Criminal Appeal (SJ) No.332 of 1998 Against the judgment and order of conviction dated 28. 08. 1998 and order of sentence dated 31. 08. 1998, passed by Ram Vyas Ram, 1st Additional Sessions Judge, Rohtas at Sasaram, in Sessions Trial No. 355 of 1986. 1. Bindeshwari Dusadh, son of Radha Dusadh. 2. Rajendra Choudhary, son of Sheo Pujan Choudhary. Both residents of Village- Manpur, Police Station- Bikramganj, District- Rohtas. .... .... Appellants. Versus The State of Bihar .... .... Respondent. For the Appellants : Mr. Mahesh Prasad II, Advocate. Mr. Rewati Kant Raman, Advocate. Mr. Gopal Sharma, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. Appellant no. 1, Bindeshwari Dusadh has been convicted for offence under Section 26 (1) of the Arms and sentenced to undergo rigorous imprisonment for two years and appellant no. 2 Rajendra Choudhary has been convicted for offence under Section 26(2) of the Arms Act and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case is that in special drive, a 2 loaded revolver with five cartridges was recovered from the possession of Bindeshwari Dusadh and from the house of Sheo Pujan Choudhary, father of Rajendra Choudhary several parts of fire arms including barrel, cheni for cutting of iron was recovered under raid. 4. Seizure list was said to have been prepared and on the Fardbeyan of S.I. Shri R. K. Singh, Bikramganj P.S., F.I.R. was lodged and the informant himself I.O. of the case. After investigation charge sheet submitted. Cognizance was taken and case was committed to the Court of Sessions. However, charge was framed under Section 26 (1) of Arms Act against Bindeshwari Dusadh that he was found in possession of fire arm like loaded revolver. Further Rajendra Choudhary was charged under Section 26 (2) of the Arms Act for having manufacturing fire arms. 5. During trial, eight witnesses were examined. P.W. 1 is seizure list witness has supported the prosecution case regarding recovery to some extent, but has not fully supported to whom what has been recovered not known. P.W. 2 has not supported the prosecution case. P.W. 6 and 7 are tendered. However, P.W. 3, 4 and 3 5 supported the prosecution case about recovery of fire arms from the possession of Bindeshwari Dusadh as well as recovery of parts of fire arm from the beneath straw of the bed of Rajendra Choudhary where he was sleeping in the room. However, there is no evidence that whether the said fire arm recovered was seized and sent for its examination to Sergeant Major or to any expert to find out whether the said arms were effective nor there is no evidence that any sanction was provided. 6. Hence having regard to the facts and circumstance of the case, no sanction has been provided nor there is any evidence that seizure articles were effective or the fire arms. Hence order of conviction and sentenced recorded by the lower court is not sustainable and is hereby set aside and the appeal is allowed. Patna High Court The 21st September, 2011. NAFR/m.p. ( Gopal Prasad, J.)