DGR Patnaik, J.
1. In these three appeals, the appellants have challenged the judgment dated 23.3.2007 passed by the Addl. judicial Commissioner, Ranchi, in Sessions Trial No. 691 of 1997 whereby two of the appellants namely Yogendra Kumar Ojha and Anil Kumar Ojha alias Raju Ojha have been convicted for offences under Section 25(1A) of the Arms Act and sentenced to imprisonment for eight years and line of rupees 20,000/- each for the said offence, while the appellant Jitendra Bohra was convicted for the offence under Section 25(1A) read with Section 35 of the Arms Act and was also sentenced to undergo rigorous imprisonment for eight years and fine of rupees 20,000/- (rupees twenty thousand).
2. The appellants along with one co-convict Surendra Singh @ Surendra Singh Bangali were charged with and put on trial for offences under Section 25(1A) and Section 35 of the Arms Act and Section 414 of the Indian Penal Code. The case against the appellants was registered on 24.6.1997 at 5.00 p.m. on the basis of a written report lodged by Rana Pratap Singh, Sub Inspector of Police of Namkom Circle.
The case of the prosecution as per the written report is that on 24.6.1997 at about 2.00-3.00 p.m. the informant was present at the Tatisilwai Police Station. At that time, the officer incharge of Lalpur Police Station, namely Rajiv Ranjan Kumar came to the Police Station along with S.I. Vijay Kumar Prasad, ASI Surendra Singh and armed personnel and bought along with them one accused Surendra Singh @ Surendra Singh Bangali who was arrested in connection with Lalpur PS Case No. 31 dated 4.4.1996 which was registered for offences under Sections 302/307/324 of the Indian Penal Code, and Section 27 of the Arms Act. S.I. Rajiv Ranjan Kumar informed that the arrested accused had confessed that he had kept illegal firearms under the care of Bharat Mineral Ceramics Industries' owners namely Yogendra Kumar Ojha and Anil Kumar Ojha @ Raju Ojha, in the room of the residential house and in a room on the first floor of their office at their factory situated within the campus of the Bharat Mineral Ceramics Industries. The above information was recorded as Station Diary entry No. 499 dated 24.6.1997 at the Tatisilway Police Station and a raiding party consisting of the officer incharge of Tatisilway PS Naresh Bahadur Singh; SI. Dilkeshwar Ram; armed havildar Bhavesh Chandra Jha, constables Chandrika Rai, Ram Singh, Mahendra Srivastava and a Havildar Lakshmi Singh was constituted. The armed police personnel who came from Lalpur Police Station also accompanied the raiding party together with the informant and the arrested person Surendra Singh @ Surendra Singh Bangali. On the way, they requested two independent witnesses of the locality namely Sitaram Singh and Sunil Das to accompany them. The informant along with the raiding police party proceeded to the factory of Bharat Mineral Ceramic Industries with the arrested accused Surendra Singh @ Surendra Singh Bangali. It is alleged that the arrested accused Surendra Singh @ Surendra Singh Bangali led the police raiding party to the residential house of the factory owners situated in the northern portion within the factory premises. After entering into the bed room of the residential house of the appellant Anil Kumar Ojha @ Raju Ojha, Surendra Singh @ Surendra Singh Bangali opened a steel almirah with a key which was in his possession and brought out a magazine of AK47 Rifle and produced the same before the informant. Surendra Singh @ Surendra Singh Bangali next entered into the bed room of the appellant Yogendra Kumar Ojha and opened a wooden almirah with a key which was in his possession and from the almirah, he brought out a revolver of Smith & Watson Co., made in USA, which was loaded with three live cartridges of .38 calibre and also 20 rounds of cartridges and handed them over to the informant. At the time of raid and recovery of the firearms, both the owners of the factory i.e appellants Yogendra Ojha and Anil Kumar Ojha were present in the house. It is further slated that thereafter Surendra Singh @ Surendra Singh Bangali led the raiding party to the first eastern room on the upper floor of the office of the factory and with a key in his possession, he opened the lock of the door and from within the pile of husk in the room, Surendra Singh @ Surendra Singh Bangali brought out a black bag containing carbine of 9 mm size with marks - No. KR 767483 inscribed on it, besides a magazine and 39 rounds of live cartridges and produced the same before the informant. Both the owners of the factory were also present at the time of the recovery. Thereafter, Surendra Singh @ Surendra Singh Bangali proceeded to another room situated on the same floor and with the key which was in his possession, he brought out from