IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.71 of 2010

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1. MD. MAUSAM

2. Md. Naushad (Died)

Both sons of Md. Jamal. Resident of Village, Mirazapur, Bardah, P.S.

Muffasil, District, Munger

... ... Appellant/s

Versus

STATE OF BIHAR

... ... Respondent/s

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Appearance :

For the Appellant/s: Ms. Aditi Sharma, Amicus Curiae

For the Respondent/s: Mr. Satya Narayan Prasad, APP

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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH

CAV JUDGMENT

Date : 28-04-2026

During the pendency of this appeal, the appellant

no.2 had died and as such the present appeal stood abated as

against him and therefore, now, this appeal is restricted only

with respect to appellant no.1.

2. Heard Ms. Aditi Sharma, learned Amicus Curiae

and Mr. Satya Narayan Prasad, learned APP for the State.

3. The present appeal has been filed under Section

374 (2) of the Code of Criminal Procedure challenging the

judgment of conviction dated 19.12.2009 and order of sentence

dated 21.12.2009 passed by the Additional District and Sessions

Judge, Fast Track-III, Munger in S.T. No.174 of 2006 arising

out of Munger Muffasil P.S. Case No. 137 of 2006 whereby and

whereunder the appellant no.1 has been convicted for the

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offence punishable under Section 25(1-AA), 26(2) of the Arms

Act and has been sentenced to undergo Simple Imprisonment

for seven years along with a fine of Rs.500/- and in default of

payment of fine to further undergo simple imprisonment for 15

days for the offence under Section 25(1-AA) of the Arms Act.

The appellant has been sentenced to undergo simple

Imprisonment for five years along with a fine of Rs.500/- and

in default of payment of fine to further undergo simple

imprisonment for 15 days for the offence under Section 26(2) of

the Arms Act. Both the sentences were directed to run

concurrently.

BRIEF FACTS OF THE CASE

4. Prosecution case in brief, is that according to the

written report of the Officer-Incharge, Muffasil Police Station,

Munger is that on 21.6.2004 at 15.40 P.M. he received

confidential information that a Mini Gun Factory is being run in

the house of Md. Naushad, Md. Mausam and Md. Afroz at

village Bardah, whereupon the informant along with police

personnel proceeded for raid, and the raid was conducted at 4:30

P.M. at the said house after reaching village Bardah whereupon

7-8 persons fled from the house after seeing the police and

though the police chased them it was of no avail, and thereafter

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the villagers were called upon to join the search but they did not

appear, and upon search of the house of accused Naushad,

equipments for running Mini Gun Factory, two unasembled

pistols and blank cartridges were recovered. The seizure list was

prepared on the spot. In absence of any independent witnesses,

the members of the raiding party namely S.I. B.P. Mahton and

A.S.I. Gopal Prasad were made witnesses to the seizure list.

5. On the basis of the statement of the written report

of the informant, the F.I.R being Munger Muffasil P.S. Case

No. 137 of 2006 was registered for the offences under sections

25(1-A), 25(1-AA), 25(1-b), 26(I), 26(2) and 35 of the Arms

Act. After institution of the FIR, the police proceeded with the

investigation and after completion of investigation, charge-sheet

was submitted. Thereafter, the trial court took cognizance of the

offence against the appellants. Upon committal of the case to the

Court of Sessions for trial, and after completion of the trial, the

appellants were convicted.

ARGUMENT ON BEHALF OF THE Amicus Curiae

6. Learned amicus curiae, submitted that the

impugned judgment of conviction and sentence is unsustainable

both in law and on facts. The prosecution case originates from a

written report on the basis of which, a formal FIR was lodged at

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Muffasil Police Station, followed by submission of charge-

sheets and committal of the case to the Court of Sessions.

Charges were framed under various provisions of the Arms Act,

alleging recovery of illegal arms and manufacturing equipment

from a house said to be belonging to the accused persons.

