IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.1041 of 1998 State by Public Prosecutor .. Appellant Vs. 1. Aruchamy 2. Muruganandham 3. Krishnan @ Kutty 4. Somu @ Somasundaram .. Respondents Criminal Appeal against the judgment dated 19.11.1997 in C.C.No.152 of 1990 on the file of the Court of Judicial Magistrate NO.VI, Coimbatore. For appellant : Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) For respondents: Mr.S.Duraisamy for RR.1 & 2 Mr.M.Velmurugan for RR-3 & 4 JUDGMENT The Criminal Appeal filed by the State, arises of the judgment of acquittal, dated 19.11.1997 in C.C.No.152 of 1990 on the file of the Court of Judicial Magistrate NO.VI, Coimbatore, whereby the respondents/A.1, A.3, A.4 and A.5 were acquitted of the offences under Section 120-B IPC read with Section 5(1)(a) read with 25(1)(a) of the Arms Act and Section 3(1) read with Section 25(1)(b)(a) of the Arms Act. 2. The case of the prosecution in short, is as follows: On 12.8.1989, P.W.1 Nagarajan, 'Q' Branch Inspector of Police received information that A.1 was manufacturing arms in Door No.78/7, South Street, Avarampalayam, Coimbatore and P.W.1 intimated the same to the concerned Judicial Officer and he, along with P.W.3 Chandrasekaran, 'Q' Branch Inspector of Police, Village Administrative Officer Nagarajan and P.W.2 Thirumoorthy, 'Q' Branch Inspector of Police, went to the abovesaid place of lathe/workshop of A.1 and made a search. At that time, A.1 and A.3 were preparing arms. A.2 was working with A.K. 47 barrel. They were grinding R.P.G. Cell Aluminium for using in R.P.G. Cells and they were having gunny bag, which contained Aluminium netted M.S. Pipe, A.K.47 barrel https://hcservices.ecourts.gov.in/hcservices/ portion, Aluminium cone and one P.V.C. Plastic propeller, Aluminium pipe and three detonators. When P.W.1 made enquiry, A.1 and A.2 gave confession statements, which have been recorded and Ex.P-2 observation mahazar was prepared and Ex.P-3 search list and the material objects were seized and signatures were obtained from the witnesses--P.Ws.2 and 3 and V.A.O. The copy of the seizure mahazar has also been furnished to A.1. Subsequently, on 13.8.1989, the investigating officers went to Door NO.1/36, Sundaramoorthy Metal Works Avarampalayam, Ramasamy Lay- out, Avarampalayam, where, A.4 handed over the die for preparing Aluminum cone. P.W.1 prepared Ex.P-4 observation mahazar and Ex.P-5 search list. Then, P.W.1 and others returned to Peelamedu Police Station and registered a case in Cr.No.500 of 1989 for the offences under Section 120-B IPC, Section 25(1)(c) of the Arms Act and Section 7(1)(a) of the Criminal Law Amendment Act and Ex.P-6 F.I.R. was prepared and it was despatched to P.W.46 John Chelliah, Inspector of Police, for investigation. P.W.4 Rajeswsari, Commercial Manager of Royal Machine Works (Madras Machine Tools Manufacturers Ltd.), deposed that on 31.7.1986, she gave Ex.P-8 invoice and Ex.P-9 proforma invoice, relating to A.1 under self-employment scheme and received pay order of Rs.25,000/- of S.B.I., Pellamedu Branch and the balance Rs.58/- was paid by A.1 in cash and the letter to A.1 is marked as Ex.P-7. These show that A.1 has purchased the lathe for his firm. P.W.6 Jayaraman, V.A.O. has deposed that himself, along with Revenue Assistant, went to Door No.79, South Street, Avarampalayam and it was under lock and key and then he came to know that the lock has been already in broken stage and that has been marked as M.O.16. In that house, there was 0.5 H.P. Motor and 500 aluminium cones relating to R.P.G. Cell which were found in the place in gunny bag, 17 M.S. Pipe in polythene bag, the plastic pipes to be used for R.P.G. Cell- eighty in number, one wooden box and unfinished 23 aluminium cone and ten net with the screw and 3 without screw, have all been seized under Ex.P-12 search list and Ex.P-11 observation mahazar was prepared, copy of which has been handed over to the house owner P.W.18 Chinnasamy Gounder and his signature was also obtained. A.1 was examined by P.Ws.1 and 2 Inspectors of Police. He has given