1. Heard Ms. Kaushiki Mishra, learned counsel for the appellant and Mr. Jitendra Pandey, learned A.P.P.

2. The present appeal is directed against the Judgment of conviction dated 07.09.2018 and order of sentence dated 10.09.2018, passed by the learned Sessions Judge, Lohardaga, in Sessions Trial No.178 of 2016, arising out of Lohardaga P.S. Case No.165 of 2016 (G.R. No.591 of 2016), whereby the appellant has been convicted for the offence under Sections 25(1-A)/ 26(2) of the Arms Act, and has been sentenced to undergo rigorous imprisonment for five years with fine of Rs.2,000/- for both the offences and in default of payment of fine, he has further been directed to undergo R.I for three months.

3. The criminal law has been put into motion by lodging an F.I.R being Lohardaga P.S. Case No.165 of 2016 dated 09.10.2016 under Sections 25(1-B)a/ 26 of the Arms Act and Section 17 of the C.L.A Act.

                  The prosecution story, in short, is based upon the fardbeyan of O/C Lohardaga, Jay Prakash Narayan Choudhary, Inspector, recorded on 09.10.2016 at 10:15 hours in Kujra Barwatoli, at the house of Agnu Bhagat. The informant has mentioned, that at 2:00 A.M. of 9.10.2016 under the leadership of S.D.P.O, Lohardaga, he along with P.S.I. Birendra Kumar Dixit, Hawaldar Ram Chandra Prasad with armed forces went out for raid, against the accused persons. At about 8.00 A.M. he got secret information that Agnu Bhagat S/o Jatru Bhagat, R/o Barwatoli is the supporter of TPC extremists, who keeps fire arms and cartridges in his house and is in visiting term to the T.P.C. Extremists namely, Prabhat Jee. At 8.45 A.M. he went with the members of raiding party and local villagers Somnath Bhagat and Shivlal Bhagat and raided the house of accused Agnu Bhagat. On seeing the police party, one person tried to escape from there, but he apprehended with the help of police party. On interrogation, he disclosed his name Agnu Bhagat, and in presence of both the said local witnesses, he searched the house of Agnu Bhagat and recovered four live cartridges from the bed room of accused situated in the north room of his house from and below his bed. The accused confessed that he talks from his mobile no. 8002655648 to the mobile no.7070275028 of Prabhat Jee. Thereafter, he seized the said four cartridges and mobile of the accused and obtained signature of witnesses, on the seizure list and handed over the copy of seizure list to the accused.

                  The police, after completing the investigation, has submitted the charge-sheet on 20.11.2016 and the trial court has framed the charge under Sections 25(1-A)/26(2) of the Arms Act and Section 17 of the C.L.A Act against the present appellant. Thereafter, the case has been committed to the court of Sessions to which the appellant has pleaded innocence and claimed to be tried and accordingly, the trial has commenced.

4. To substantiate the charges, the prosecution has examined altogether 09 witnesses and their depositions, in short, are as follows:-

5. P.W.-1, Jay Prakash Narayan Choudhary, is Police Inspector and the informant of the case. He has supported the prosecution case.

                  In cross-examination, he has deposed that during raid, family members were there and the accused fled away and caught thereafter. He has not examined the seized cartridges as to be live or not. Further, no evidence with regard to the extremist group was found.

6. P.W.-2, Sunil Kumar Sinha, is also Inspector of Police and also a member of the raiding party. He has also supported the case of the prosecution.

                  In cross-examination, he has stated that he has brought the material exhibits on the order of the Officer-in- Charge with paper to which he has filed in the court bringing from police station. He has further stated that he does not know anything regarding the case, as he has brought the material exhibits only.

7. P.W.-3, Bijay Narayan Chaudhary RSM, is the Sergeant Major. He has proved the examination report of arms which is marked as Ext.-4.

                  In cross-examination, he has deposed that after examination of the materials exhibits it was sealed, but not signed by him.

8. P.W.-4, Pradeep Kumar Nayak, is a member of the raiding party.

                  In his cross-examination, he has admitted that he does not know from which part of the bed, the cartridges were recovered.

9. P.W.-5, Mukul Minz, is clerk of the D.C office, Lohardaga, who has proved Ext.-5 i.e. sanction report, issued by the D.C., Lohardaga.

10. P.W.-6, Somnath Bhagat, is seizure list witness and he has proved Ext.-1/1 i.e. his signature, on the seizure list.

                  In cross-examination, he has admitted that nothing has been seized from the accused in his presence.

11. P.W.-7, Sanjay Gope, is constable and a member of raiding party. He has supported the prosecution story and claimed to identify the accused.

                  In cross-examination, he has admitted that he was outside the house of the accused.

                  Thus, he is not the witness to the seized arms.

12. P.W.-8, Birendra Kumar Dixit, is Sub-Inspector and a member of raiding party as well as the Investigating Officer of the case.

                  In cross-examination, at paragraph no.28, has stated that he has not mentioned in the case diary regarding putting seal and substance by which material exhibits were sealed. Further, at para-39, he has stated that however, recovery of four live cartridges have been made, but the description of the same has not been mentioned in the seizure list.

13. P.W.-9, Uma Shankar Singh, is Sub-Inspector and part I.O of this case. He has proved Ext.-8 – CDR.

14. On culmination of trial, the trial Court has recorded the finding that the prosecution has failed to substantiate the charge under Section 17 of CLA Act and found the appellant guilty for the offence under Sections 25-1A/ 26(2) of the Arms Act and sentenced him, as stated above.

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

16. Learned counsel for the appellant has assailed the impugned judgment of conviction that there is no ingredients of Section 25(1-A) of the Arms Act as no prohibited arms have been recovered and further, Section 26(2) of the Arms Act is also not attracted.

                  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.

17. On the other hand, learned counsel for the State has supported the judgment of conviction and order of sentence, stating that the police witnesses are there and they have supported the seizure.

18. Having heard learned counsel for the parties, from perusal of the records and from the statements of the prosecution witnesses, it appears to this Court that :-

                  (a) the seizure list does not suggest that the seized articles have been sealed at the place of occurrence.

                  (b) the Investigating Officer has himself stated that the recovered cartridges were carried by Hawaldar Ram Chandra Prasad to the police station.

                  (c) even the Sergeant Major has stated that he has not checked the cartridges, rather, he has given his opinion only on the basis of his experience.

                  (d) the recovered cartridges do not come under the prohibited ammunition, as defined under Section 2(h) of the Arms Act.

                  (e) the seizure list witnesses have also not supported the seizure in their presence.

19. Thus, neither seizure is proved nor sealing is there.

                  The process adopted by the prosecution is full of doubt, regarding recovery of the ammunition and presentation of the same to the court and further, there is no forensic report. Further, the seized cartridges do not come even under the definition of the prohibited ammunition.

20. Thus, this Court finds that the materials available on record are not sufficient for conviction of the appellant for the offence under Sections 25(1-A)/ 26(2) of the Arms Act and as such, the Judgment of conviction dated 07.09.2018 and order of sentence dated 10.09.2018, passed by the learned Sessions Judge, Lohardaga, in Sessions Trial No.178 of 2016, arising out of Lohardaga P.S. Case No.165 of 2016 (G.R. No.591 of 2016), is, hereby, quashed and set aside.

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

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

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