However, the prosecution case suffers from serious infirmities,

as the alleged informant was not examined during the trial

despite being available, and no independent witnesses were

produced to support the alleged search and seizure. The entire

case rests upon official witnesses whose testimonies are

inconsistent and unreliable. It is further submitted that the

prosecution has failed to establish the place of occurrence and

the manner of recovery in a cogent and credible manner. The

witnesses have admitted in cross-examination that they were

unaware of the boundaries of the house and could not specify

from which exact location the alleged recoveries were made.

The evidence also indicates that the police personnel were

stationed outside the premises and did not directly witness the

alleged seizure. Furthermore, no seal or identification mark was

affixed on the seized articles, and the seizure list itself appears

doubtful. Crucially, no material has been brought on record to

show that the alleged arms or articles were recovered from the

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conscious possession of the petitioners, particularly when the

premises is said to be a joint house and several persons

allegedly fled from the spot.

7. Learned counsel further submits that even the

expert evidence don’t support the prosecution case, as the

sergent officer did not give any conclusive opinion regarding the

effectiveness of the alleged firearm and no live cartridges were

produced for examination. The learned Trial Court itself found

several charges not proved and acquitted the petitioners of those

offences, yet erroneously convicted them under Sections 25(1-

AA) and 26(2) of the Arms Act without sufficient legal

evidence. The appellant remained on bail throughout the trial

and never misused the liberty granted to him. In view of these

facts, it is submitted that the prosecution has failed to prove its

case beyond reasonable doubt, and the petitioner is entitled to

be acquitted, as the trial court has miserably failed to appreciate

the evidence, leading to failure of justice and therefore, the

conviction of the appellant under Section 25(1-AA), 26(2) of the

Arms Act is liable to be set aside.

ARGUMENT ON BEHALF OF THE STATE

8. Per Contra, learned APP appearing for the State

while opposing the appeal submitted that the learned District

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court, after considering all the evidences on record and exhibits

submitted on behalf of the parties during the course of trial, has

rightly convicted the appellant for said offences, as the offences

alleged against the appellant appears to be serious in nature and

also constitutes cognizable offence.

ANALYSIS AND CONCLUSION

9. Heard the parties.

10. I have perused the lower court records and

proceedings and also taken note of the arguments canvassed by

learned counsel appearing on behalf of the parties.

11. The learned trial court, on the basis of materials as

collected during the course of investigation, passed the

Judgment of conviction dated 19.12.2009 and order of sentence

dated 21.12.2009 for the offences under Section 25(1-AA),

26(2) of the Arms Act.

12. During the trial, the prosecution has examined

altogether seven witnesses, namely:

(i) (P.W.-1),- Bimal Singh, SI of Police

(ii)(P.W.-2),- Chandradeep Rajak, the S.I. and

Member of Raiding party

(iii) (P.W.-3),- Gopal Prasad

(iv) (P.W.-4) ,- Ashok Kumar Sinha

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(v) (P.W.-5),- Bindeshwar Prasad Mahto

(vi) (P.W.-6),- Suresh Prasad Singh, I.O

vii) (P.W.-7).- Ram Pratap Singh

13. The prosecution has also relied upon following

document exhibited during the course of trial:-

(i) Seizure List (Exhibit-1),

(ii) Signature of Gopal Prasad on Seizure List

(Exhibit 1/1)

(iii) Report of sergent Major (Exhibit-2)

(iv)Writing and signature of Seizure List

(Exhibit - 3 to 3/2)

(iv) Fardbeyan (Exhibit 4)

(v) Signature of District Magistrate on sanction

report (Exhibit ½)

(vi) Writing and signature on Formal First

Informant Report (Exhibit 5)

14. It would be apposite to discuss the

oral/documentary evidences. The evidence of the prosecution

witnesses (PWs) can be summarized as follows:

(i) PW1- The witness has deposed that on 21.06.2004,

while posted at Muffasil Police Station, he received secret

information regarding that an illegal mini gun factory operating

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at the house of Md. Jamal. Acting upon such information, he,

along with other police officials, conducted a raid at about 4:30

PM. Upon arrival, 7–8 persons fled from the premises and could

not be apprehended due to rain and muddy conditions. He has

further stated that villagers present there disclosed the names of

the fleeing persons. During the course of search and seizure,

materials used for manufacturing illegal arms, including half-

made pistols and blank cartridges, were recovered and seized,

and a seizure list was prepared accordingly.