confession and he handed over the plan and lease deed. The admitted portion of A.1's confession is marked as Ex.P-18. P.W.7 Palanisamy residing at Peelamedu was working as Manager in Small Industries Section of S.B.I. He stated that A.1 applied for loan under self-employment scheme. He also furnished his mark list and other papers. He also furnished the rental/lease agreement. Ex.P- https://hcservices.ecourts.gov.in/hcservices/ 19 is the application for self-employment. He received Ex.P-20 letter from Department of Industries and Commerce and Ex.P-21 is the invoice copy. The educational certificates of A.1 is Ex.P-22 series. A.1 sent letter to the Bank on 21.4.1987, which is Ex.P-25. P.W.8 Ashok Kumar was working as Training Officer in P.S.G. Industrial Institute. He deposed that he has given turner training to A.1 from 1.7.1967 to 15.9.1970. P.W.9 Mounasundaram, who was working as Personnel Officer in Festo-Elgi Pvt. Ltd., deposed that A.1 was employed in the said Company and since A.1 was acting against the interest of the management, he was dismissed from service. Ex.P-27 is the certificate for the same. P.W.10 Ravikumar, who was working as Junior Reporter in Shorthand Section of Police Department, deposed that A.1 was a speaker in public meetings held on 26.9.1988 and 30.11.1988. P.W.11 Rangaraj, who was working as Junior Shorthand Writer in Police Department, also deposed that A.1 was a speaker in the public meeting held on 12.10.1988 and 21.3.1989. P.W.12 Kumar, who was working as Assessor in the Tamil Nadu Electricity Board, stated that Service Connection has been given for industrial purpose to the abovesaid workshop at Door No.78/7. A.1 and other two persons deposited money to the T.N.E.B. P.W.13 Balasundaram, the then Postman, deposed that he has took the letter relating to S.B.I. to the abovesaid A.1's workshop. P.W.15 Ramasubramaniam, who was the Marketing Manager of Royal Machines Works, Madras Machines Works, stated that Ex.P-9 invoice was given from his office and it was delivered as per Ex.P-8. The covering letter is Ex.P-7. Rs.25,580/- has been given as loan. P.W.16 Srinivasan, who was the then Assistant Manager of Industrial Centre of Coimbatore, stated that A.1 applied for loan as per Ex.P-29. He attended the interview and Ex.P-30 is the photocopy of the interview statement. In pursuance of the same, Ex.P-19 quotation from S.B.I. Peelamedu Branch was sent to A.1 and A.1 was recommended for loan. Page 95 of the loan ledger is marked as Ex.P- 31. Ex.P-32 is the photocopy of the minutes book. P.W.17 Sagaria Prabhakaran, who was working as Scientific Assistant in the Forensic Sciences Department, stated that on the request made by 'Q' Branch Inspector of Police, Peelamedu in connection with Cr.No.500 of 1989, he went to Door Nos.78/7 and 79/7, Seventh South Street, Avarampalayam, and at that time, he seized the material objects and handed over the same to the Inspector of Police https://hcservices.ecourts.gov.in/hcservices/ and on 18.8.1989, as requested again by the Inspector of Police, he went to Door No.82, Ramasamy Lay-out and seized the die-making moulds and handed over the same to the Inspector of Police. The material objects seized by him were marked as M.Os.1 to 23. P.W.18 Chinnasamy Gounder, the then Fitter of Tex Tools, deposed that he leased out one of his houses to A.1 and one Raja was acting as intermediator for leasing out the house, who received the rent and handed over the same to P.W.18. P.W.19 Arumugham, the Bill Collector of Corporation of Coimbatore, stated that the houses in question belongs to P.W.18 Chinnasamy Gounder. P.W.20 Baby, Grade I Police Constable, who was posted as Police Photographer, deposed about the photography of material objects from the places in question. P.W.21 Ponmudi, the then Police Constable of 'Q' Branch of Erode, deposed that he handed over the material objects at Chennai Laboratory, as per the requisition made by Court. P.W.22 Mohan Nivas, the then Sub-Inspector of Police of Law and Order of Karumathupatti Police Station, stated that as against the