underneath the pile of coal bags, one AK 47 rifle bearing No. NH350593, two magazines of AK 47 rifle, 100 rounds of live cartridges of AK47 rifle bearing the inscription 7-62 mm. The informant found all the recovered firearms to be regular firearms for the possession of which neither Surendra Singh @ Surendra Singh Bangali, nor the appellants Yogendra Ojha, or Anil Kumar Ojha produced any licence or paper, nor could they give any satisfactory reply to the informant. It is alleged that at the time of raid in the factory, the appellant Jitendra Bohra was also present and on the belief that the recovered firearms were kept in the factory premises within his knowledge and since he could not produce any paper or give satisfactory reply, he along with Yogendra Kumar Ojha and Anil Kumar Ojha was also arrested. The recovery of the firearms was made in presence of the aforesaid two witnesses and a seizure list was prepared in their presence and their signatures were obtained on the seizure list and a copy of the seizure list was handed over to each of the arrested accused/appellants. Besides, the recovered firearms, the lock and key of two rooms pertaining to the office rooms on the upper floor of the factory, were also seized and a seizure list thereof was prepared in presence of the two witnesses. It is further alleged that a blue coloured Maruti Car bearing No. 14B 9911 was found near the residential house within the factory premises. On the basis of the disclosures made by the arrested accused Surendra Bangali that he used the aforesaid vehicle in commission of various offences, the informant seized the vehicle and prepared a seizure list thereof in presence of the above named independent witnesses. The informant adds further that the appellant Surendra Bangali had confessed that he had concealed the firearms within the factory premises and house of the factory owners Yogendra Kumar Ojha and Anil Kumar Ojha and it was within the knowledge of the appellant Jitendra Bohra that he used to visit the premises since he was in partnership with the appellants Yogendra Kumar Ojha and Anil Kumar Ojha.
3. The appellants had denied the charges and preferred to be tried. Their case in defence was total denial of the allegations of recovery of the firearms from their possession.
4. Altogether 21 witnesses were examined by the prosecution at the trial including the informant (PW1) and other police personnel who had constituted the raiding party and in whose presence the firearms were recovered. Both the seizure witnesses (PW 3 and PW 15) were examined as independent witnesses to the seizure. PW2, who is Sergeant Major, was examined as a ballistic expert who has claimed to have examined the seized firearms and ammunitions and certified the same to be usable and functional. In addition, PW21 had been examined to prove the sanction accorded by the Collector, Ranch, for prosecution of the appellants for the aforesaid offences. PW10, the investigating officer was also examined. The appellants in their defence had also examined six witnesses. Several documents were also brought on record in evidence both by the prosecution as well as the defence.
5. The trial court after considering the evidence of the witnesses and after discussing the same had recorded its observations that arms and ammunitions were recovered by the informant in presence of the witnesses from the house and factory premises of the appellants Yogendra Kumar Ojha and Anil Kumar Ojha in their presence and in presence of appellant Jitrendra Bohra and such recovery was made on the basis of the confession made before the Police by the accused Surendra Singh @ Surendra Singh Bangali. The trial court also observed that these facts did offer a definite inference that the firearms were kept in the house and factory of Yogendra Ojha and Anil Kumar Ojha within their knowledge and the recovery of firearms were made from their possession. The trial court also observed that the presence of the appellant Jitendra Bohra in the factory premises at the time of recovery of firearms did give an inference to believe that the presence of firearms in the factory premises was within his knowledge and he was liable for the constructive possession of illegal firearms. On the basis of the above inferences, the trial court recorded its finding of guilt for the aforesaid offences against the appellants as stated above.
6. The appellants have challenged the verdict of the trial court primarily on the ground that the trial court has committed a serious error in failing to appreciate the evidence on record in proper perspective and that even on the basis of the entire evidence of the prosecution witnesses, no offence either under Section 25(1A) or Section 35 of the Arms Act is made out against any of the appellants.