In his cross-examination, the witness stated that the

accused persons were residing in the same house with separate

families, and there was only one entry to the said house, and that

he could not disclose the names of the villagers who had

provided the information.

(ii) PW-2- The witness has deposed that on

21.06.2004 while posted at Muffasil Police Station, the Officer-

in-Charge received secret information that illegal arms were

being manufactured at the house of Md. Naushad and others at

village Bardah, following which a police team conducted a raid

around 4:30 PM upon reaching, 7–8 persons fled from the house

and could not be apprehended due to rain and slush, and during

the search and seizure, materials and equipment of a mini gun

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factory were recovered and seized.

In cross-examination he admitted that he could not

disclose who had provided the information, had not seen or

identified any accused, and was present outside the house during

the raid while the seized articles were recovered from a room.

(iii) PW 3- This witness has deposed deposed that on

21.06.2004, upon receipt of secret information by the Officer-in-

Charge of Muffasil Police Station at about 3:40 PM regarding

illegal manufacture of arms in the house of the accused persons

at village Bardah, he accompanied the police party to the spot

and conducted a raid around 4:30 PM, during which 7–8

persons fled away. He stated that villagers disclosed the names

of the fleeing persons and that materials relating to a mini gun

factory were recovered during the search, for which a seizure

list was prepared in his presence and signed by him, and he

identified the seized articles before the Court.

In cross-examination, he admitted that no independent

witness was present as all witnesses were members of the

raiding party and he could not clearly specify the exact place of

recovery.

PW-4- This witness has deposed that on 7.7.2004,

seized articles of Muffasil P.S. Case No. 157/2004 were brought

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for examination by A.S.I. Surendra Singh. He described the

articles, identified the report (Ext. 2) as written by Constable

Bipin Singh and himself, and stated that the I.O. had asked

regarding the effectiveness of the seized pistol, which was found

non-effective, and therefore he did not give his opinion.

(v) PW-5- This witness has deposed that on 21.6.2004

at 4:30 P.M. a raid was conducted at the house of Md. Naushad

on the basis of information, during which the criminals fled

upon seeing the police. Two illegal half-made pistols and Mini

Gun Factory equipment were recovered. He identified the

seizure list (Ext. 3) written by A.S.I. Bimal Singh, the signature

of Officer-Incharge Navin Kumar (Ext. 3/1), and his own

signature (Ext. 3/2).

In cross-examination, he stated that he was the sole

raiding party member witness to the seizure list, could not tell

the boundary of the house, and that no woman or child was

found therein.

(vi) PW-6- This witness has deposed that he was also

a member of the raiding party and had gone to village Bardah

with police force. Members A.S.I. Gopal Prasad and S.I. B.P.

Mahton were made witnesses and two country-made pistols,

blank cartridges, and Mini Gun Factory equipment were

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recovered. The seizure list was prepared by A.S.I. Bimal Singh

at the instance of Officer-Incharge Navin Kumar. He described

the house as a joint house of Md. Naushad, Md. Mausam, Md.

Afroz, and Md. Jummal, with equipment recovered from

multiple rooms. He identified the District Magistrate’s signature

on the sanction report (Ext. 1/2).

In cross-examination, he stated that the Jeep could not

reach the place of occurrence and they went on foot, no villager

was asked about the accused’s house, and at 25 feet from the

place of occurence they saw persons fleeing whom they could

not identify.

(vii) PW-7- This witness has deposed that the fleeing

persons names were not known. No independent village

witnesses from village Bardah told the names of Md. Naushad

involved in the incident. He identified the signature of Officer-

Incharge, Muffasil P.S., and the writing of Navin Kumar. He is a

formal witness who identified the formal F.I.R. of Officer-

Incharge, C.O., Muffasil P.S., which is marked as Ext. 5.