proceedings under Section 144 Cr.P.C. (jil cj;jut[), he arrested one Ramakrsihnan, President of D.K. Party and others and registered a case in Cr.No.212 of 1989 under Section 7(1)(a) of the Criminal Law Amendment Act and Sections 141 and 188 IPC for investigation. P.W.26 D.C.S.Rao, the Section Officer of Arms Section, Ministry of Home Affairs, Central Secretariat, New Delhi, stated that he has given certificate in Ex.P-36 that the accused did not have any licence for possessing arms. P.Ws.28 and 29, the Scientific Assistants of Forensic Sciences Department, deposed that they have received the material objects and gave reports. P.W.43 Soundararajan, who was working in the T.N.E.B. of Special Maintenance Section, Coimbatore, stated that he has seen A.1 relating to Service Connection No.236. P.W.45 N.Jayakumaran, the then Judicial Magistrate No.5 of Coimbatore, stated that he recorded Section 164 Cr.P.C. statement of some of the witnesses, as requested by 'Q' Branch Police and sent summons for examination of the witnesses. P.W.46 John Chelliah, Inspector of Police of 'Q' Branch, corroborates the evidence of P.W.1. He has stated that he has examined the witnesses and recorded their statements and filed charge https://hcservices.ecourts.gov.in/hcservices/ sheet against the accused. 3. The trial Court, after framing necessary charges, to which the accused pleaded not guilty and on examination of P.Ws.1 to 46 and D.W.1, marking Exs.P-1 to P-51 and M.Os.1 to 25, and on questioning the accused under Section 313 Cr.P.C., relating to incriminating evidence against them, which was denied, and after considering the oral and documentary evidence, acquitted the respondents-A.1, A.3, A.4 and A.5 as indicated above. Against the same, the State has preferred this Criminal Appeal. 4. Learned Government Advocate (Crl. Side) appearing for the appellant-State would submit that the trial Court the trial Court has not considered the oral evidence of P.Ws.1 to 3, the Inspectors of Police, who along with the V.A.O made inspection on 12.8.1989 to the workshop belonging to A.1, where A.1 and A.2 were manufacturing arms, which were seized under mahazar. He further submitted that the trial Court has wrongly placed reliance upon the evidence of P.W.17, the Scientific Assistant of Forensic Sciences Laboratory. He also submitted that the provisions of Section 100 Cr.P.C. relating to search, have in fact been followed during investigation. He further submitted that even though the V.A.O. who accompanied P.Ws.1 to 3 and no independent witnesses was examined, it is of no relevance. 5. Per contra, learned counsel for the respondents/accused would contend that the trial Court has considered all things in proper perspective and after considering the evidence of P.Ws.1 to 3 along with the evidence of P.W.17, came to the correct conclusion that no independent witness was examined and that the provisions of Section 100 Cr.P.C. have not been followed. The trial Court considered all the aspects in its judgment and rightly acquitted the respondents- accused. 6. P.Ws.1 and 3 are the Inspectors of Police and P.Ws.1 and 3 belonging to 'Q' Branch and they have not followed the provisions of Section 100 Cr.P.C. regarding the search. Moreover, in respect of A.3 and A.4, when P.Ws.1 and 2 visited the place, it was under lock and key. They posted one person and subsequently they went there and hence, the provisions of Section 100 Cr.P.C. have not been followed. The evidence of P.Ws.1 to 3 is falsified by the evidence of P.W.17, who searched the place as requested by 'Q' Branch Police. 