I.A. Ansari, J.
1. By the impugned judgment and order, dated 3.8.2002, passed, in Criminal Appeal No. 30(N)/2001, the learned Sessions Judge, Nagaon, has dismissed the appeal preferred by the accused-petitioner and has upheld thereby the judgment and order, dated 24.8.2001, passed, in G.R. Case No. 1634/1999, by the learned Judicial Magistrate, Nagaon, convicting the present accused-petitioner under Section 25(1)(a)of the Arms Act, 1959, and sentencing him to suffer imprisonment for 2 (two) years.
2. The case against the accused-petitioner, as unfolded at the trial, may, in brief, be described, thus : On 6.2.1999, at about 6 P.M., a search was conducted, at the house of the accused-petitioner, at Barbeel Kocharigaon. The search led to the recovery of a hand-made pistol. This pistol was, vide seizure list (Ext. 1), seized by the police in the presence of the witnesses. On 8.9.1991, an Ejahar was lodged by the Police Officer, who had seized the said pistol, and a case was registered against the accused-petitioner under Section 25(1)(a) of the Arms Act, 1959. During the course of investigation, the said pistol was examined by a ballistic expert, whose finding was that the seized material was a fire-arm and is in serviceable condition. On completion of investigation, police laid charge-sheet against the accused-petitioner under Section 25(1)(a) of the Arms Act, 1959.
3. To the charge framed under Section 25(1)(a) of the Arms Act, 1959, at the trial, the accused-petitioner pleaded not guilty. In support of their case, prosecution examined as many as 7(seven) witnesses. The accused-petitioner was, then, examined under Section 313 Cr.P.C. and in his examination aforementioned, the accused-petitioner denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. Having found the accused-petitioner guilty of the charge framed against him, the learned trial court convicted him accordingly arid passed sentence against him as mentioned hereinabove. As the appeal preferred by the accused-petitioner also failed, he has, now, come to this Court with the help of the present revision petition challenging the legality of his conviction and the sentence passed against him.
4. I have heard Mr. P. Katoky, learned Counsel, appearing on behalf of the accused-petitioner, and Mr. D. Das, learned Additional Public Prosecutor, Assam, appearing on behalf of the State respondents.
5. While considering the present revision, what is important to point out is that it is PW 5, a Sub-Inspector of Police, who had allegedly conducted search at the house of the accused-petitioner and seized the pistol. The evidence of PW 5 is, therefore, of great value. On perusal of the evidence of PW5,1 notice that according to PW5, on 6.9.1999, he along with his staff went to the house of the accused-petitioner and, on conducting a search there, found a hand-made gun there and seized the same by seizure list, which is Ext-1. PW5 has also deposed that Nakul Ch. Deka (PW 4) and Md. Giasuddin (PW 1) were witnesses to the said seizure.
6. What is, now, pertinent to note is that in his cross-examination, PW. 5 has admitted that in the seizure list, he has not mentioned as to where the said pistol was found. In fact, even in his evidence, PW 5 has not deposed or clarified as to where he had found the said pistol. The evidence of PW 5 is, thus, wholly vague, particularly, when the accused-petitioner is, admittedly, not the sole occupant of the house, where the fire-arm was allegedly found.
7. While considering the above aspects of the case, it is also worth noticing that according to the prosecution's case, the accused-petitioner had been found in possession of a hand-made pistol, which is a prohibited fire-arm. Possession of a prohibited fire-arm is an offence under Section 25(1A) of the Arms Act, 1959.