15. On the basis of materials surfaced during the trial,

the appellant/accused was examined under Section 313 of the

Cr.PC by putting incriminating circumstances/evidences

surfaced against him, which he denied and shows his complete

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innocence.

16. It would be apposite to discuss the

oral/documentary evidences as available on record to re-

appreciate the evidences for just and proper disposal of the

present appeal.

17. It would be appropriate to reproduce the provision

of Section 25(1-AA) and 26(2) of Arms Act for the sake of

convenience and better understanding of the facts, which is as

under:-

“25(1-AA) Whoever 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 prohibited

arms or prohibited ammunition in contravention of section

7 shall be punishable with imprisonment for a term which

shall not be less than 9[ten years] but which may extend to

imprisonment for life and shall also be liable to fine.

26(2) Whoever does any act in contravention of

any of the provisions of section 5, 6, 7 or 11 in such manner

as to indicate an intention that such act may not be known

to any public servant or to any person employed or working

upon a railway, aircraft, vessel, vehicle or any other means

of conveyance, shall be punishable with imprisonment for a

term which shall not be less than five years but which may

extend to ten years and also with fine.”

18. It is a settled position that the prosecution must

adduce cogent evidence to establish that the accused had

indulged in the manufacture, sale, or transfer of prohibited arms

or ammunition in contravention of Section 7 of the Act to

convict the accused under Sections 25(1-AA) and 26(2) of Arms

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Act. Reference can be drawn in this regard from the judgment

passed by the Apex Court in case of Samir Ahmed Rafiqahmed

Ansari vs. State of Gujarat, (Criminal Appeal Nos. 992–993 of

2016), wherein it has been held as under-

“7.Section 25(1AA) of the Arms Act deals with

manufacture, sale, transfer etc. of the prohibited arms. In this case,

the prosecution has not adduced any evidence to show that the

appellant-accused had indulged in manufacturing of arms or

prohibited ammunition in contravention of section 7. Since the

prosecution has not adduced any evidence to substantiate the

allegation of manufacture, in our view, the conviction of the

appellant-accused under Section 25(1AA) cannot be sustained.”

I. ON THE POINT OF SANCTION UPON

SATISFACTION OF AUTHORITY

19. In the present case, Ext. 1/2, which bears the

signature of the District Magistrate, has been brought on record

through the testimony of P.W.-6, indicating that sanction was

accorded by the competent authority. In the absence of any

material to suggest that the sanction was granted mechanically

or without application of mind, and there being no effective

challenge to its authenticity in cross-examination, Ext. 1/2 can

be treated as sufficient prima facie proof of a valid sanction for

prosecution as required under Section 39 of the Arms Act, 1959.

It is also to be presumed that, while granting such sanction, the

competent authority had applied its mind to the materials placed

before it and formed the requisite “reason to believe” for

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according approval. A principle which finds support in the law

laid down by the Hon’ble Supreme Court in case of A.S.

Krishnan v. State of Kerala, reported in (2004) 11 SCC 576

wherein of “reason to believe” has been construed which is as

under:

“9. Under IPC, guilt in respect of almost all

the offences is fastened either on the ground of “intention”

or “knowledge” or “reason to believe”. We are now

concerned with the expressions “knowledge” and “reason

to believe”. “Knowledge” is an awareness on the part of

the person concerned indicating his state of mind. “Reason

to believe” is another facet of the state of mind. “Reason to

believe” is not the same thing as “suspicion” or “doubt”

and mere seeing also cannot be equated to believing.

“Reason to believe” is a higher level of state of mind.

Likewise “knowledge” will be slightly on a higher plane

than “reason to believe”. A person can be supposed to

know where there is a direct appeal to his senses and a

person is presumed to have a reason to believe if he has

sufficient cause to believe the same. Section 26 IPC

explains the meaning of the words “reason to believe” thus:

“26. ‘Reason to believe’.—A person is said

to have ‘reason to believe’ a thing, if he has

sufficient cause to believe that thing but not

otherwise.”

