RAFIQUE Vs. STATE OF M P

JUDGEMENT

(1.) THE applicant has preferred this revision under Section 397 of the Code of Criminal Procedure, feeling aggrieved by the appellate judgment dated 1.5.2003 passed by Third Additional Sessions Judge, Morena, in Cri. Appeal No.93/03, whereby allowed the appeal to the extent of sentence and affirmed the judgment of conviction of the applicant, passed by Chief Judicial Magistrate, Morena, in Criminal Case No. 1767/99 wherein the applicant has been found guilty for the offence under Section 25(1-b)(a) of the Arms Act but reduced the sentence from one year to six months 'RI with a fine of Rs.200/-.

(2.) BRIEFLY stated the facts of the case are, on 17.9.1999 the Sub-Inspector R.S.Solanki posted at Police Kotwali, Morena received a secret information that near Central Warehouse a person is there having some illegal firearm with him. On this information, the concerning police Sub-Inspector reached on the spot, caught hold the applicant/accused in suspicious condition and on search before the independent Panch witness found a countrymade pistol with a cartridge with him. The pistol as well as cartridge had been seized; necessary pahehnama had been prepared, returned back to the police station, registered a case under Section 25 of the Arms Act, sent the seized article for its mechanical examination to the D.R.P.Line, Morena where Akhilesh Kumar Dubey. (PW3) examined the article and found it to be a firearm. After obtaining requisite sanction for prosecution under the Arms Act the charge sheet has been filed.

(3.) IT is submitted by the counsel for the applicant that the independent panch witness Naresh Kumar (PW1) had not supported the seizure of firearm concerned from the possession of the applicant. Similarly, it is nowhere stated by the seizing officer R.S.Solanki (PW5) that after seizure the concerning firearm and cartridge had been properly sealed and on the outer cover the necessary signature of panch witness had been obtained. The concerning Head Armorer Akhilesh Kumar Dubey (PW3) has also not stated that at the time of examination of the concerning firearm the same firearm had been sent to him in a sealed cover having properly sealed and signature on the outer cover of the original concerned and, in such circumstances, the prosecution has failed to prove that whatever firearm had been examined by the Head Armorer Akhilesh Kumar Dubey (PW3) is the same firearm, which had been seized from the conspicuous possession of the applicant/accused and, in such circumstances, both the courts below have committed error in holding, the applicant guilty for the offence punishable under Section 25 (1-b) (a) of the Arms Act and, hence prayed for setting aside of the impugned judgment of conviction and sentence passed by the courts below.