8. In view of the fact that the prosecution's case against the accused-petitioner is that PW5 had found a prohibited fire-arm in possession of the accused-petitioner, the penal provisions of Section 25(1)(a) of the Arms Act, 1959, were not attracted at all, for, Section 25(1)(a) makes punishable, as offence, acts of manufacture, sale, transfer, etc., of arms and ammunitions. Section 25(1)(a) of the Arms Act, 1959, also makes possession of arms and ammunitions an offence if such possession is for the purpose of sale, transfer, etc. The possession simpliciter of arms or ammunitions or even of a prohibited fire-arm is not an offence under Section 25(1)(a). To put it differently, unless a person manufactures, sells, transfers, etc., arms or ammunitions or has, in his possession, the arms or ammunitions for the purpose of transfer, sale, etc., such an act of possession cannot constitute an offence under Section 25(1)(a) of the Arms Act, 1959. It is possession simpliciter of prohibited firearm or prohibited ammunition, which is an offence under Section 25(1A) of the Arms Act, 1959.
9. In the case at hand, since it was not prosecution's case that the accused-petitioner had manufactured, sold, transferred, etc., the said pistol or had, in his possession, the said pistol for the purpose of sale, transfer, etc., no case against the accused-petitioner could have been registered under Section 25(1)(a) of the Arms Act, 1959. This error, on the part of the investigating agency, appears to have been repeated and continued not only by the learned trial court, but also by the learned appellate court, for, the accused was charged under Section 25(1)(a) of the Arms Act, 1959, and was convicted accordingly and, in the appeal too, the learned Sessions Judge has not taken note of the fact that Section 25 of the Arms Act, 1959, has undergone amendments by the Amendment Act of 1988 and the amendments stand affected with effect from 27.9.1989. Oblivious of the amendments in the relevant penal law, the prosecution of the accused-petitioner commenced and the same culminated into his conviction and, then, his appeal against the conviction too failed.
10. Be that as it may, when the accusation against the accused-petitioner is that he has been found in possession of the said pistol, which was a prohibited: arm, the burden rested on the prosecution to adduce adequate evidence to prove, beyond reasonable doubt, that the accused-petitioner was in conscious possession of the said pistol. In this regard, however, the evidence of PW5, as already indicated hereinabove, gives no indication at all as to where the said pistol was really found. When it is not even known as to where exactly the said pistol was found, it is impossible to confidently hold that the accused-petitioner was found in conscious possession of the said pistol.
11. The above inference gets reinforced, when one looks into the evidence of the two witnesses, who, according to PW 5, had been associated with the said search and seizure. In this regard, the evidence of PW 1 is that on the day of the occurrence, when he was passing from near the house of the accused, he found the police personnel standing by the side of the road and they told him that they had found a pistol at the house of the accused and, on being asked by the police, he put his signature on a piece of paper, which is Exhibit 1. The prosecution did not cross-examine PW1 and his entire evidence, so given, remained undisputed and unchallenged. It is, thus, clear that the unchallenged evidence of PW1 does not at all support the evidence given by PW5 that PW1 had been associated with the said search and/or PW1 was a witness to the said seizure.
12. Close on the heels of the evidence of PW1 is the evidence of PW4, who is the driver of the police vehicle in which PW 5 had travelled. According to PW 4, a search was conducted at the house of the accused and, on finding a pistol there, the said pistol was seized. In his cross-examination, PW 4 conceded that he was not aware of the place from where the said pistol was recovered. In his evidence, PW 4 admits that the said seizure list was prepared at the police station, he does not know as to whose names have been mentioned in the seizure list and that the contents of the seizure list were not known to him. Thus, the evidence of PW 4, who himself is a police personnel, further shakes the creditability of the evidence of PW 5 that PW 1 and PW 4 were associated with the search conducted at the house of the accused and/or that it was, in their presence, that the said pistol was recovered and seized. In short, neither PW1 nor PW 4 know the place from where the said pistol was actually recovered. Even the evidence of PW 5 does not help the case of the prosecution inasmuch as PW 5 too does not, if I may reiterate, clearly depose as to where the said pistol was found.
13. Coupled with what have been noted above, the evidence of PW4 clearly reveals that the said seizure list was not even prepared at the place of the alleged occurrence of seizure, but at the police station.