10. In substance, what it means is that a

person must have reason to believe if the

circumstances are such that a reasonable

man would, by probable reasoning, conclude

or infer regarding the nature of the thing

concerned. Such circumstances need not

necessarily be capable of absolute

conviction or inference; but it is sufficient if

the circumstances are such as creating a

cause to believe by chain of probable

reasoning leading to the conclusion or

inference about the nature of the thing.

These two requirements i.e. “knowledge”

and “reason to believe” have to be deduced

from various circumstances in the case.”

II. WHETHER MERE IRREGULARITY IN NON-

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COMPLYING WITH THE PROVISION OF SECTION 100

CR.P.C. CAN ASSUME SIGNIFICANCE IN AFFECTING

THE SEIZURE AND THE CREDIBILITY OF THE

PROSECUTION CASE ?

20. It is well settled that the provisions of Section 100

Cr.P.C. are applicable to the search and seizure conducted in the

present case, by virtue of Section 4(2) of the Code of Criminal

Procedure, 1973, offences under special statutes are to be

investigated in accordance with the procedure prescribed under

the Cr.P.C., unless a contrary provision is made. Since the Arms

Act does not lay down any exhaustive procedure governing

search and seizure, in such circumstances, the safeguards

embodied under Section 100 Cr.P.C., particularly the

requirement of associating independent and respectable

inhabitants of the locality during search, would squarely apply.

In the present case, although the prosecution has asserted that

villagers were called to witness the search but refused to

participate, no effort appears to have been made to record their

names or such refusal in writing, nor is there any convincing

evidence to establish that sincere attempts were made to secure

independent witnesses. The entire search and seizure is thus

sought to be proved only through the testimony of police

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officials, which, in light of the admitted absence of independent

corroboration and the inconsistencies emerging in their cross-

examination, renders the recovery doubtful. However there is no

principle of law which mandates that the testimony of police

officials must be discarded or treated as inherently unreliable.

Their evidence is not vitiated merely by virtue of their official

status. However, as a matter of prudence, such evidence

particularly when the witnesses are connected with the

investigation ought to be subjected to careful scrutiny and

independent evaluation. The Apex Court dealing with the

situation as in the present case observed that police personnel

are competent witnesses, and their evidence cannot be doubted

solely on the ground that they belong to the police force in the

case of Anil @ Andya Sadashiv Nandoskar vs. State of

Maharashtra reported in (1996) 2 SCC 589. Furthermore, none

of the accused persons were apprehended at the spot, the

identity of the alleged fleeing persons has not been established,

and the recovery is from a house stated to be jointly occupied by

several persons without any clear evidence of exclusive or

conscious possession. In such circumstances, the non-

compliance with the procedural safeguards under Section 100

Cr.P.C. vitiates the very foundation of the prosecution case.

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III ON THE POINT OF POSSESSION OF THE

ARMS

21. It is settled that the word 'possession' as

mentioned in Section 25 of the Arms Act, 1959 would simply

mean physical/constructive possession or 'conscious possession'

has already been the subject matter of many judicial decisions

and the law on the subject is no longer res integra. This court

deems it profitable to refer to the decision of the Supreme Court

in Gunwantlal v. State of Madhya Pradesh reported in (1972) 2

SCC 194, wherein while reading into the word 'possession', the

Constitution Bench has held there has to be an element of

intention, consciousness or knowledge. The relevant

observations are reproduced hereinunder:-

“5. What is meant by possession in the context of

this section? Is it that the person charged should be

shown to be in physical possession or is it sufficient

for the purposes of that provision that he has

constructive possession of any firearm or

ammunition in contravention of Section 3 which

prohibits him to be in such possession without a

licence. It may be mentioned that under Section 19

of the Arms Act, 1878, an offence corresponding to

Section 25(1)(a) is committed if a person had in his

or under his control any arms or ammunition in

contravention of Sections 14 and 15 of that Act. The

word “control” under Section 25(1)(a) has been

omitted. Does this deletion amount to the

Legislature confining the offence only to the case of

a person who has physical possession or does it

mean that a person will be considered to be in

possession of a firearm over which he has

constructive possession or over which he exercises

the power to obtain possession thereof when he so

intends? If the meaning to be given to the word

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“possession” is that it should be a physical