7. Sri B.N. Tripathy, Senior Counsel for the appellants submits that even according to the evidence of the informant and other witnesses, no recovery of firearms was made from the conscious possession of any of the appellants. To demonstrate his argument, learned Counsel refers to the evidence of the informant and other witnesses and points out that these witnesses have categorically stated that the rooms from where the alleged recovery of firearms was made, was under lock and Surendra Singh @ Surendra Singh Bangali was in exclusive possession of the key which he had kept tied to the sacred thread worn by him and it was Surendra Singh @ Surendra Singh Bangali who had brought out the keys with which he opened the locks of each of the rooms and receptacles and produced the firearms kept therein. Learned Counsel adds further that it is not the prosecution case that any of the appellants was in possession of any key of any lock, or that they had produced any of the keys before the informant and in such circumstances, it cannot be inferred that the present appellants had knowledge that Surendra Singh @ Surendra Singh Bangali had concealed the illegal firearms in the receptacles and the rooms within their premises. Learned Counsel argues further that the learned court below had failed to appreciate that admittedly after seizing the firearms, the police officer did not seal the same and therefore there could be a possibility of tampering and even interpolation of the weapons. Learned Counsel emphasizes that the evidence on record do not confirm that the firearms were recovered from conscious possession of any of these appellants. It is further argued that the trial court brushed aside the evidence of the defence witnesses without assigning reasons for refusal to believe their testimony. Learned Counsel argues that the evidence of the prosecution could at best give a reason to support culpability of the appellants Yogendra Ojha and Anil Kumar Ojha to attract the offence under Section 201 IPC against them for harbouring/screening a notorious criminal Surendra Singh @ Surendra Singh Bangali and for enabling him to use their premises, but even such offence is not made out against the appellant Jitendra Bohra.
Another argument which has been emphatically advanced by the learned Counsel for the appellants is that the trial court has recorded its finding of guilt on the basis of conjectures and surmises and on the presumption that since the recovery of firearms was made from the premises belonging to the appellants owners of the factory, the existence of firearms in the premises was within the prior knowledge of the appellants and therefore the recovery of firearms was from the constructive possession of the appellants. Learned Counsel argues that firstly, the inference drawn is not based on proper logic and rationale and secondly, before such inference on the basis of the circumstances could be used by the trial court as evidence against them, an opportunity ought to have been given to the appellants while examining them under Section 313 Cr. P. C. to explain the circumstances in which the arms were recovered from their premises. Learned Counsel argues that such opportunity having not been given to the appellants, their conviction for offences is totally illegal and not sustainable in law. Learned Counsel further adds that the trial court has wrongly relied upon the alleged confession of the accused Surendra Bangali in drawing inference that the appellants Yogendra Ojha and Anil Kumar Ojha had knowledge about retention of the firearms in their premises. Learned Counsel argues that the alleged confession by the appellants made before the police can be relied only to the extent to establish that certain facts were discovered pursuant to the confession and the evidence of discovery can be used only against the person on the basis of whose confession discovery was made. In support of his argument, learned Counsel has placed reliance on the judgment of the Full Bench in the case of Emperor v. Santa Singh AIR (31) (1944) 339 and the judgment of the Supreme Court in the case of Gunwant Lal v. State of M.P. : 1972CriLJ1187 and the Single Bench judgment of the Patna High Court in the case of Butan Dusadh v. State of Bihar, reported in 1988 BLJR 323 and also on the judgment of the Supreme Court in the case of Mahendra Singh v. Sink of M.P : 1973CriLJ1450 .
8. Learned Counsel for the State, on the other hand, supports the findings and judgment of conviction and sentence of the appellants as recorded by the trial court and submits that the evidence of the informant and other witnesses amply demonstrate that Surendra Singh @ Surendra Singh Bangali, who was arrested in connection with another case registered at Lalpur Police Station, had confessed before the Police that he had concealed firearms at the house and the factory premises of the appellant Yogendra Ojha and Anil Kumar Ojha and had further led the informant and the raiding police party to the place where he had concealed the firearms. On the basis of the confession leading to the recovery, the illegal firearms were recovered from the bed rooms of the appellants Yogendra Kumar Ojha and Anil Kumar Ojha as well as from the rooms within the factory premises. Such recovery was made in presence of these appellants and in presence of the independent witnesses. Learned Counsel adds further that the report submitted by the ballistic expert confirms that the recovered firearms were in working condition and functional. The manner and the place from where the recovery was made does give a clear and definite inference that illegal firearms were recovered from the house and factory premises of Yogendra Ojha and Anil Ojha appellants and they had definite knowledge of the presence of illegal firearms in their house and within their factory premises and therefore the logical inference is that the recovery of the illegal firearms was made from their possession. As regards the appellant Jitendra Bohra, learned Counsel argues that the appellant Jitendra Bohra was present in the factory premises at the time of raid and recovery of the firearms and this circumstance is enough to draw the inference that the firearms were kept in the factory premises within his knowledge and therefore he is also liable for the constructive possession of the firearms.
