IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.24599 of 2011 Chandan Kumar Singh Versus The State Of Bihar & Anr. ----------- For petitioner:- Mr. Bindhyakeshari Kumar, Sr. Advocate Mr. Ajay Kumar Singh, Adv For the State:- Mr. Jharkhandi Upadhyaya, APP ----------- 2/ 03/11/2011 Heard learned counsel for the petitioner and learned Additional P.P. for the State. Petitioner has challenged order dated 17.05.2011 passed by SDJM, Sheohar, Distt-Sitamarhi by which his prayer for discharge under Section 239 of the Cr.P.C. has been rejected in connection with Tariyani P.S. Case No. 88/2009, Trial No. 906/2011. It has been contended on behalf of the petitioner that he happens a licensee of D.B. B.L gun which has been seized by the police from his house and therefore, no offence whereunder charge-sheet has been submitted, cognizance has been taken, the materials have been collected during the course of investigation justifying prosecution under Section 25(1-b)A, 26, 35 of the Arms Act, is made out. As such, the finding arrived at by the learned lower court happens to be contrary to the spirit of law and is accordingly, fit to be set aside. 2 On the other hand, the learned Additional P.P. opposed the prayer and submitted that apart from the materials available in the case diary, a written report followed with seizure list suggest that there has been recovery and seizure of two arms, one D.B. B.L gun along with cartridges and other, a rifle from the place where the accused were sitting since before and left after seeing the police. So, seizure of aforesaid two arms clearly indicates and justifies the prosecution of the petitioner including other followed with an application of Sections 25(1-b)A, 26, 35 of the Arms Act. As per written report recorded by ASI of Tariyani P.S. on 2.7.2009, there has been recovery of D.B. B.L gun along with cartridges and a rifle from a field where accused persons were sitting since before, and left the scene seeing the police when the police had gone to enquire into the allegation for which station diary entry no.13 was recorded. Apart from submission raised on behalf of the petitioner regarding recovery of D.B. B.L gun along with cartridges from his house by the police, if factual one, no steps have been taken on behalf of the petitioner since 2009 in this regard and those laches along with recovery of another arm that means to say, a rifle which leagal claimant is yet to 3 be ascertained and in absence thereof, can be accepted as recovery of illegal arms, is sufficient to permit prosecution of the petitioner under heading of joint prosecution more particularly attracting Section 35 of the Arms Act. Therefore, having absence of conclusive material at this stage regarding physical possession of illegal arms is not going to be beneficial to the interest of petitioner as pleaded under Section 239 of the Cr.P.C. Therefore, I find the instant petition misconceived and is accordingly, dismissed. perwez (Aditya Kumar Trivedi,J.)