possession only, then certainly the charge as framed

on the facts of the prosecution case will not be

sustainable but if the meaning to be given to the

word “possession” is wider than that of actual or

physical possession then it is possible, if the

evidence produced by the prosecution is such as

would sustain a finding, that he had constructive

possession on September 17, 1966, when he handed

it over to Miroo and Miroo handed it over to

Chhaganlal because if it was not seized from

Chhaganlal, the appellant could have at any time

got back the physical possession of the revolver

through Miroo. The possession of a firearm under

the Arms Act in our view must have, firstly the

element of consciousness or knowledge of that

possession in the person charged with such offence

and secondly where he has not the actual physical

possession, he has nonetheless a power or control

over that weapon so that his possession thereon

continues despite physical possession being in

someone else. If this were not so, then an owner of a

house who leaves an unlicensed gun in that house

but is not present when it was recovered by the

police can plead that he was not in possession of it

even though he had himself consciously kept it there

when he went out. Similary, if he goes out of the

house during the day and in the meantime some one

conceals a pistol in his house and during his

absence, the police arrives and discovers the pistol,

he cannot be charged with the offence unless it can

be shown that he had knowledge of the weapon

being placed in his house. And yet again if a gun or

firearm is given to his servant in the house to clean

it, though the physical possession is with him

nonetheless possession of it will be that of the

owner. The concept of possession is not easy to

comprehend as writers of Jurisprudence have had

occasions to point out. In some cases under Section

19(1)(f) of the Arms Act, 1878 it has been held that

the word “possession” means exclusive possession

and the word “control” means effective control but

this does not solve the problem. As we said earlier,

the first precondition for an offence under Section

25(1)(a) is the element of intention, consciousness

or knowledge with which a person possessed the

firearm before it can be said to constitute an offence

and secondly that possession need not be physical

possession but can be constructive, having power

and control over the gun, while the person to whom

physical possession is given holds it subject to that

power and control. In any disputed question of

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possession, specific facts admitted or proved will

alone establish the existence of the de facto relation

of control or the dominion of the person over it

necessary to determine whether that person was or

was not in possession of the thing in question. In

this view it is difficult at this stage to postulate as to

what the evidence will be and we do not therefore

venture to speculate thereon. In the view we have

taken, if the possession of the appellant includes the

constructive possession of the firearm in question

then even though he had parted with physical

possession on the date when it was recovered, he

will nonetheless be deemed to be in possession of

that firearm. If so, the charge that he was in

possession of the revolver on September 17, 1966,

does not suffer from any defect particularly when he

is definitely informed in that charge that he had

control over that revolver. It is also apparent that

the words “on or before” were intended to bring

home to the accused that he was not only in

constructive possession of it on September 17, 1966,

but that he was in actual physical possession of it

prior to that date when he gave it to Miroo. It is

submitted, however, that the word “on or before”

might cause embarrassment and prejudice to the

defence of the accused because he will not be in a

position to know what the prosecution actually

intends to allege. From a reference of Form XXVIII

of Schedule 5 of the Code of Criminal Procedure,

the mode of charging a person is that he “on or

about”… did the act complained of. In view of the

forms of the charge given in the Schedule to the

Code, we think that it would be fair to the appellant

if the charge is amended to read ‘on or about’

instead of ‘on or before’ which we accordingly

order.”

22. Subsequently, in case of Sanjay Dutt v. State

Through CBI, Bombay (II) reported in (1994) 5 SCC 410, a

Constitutional Bench of the Apex Court elucidated the meaning

of possession to be conscious possession and not mere custody,

lacking any knowledge or intention to use. It was observed, as

hereunder:-

“19. The meaning of the first ingredient of

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„possession‟ of any such arms etc. is not disputed. Even

though the word 'possession' is not preceded by any

adjective like 'knowingly', yet it is common ground that in

the context the word 'possession' must mean possession with

the requisite mental element, that is, conscious possession

and not mere custody without the awareness of the nature of

such possession. There is a mental element in the concept of

possession. Accordingly, the ingredient of 'possession' in

Section 5 of the TADA Act means conscious possession.

