list witnesses and in the absence of

         seizure-list witnesses as to how the seized items were recovered

         from a particular place or from a particular person, the same is

         lacking in the evidence of other prosecution witnesses. PW1

         who is member of raiding team and he is unable to point out the

         place of occurrence, then, the question arose whether he was

         present at the place of occurrence at the relevant time or whether

         he was present at a particular place from where recovery was
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         made and on the aforesaid aspects, the investigating officer has

         not been examined in the present case to prove that the

         recoveries were made at a particular place. The person who is

         the resident of that very place as mentioned in FIR, has also not

         been examined and the very truthfulness of the fact does not

         come upon surface. Even, informant is unable to point out the

         specific boundary of place of occurrence. Even the boundary as

         pointed out by PW3 is expected as true, then, the question arose

         whether the said boundary is corroborated by any prosecution

         witnesses ? The answer is “no.” On the point of place of

         apprehension of appellant, the statements of PW1 and PW3 are

         quite shaky and defence has been prejudiced in the absence of

         investigating officer. It is relevant for defence to put question

         during the course of cross-examination of Investigating Officer

         for contradictions in the evidence of prosecution witnesses

         (PW1 and PW3) but in the present case, the absence of

         investigating officer prejudiced the defence. Apart from that, the

         District Magistrate, Gopalganj who has given the sanction

         report, is full of infirmities. While granting sanction report, the

         District Magistrate, Gopalganj has not mentioned the place of

         occurrence. The sanction order does not speak any word

         regarding the place where offence was committed, the manner
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         of apprehension of appellant, the manner of making search and

         seizure and recovery of arms and ammunition. Sanctioning the

         prosecution of a person could not be an act to issue license for

         sell of arms or either of any commodity as is done by officer of

         executive. This is an act which forms part of the judicial

         function of an officer of Executive which is defined by Section

         3(4) of the Cr.P.C. It might by an administrative executive

         action but the function ultimately being of putting a person on

         trial for a particular offence, it could really be a quasi judicial in

         nature, which could have an administrative tinge. It was

         required that the District Magistrate, Gopalganj ought to have

         indicated facts of the case and other details of it sufficiently in

         his sanction order, so as to indicating that the order has been

         passed on due application of mind and the sanction order suffers

         from infirmities and lacuna and it cannot be upheld.

                              27. In the present case, keeping in view that

         none of the seizure-list witnesses have been examined and the

         investigating officer has not been examined in order to prove the

         place of occurrence where the place of occurrence is already in

         question as PW1 has not pointed the place of occurrence and

         PW3 though he has pointed out the place of occurrence but he

         has not pointed out the owner of the house of southern boundary
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         of the place of occurrence and in this way, PW3 has not clarified

         the owner of the house of the southern boundary and even he

         has pointed out the boundaries, the same is not corroborated by

         any of the prosecution witnesses. The evidences of PW1 and

         PW3 are divergent regarding the place where the appellant was

         apprehended and the report of sergeant major suffers from

         infirmities as without testing the arms by prescribed

         methodology, merely on physically verification, he has opined

         that arms were found in effective condition. It has already been

         submitted by the learned Amicus Curiae for the appellant that

         during the course of trial, carbine and 9 mm cartridge were

         prohibited arms and ammunition which requires trial under

         Section 26(2) of the Arms Act by the court of Sessions and as

         such case was committed to the Court of sessions vide order

         dated 04.08.2008 and while giving the sanction, the District

         Magistrate, Gopalganj has given the sanction in a routine

         manner, without explaining that 9 mm carbine and cartridges

         were prohibited arms requiring trial under Section 26(2) of the

         Arms Act.

                              28. In the light of the aforesaid circumstances, I

         find that the contention of the learned Amicus curiae is quite

         convincing that prosecution for such an offence requires
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         sanction of the District Magistrate in view of Section 39 of the

         Act. The act of grant of sanction for launching the prosecution is

         not an empty formality which can be mechanically performed.

         The giving of sanction confers jurisdiction on the court to try

         the case. This case has been quoted with approval by the

         Supreme Court in Madan Mohan v. State of U.P., (A.I.R. 1954

         S.C. 637) and Som Nath Vs Union of India, (A.I.R. 1971 S.C.

         1910] and the dictum of the Privy Council that in order to

         constitute a valid Sanction it must be established that the same

         was granted with reference to the facts constituting the offence

         was reiterated.

