IN THE HIGH COURT OF JUDICATURE AT PATNA Against the judgment of conviction and order of sentence dated 31.03.2007 passed by Additional Sessions Judge, Fast Track Court- II, Munger in Sessions Trial No.631 of 2005. CRIMINAL APPEAL (SJ) NO.368 OF 2007 1. MD.KASIM, Son of Md. Illiyas. 2. MD. AJMUL @ TETAR, Son of Late Md. Taip 3. MD. SHOIB ALIAS TETAR ALIAS MD. SOIB, Son of Late Md. Muso Resident of Village-Bardah, Post Office- Dariayapur, Police Station-Mufassil, District- Munger. .... .... Appellants Versus State Of Bihar.... .... Respondent With CRIMINAL APPEAL (SJ) NO. 388 OF 2007 MD.SAKIR, Son of Md. Jallo Jalil, Resident of Village-Bardah Mirjapur, P.S.-Muffasil, District-Munger..... .... ………… Appellant Versus State Of Bihar.... .... Respondent With CRIMINAL APPEAL (SJ) NO. 393 OF 2007 MD.SAFI ALAM @ KARU, Son of Late Tajmul, Resident of Village-Bardah, Police Station-Mufassil,District-Munger. -----Appellant Versus State Of Bihar.... .... Respondent With CRIMINAL APPEAL (SJ) NO. 395 OF 2007 MD.SALAHUDDIN, Son of Sk.Zahir, Resident of Village-Baquarpur, Police Station-Mufassil, District-Munger.... .... Appellant Versus State Of Bihar.... .... Respondent 2 For the Appellants: S/Sri Nasrul Hoda Khan, Md. Harun Quarashi, Advocates. For the Respondent:- Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The present batch of four appeals arise out of the judgment of conviction dated 31.03.2007 passed by the learned Presiding Officer of Fast Track Court-II, Munger in Sessions Trial No.631 of 2005. By the impugned judgment the six appellants of the appeals were convicted of offences under Sections 25(1-a) and 26(ii)/35 of the Arms Act and was directed to suffer rigorous imprisonment for five years each on each of the counts. The sentences passed against each of the appellants were directed to run concurrently. 2. It appears from the self statement of P.W.7 Kalendra Singh(Ext-4)that the police had received a secret information that a clandestine armed manufacturing unit was being run by some persons in Burhbadiara under Muffasil police station in the district of Munger. The informant, P.W.7, formed a raiding party and started with some of the officer-in-charges of police stations for the place so as to conducting a search operation. It is stated that they reached the bank of river Ganga and crossed it by boats along with the members of the raiding and search party and reached the place in the Diyara where, as per information the clandestine manufacturing unit was being run by some 3 persons. The informant stated that when he reached the place he found some persons sitting under a Palani and talking to each other. A seize was laid around the Palani which was double storied. Five persons ran away from there and could not be apprehended in spite of chase, but six persons were caught red-handed while engaged in manufacturing illegal arms and those persons were the six appellants. They also stated the names of the persons who had run away which included appellant Md. Safi Alam @ Karu. It is said that on search of the premises partly or fully manufactured arms were recovered for which the seizure memo(Ext-2)was prepared. 3. On the self statement of P.W.7, the FIR of the case P.W.6 was drawn up and the same was investigated into by P.W.9 who received the arrested persons along with the seized fully or partially manufactured arms and those were sent to the Sergeant Major for his opinion about the truthfulness of the seized articles, who submitted Ext-8, the report indicating that some of them partially or fully Manufactured arms could be used independently or in consonance with other recovered parts. The members of the raiding party were questioned during investigation and they appear supporting the charges and as such the District Magistrate, Munger was approached for sanctioning prosecution as a result of which Ext-9, the order sanctioning prosecution was granted by him as a result of 4 which the appellants were put on trial. 4. The defence of the appellants was that they had wrongly and falsely been implicated in the case and real proprietors of the premises as also persons who had been found engaged in manufacture of the arms were let off. It was pleaded that the appellants were picked up from the surrounding areas where they were in different fields in the day time so as to earning the bravado of the police high ups and general public. 5. The prosecution examined a total number of ten witnesses and tendered the documents, I have just indicated in evidence and on that basis, the appellants were convicted which resulted in the filing of four appeals as may appear from the cause title of the present judgment. 6. The contention was that the witnesses had not identified any of the six appellants in spite of having said that six persons had been arrested from the scene of occurrence as persons who had really been picked up from the scene of occurrence and who had been found manufacturing illicit arms as per allegation. I was taken through the evidence of all witnesses and it was submitted that the identification of the appellants was not established and as per the evidence of P.W.7, the informant of the case, the premises was belonging to one Gholat Mandal. It has been emphatically submitted that the Jhopari which was the place in use for running the assembly line, 5 was also belonging to Gholat Mandal who had definitely indulged in commission of the offence. Contention was that which ever articles or arms were recovered from the scene of occurrence were admittedly not seized as may appear from the evidence of Suresh Prasad Singh, the I.O. of the case and that is the infirmity in the prosecution case as was pointed out by the Supreme Court in Naba Kumar Das Vrs. State of West Bengal reported in 1974 Cr.Law Journal 512. It was further contended that the sanction which was accorded for the prosecution of the appellants was completely defective showing the non-application of the mind of the sanctioning authority. 