9. On going through the evidence of the witnesses examined by the prosecution, the facts which emerge uncontroverted are:
(a) that the appellant Surendra was arrested in connection with another case which was earlier registered at the Lalpur Police Station;
(b) that Surendra Bangali had made confession before the Police and pursuant to his confession and on his pointing out, substantial quantities of illegal firearms were recovered by the police from the bed rooms purportedly belonging to the appellants Yogendra Ojha and Anil Kumar Ojha within their residential house and also from the office room located on the first floor of their factory premises;
(c) that the seized firearms were examined by the ballistic expert who had found the same to be workable, functional and capable of use; and
(d) that at the time of recovery of the firearms, both the appellants Anil Kumar Ojha and Yogendra Kumar Ojha were present and the appellant Jitendra Bohra was also present at the factory premises at the time of recovery.
Further facts which emerge from the evidence of the prosecution witnesses is that the rooms located in the first floor of the factory premises from where firearms were recovered, were under lock and the keys thereof were in exclusive possession of the co-accused Surendra Bangali who had kept he keys tied to his sacred thread. Likewise, the receptacles kept in the bed rooms within the residential house from where firearms were recovered were also under lock and the keys thereof were produced by the co-accused Surendra Singh Bangali from his possession.
The appellants would take advantage of this fact by arguing that since none of the appellants was alleged to be in possession of the keys of any locks, they cannot be accused of having concealed firearms inside the room, or even of having knowledge that the firearms existed in the room(s)/receptacles. Learned Counsel for the appellants would emphasize on the basis of the above facts that the circumstances do not offer any scope for presumption that any of these appellants did have knowledge about the existence of the firearms within the premises of the factory and it cannot therefore be said that the firearms were recovered from the conscious possession of the appellants.
10. PW2 who was examined as ballistic expert has deposed that he had examined the seized firearms and he had noted down the make, size and the nature of the firearms and ammunition. He has also deposed that all the firearms which he had examined were functional and usable and fall in the category of prohibited arms. He has identified the arms and ammunition which he had examined on their production before the trial court and marked as material Exts. (i) to (viii). He has also confirmed that at the time he received the firearms, he had found the same under seal. The question which has been posed by the defence for consideration is whether the recovery of the prohibited firearms from the residential room and office located within the factory premises of which the appellants Yogendra Kumar Ojha and Anil Kumar Ojha alias Raju Ojha were the owners can be said to be recovery from conscious possession of both the above named appellants and whether such recovery can be said to be within the constructive possession of the appellant Jitendra Bohra on account of his presence at the place and time of the recovery?
11. The trend of cross-examination of the witnesses on the above points made on behalf of the appellants indicates that the appellants have not seriously challenged or controverted the above facts. However, plea has been advanced by the appellants Yogendra Ojha and Anil Ojha to suggest that their residential houses are situated in Lalpur area at a totally different place, far away from the factory premises, and that they never used to live within the campus of the factory and the purported residential house from where firearms were recovered was, in fact, a Guest House used by visitors. The appellants have adduced evidence through their witnesses in support of their plea that at the time of raid conducted by the Police in the factory, neither Yogendra Ojha nor Anil Ojha was present, and they had readied there only after they were called upon telephonically by the Police. It is not disputed by the appellants that the factory premises including the residential portion within the factory campus belongs to the appellants Yogendra Ojha and Anil Ojha and therefore had control over the use and occupation of the premises.
12. Section 25(1A) of the Arms Act reads as under :
Whoever acquires, has in his possession or carries 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 five years, but which may extend to ten years and shall also be liable to fine.
This provision was introduced in the Statute by an amendment with effect from 27.5.1988. The term 'possession' as used in the section is not confined only to actual physical possession, but also includes constructive possession. The Supreme Court while explaining the term 'possession' with the aid of illustration in the case of Gunwant Lal v. State of M.P (supra) has observed as follows:
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. Similarly, if he goes out of the house during the day and in the meantime, someone 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.... In any disputed question of 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 tons or was not in possession of the thing in question.