7. P.Ws.1, 2 and 3 have deposed that on 12.8.1989, they made search in A.1's lathe ('pattarai') and seized the material objects under Ex.P-3 mahazar regarding Door No.78/7, South Street, Avarampalayam. But, P.W.17 stated that he went to the place on 13.8.1989 and seized the material objects there. So, the prosecution has miserably failed to prove that the material objects marked before Court, i.e. the arms and ammunitions, were seized from A.1's lathe when A.1 and A.2 were making preparations. https://hcservices.ecourts.gov.in/hcservices/ 8. P.Ws.1 to 3 stated that on 13.8.1989, they searched the place of A.3 in Door No.1/36, Ramasamy Lay-out, Sundaramoorthy Metal Works and seized die making moulds, meant for making aluminium cone from A.3 and A.4 under Ex.P-4 mahazar. But P.W.17 stated that on 13.8.1989, on the direction of 'Q' Branch Inspector of Police, he accompanied them and went to Avarampalayam 7th South Street and inspected Door No.78/7 and 79/7. He also seized aluminium cone, granite and parts of R.P.G. Cell. He further stated that on 18.8.1989, he went to Ramasamy Lay-out, Door No.82 and seized the die making moulds and handed over the same to the Inspector of Police. 9. Hence, there is a discrepancy between the evidence of P.Ws.1 to 3 and P.W.17. So, the prosecution has miserably failed to prove that the material objects were seized on 12.8.1989 from A.1 and A.2 at lathe at Avarampalayam South Street and on 13.8.1989 from A.3 and A.4. There is no evidence to show that the material objects have been seized only from A.1 to A.4. Therefore, the prosecution has failed to prove the same beyond reasonable doubt. That has been discussed by the trial Court, which came to the correct conclusion. 10. Since the respondents-accused were acquitted, the burden is heavily upon the prosecution to prove that the accused are guilty of the offences with which they were charged. In this connection, it is worthwhile to refer the decision of the Supreme Court reported in 2010 (1) SCC (Cri) 244 = 2009 (12) SCC 351 (Nepal Singh Vs. State of Haryana), in which the Supreme Court held as follows: "10. The parameters for dealing with an appeal against judgment of acquittal have been laid down by this Court in several cases. It would be appropriate to consider and clarify the legal position first. 11. .... .... ..... ... ...... "41. Again in Kallu v. State of M.P. (2006 (10) SCC 313 : (2006) 3 SCC (Cri) 546), this Court stated: (SCC pp.317-18, para 3) "8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear https://hcservices.ecourts.gov.in/hcservices/ in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court.' (emphasis in original) 42. From the above decisions, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were culled out: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principles of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb https://hcservices.ecourts.gov.in/hcservices/ the finding of acquittal recorded by the trial court." "(Ed. As observed in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : 2007 (2) SCC (Cri) 325, SCC at pp. 421-32, paras 12-28 & 30-42)" 11. In the appellate Court, firstly, there is a double presumption in favour of the accused and the presumption of innocence is available to the accused under the fundamental principles of criminal jurisprudence and that every person shall be presumed to be innocent, unless he is proved guilty by the competent Court of Law. Secondly, the accused having secured acquittal, the presumption of innocence is further reinforced, re-affirmed and strengthened by the trial Court. 12. In this case, this Court has to consider whether the prosecution has proved that they have followed the procedures laid down under Section 100 Cr.P.C., which states as follows: "Section 100 Cr.P.C.--Persons in charge of closed place to allow search. (1) Whenever any place liable to search of inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 47. (3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. https://hcservices.ecourts.gov.in/hcservices/ (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witness; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. (6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person. (7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared and a copy thereof shall be delivered to such person. (8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860)." 