1 HIGH COURT OF MADHYA PRADESH; INDORE BENCH (SINGLE BENCH : HON'BLE SHRI U.C.MAHESHWARI, J.) Criminal Revision No.1240 of 2009 Subhan S/o Jema Bhilala, Age – 35 years, Occupation – Labour, Address – Mori Faliya, Nanpur, Tehsil and District- Alirajpur (M.P.) PETITIONER VERSUS State of M.P. Through Police – Nanpur, Distt – Alirajpur (M.P.) RESPONDENT ********************************************************* For Applicant : Shri Om Prakash Solanki, learned counsel. For Respondent : Smt. Mamta Shandilya, learned Panel lawyer. ********************************************************* O R D E R (Oral) (Passed on this 19 th day of December, 2011) Revision is heard finally on merits. The applicant/accused has preferred this revision under Section 397 read with Section 401 of the Criminal Procedure Code, being aggrieved by a judgment dated 07.10.2009 passed by the Additional Sessions Judge to the Court of Second Additional Session Judge (Fast Track), Jobat in Criminal Appeal No.07/2009 affirming the judgment dated 02.07.2009 passed by Chief Judicial Magistrate, Alirajpur in Criminal Case No.1182/06 whereby the applicant has 2 been convicted and sentenced under Section 25 (1) (b) (a) of the Arms Act (in short the Act), R.I. for 3 years with fine of Rs.300/- and in default of depositing the fine amount further 2 months Rigorous Imprisonment. 2. The facts giving rise to this revision in short are that on dated 16.09.2000 Kalusingh Solanki, A.S.I. Police posted at Police Station Nanpur lodged a First Information Report contending that today on receiving the information at about 3'O clock in the Noon from the informer, he accompanied with some police officials raid the house of the applicant situated at village Mori Faliya. The applicant was present at such house. After appraising him about the above said information of the Mukhbir that he is in possession of the arms contrary to the law and they want to search his house. In response of such information a country made 12 Bore Katta (Fire Arm) was recovered from the possession of the applicant, for which he did not possess any licence. On which in presence of the witnesses by preparing a seizure memo, the same was seized. The applicant was arrested. Subsequent to such arrest the applicant accompanied with the aforesaid fire arm was brought to the police station and this first information report was lodged. After registration of the offence, further investigation of the case was carried out and on completion of the same, the applicant was charge sheeted for the aforesaid offences. On evaluation of the charge-sheet the charge of Section 25 of the Act was framed. The applicant abjured the guilt on which the trial was 3 held. After recording the evidence, on appreciation of the same, the applicant was held guilty. In pursuance to that he was punished with the above mentioned punishment by the trial Court. On filing the appeal challenging such conviction and sentence, the same was dismissed on which the applicant has come to this Court with this revision. 3. Shri Om Prakash Solanki, learned counsel for the applicant after taking me through the record of both the Courts below including the evidence led by the prosecution as well as the exhibited papers of the charge-sheet as also the impugned judgments argued that in the light of the existing law and settled proposition and proper appreciation of the evidence, the applicant ought to have been acquitted by both the Courts below but he has been convicted and sentenced under the wrong premises. In continuation, he stated that in order to prove the fact that the police has visited the alleged place from where the alleged illegal fire arm was seized has not been proved by the cogent and reliable evidence like Rojnamcha in which after making the endorsement of the departure the aforesaid complainant accompanied with the police official and independent witnesses left the police station for the alleged house. In the lack of it it cannot be deemed that such police party visited the house of the applicant and the alleged article was seized from such place. He further argued that for the sake of the argument, if it is deemed that police visited the house of the applicant then for making the alleged 4 search of the house of the applicant despite availability of the sufficient time no search warrant was obtained from the competent authority. If such time was not available with the complainant then as per the settled proposition they could have made such search only after preparing Panchanama recording the reasons for not obtaining the search warrant. In this regard the procedure prescribed under Section 165 of the Criminal Procedure Code was also not followed. The prosecution has also failed to prove that the alleged house was in exclusive possession of the applicant to connect the applicant with the alleged offence. According to it, if the house was open and other persons were also in occupation of the same then seizure from such house would not be treated to be the seizure from the possession of the applicant only. In support of his contentions, he placed reliance on decided cases of the Apex Court in the matter of K.L.Subhayya Vs. State of Karnataka reported in AIR 1979 SC 711 so also in the matter of Ghuran Yadav Vs. State of Bihar reported in AIR 1971 SC 1641 and prayed to extend the acquittal to the applicant by setting aside the impugned judgment of the Court below by allowing this revision. 4. On the other hand responding the aforesaid prayer by justifying the impugned conviction and sentence of the applicant, Smt. Mamta Shandilya learned Panel lawyer said that the same being based on proper appreciation of the evidence, and in consonance with the legal position, does not require any interference at this stage. However, she 5 fairly conceded that to prove the raid on the house of the applicant the concerning Rojnamcha in which after making the aforesaid departure the complainant along with police officials left the police station has neither been produced nor proved on record. She also conceded that before making the search of the applicant's house, neither the requisite search warrant as per requirement of Section 165 of the Criminal Procedure Code was obtained nor any Panchanama recording the reasons for not obtaining the search warrant has been prepared by the police officers before entering in the house to search the same. With these submissions she prayed for dismissal of this revision. 5. Having heard learned counsel at length keeping in view their argument, I have carefully gone through the record of both the Courts below along with the impugned judgment. 