1. Heard Mr. Nisith Kumar Sahani, learned counsel for the appellant. Nobody appears on behalf of the State.

2. The present appeal is directed against the Judgment of conviction dated 21.12.2018 and order of sentence dated 22.12.2018, passed by the learned Additional Sessions Judge – 1st -cum- F.T.C., Bokaro, in Sessions Trial No.262 of 2009(O), arising out of B.S.City P.S. Case No.136 of 2009 (G.R. No.610 of 2009), whereby the appellant has been convicted for the offence under Sections 25(1-B) (a)/ 26 (1) of the Arms Act, and has been sentenced to undergo rigorous imprisonment for two years with fine of Rs.5,000/-for the offence under Section 25(1-B) (a) of the Arms Act and rigorous imprisonment for six months and fine of Rs.5,000/- for the offence under Section 26(1) of the Arms Act and in default of payment of fine, he has further been directed to undergo imprisonment for one month. All the sentences were directed to run concurrently.

3. The criminal law has been put into motion by lodging an F.I.R being B.S. City P.S. Case No.136 of 2009 dated 10.05.2009 under Sections 387/ 353/ 307/ 34 of the Indian Penal Code and Sections 25(1-B)(a)/ 26/27/35 of the Arms Act against five accused persons including the present appellant.

                  The prosecution story, in short, as disclosed in the F.IR is that the S.I of Police, Mani Lal Rana, Police Research Centre, Bokaro, received secret information on 10.05.09 at 10.a.m that one Niranjan Karpardar alongwith his associates have stopped the road construction work for ransom. Accordingly, the informant alongwith other police officials reached at the place, as per the direction of higher officials. They reached at Satanpur - Aamdih Road at 14.15 hours and on seeing the police force, some persons started fleeing. When the police started chasing them, two persons, who were on a red Yamaha Motorcycle started firing upon them. There was also counter firing from the police side. However, they fled away. It is further alleged that the police force arrested three persons and some fire-arms were seized from their possession. The apprehended accused persons disclosed the name of escaped persons as Kamruddin Ansari @ Chhotu Ansari and Naushad @ Bitan.

                  Hence the case instituted.

                  The police, after completing the investigation, has submitted the charge-sheet against four accused persons. Later on, I.O has submitted supplementary charge-sheet against one accused namely, Naushad Ansari, whose case has been sent up for trial vide S.T. No.337/ 2010 and has already been disposed of.

                  The police has submitted charge-sheet against three accused persons namely, Niranjan Kapardar, the present appellant, Dhananjay Kar and Kamruddin Ansari @ Shonu Ansari and the trial court has framed the charge under Sections 353/ 34, 307/34, 387/34 IPC and Sections 25(1-A)/26(2)/27(2)/35 of the Arms Act against the accused persons. Thereafter, the case has been committed to the court of Sessions to which the appellants have pleaded innocence and claimed to be tried and accordingly, the trial has commenced.

4. To substantiate the charges, the prosecution has examined altogether 10 witnesses and their depositions, in short, are as follows:-

5. P.W.-1, Karam Chand Gorain, is a formal witness and has proved the seizure lists marked as Exts.-1 & 1/2 He has also identified the memo of arrest (Exts.-3, 4 & 5)

                  In cross-examination, he has clearly stated that neither any article has been recovered nor anyone has been arrested in his presence, rather his signature has been obtained by the police on plain paper.

6. P.W.-2, Nasiruddin Ansari, has been declared hostile

7. P.W.-3, Md. Sahansah Aalam Siddique, is a constable and member of the police party and he has supported the prosecution story.

                  In cross-examination, he has deposed that no one was injured.

8. P.W.-4, Khirodhar Gorain, has been declared hostile.

9. P.W.-5, Naushad Ansari, has also been declared hostile

10. P.W.-6, Mani Lal Rana, is the informant of the case and he has supported the prosecution case.

                  In cross-examination, he has admitted that not a single police officials or any accused were injured in the occurrence. Further, he has not seized any used cartridges (khokha)

11. P.W.-7, A.S.I Shiva Gagrai, has proved the material exhibits.

                  In cross-examination, he has admitted that the seized materials were not sealed. He has further stated that the word “Automatic Pistol” has not been mentioned in the material Ext.-3. Further, MR Case Number was not on Ext.-II & V. Further, no police case number has been mentioned in the material Exhibts – I, II, IV & V.

12. P.W.-8, Surya Kumar Singh, is the Sergeant Major, who has examined the firearms brought before him. He has proved the examination report, marked as Ext.-4.