This is how the ingredient of possession in similar context

of a statutory offence importing strict liability on account of

mere possession of an unauthorised substance has been

understood. (See Warner v. Metropolitan Police

Commissioner, (1969) 2 A.C. 256 and Sambasivam v. Public

Prosecutor, Federation of Malaya, (1950) AC 458.”

IV. WHETHER THE PROSECUTION HAS

ESTABLISHED THEIR CASE BEYOND ALL

REASONABLE DOUBT?

23. In criminal jurisprudence, the prosecution is

required to prove its case beyond reasonable doubt. In the

present case, the evidence on record suffers from lack of

independent corroboration and procedural lapses which may

have prejudiced the appellant, however, it is a well settled law

that mere non-joining of an independent witness, where the

evidence of the prosecution witnesses may be found to be

cogent, convincing, creditworthy and reliable, cannot create

reasonable doubt on the version forwarded by the prosecution if

there seems to be no reason on record to falsely implicate the

appellant. Reference in this regard can be drawn from the

judgment rendered by the Apex Court in the case of Gian

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Chand vs State of Haryana, reported in (2014) 4 SCC (Cri)

226, in paragraphs No.34 and 35 which are reproduced

hereinafter:

“34. In Appabhai v. State of Gujarat

[1988 Supp SCC 241 : 1988 SCC (Cri) 559 : AIR

1988 SC 696] this Court dealt with the issue of non-

examining the independent witnesses and held as

under : (SCC pp. 245-46, para 11)

“11. … the prosecution case cannot be thrown out

or doubted on that ground alone. Experience

reminds us that civilised people are generally

insensitive when a crime is committed even in their

presence. They withdraw both from the victim and

the vigilante. They keep themselves away from the

court unless it is inevitable. They think that crime

like civil dispute is between two individuals or

parties and they should not involve themselves. This

kind of apathy of the general public is indeed

unfortunate, but it is there everywhere whether in

village life, towns or cities. One cannot ignore this

handicap with which the investigating agency has to

discharge its duties.”

35. The principle of law laid down

hereinabove is fully applicable to the facts of the

present case. Therefore, mere non-joining of an

independent witness where the evidence of the

prosecution witnesses may be found to be cogent,

convincing, creditworthy and reliable, cannot cast

doubt on the version forwarded by the prosecution if

there seems to be no reason on record to falsely

implicate the appellants”

24. In view of the foregoing discussion and upon

careful appreciation of the evidence on record, this Court is of

the considered opinion that the prosecution case is primarily

based on official witnesses with absence of independent

corroboration, coupled with certain procedural irregularities

pointed out during the course of trial. At the same time, the

prosecution has also led evidence relating to raid, seizure, and

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sanction, which cannot be wholly disregarded merely on

account of minor inconsistencies. However, in the facts and

circumstances of the present case, the evidentiary material

requires strict scrutiny as mandated in law. Accordingly, the

matter calls for an appropriate judicial determination on whether

the prosecution has been able to establish the guilt of the

appellant beyond reasonable doubt in respect of the charges

under Sections 25(1-AA) and 26(2) of the Arms Act.

25. The defence has neither cross-examined PW-6 on

the contents of the sanction order in any material particular

going to its validity, nor has it produced any evidence to

demonstrate that the arms were not placed before the District

Magistrate or that the relevant facts were withheld from him. In

the considered opinion of this Court, Exhibit-1/2 constitutes

sufficient proof of valid sanction under Section 39 of the Arms

Act, and the requirement of prior sanction has been duly

complied with in the present case.