14. I may also point out that the evidence of the remaining witnesses do not improve the case of the prosecution inasmuch as PW 2 has deposed that he was fishing in a nearby pond and on hearing hue and cry, when he came to the house of the accused, he learnt that the accused had been taken away by the police. To the same effect is the evidence of PW 3 inasmuch as he has deposed that on returning home, he came to learn that the police had taken away the accused.
15. What emerges from the above discussion is that there is no convincing, cogent and reliable evidence on record showing, far less convincing, that any pistol was recovered from the possession, far less from the conscious possession of the accused-petitioner.
16. Before conducting a search, the police is required to call upon some independent and respectable people of the locality to witness the search. In a given case, it may so happen that no such person is available, or even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons, later on, turn hostile. In any of these eventualities, the evidence of the police officers, who conducted the search, cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search; but if it is found that not even an attempt was made by the police officer concerned to join with him some persons of the locality, who were, admittedly, available to witness the recovery, it would affect the weight of evidence of the police officer, though not its admissibility. See Sahib Singh v. State of Punjab reported in : 1997CriLJ2978 .
17. In view of the fact that the present one is not a case, wherein the prosecution has contended that no neighbour of the accused-petitioner was available or willing to be associated with the search and seizure, the prosecution had the onus to show as to why it did not call for witnesses from the neighbourhood before the search was conducted at the house of the accused-petitioner. What the police appears to have done, in the present case, is to call witnesses from the neighbourhood and obtained their signatures on a piece of paper, which was, later on, converted into a seizure list, according to the evidence of record, at the police station.
18. I may also pause here to point out that in Amarjit Singh v. State of Punjab reported in 1995 Supp (3) SCC 217, the Apex Court has observed that non-sealing of the revolver, at the spot, is a serious infirmity, because the possibility of tampering with the weapon, in such a case, cannot be ruled out. The view so taken in Amarjit Singh (supra) has been reiterated in Sahib Singh (supra).
19. Bearing in mind the principles of law governing search and seizure of firearm, as reflected from the decisions in Amarjit Singh (supra) and Sahib Singh (supra), when I turn to the facts of the present case, I find that the seized pistol was, on its recovery, not sealed at the place of recovery or seizure. In fact, PW5 has admitted that he did not even put his signature on the seized article. In such circumstances, the belated examination of the seized article by an expert and the opinion given by him that the seized article was a firearm and in serviceable condition can be of no value at all inasmuch as there is no cogent, clear and precise evidence that at the time, when the alleged seizure took place, the pistol was in serviceable condition and fell within the definition of 'prohibited firearms' as defined in Section 2(8) of the Arms Act, 1959, for, prohibited arms means, it may be noted, a firearm so designed or adapted, that if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine contain the missiles is empty.
20. Because of what has been discussed and pointed out above, it is clear that the evidence on record was wholly inadequate to convict the accused-petitioner.
21. In the result for the reasons discussed above, this revision succeeds. The impugned judgment and order, dated 3.8.2002, is hereby set aside. The accused-petitioner is held not guilty of offence under Section 25(1)(a) and/or Section 25(1A) of the Arms Act, 1959, and he is acquitted accordingly.
22. The bail bond of the accused-petitioner shall stand cancelled and his sureties shall stand discharged.
23. Send back the LCRs.
24. Before parting with the present revision, it is imperative to point out that the learned Sessions Judge, while dealing with the conviction of the accused-petitioner in the appeal preferred by the accused-petitioner, has dealt with the entire matter in a very slipshod manner inasmuch as he has disposed of the appeal upholding the conviction of the accused-petitioner without making any pointed scrutiny of the evidence on record and the law relevant thereto The learned Sessions Judge has observed that the prosecution has established the recovery of pistol from the possession of the appellant; but how the learned Sessions Judge has come to such a bold and conclusive rinding, there is absolutely no discussion in the appellate judgment.
25. In view of the above, let a copy of this judgment be served on the officer concerned, wherever he is posted.