IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.52339 of 2007 Asbad Ali @ Asad Ali, Son of Sk. Quashim , resident of Village- Mahuawa, Police Station-Shikarpur , District-West Champaran ------------------------ Petitioner Versus THE STATE OF BIHAR ------------- Opp.Party ----------- For the petitioner : Mr. Md. Naushaduzzoha, Advocate For the State : Mr. Arun Kumar Singh, A.P.P. ------------ O R D E R The petitioner , one of the F.I.R. named accused of Shikarpur P.S. Case No.43 of 2005, has prayed for the quashing of the order dated 10.7.2007 passed therein by the learned Chief Judicial Magistrate, West Champaran at Bettiah, whereby he has rejected the discharge petition dated 1.2.2007 filed by the petitioner. The aforesaid case was registered under Sections 25 (1-B)a , 26 and 35 of the Arms Act on the basis of the written report submitted before the learned Chief Judicial Magistrate, West Champaran at Bettiah on 20.2.2005 by the Officer Incharge of Shikarpur Police Station in connection with an occurrence which took place earlier at about 8.00 P.M. According to the informant while he along with a police party were on flag march and in course thereof reached village- Majharia , he received confidential information to the effect that in village Mahuawa three armed persons were standing with arms in order to collect arms for creating disturbances during the ensuing State Assembly Election. The informant is said to have proceeded to the spot immediately where he saw three persons who on seeing the - 2 - police party took to their heels but two of them were apprehended on chase. The third managed to flee. The apprehended persons on being questioned disclosed their names as Afzal Ali and Asbad Ali (the petitioner), both sons of Sk. Qashim of village Mahuawa within Shikarpur Police Station and also disclosed that the third person who had managed to flee was their elder brother, Amzad Ali, who had a double barrel pistol in his possession and also confessed that they were collecting arms in preparation to capture polling booths and creating disturbances during the ensuing Assembly Election. It is alleged that on search before two independent witnesses a double barrel pistol loaded with .315 bore bullet was recovered from the person and possession of Afzal Ali, but nothing was found from the person or possession of Asbad Ali. On demand ,they could not produce any document authorizing them to possess the arms nor could they give any satisfactory reply , whereupon the arms and ammunitions recovered were seized under a seizure list which were duly signed by the witnesses and copies whereof were handed over to the witnesses . The two accused apprehended were arrested. It was apprehended that the accused were attempting to indulge in disrupting activities. It has been submitted on behalf of the petitioner that he is innocent, had committed no offence and had been falsely implicated in this case at the instance of his enemies. In this connection it was submitted that the petitioner and his brother are supporters of Lok Janshakti Party and it was at the instance of the supporters of RJD - 3 - Party with the connivance of the local police that they had been falsely implicated. It was further submitted that although arms and ammunitions were not recovered from his possession yet the learned Magistrate had taken cognizance and had mechanically and without applying his mind rejected his petition for discharge. Section 25(1-B)a of the Arms Act reads as follows: “Whoever acquires,has in his possession or carries any fire arm or ammunition in contravention of Section 3;” Admittedly, the entire issue hinges on the word “Possession” and “carries” In Sanjay Dutt Vrs. State, reported in 1994 (5) SCC 410, a Constitution Bench of the Hon’ble Apex Court observed that “conscious possession” and “unauthorizedly” were the essential ingredients. Possession is not a tangible thing which can be perceived by any of the senses; it has always got to be inferred from facts which can be perceived by any of the senses. Possession is essentially indivisible. Two persons cannot at the same time have possession of a thing. In the instant case, the petitioner was neither in possession nor was carrying any arms or ammunitions. There is nothing on the record to show that the double barrel pistol in possession of Afzal Ali belonged to the petitioner. Therefore, the provisions of Section 25(1- B) a of the Arms Act would not apply to the petitioner. - 4 - Section 35 of the Act regarding criminal responsibility in occupation of premises in certain cases would also not be applicable to the petitioner since he along with the other apprehended accused was found on the road and were not in joint control of premises. Similarly, Section 26 of the Arms Act would also not apply to the petitioner. In the facts and circumstances of the case, the impugned order in respect of the petitioner is hereby set aside and the application is allowed. It goes without saying that the petitioner stands discharged. However, if his complicity in the crime comes to light in course of the trial, the court in seisin of the case shall be at liberty to exercise powers under Section 319 Cr.P.C. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 30th July,2009 Nawal Kishore Singh/A.F.R.