6. It is apparent fact on record that the applicant was not intercepted or caught hold on a spur of moment but as per deposition of Kalusingh himself and according to the averments of lodged FIR, he left the police station after receiving the information from the informer that applicant is in possession of some illegal arms in the house situated at a village under the territorial jurisdiction of the police station, so in such premises it was fundamental duty of the complainant to take the search warrant from the appropriate authority before proceeding to search the aforesaid house but the same was not taken. For the sake of argument, if it is deemed that there was no 6 sufficient time with the complainant to obtain the search warrant otherwise, the accused like applicant would have escaped from the place or could have removed the alleged fire arm then before entering his house and making search for seizing the alleged article from inside the house, the complainant, police officials had to record the reasons for entering into such house to make search, but it is apparent fact on record that neither the search warrant was taken nor any Panchanama recording the reasons for not obtaining the search warrant was prepared, so in such premises keeping in view the provisions of Section 165 of the Criminal Procedure Code, on examining the case then it is revealed that the entire proceedings of search was carried out by the police officials contrary to such provisions and is liable to be vitiated. 7. My aforesaid view is fully fortified by the above mentioned judgment of the Supreme Court in the case of K.L.Subhayya (supra) in which it was held as under :- “This, therefore, renders the entire search without jurisdiction and as a logical corollary vitiates the conviction. We feel that both Ss. 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill- founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyse the effect of the provisions of Sections 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far-reaching consequences. It was, 7 however, suggested that the word 'place' would not include the car, but the definition of the word 'place' under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been direct non-compliance of the provisions of S. 54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him.” 8. Although aforesaid cited case was decided taking into consideration the provisions of Mysore Excise Act but the provisions of search are para materia like Section 165 of the Criminal Procedure Code with slight differences, so in such premises firstly it is held that the search which was carried out by the said police official was not in accordance with the law and in such premises the entire proceedings of the case would not be said to be the legal and in such premises the impugned conviction deserves to be set aside. 9. Apart from the above, on examining the case from other angle then it is settled proposition that whenever police officers posted at Police Station on receiving the information of any cognizable offence (like the impugned offence) then he is duty bound to record such information in Rojnamcha sanha kept in the police station and he is also bound to make his entries in the said Rojnamcha if he left the police station to visit the said alleged place. In the lack of such Rojnamcha on record, the inference could not be drawn that after receiving the information from the informer or from other sources 8 the police officials went to the alleged place. In the present case, it is apparent fact that in order to prove the aforesaid information and departure of the police party for such place the Rojnamcha entry has neither been produced nor proved on record. In the lack of it, it cannot be said that prosecution has successfully proved that police party visited the house of the applicant and the alleged article was seized from his possession or residence. 10. It is apparent fact on record that both the independent witnesses of the seizure memo of the alleged country made pistol (Katta) on recording their deposition had turned hostile and did not said anything implicating the applicant with the alleged offence. However, they accepted their signatures on the seizure memo Ex.P/3 but in the aforesaid factual matrix in the lack of support of such evidence of independent witness to the prosecution case, the story put forth regarding seizure of alleged fire arm from the applicant has also become doubtful. 11. After going through the evidence of the police officials the complainant Kalusingh Solanki (PW-3) and Constable Bhuwan Singh (PW-4) and Head Constable Bahadur Singh (PW-7). It is apparent that the alleged house was not found closed. The accompanied police officials (PW-4 ) and (PW-7) remained outside the house while the complainant along with applicant went inside the house when the same was opened and seized the alleged Katta in pursuance to the above mentioned witnesses who turned hostile. 9 When the house was opened and the complainant and applicant entered in the house then it cannot be said that the house was in exclusive possession of the applicant or was belonging to him only. In this regard no documentary evidence neither been produced nor proved on record. Thus, I am of the considered opinion that unless it is proved by the prosecution that the alleged house was in exclusive possession of the applicant then mere on the basis of the seizure of the Katta from the open house, the applicant could not be held in exclusive possession of such alleged Katta. My aforesaid view is also based on a decision of the Apex Court in the matter of Ghuran Yadav (supra) in which it is held as under :- “On going through the record and examining the evidence which we have just discussed we are clear that there is no legal evidence on the record on which we can sustain the conclusions of the courts below that it was the appellant's house which was searched. Normally this Court, of course, does not examine for appraisal under Art. 136 of the Constitution the evidence on questions of fact decided by the courts below. But when there are reasons to think that the conclusions may be based on no evidence then this Court is not only entitled but it has an obligation in the larger interests of justice to examine the evidence to see if there is legal evidence on which those conclusions can be sustained. In this case, we find that there is no legal evidence on which the courts below could base their conclusions. The appeal accordingly succeeds and allowing the same, we acquit the appellant.” 12. On perusal of the record, I have found one more circumstances in the matter that after seizing the Katta from the place of the alleged 10 house of the applicant in which manner such article was dealt with by the applicant and in which manner it was handled and brought to the police station and before sending the said to the Ballistic Expert for examination in which manner it was kept in the police station in this regard neither the Rojnamcha nor register of Malkhana have been proved on record. So lack of such evidence on record also giving rise to draw the inference that prosecution case is a suspicious and in such premises it could be held that prosecution has not proved his case beyond reasonable doubt against the applicant. In the aforesaid premises it is held that both the Courts below have committed grave error in convicting and sentencing the applicant for the aforesaid offences by the impugned judgment. 13. Therefore, by allowing this revision the impugned judgment are hereby set aside pursuant to it the applicant is acquitted from the aforesaid charge of Section 25 (1) (b) (a) of the Arms Act. His bail bonds are hereby discharged and the amount of fine if deposited by the applicant, then the same be refunded to him after proper verification. Revision is allowed as indicated above. [U.C.MAHESHWARI] JUDGE AM.