Chandan Sonkar vs The State of Bihar

M.Y. Eqbal, J.—This appeal is directed against the judgment and order of conviction dated 8.10.96 passed by the learned Sessions Judge, Singhbhum East, Jamshedpur, in Special Case No. 43 of 1995 whereby and whereunder the Appellant has been convicted and sentenced to undergo R.I. for two years for the offence committed u/s 25(1-B) of the Arms Act and R.I. for four years for the offence u/s 26(1) of the Arms Act. However both the sentences are directed to run concurrently.

The Appellant was put on trial for the offence alleged to have been committed Under Sections 25(1-B) and 26(1) of the Arms Act. The prosecution case, in brief, is that on 10.5.94 while on patrolling around, the officer-in-charge, Bistupur P.S., who is the informant, got confidential information that the Appellant, an absconding accused in Bistupur Rs. Case No. 67/94 has taken shelter in a house behind Yadav Petrol Pump in Road No. 14 at Mango, whereupon the informant arranged a raiding party and proceeded with other police officials including officer-in-charge of Mango Rs. and raided the said house. The Appellant was found sleeping on a cot in a room and on search a single barrel gun was recovered from beneath his (sic). It was alleged that Anr. single barrel regular gun was engraved and wrapped in a cloth and 14 live cartridges were found concealed in a nearby sofa. The further case of the prosecution was that on search of the person of the Appellant, 25 paper packets of brown sugar was recovered from the right packet of the full pant of the Appellant. The Appellant was accordingly prosecuted under the foresaid provisions of the Arms Act and also u/s 21 of the N.D.PS. Act and the Appellant was put on trial.

The learned Sessions Judge, after considering the evidence, both oral and documentary adduced from the side of the prosecution, came to a finding that the Appellant was in conscious possession of the firearms and had concealed the same with the intention that it may not be known to the public servants. However, the learned Sessions Judge disbelieved the prosecution story that the Appellant was having paper packets of brown sugar and, therefore, it was held that the Appellant was not liable to be convicted u/s 21 of the N.D.P.S. Act.

I have heard Mr. Jai Prakash, learned Counsel for the Appellant, and Mr. S.N. Rajgarhia, learned Counsel appearing for the State.

So far as the conviction of the Appellant u/s 25(1B) of the Arms Act is concerned, I do not find any infirmity in the order of conviction of the Appellant for the illegal possession of the firearms. In fact, the prosecution has established that the Appellant was in conscious possession of the firearms.

Mr. Jai Prakash, learned Counsel for the Appellant, very fairly confined his argument on the question of conviction u/s 26(1) of the Arms Act. The learned Counsel submitted that meinely concealment of firearms is not an offence. It must be established that concealment was with the intention that it may not be known to the public servant. The learned Counsel further submitted that the conviction of the Appellant u/s 26(1) of the Arms Act cannot be sustained in law in facts and circumstances of the case.

Before appreciating the submission of the learned Counsel, it would be useful to look into the provisions of Section 26 of the Arms Act which reads as under:

Secret contraventions.- (1) Whoever does any act in contravention of any of the provisions of Sections 3, 4, 10 or 12 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 six months but which may extend to seven years and also with fine.

(2) Whoever does any act in contravention of any of the provisions of Sections 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.

Whoever on any search being made u/s 22 conceals or attempts to conceal any arms or ammunition, shall be punishable with imprisonment for a term which may extend to ten years and also with fine.

From bare perusal of the aforesaid section, it is manifest that mere holding or possessing firearms is not enough but the possession of firearms must be in such a manner which would indicate the intention of the person to conceal the same so that the public servant may not know the concealment of the firearms.