7. Sri Ajay Mishra, the learned counsel appearing on behalf of the State has submitted that the evidence was consistent that the illicit arms manufacturing unit was being run in the premises from where the recoveries, as per seizure memo(Ext-2)were made and some of the recovered articles or most of them had been found effective if used independently or used in tandem with other recovered articles. The contention further was that the appellants were arrested from the spot and they could not escape the responsibilities of having participated in commission of the offence. 8. It is true that there was recovery and no court could doubt it as the police appears having received the information and P.W.7 appears forming a police party so 6 as to conducting the search of the particular premises, which, as per information reaching it, was being utilized for manufacture of illicit arms. This is consistently available from the evidence of P.Ws.1 to 7, the documents of search and seizure Ext-2 clearly indicate that huge recoveries were made from the place which was searched for the recovery of the arms as per the information and it appears simply far fetched to imagine that the police would assembling so much of fully or partially manufactured arms so as to foisting a case in order to earning bravado. That aspect of the case appears established to the hilt that a search was conducted in the premises and recoveries were made as per Ext-2. 9. However, that part of the story which appears established by the evidence of witnesses in itself could not be sufficient to convict any person unless the evidence was satisfactorily connecting any particular person with commission of the offence. It was here that the attack was being set up by the learned counsel for the appellants with all vehemence by taking me through the evidence of witnesses to point out that the identities of the appellants with specific role in manufacturing the arms appears not established. I find from perusal of the evidence of P.W.1 in paragraph-1 that he was naming four persons, namely, Md. Shoib alias Tetar alias Md. Soib(appellant)Md. Jahid Jawed alias Chhotu and Md. Ajmul 7 alias Tetar as persons who had been arrested at the spot but in the very next paragraph-2, P.W.1 was saying that in fact six persons had been identified who were all Muslim gentlemen and that included one, but when it came to identifying the accused persons he was simply saying that he was unable to identify any of them. Likewise, P.W.2 was stating that some persons were arrested but he could not name any one as to who was the person who had been arrested except one Jiaullah who is neither an accused named in the FIR nor named as one of the persons who had run away. Besides when it came to identifying the accused who was present in court the day P.W.2 was being examined in court, he simply could not identify any one as persons who had been caught during that particular raid. P.W.3 was declared hostile and P.W.4 again neither named any one nor could identify any of the accused persons as the man who had been arrested in that particular morning. So far as the evidence of P.W.5 is concerned he had identified appellants Md. Sakir, Md. Salahuddin and Md. Kasim, but again in paragraph-10 of his evidence he refused to identify any of the accused persons who were present in dock on that particular day and thus, made his evidence shaky. P.W.6 named Sakir and Md. Salahuddin, the two appellants as persons who had been caught but when it came to identifying them either by name or face he was refusing to say as to who was Sakir and again was not identifying any of the 8 accused persons by those particular names. P.W.7, the informant of the case was naming six persons who were arrested by him and his team of police personnel during the course of search of the premises, rather he was putting a name which was never figuring in the FIR in any context. The informant was pointing out that a person who was arrested was Md. Jahid Jawed alias Chhotu and while so doing he was dropping the name of appellant Md. Safi Alam alias Karu and when it came to identifying the accused persons, as may appear from cross-examination of paragraph- 4, he was failing to identify any of them and the worst was that in paragraph-13 of his cross-examination he was telling the trial court that the premises belonged to Gholat Mandal and the clandestine manufacturing unit was definitely run by said Gholast Mandal and the recovered articles also belonged to him. 10. From the resume of the evidence, what turns out is that it is very difficult to find out that any of the six appellants who were convicted by the learned trial Judge had been established as one of the persons or all the persons who could have participated in manufacturing the arms in that clandestine manufacturing unit, thus making the order of conviction quite unsustainable. It is not that the P.W.7, the informant alone had said that the Basa, i.e., the place of occurrence, belonged to Gholat Mandal and on that particular Basa of Gholat Mandal the illegal 9 manufacturing arms was being carried out. 11. When I consider the evidence of witnesses and find on the evidence of P.Ws.7 and 9, i.e., the informant and investigating officer, pointing out that the place of occurrence premises was belonging to one Gholat Mandal then I find that the prosecution was itself not sure as to what it wanted or attempted to prove. Not only it was indefinite in its approach but appears shaky in producing the evidence and further appears giving evidence which was simply contradictory to its very basic prosecution story. This could be the reason that the judgment under appeal would not be sustainable. 