IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 198 of 2002. Date of decision:24.12.2008. ________________________________________________________ State of H.P. .. ..Appellant Versus Ahamdulla .. ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the Appellant: Mr.R.M. Bisht, Dy.A.G. For the respondent: Mr.K.B. Khajuria, Advocate _____________________________________________________ Deepak Gupta, J.(oral) This appeal is directed against the judgment dated 21.8.2001 passed by the learned Chief Judicial Magistrate, Chamba, H.P. in Criminal Case No.82- III/99/98 whereby he has acquitted the accused of having committed an office punishable under Section 25 of the Indian Arms Act, 1959. The prosecution case, in brief, is that the police received secret information that there was a gun in possession of the accused. Thereafter a raiding party was formed, two independent witnesses PWs 1&2 were associated and the house of the accused was searched on 26.6.1997 at about 7 p.m. During the search of the house a gun, Ext.P-1, was recovered. The accused could not produce any licence for this gun and hence a challan was filed against the accused. The stand of the accused …2… was that neither any search was conducted nor any gun was recovered from his house. Under Section 39 of the Arms Act previous sanction of the District Magistrate is required before launching of the prosecution. The manner in which the sanction has been granted in this case leaves much to be desired. PW-3 is the Reader of the District Magistrate, Chamba. He has stated that he prepared the sanction order and placed the same before the Additional District Magistrate who thereafter signed the same. It is obvious that the Additional District Magistrate did not dictate the order to the reader and the order had been prepared by the Reader himself. The application of mind, if any, is that of the Reader and not of the sanctioning authority. Even assuming that a valid sanction was there the recovery of the gun itself has not been proved beyond reasonable doubt. The police associated two independent witnesses. Both of them turned hostile. It is rather disturbing to note that the police party which was carrying out a raid on previous information thought it fit to associate the real brother of the accused as an independent witness. They could have easily expected this witness to turn hostile. This was not a case of chance recovery but a case of prior information. The prosecution has failed to explain why some other witness was not associated. These two witnesses turned hostile and stated that no search was carried out and nothing …3… was recovered in their presence. No doubt after the witnesses were declared hostile and cross examined by the Public Prosecutor they admitted their signatures on the seizure memo Ext.PW-6/A. However, their explanation is that they had signed the document on the asking of the police and nothing else was done in their presence. The Public Prosecutor did not cross examine them on this aspect of the matter. In view of the above discussion, the learned trial Court was totally justified in acquitting the accused. There is no merit in the appeal which is accordingly rejected. Bail bonds furnished by the accused are ordered to be discharged. December 24, 2008. ( Deepak Gupta ), PV Judge