13. It is appropriate to consider the evidence of P.W.1. Learned Government Advocate (Criminal Side) appearing for the appellant-State would cull out the portion of cross examination of P.W.1 and submit that P.W.1 has categorically stated that during search, even though independent witnesses were there, no one was willing to stand as a witness. P.W.2 has also corroborated the evidence of P.W.1. 14. Even though P.W.1 has stated that during search, no independent witness was willing to stand as a witness, but during the enquiry, he examined so many independent witnesses. In the circumstances, not following the procedures laid down under Section 100 Cr.P.C., is fatal to the case of the prosecution. 15. But admittedly, the V.A.O., who accompanied P.Ws.1 to 3 for search, has not been examined. It is also true that no independent witness was examined. 16. It is also important to notice the evidence of P.W.1, along with P.W.17. P.W.17 in his evidence has stated as follows: @ ///// 13/8/89y; Q gphpt[ ,d;!;bgf;lh; miHj;jjpd; https://hcservices.ecourts.gov.in/hcservices/ nghpy; gPsnkL fhty; epiya Fw;w vz;/500-89y; cs;s Fw;w epfH;tplk; Mthuk;ghisak; 7tJ bjw;F tPjpapy; fjt[ vz; 78-7. fjt[ vz;/79-7 cs;s ,lj;ij ghh;itapl;nld;/ me;j ,U miwf;Fs;Sk; mYkpdpaj;jpyhd nfhz;fSk; fpundLfSk; kw;Wk; RPG bry;!;fspd; ghf';fSk; ,Ue;jd;/ mitfis nrfhpj;J Ma;thshplk; bfhLj;njd;/ jpUk;gt[k; 18/8/89 md;W Ma;thsh; miHj;jjd; nghpy; uhkrhkp ny mt[l; fjt[ vz; 82y; nkhy;LfSk; il nkf;fp'; nkhy;Lfs; ,Ue;jitfisa[k; ifg;gw;wp Ma;thshplk; bfhLj;njd;/ ,af;Fdh; jla mwptpay; Jiw brd;id/4 mth;fSf;F mDg;gp ,J gw;wpa mwpf;iff;F ntz;of; bfhz;nld;/ nkYk; fjt[ vz;/78-7. 79-7 ,itfspd; cs; fpilj;j bkl;ly; !;fpuhg;fisa[k; nrfhpj;J. ,jDila fhk;nghrprDk; ilnkhy;L ,tw;wpd; fhk;nghrprDk; xdWjhdh vd xg;gpl;Lg; ghh;f;f ntz;of; bfhz;nld;/ /////@ 17. Even though M.Os.1 to 25 have been marked, there is no evidence to show that they have been seized only from the respondents-accused. A doubt arises in the mind of the Court that since P.Ws.1 to 3 have stated that they have seized the material objects on 12.8.1989 from A.1 and A.2 and on 13.8.1989 from A.3 and A.4, but P.W.17 stated that he inspected the place on 13.8.1989 and from Sundaramurthy Metal Works on 18.8.1989, the seizure of the material objects has not been proved by the prosecution beyond reasonable doubt. Since there are two versions available, one in favour of the accused is to be considered. 18. Moreover, the trial Court in its judgment, at paragraphs 29 and 30, has clearly discussed all aspects in proper perspective and it came to the correct conclusion that the prosecution has failed to prove the alleged search made on 12.8.1989 at Door No.78/7, South Street, Avarampalayam and on 13.8.1989 at 1/36, Sundaramurthy Metal Works. Since the search of the places, as also the recovery, have not been proved by the prosecution beyond reasonable doubt, and since the case is based on the material objects seized, it has to be concluded that the prosecution has miserably failed to prove the same. 19. Further, Sections 3(1), 5(1)(a) and 25(1)(a)(b) of the Arms Act, state as follows: "Section 3: Licence for acquisition and possession of firearms and ammunition.--(1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the https://hcservices.ecourts.gov.in/hcservices/ rules made thereunder: Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority of the holder of the licence for repair or for renewal of the licence or for use by such holder." "Section 5: Licence for manufacture,sale etc., of arms and ammunition.--(1) No person shall-- (a) use, manufacture, sell, transfer, convert, repair, test or prove or (b) expose or offer for sale or transfer or have in his possession for sale, transfer,conversion, repair, test or proof, any fiream or any other arms of such class or description as may be prescribed or any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder." "Section 25: Punishment for certain offences--(1) Whoever-- (a) manufactures, sells, transfers, converts, repairs, tests or proves or exposes or offers for sale or transfer, or has in his possession for sale, transfer,conversion, repair, test or proof, any arms or ammunition in contravention of Section 5; or (b) shortens the