IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.P (M). No. 286/2010 Date of decision: 20. 5. 2010 State of H.P. …applicant/appellant Versus Pradeep Kumar ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 no For the appellant: Mr. Anshul Bansal Addl. Advocate General, with Mr. J.S. Rana, Assistant Advocate General. For the respondent : None. Surinder Singh J. (Oral) Leave to appeal is sought in this appeal by the State against the acquittal of the respondent in Criminal case No. 64-3 of 2009 decided on 4.12.2009 by the learned trial Court under Section 25 of the Arms Act. 2. Heard and gone through the file of the learned trial Court. 3. Precisely, the case of the prosecution is that on 25.4.2009, Head Constable Dev Raj was heading a 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - Police party at Bus Stand Rampur. Around 7 p.m., they noticed the respondent, who on seeing the Police party tried to escape. This aroused the suspicion thus, the Police nabbed him. His identity was asked. His personal search was conducted. During the search, conducted by the Head Constable aforesaid, he recovered two country made pistols (Desi Katta) along with 8 mm four live cartridges. 4. Respondent could not produce any license. Both these Desi kattas along with live cartridges were sealed on the spot with seal that produced the impression of English alphabet ‘H’ and were taken into possession vide memo Ext. PW1/A. 5. Ruka Ext. PW5/B was sent for the registration of the case which culminated into the present FIR. 6. The Head Constable aforesaid further investigated the case, recorded the statements of the witnesses, prepared the site plan and deposited the case property in the Malkhana. Thereafter, it was sent for the opinion of the ballistic expert. Report is Ext. PW5/B. As per the report, both these country made pistols were in working order and the live cartridge could be used in each of them. 7. After completing the investigation, challan was presented in the Court for the trial of the - 3 - respondent. The learned trial Court did not find the sanction accorded by the Magistrate to prosecute the respondent in order, in view of the statement of PW6 M.S. Khachi Reader to the then District Magistrate. As per record of the District Magistrate brought by the said witness, there were discrepancies in the dates with respect to date when the mater was considered by the Deputy Magistrate for according sanction. There was also no explanation as to how these different dates came into existence. 8. Further, it is also evident from the record that when the respondent was apprehended, thenceforth till late in the night, the people were roaming about in the Bazar. Besides it, there were shops and inhabited area in and around Bus stand. The independent witness could have been included had the police exerted a little bit more this could have inspired confidence in its case. Since no attempt was made by the Investigating Officer to associate the independent witness, though available, cast a doubt on its probity. 9. On similar facts, the apex Court in Sans Pal Singh versus State of Delhi AIR 1999 SC 49 held that the recovery of the unlicensed arms, based upon the evidence of the Police Officer alone and no public witnesses even though available were associated, conviction cannot be upheld. - 4 - 10. The matter would have been different had there been no public witnesses available but in the instant case it is borne out from the record that independent witnesses were available. Failing to associate them, during the search, renders the recovery highly doubtful. Therefore, in these circumstances, leave to appeal cannot be granted. Hence the petition under Section 378 (3) of the Code of Criminal Procedure is dismissed. May 20, 2010 (Surinder Singh),J (cm)