LAWS(PAT)-2002-4-53

FAUJDARI MISTRY Vs. STATE OF BIHAR

Decided On April 19, 2002
FAUJDARI MISTRY Appellant
V/S
STATE OF BIHAR Respondents

JUDGEMENT

(1.) :- This appeal is directed against the judgment and order dated 17-4-1990 passed by Shri Harideo Prasad, 1st Additional Sessions Judge, Hilsa (Nalanda) in S.T. No. 242/89 by which the learned Court had convicted all the four appellants under Section 25(1)(A) of the Arms Act, 1959 and sentenced them to undergo rigorous imprisonment for 5 years each. The appellants were further convicted under Section 25(1)(AA) of the Arms Act and sentenced them to undergo rigorous imprisonment for 10 years each. Further the appellants have been convicted under Section 26 of this Act and have been sentenced to undergo rigorous imprisonment for one year each. The sentences have been ordered to run concurrently.

(2.) It appears that on 18-2-1989 Shri Ajit Kumar, the Officer Incharge of Khodaganj Police Station in the District of Nalanda had searched the residential premises of the appellants situated at Village Imadpur in connection with Khudaganj P. S. Case No. 6/89 under Section 395 of the Indian Penal Code. On receiving this information the informant (P. W. 1) who happens to be the Officer Incharge of this police station entered this information in Station Diary Entry No. 355/89 dated 18-2-1989 and proceeded to the house of the appellants. On search he could find out large number of equipments and articles for the manufacture of fire arms in the house of the appellants which has been described by him in Fardbeyan (Ext. 1). At the time of this search the appellants had fled away from their houses and the search could not be conducted in their presence. On completing the investigation the charge sheet under various sections of the Arms Act was submitted. The cognizance of the offence was taken by the learned A.C.J.M. Shri Hardeo Prasad on 29-4-1989 and on finding that the alleged offences were triable by the Court of Session he committed the case to the Court of Session. By the order dated 30-5-89 the learned Sessions Judge again transferred the case for trial to Shri Harideo Prasad in his capacity as Assistant Sessions Judge. Accordingly, Shri Harideo Prasad as assistant Sessions Judge and not as A.C.J.M. tried the appellants and convicted them in the manner indicated above.

(3.) In this appeal the appellants have contended that the judgment of the trial Court is erroneous in law and against the evidence on the record. The conviction of the appellants is based on conjecture and surmises. Though no independent search and seizure witness could be examined in this case still the learned trial Court proceeded to convict the appellants only on the basis of the testimony of the Police Officers. No copy of the seizure list was given to the appellants or their family members in violation of the mandatory provisions of Section 100 of the Code of Criminal Procedure, 1973 (in short 'the Code'). The prosecution evidence suffers from material contradictions. Independent and competent witnesses have not been examined in this case. The mandatory provisions of Section 360 of the Code and the relevant provisions of Probation of Offenders Act have not been complied with. On these grounds it has been contended that the judgment of conviction of the learned Court below be set aside and the appellants be acquitted.