26. Section 100(6) of the Code of Criminal Procedure,

1973 casts a mandatory obligation that a search shall be

conducted in the presence of independent and respectable

inhabitants of the locality, and the seizure list prepared in the

course of such search must be attested by such witnesses so as

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to ensure transparency and lend credibility to the recovery. The

provision is intended to act as a safeguard against arbitrary or

doubtful searches by requiring independent corroboration of the

police action. In such circumstances, the requirement under

Section 100(6) Cr.P.C. cannot be said to have been substantially

complied with, as the absence of independent attesting

witnesses and lack of corroboration renders the seizure list

unverified and weakens its evidentiary value. Consequently, the

alleged recovery of arms and manufacturing materials, forming

the foundation of the prosecution case under the Arms Act,

1959, becomes doubtful and fails to inspire confidence in the

absence of adherence to the procedural safeguards mandated by

law.

27. Upon a comprehensive appraisal of the evidence

on record and the settled legal principles governing the field, it

emerges that the prosecution case rests predominantly on the

testimony of official witnesses, with no independent

corroboration of the alleged search and seizure, thereby

necessitating a cautious and strict scrutiny of such evidence.

While it is well settled that the evidence of police officials

cannot be discarded merely on the ground of their official status,

the admitted non-compliance with the safeguards under Section

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100 Cr.P.C., particularly the failure to associate independent

witnesses or record their refusal, casts a serious doubt on the

credibility of the recovery, which forms the substratum of the

prosecution case. Further, none of the accused were

apprehended at the spot, the identity of the alleged fleeing

persons remains unestablished, and the recovery is from a house

stated to be jointly occupied could not establish the defacto

relation of control or dominion of the appellant to prove

constructive possession of the firearm in question. The case of

the appellant is squarely covered by the judgment of the Apex

Court in case of such as Gunwantlal (Supra) and Sanjay Dutt

(Supra). Moreover, in the absence of cogent evidence to

demonstrate that the accused were engaged in the manufacture,

sale, or transfer of prohibited arms in contravention of Section 7

of the Arms Act, the applicability of Sections 25(1-AA) and

26(2) becomes doubtful, as has been held by the Apex Court in

Samir Ahmed Rafiqahmed Ansari (Supra). Although the

prosecution has proved the factum of sanction under Section 39

of the Arms Act through Ext. 1/2, and such sanction cannot be

said to be invalid in the absence of any challenge to its

genuineness or application of mind, the same by itself does not

cure the substantive deficiencies in the prosecution case. In view

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of the cumulative effect of these infirmities, including

procedural lapses, lack of independent corroboration, and failure

to establish conscious possession or constructive possession,

and the essential ingredients of the offences alleged, being

absent, this Court is constrained to hold that the prosecution has

not been able to prove the guilt of the appellant beyond all

reasonable doubt, thereby entitling the appellant to the benefit of

doubt.

28. Accordingly, in view of the aforesaid discussions,

I am of the opinion that the prosecution has not been able to

establish the charges against the appellants beyond reasonable

doubt and the learned trial court has erred in recording

conviction. Accordingly, the present appeal is allowed.

29. The impugned judgment of conviction dated

19.12.2009 and order of sentence dated 21.12.2009 passed by

the Additional District and Sessions Judge, Fast Track-III,

Munger in S.T. No.174 of 2006 arising out of Munger Muffasil

P.S. Case No. 137 of 2006 is hereby set aside. Since the

appellant no.1 is on bail, as such, he is discharged from the

liability of his bail bond. The fine deposited by the appellant

no.1, if any, shall be refunded to him.

30. The Patna High Court, Legal Services Committee

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is, hereby, directed to pay a sum of Rs. 10,000/- (Rupees Ten

Thousand) to Ms. Aditi Sharma, learned Amicus Curiae, as

consolidated fee, for rendering her valuable professional

service.

31. Office is directed to send back the lower court

records along with a copy of the judgment to the learned District

Court forthwith.

Sanjay/-

(Purnendu Singh, J)

AFR/NAFR

CAV DATE 18.04.2026

Uploading Date 28.04.2026

Transmission Date 28.04.2026