Madhusudan Harijan vs State of Assam

The revisioner petitioner herein was tried by the Learned Magistrate, Hailakandi in G.RCase No. 647/1980 u/s 326 I.P.C. and Section 25(1)(a) of the Arms Act, 1956. On completion of the trial, the petitioner along with Santi Bala were convicted u/s 25(1)(a) of the Arms Act and sentenced to Rigorous Imprisonment for three years and to pay a fine of Rs. 500, in default to further simple imprisonment for two months.

Aggrieved thereby, the petitioner preferred Criminal Appeal No. 11(2) of 1992 before the Learned Sessions Judge, Hailakandi. The Learned Sessions Judge, Hailakandi dismissed the appeal and up-held the conviction and sentence of the revision petitioner. However, the conviction and sentence awarded to the accused Santi Bala was set aside. Thereafter, the revision petitioner has preferred this revision for setting aside the sentence awarded against him.

1 have heard Mr. D. Mazumdar, learned counsel for the revision petitioner as well as Mr. D. Das, Learned Public Prosecutor, Assam in details and also perused the materials available in the lower courts record in details.

The prosecution case is that the informant''s son Abdus Salam aged 6/7 years along with his friend Babul, aged 10 years, went to the house of the accused for the purpose of playing. After sometime the informant heard gun shots and rushed to the house of the accused where he found his son and Babul in injured condition. Both of them sustained injuries on their person. The informant saw three hand made guns in the courtyard of the house of the accused. He along with other members of the public who had gathered there deposited the guns to the tea garden office and lodged the F.I.R. before the Lala Police Station.

The police on conclusion of the investigation submitted Charge Sheet against the revision petitioner and Santi Bala. The Learned Magistrate after completion of all formalities framed charges against the revision petitioner and Santi Bala u/s 25(1)(a) of the Arms Act and Section 326 1.P.C. The charges read as follows:-

"First - That you, on or about the 10.7.1980 at 2 P.M. at the house of Madhusudhan handled house made guns unlawfully to cause annyonance. Injuries etc. and thereby committed an offence punishable u/s 25(1)(a) of the Arms Act, and within my cognizance.

Secondly - That you on or about the same day of time voluntarily assaulted Abdus Salam and Babul Lohar by gun firing causing grevious injuries upon their persons and thereby committed an offence punishable u/s 326 of the Indian Penal Code and within my cognizance.".

Shri D. Mazumdar, learned counsel for the revision petitioner assailed the charges on the ground that the contents in the charges framed by the Learned Magistrate do not attract the provision of Section 25(1)(a) of the Arms Act and that charges have been framed against four persons for handling the guns and causing injuries without invoking the provisions of Section 34 I.P.C.

Section 25(1)(a) of the Arms Act, 1956 reads as follows:-

"25. Punishment for certain offences :- (1) Whoever -

(a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of Section 5 : or.".

It would appear from the provision quoted above that handling of guns has not been made an offence. In order to constitute an offence under the said provision, it has to be shown that the revision petitioner was involved in manufacture, sale, transfer, test or gains. In the instant case the charges mention of only handling of the guns by the accused persons and this act on their part even "if true will not" constitute an offence u/s 25(1)(a) of the Arms Act.

Mr. Mazjumdar, also raised the grievances on the ground that no sanction for prosecution of the accused person has been produced in the case before the Trial Court and, as such, the convict ion of the revision petitioner cannot be sustained for non-compliance of the mandatory provisions of Section 39 of the Arms Act. There is no doubt that sanction for prosecution is a pre-condition for initiation of a proceeding u/s 25(1)(a) of the Arms Act. The Judgment in appeal passed by the Learned Sessions Judge, Hailakandi indicates that the Learned Sessions Judge could trace out the sanction in the connected file and, Therefore, he was satisfied that sanction as required under the law was duly accorded. But in a criminal trial, an accused has a right to challenge the legality and validity of the sanction accorded and, as such, he is entitled to cross-examine the prosecution witnesses on this point. This document which has been placed before me during the course of argument was not tendered in evidence before the trial court and obviously it was not brought to the notice of the accused in order to afford him an opportunity to cross-examine the prosecution witnesses on this point. This document is very much essential for the purpose of successful prosecution and it ought to have been tendered in evidence with due opportunity to the accused to assail it during the course of cross-examination of the prosecution witnesses. In my opinion, it was completely against the principle of criminal jurisprudence to take note of the sanction which was lying in the connected file as an ineffective document to hold that the prosecution was launched after obtaining sanction as per law.

It would further appear from the sanction on record that it was accorded on consideration that the accused persons were involved in the preparation of the said hand made fire arms and that they were in possession of the same without any authority. But the charges framed by the Learned Magistrate nowhere contains the said ingredients. Charges have been framed for handling the guns and not for manufacturing or possessing. That being the situation, the sanction even if allowed to be tendered cannot support the charges framed by the Learned Magistrate.

It would further appear that the Forensic Report in the instant case although obtained was not tendered in evidence in order to show that the materials Exhibits-1, 2 and 3 are in fact fire arms within the meaning of Section 2(1)(e) of the Arms Act, 1959. Mere oral statement by villagers that these are fire arms would not render it to be so in order to secure conviction for unlawful possession of the same.

Insofar as the question of possession is concerned, there is no dispute at the bar that the possession must be a conscious possession of the person indicted. Mr. Majumdar. learned counsel for the revision petitioner placed reliance on a decision of the Supreme Court in Gunwantlal Vs. The State of Madhya Pradesh, In para-5 of the said Judgment, the Supreme Court held that the first pre-condition for an offence u/s 25(l){a) is the element of intention, consciousness or knowledge with which a person possessed the firm arm. That position, the Supreme Court further clarified, need not be physical possession but can be constructive. Mr. Majumdar argued that the revision petitioner was not in control of the fire arms in any manner. According to him, the courtyard where the fire arms were found is a common court yard in a tea garden labour line without any specific boundary and is being freely used by other nearby inhabitants. The police did not seize the fire arms from the possession of the accused, The local members of the public who had gathered at the place of occurrence took away the guns and deposited the same in the tea garden office where the police seized the same. There is no evidence on record to show that the accused petitioner was present at the time of occurrence. P.W. 1 deposed that the accused petitioner kept the guns in the courtyard for drying. It is difficult to accept this prosecution version on the ground that the accused revision petitioner being in unlawful possession of the fire arm would leave the same in the open courtyard accessible to the members of the public. The evidence shows that it was his younger sister Santi Bala aged 10 years was all alone in the house. This fact makes it more improbable to accept the prosecution version that the petitioner was in conscious possession of the guns. It is because no man of least prudence would leave such an article of offence Illegally possessed by him at the custody of a minor child like Santi Bala. In fact it creates a strong doubt so far the element of possession is concerned.

Mr. D. Das, Learned Public Prosecutor submitted that the case may be remitted back to the Learned Court below for facilitating an opportunity to the prosecution to adduce further evidence lo prove the sanction order which is on record. But I have already mentioned hereinbefore that the grounds for which the sanction was recorded were not reflected in the charges framed by the Learned Magistrate and, therefore, at this belated stage remittance of the case for filling up the above gap will not be permissible under the law.

In the result, the revision petition is allowed. The Judgment of conviction and sentence passed in G.R. Case No. 647/1980 and affirmed in Criminal Appeal No. 11(2) of 1992 are hereby set aside. The petitioner is acquitted and discharged from the liability of bail bond.