A similar question arose for consideration before a Bench of Lahore in the case of Channan Singh v. The Crown [AIR 1925 Lah 395 (2)]. The prosecution story in that case was that the gun was kept upon a charpoy (cot) upon which the accused was sitting and was covered with a dotahi (cloth). The question before their Lordships was as to whether the accused was guilty of having committed an offence u/s 20 of the Indian Arms Act, 1878 (now Section 26 of the Arms Act, 1959). Their Lordships held as under:

It is clearly proved that the gun in question was found in possession of the Appellant but it appears to me very doubtful whether he can be convicted u/s 20 of the Arms Act. That section only applies where the possession is such that as to indicate an intention that such act may not be known to any public servant as defined in the Indian Penal Code, or to any person employed upon a railway or to the servant of any public carrier. In the present case the gun was upon a charpoy upon which Channan Singh was sitting and was covered with a dotahi. It was held by Kensington, J. in Ibrihim v. Crown (1), following Crown v. Azu (2) and Ahmed Hussen v. Queen Empress (3) that Section 20 of the Arms Act applies only to cases where the import or export of arms is attempted and not to every case of possession or concealment of arms. I am not aware that this ruling has ever been dissented from by this Court and am disposed to agree with it. When a man is in illegal possession of arms he does not usually carry them openly but takes some steps to conceal them from the public. Something more than a mere ordinary concealment should be established in order to bring the possession within the meaning of Section 20.

In the case of Pabitar Singh v. State reported in 1969 BLJR 845 a Bench of this Court was considering the question whether conviction u/s 26 of the Arms Act was justified. In that case, the prosecution story was that on raid being conducted in the house of the accused person, the concealed gun was found in the kitchen room lying in between two bricks. A tin containing flour in a bag covered with a brass thali was placed thereon. On a search of the bed room of the quarter 12 bore catridges were found kept in a small cloth behind a framed picture of Lord Shiva which was hanging from a wall and resting on three iron nails fitted in the wall. In the facts and circumstances of that case, this Court held as under:

...The present charges are confined to Clause (a) of the aforesaid Section, that is to say, concealment of the country-made gun in such a manner as to indicate an intention that it may not be known to any public servant. Mere concealment is not enough. The prosecution has to prove that the concealment was with the intention that it may not be known to any public servant etc. In order to find the Petitioner guilty u/s 26 of the Arms Act, the prosecution has, therefore, to prove some special circumstance from which the only reasonable inference should be that the concealment was from the public servant. Whether the inference as required u/s 26 is justified must depend upon particular circumstance of each case. In support of this proposition reference can be made to decisions in Ganga Prasad v. Emperor, Chet Singh v. Emperor and Ram Chandra v. Rex. In all these cases, it has been laid down that there must be evidence of special concealment contemplated by Section 20 (now the new Section 26).

In the instant case, the only finding recorded by the learned Sessions Judge in paragraph 17 of the judgment is as follows:

...Further on consideration of the materials on record I find and hold that the manner in which the firearms and ammunitions were kept concealed by the accused shows that there was the intention that such concealment of unlicensed firearms and ammunitions may not be known to any public servant. Hence, the charge u/s 26(1) of the Arms Act is also established against the accused Chandan Sonkar.

The learned Sessions Judge has not referred any evidence or material in his judgment which was available on record for coming to this finding that the concealment was with the intention that such concealment may not come to the knowledge of any public servant. I myself analysed the evidence of the prosecution witnesses and found that it has not come in the evidence that the Appellant was aware of the fact that a raid was to be conducted (sic) the police and in order to conceal the rearms from the raiding party the Appellant concealed the said arms. In absence of such evidence the conviction of the Appellant u/s 26(1) of the Arms Act is not justified. As stated above, the only allegation is that firearms were found in possession of the Appellant which was wrapped in a cloth and was kept beneath the cot and the sofa. This itself is not sufficient to come to an inference that the concealment of the arms was with the intention that it may not be known to the public servant. The conviction of the Appellant u/s 26(1) of the Arms Act, in my opinion, cannot be sustained in law and is liable to be set aside.

Having regard to the fact and discussion made above, the conviction of the Appellant u/s 25(1B) of the Arms Act is hereby confirmed and the order of conviction u/s 26(1) of the said Act is set aside. I am informed that the Appellant is in custody since 10.5.94. In view of the fact that the Appellant is already is in custody for more than two years, the Appellant is directed to be released forthwith, if not wanted in any other case. This appeal is partly allowed as stated above.