                              29. In Sukhlal Banshi Lodhi vs. State of M.P.,

         reported in 1998 Cri LJ 1366, it has been observed that sanction

         is not a mere formality. It has to be proved that it was granted by

         the authority after applying his mind. It must be shown that the

         firearm or weapon with respect to which sanction was prayed

         was actually taken to the authority concerned and after looking

         to it the relevant papers, understanding and after applying his

         mind sanction was granted.

                              30. In Mohammad Israr Vs. State of UP, 2017:

         AHC-LKO:22163-DB, it has been observed that in the sanction

         order the details of recovered arms are not mentioned. It is
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         expected that the District Magistrate should have mentioned the

         details of the recovered arms to show that the sanction was not

         granted mechanically. Rather, it was granted after application of

         mind, which is a mandatory provision. In the absence of legal

         sanction, conviction of accused under Section 3/25 Arms Act

         could not be sustained.

                              31. From perusal of sanction order, the District

         Magistrate, Gopalganj was simply noting that on the basis of

         recommendation made by Superintendent of Police as well as

         proposed and forwarded by the concerned authorities, he was

         agreeing and granting the sanction. The sanction report is

         handwritten and there was no space left even for putting down

         the bare facts of the case or even a shamble of it so as to

         indicating as to how the appellant was found in possession of it

         so that he could be said to violate conditions are punishable

         under Sections 25, 26 or 35 of the Arms Act. The sanction order

         was in fact not an order which could be said to be passed after

         due application of mind by the District Magistrate and as such it

         stood vitiated which could never be utilized by any court of law

         to justify the proof of charges under the Arms Act under which

         the appellant was convicted and sentenced and on the said point

         it has been pointed out by the learned Amicus Curiae for the
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         appellant that in the present case sanction order passed by the

         District Magistrate, Gopalganj has not been exhibited. Learned

         Amicus Curiae for the appellant has also highlighted that the

         sanction order is so important factor that no case can be

         proceeded without obtaining sanction. But in the present case,

         while granting sanction, the District Magistrate, Gopalganj has

         not applied his mind on the facts which is a         mandatory

         requirement to examine while giving sanction. In this way, the

         sanction order given by the District Magistrate, Gopalganj

         suffers from infirmities and the said sanction order is merely a

         formality. Thus, what I find is that the conviction of the

         appellant under Sections 25(1-b)a, 26(1) and 26(2) of the Arms

         Act was completely vitiated on account of the lack of proper

         sanction and no conviction can be sustained in the light of the

         aforesaid facts and circumstances of the case.

                              32. It is cardinal principle of criminal

         jurisprudence that that the prosecution has to prove its case

         beyond reasonable doubt. The evidence of all the factual

         witnesses, namely PW-1 to PW-3, are neither trustworthy nor

         convincing and the place of occurrence has also not been

         proved, as discussed in foregoing paragraphs. Hence, the

         contention of learned Amicus Curiae is quite tenable and
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         sustainable in the light of aforesaid facts and circumstances of

         the case. In this way, the prosecution has failed to prove the

         case beyond reasonable doubt and k eeping in view all the

         infirmities and discrepancies, I find the judgment of conviction

         and order of sentence passed by the concerned court is not

         justified and legal and same is fit to be set aside.

                               33. In the result, in my view, prosecution case

         suffers from several infirmities, as noticed above, and it was not

         a fit case where conviction could have been recorded. The

         learned trial court fell in error of law as well as appreciation of

         facts of the case in view of settled criminal jurisprudence.

         Hence, impugned judgment of conviction and order of sentence

         are hereby set aside and this appeal stands allowed. The

         appellant is on bail, he is discharged from the liability of his bail

         bond.

                              34. The interlocutory application, if any, also

         stands disposed of.

                              35. Let a copy of this judgment be transmitted

         to the Superintendent of the concerned jail for compliance and

         for record.

                              36. The records of this case be also returned to

         the concerned trial court forthwith.
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                                           37. Before parting with the judgment, I

                      appreciate the legal assistance rendered by Ms. Muskan Singh,

                      learned Amicus Curiae. Patna High Court Legal Services

                      Committee is directed to pay a sum of Rs. 5,000/- (five

                      thousand) to Ms. Muskan Singh, learned Amicus Curiae, as

                      consolidated fee for the legal assistance rendered by her,

                      within a period of four weeks from the date of receipt of this

                      judgment.




                                               (Alok Kumar Pandey, J)
alok/-
AFR/NAFR                AFR
CAV DATE                N/A
Uploading Date          03.02.2026.
Transmission Date       03.02.2026.