It has been explained in the aforesaid case by the apex Court that the first pre-condition for offence under Section 25(1A) of the Arms Act is the element of intention, consciousness or knowledge that the person possessed firearms, before it can be said to constitute an offence and secondly, possession need not be physical but can be constructive, having power and control over the firearms while the person whom physical possession is given, holds it subject to that power and control.
The test provided by the section is not as to whom the arms belongs to, but whether they were in possession or under control of the person charged. The prosecution is therefore bound to establish the facts from which it could be concluded that the person charged with was aware of the existence of the firearms from where it was recovered.
Section 7 of the Arms Act prohibits acquisition or possession, or manufacture or sale of prohibited arms or prohibited ammunition and it reads as under:
No person shall:
(a) acquire, have in his possession or carry, or
(b) use, manufacture, sell, transfer, convert, repair, test or prove, or
(c) expose or offer for side or transfer or have in his possession for sale, transfer, conversion, repair test or proof,
any prohibited arms or prohibited ammunition unless he has been specially authorized by the Central Government in this behalf.
The term 'prohibited arms' has been defined in Section 2(1)(i) of the Act, which reads as follows :
(i) 'firearms 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 containing the missiles is empty, or
(ii) 'weapons or any description designed or adapted for the discharge of any noxious liquid, gas or other such thing;
and includes artillery, anti-aircraft and anti tank firearms and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms;
Section 35 of the Arms Act reads as follows :
35. Criminal responsibility of persons in occupation of premises in certain case - Where any arms or ammunition in respect of which any offence under this Act has been or is being committed are or is found in any premises, vehicle or other place in the joint occupation or under the joint control of several persons, each of such persons in respect of whom there is reason to believe that he was aware of the existence of the arms or ammunition in the premises, vehicle or other place shall, unless the contrary is proved, be liable for that offence in the same manner as if it has been or is being committed by him alone.
13. The prosecution in the instant case has adduced evidences which suggest that the appellants Yogendra Kumar Ojha and Anil Kumar Ojha alias Raju Ojha being owners of the factory and the residential portion situated within the factory premises, were joint occupiers of the premises. The evidence would also suggest that both these appellants had allowed the co-accused Surendra Bangali access to the factory and to the residential portion within the factory premises. Upon these facts, the prosecution would insist that both these appellants being in joint occupation of the premises, had control over the premises and having allowed co-accused Surendra Bangali access to the premises, it is presumed that they too had knowledge that illegal firearms were kept in their premises and that they had control over the seized firearms. The above appears to be only one part of the evidence of the prosecution while the other part is of more relevance. The other part of the evidence is that the recovery of the seized firearms could be made pursuant to the confession made before the Police by the co-accused Surendra Bangali. It was he who had led the Police to the factory premises and to the residential portion within the factory premises and it was he who had pointed towards the receptacles front which the firearms were recovered and its key was in his exclusive possession tied to his sacred thread. The almirah within the rooms in the residential portion and the room in the first floor of the factory premises from where weapons were recovered, were admittedly under lock and key and the lock was opened by Surendra Bangali with the key in his exclusive possession. It is not a case of the prosecution that the owners of the factory namely appellants Yogendra Kumar Ojha and Anil Kumar Ojha @ Raju had produced the key to the locks or that they had acknowledged of having any key to the same. Furthermore, as admitted by the informant (PW1) and supported by the evidence of the Investigating Officer (PW19) as well as DW 2, Tara Pada Patra, the residential portion located within the factory premises was, in fact, used as a Guest House by the officers and other persons who used to visit the factory for inspection and other purposes and it was managed by a Caretaker. It is also admitted that the owners of the factory were neither residing in the premises nor were using the same for their residence and for the residence of their family members. In fact, PW15 admits that the residential house of the owners is located at Lalpur Chowk, which is at a far-off distance from the factory premises. It is apparent from the above evidence that though the appellant Yogendra Kumar Ojha and Anil Kumar Ojha were owners of the factory and the residential portion situated within the factory premises, but it was not used by them for their residential purposes. It has also been admitted in the evidence of the investigating officer that several employees work in the factory and their quarters are located adjacent to the factory. It is also admitted by the investigating officer that DW2 Tara Pada Patra was employed as the Production Manager in the factory and was present at the time of visit by the investigating officer to the factory premises, but strangely enough, the investigating officer did not choose to record the statement of the said Production Manager, who was later on examined at the trial as DW2. From the evidence of the informant and other witnesses to the search and seizure, it appears that the firearms recovered from the rooms located in the first floor of the factory premises, were kept concealed in such a manner as could not be visible to the naked eye unless fished out from within the heaps of husk and coal bags.