                  In cross-examination, he has stated that the material produced before him was in sealed condition on which P.S Case number was written. Further, there was no slide as the pistol was not automatic.

13. P.W.-9, Shiva Gagrai, is a formal witness. In cross-examination, he has deposed that all seized materials were not in a sealed condition.

14. P.W.-10, Subash Singh, is the Officer-in-Charge of the Bokaro Police Station. He has supported the prosecution story. He has also identified the accused persons.

                  In cross-examination, he has deposed that he has not signed on any paper at the place of occurrence. He does not remember as to whether any identification mark was made upon the seized articles or not.

15. The following documents have been exhibited by the prosecution :-

                  1. Ext.-1 :- Signature of Karamchand Gorain on Seizure list dated 10.05.2009 at 14.45.

                  2. Ext.- 1/1:- Seizure list dated 10.05.2009 at 14.45

                  3. Exhibit- 2:- Signature of Karamchand Gorain on Seizure list dated 10.05.2009 at 14.30

                  4. Ext.-2/1:- Seizure list dated 10.05.2009 at 14.30

                  5. Ext.-3:- Self statement of witness Manilal Rana

                  6. Ext.-3/1:- Endorsement for forwarding on self statement

                  7. Ext.-3/2:- Endorsement for Registration on self statement

                  8. Ext.-4:- Arms Examination report by P.W-08 Surya Kumar Singh

                  9. Ext.-5:- Prosecution permission order of D.C, Bokaro

                  10. Material Ext.-I :- One Blank colour mobile containing two sims (1) Airtel & 2. Idea and written MR 7/09 on screen by P.W-07

                  11. Material Ext.-II:- One Blue colour Scooter bearing NO. BEB-1258 by P.W-07

                  12. Material Ext.-III: One automatic Pistol having MR No. 7/09 on Bank by P.W-07

                  13. Material Ext.-IV: One China Mobile carving Sigmatel and having MR No. 07/09 on screen by P.W-07

                  14. Material Ext.-V:- One old black & white Bajaj Motorcycle bearing No. JH 10 N-0553 by P.W-7

                  15. Material Ext. - VI to VI/5 :- Six cartridges.

16. On consideration of above materials on record, the trial Court has acquitted the accused namely, Kamruddin Ansari and Dhananjay Kar from all the charges and so far as the present appellant is concerned, the trial court has also acquitted him for the offence under Sections 353/34, 307/34, 387/34 IPC and Sections 27(2)/35 of the Arms Act, but found him guilty for the offence under Sections 25(1B)

                  (a) and 26(1) of the Arms Act in stead of Section 25(1-A) of the Arms Act and sentenced him, as stated above.

17. Being aggrieved by the aforesaid judgment of conviction, the appellant has preferred the present appeal.

18. It has been submitted by the learned counsel for the appellant that as per the seizure list, the description of weapon is - “Automatic pistol having MR No.07/09 on barrel”, while as per the Sergeant Major, the description of weapon is - “Country made pistol with no slide hence no automatic.” Thus, there is discrepancy in the seizure list and the weapon sent for the forensic test.

                  It has further been submitted that since there was neither any marking nor any sealing of the arms at the place of occurrence, possibility of manipulation cannot be ruled out, especially, in view of the fact that the seizure list witness (P.W.-7) has not supported the factum of seizure and for that purpose he has relied upon the judgment of the Hon'ble Apex Court in the case of Amarjit Singh @ Babbu Vs. State of Punjab, reported in 1995 Sup (3) Supreme Court Cases 217.

                  On the above basis, prayer has been made that the judgment of conviction and order of sentence, be quashed and set aside and the appellant, be acquitted.

19. Nobody has appeared on behalf of the State.

20. Having heard learned counsel for the appellant and from perusal of the records, it appears to this Court that although the prosecution has made story regarding recovery of the restricted arms, but the arms which has been sent for forensic test is different. There is no sealing of the arms at the place of occurrence and further, the seizure list witnesses have not supported the factum of seizure.

21. Thus, this Court finds that the conviction of the appellant under Sections 25(1B)(a) and 26(1) of the Arms Act is without any material available on record. Accordingly, the Judgment of conviction dated 21.12.2018 and order of sentence dated 22.12.2018, passed by the learned Additional Sessions Judge – 1st -cum- F.T.C., Bokaro, in Sessions Trial No.262 of 2009(O) is, hereby, quashed and set aside.

22. In the result, the appeal stands allowed and accordingly disposed of.

23. The appellant is on the bail, hence, he is discharged from the liability of bail bond.

24. Let the Trial Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.