12. The Supreme Court was saying in 1974 Criminal Law Journal 512 that it was desirable to seal the seized articles. The purpose of sealing recovered and seized articles which were to be produced before the court was to satisfy itself that indeed the case presented before the court was in respect of the articles which were the theft properties of that particular case. It is true that the Arms Act does not provide for any such sealing of the seized articles and it is also true that the Bihar Police Manual which is the handbook of conducting investigation also does not require the seizure of the articles, but the very non-production of the article which appears admitted by witnesses, like, P.Ws.7 and 10 further creates a circumstance to doubt the veracity of the prosecution 10 evidence that indeed some articles as per description in Ext-2 had been seized which could be fully or partially manufactured arms. 13. Not only the above what appears the material defect in the prosecution case is that the manner in which the sanction for the prosecution of the appellants was accorded by the District Magistrate, Munger. On perusal of the order sanctioning the prosecution of the appellant, what I find is that it is cyclostyled form and names of the appellants or other accused persons are written in hand at the vacant space which was left for the purpose. Other vacant spaces were also left for filling in the relevant police case as also the district which was relatable to the Superintendent of Police, besides the letter number which was received by the District Magistrate from the Superintendent of Police, Munger with its date. In addition to that, space was also left for filling in the name and place of the police station and the report which was submitted by it to the District Magistrate through the Inspector and Dy. Superintendents concerned along with their places of postings. It was noted that in the light of the report submitted by the police, the supervision note, the copy of the FIR and the statements, the District Magistrate was of the opinion that certain offences under the Arms Act had been committed by the accused persons requiring grant of sanction by him for their prosecution. 11 It may be pertinent to point out that even the Act, the number of the Sections of offences along with the Section which empowers the District Magistrate to grant sanction are all filled up in the vacant spaces. I am of the opinion that if the District Magistrate is to perform his quasi- judicial administrative functions then he has to apply his mind to the facts of the case by making a precise narration of the facts so as to indicating that he had applied his mind to the facts and had satisfied himself about the existence and availability of sufficient reasons to satisfy his mind that some offence or the other had been committed by some persons known or unknown which required the sanction to be accorded. Filling up the details without any factual details of the case and the details which could be cryptic for the purposes of granting sanction like the name of the accused, the name of the police station, the Superintendent of Police or Dy.S.Ps., places of posting or even the description of the Act with its Sections in the vacant spaces could not be sufficient to indicate that the District Magistrate had applied his mind rather it indicated that he had mechanically proceeded to put his signature on Ext-9 which was presented before him by his office after being duly filled in. The very cyclostyled form indicated as if the District Magistrate was least concerned with the nature and purpose of his legal duties which was required to be performed by him under Section 39 12 of the Act and he was taking it as lightly as if he was issuing a mere license to a public distribution system dealer. In that case also, he has to satisfy himself to the fulfillment of certain criteria but here the District Magistrate appears forgetting the importance and implication of the order of sanction which was being issued by him in such a casual manner was likely to have its impact upon the liberties of persons and may entail hardship upon them and as such it was required that the District Magistrate had deeply applied his mind to the facts of the case and then had decided whether materials were sufficiently available to him to grant sanction to prosecute the accused persons. This is one defect which makes the very order granting sanction to prosecute the appellants illegal and on this score also the conviction of the appellants for the offences under the Arms Act could not be sustainable. 14. These are the reasons upon which I allow the four appeals by setting aside the conviction and sentences passed upon each of the appellants. 15. Out of the three appellants in Cr.Appeal No.368 of 2007 appellants Md. Ajmul @ Tetar and Md. Shoib alias Tetar alias Md. Soib are on bail and Md. Kasim, appellant no.1 is in custody. Md. Kasim shall be released forthwith, if not wanted in any other case. The remaining two appellants, namely, Md. Ajmul @ Tetar and Md. Shoib 13 alias Tetar alias Md. Soib shall be dischared from the liabilities of their respective bonds. Likewise, the solitary appellant, namely, Md. Safi Alam alias Karu of Cr.Appeal No.393 of 2007 is on bail and he shall also be discharged from the liabilities of his respective bonds. Appellant, namely, Md. Sakir in Cr.Appeal No.388 of 2007 and appellant Md. Salahuddin in Cr.Appeal No.395 of 2007 are still in custody, both of them shall be released forthwith, if not wanted in any other case. ( Dharnidhar Jha, J ) Patna High Court, Dated, the 20th day of October, 2011, Brajesh Kumar/NAFR