14. It is apparent from the above that though the factory premises and residential portion located therein belonged to the appellants Ojha Brothers, but it was accessible to several other persons including the co- accused Surendra Singh Bangali. The fact that the keys to the locks of the receptacles and rooms were produced by the co-accused Surendra Bangali from his exclusive possession, suggest that it was he who had the exclusive knowledge and control over the firearms and the facts and circumstances do not lead to any definite inference that the factory owners Ojha Brothers did have the knowledge and were conscious of the existence of the contraband firearms within their factory premises and that they had control over the weapons. Strangely enough, in spite of the admission by the prosecution witnesses including the investigating officer that the residential portion situated within the factory premises was under the control and management of the caretaker, the investigating officer did not choose to examine him at all. The caretaker would have been the most competent person to inform as to how and under what circumstances did the weapons come to exist within the factory premises of which he himself was a caretaker.
15. Section 35 of the Arms Act, no doubt, provides for a constructive liability for possession of the firearms, but unless the trial is from the point of view of provision of Section 35 of the Arms Act, the conviction with the aid of Section 35 of the Act cannot be sustained. The appellant Yogendra Kumar Ojha and Anil Kumar Ojha were tried for offences under Section 25(1A) of the Arms Act only.
16. In the instant case, charges against the appellant Yogendra Kumar Ojha and Anil Kumar Ojha along with co-accused Surendra Bangali were framed only for offence under Section 25(1A) of the Arms Act. The question put to both these appellants under Section 313 Cr. P.C. was confined only to the recovery of the firearms from the factory premises and from the residential portion within the factory premises on the basis of confession made by the co-accused Surendra Bangali leading to the recovery. It was not put to either of these appellants with reference to any circumstance appearing in the evidence that the firearms were kept at the factory premises with their knowledge or that they had control over the firearms. In fact, no opportunity was given to the appellants to explain the circumstance in which firearms were kept within the factory premises. The onus would shift upon the appellants to explain the existence of the firearms in their premises only when the prosecution brings on record such facts and circumstances on the basis of which it can be said that there is reason to believe that the appellants were aware of the existence of the firearms in the premises. Save and except claiming that the appellants Ojha Brothers being owners of the factory and its residential premises had control over the same, cannot be considered a circumstance to lead to a conclusive inference that they had the knowledge and were conscious and aware of the existence of firearms within their premises and that they had control over the firearms. To convict the appellants for possessing firearms, it has to be proved beyond any shadow of doubt by cogent and reliable evidence that the co-accused had an animus or will to possess or had control over the firearms. In the instant case, this is essentially lacking against the appellants owners of the factory and it includes the appellant Jitendra Bohra also. The allegation against the appellant Jitendra Bohra is that he happened to be present at the factory premises when the Police conducted raid and made search and seizure of the weapons. The investigating officer has not bothered to verity as to the circumstance under which he was present at the factory premises. An attempt was made by the informant and other witnesses to suggest that the appellant Jitendra Bohra was found in a suspicious manner on the first floor of the factory premises. Such suspicion, even if any, does not certainly lead to the inference that he had knowledge of the existence of the firearms within the factory premises and had control over the firearms. No circumstance has been brought against him by the prosecution witnesses to harbour a reasonable belief that he was aware of the existence of arms and ammunition in the premises.
17. The trial court does not appear to have considered and analyzed the evidence on record in proper perspective and its inference of guilt against the appellants Yogendra Kumar Ojha and Anil Kumar Ojha @ Raju Ojha for offences under Section 25(1A) of the Arms Act and against the appellant Jitendra Bohra of the said offence with the aid of Section 35 of the Arms Act, is totally misconceived and perverse and cannot be sustained in law.
18. For the reasons discussed above, I find merit in these appellants. Accordingly, these appeals are allowed. The judgment of conviction and order of sentence of the appellants passed by the trial court for the offences under Section 25(1A) and Section 35 of the Arms Act, in Sessions Trial No. 691 of 1997 is hereby set aside and the appellants are acquitted of the charges for the aforesaid offences.
Appellants Yogendra Kumar Ojha and Anil Kumar Ojha alias Raju Ojha are in jail. They are directed to be released forthwith from custody, if not wanted in connection with any other case. The appellant Jitendra Bohra is on bail. He is discharged from the liabilities of his bail bond.