Allahabad High Court
Chandrapal And Others vs State Of U.P. on 29 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:96124
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1414 of 1988
Chandrapal And Others
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Sanjay Srivastava, A. Rathore
Counsel for Respondent(s)
:
A.G.A.
"A.F.R."
Reserved on 17.04.2026
Delivered on 29.04.2026
Court No. - 81
HON'BLE ACHAL SACHDEV, J.
1. The present criminal appeal had been preferred by the appellant Chandrapal Yadav, son of Nanha Singh and Azad Singh son of Ujagar Lal under s. 374(2) Cr.P.C., being aggrieved by the Judgment and order dated 27-05-1988 by which the appellant Chandrapal Yadav and Azad Singh, along with co accused/non appellant Sheo Dutt were convicted of the charge under s.25 Arms Act,1959, in consolidated Sessions Trial case number 133 to 136 of 1987, State Vs. Sheo Dutt & Others, under sections.25 Arms Act and ss.399/402 IPC. by the Court of Special Judge (Dacoity Affected Area Act), Police Station Sikandra, District Kanpur Dehat, and were sentenced to undergo rigorous imprisonment for a period of 1 year and no default sentence was imposed.
2. The appellants were acquitted of the Charges under s.399/402 IPC, and no State appeal has been filed against the order of acquittal. During the pendency of the appeal, the appellant Chandrapal Yadav died and by order dated 08-01-2026 of this court, the appeal against appellant number 1 Chandrapal son of Nanha Singh stands abated.
3. The appellant, along with one other co-accused, were arrested by a police party on receiving information from an informant that a few persons had assembled and were making preparations for committing dacoity in the house of someone. The other two co-accused had made good their escape from the place of assembly, who were identified by the leader of arresting police party, PW-2 SSO Chandrapal Singh. The accused Digvijay and Gopal Singh, who had earlier escaped from the spot, later on surrendered before the court. The arrest and recovery memorandum has been proved as Exhibit Ka'1 by the prosecution. The case was investigated, and charge sheets were submitted separately under s.399/402 IPC bearing case crime number 140/87 against accused Sheo Dutt, Chandrapal Yadav, Azad Singh, and Digvijay Singh on 27-10-87 before the Court of Special Judge(Dacoity Affected Areas)Act,1981, and cognizance of the offence under the sections was taken by the court on 16-11-87 and against accused Gopal Singh on 28-11-87 and cognizance was taken on 07-12-87. Charge sheet in case crime number 141/87 under the Arms Act was filed before the court of Special Judge(Dacoity Affected Areas)Act,1981 against the accused Sheo Dutt on 27-10-87, and cognizance was taken by the court on 16-11-87. Charge sheet in case crime number 142/87 under the Arms Act was filed before the court of Special Judge(Dacoity Affected Areas)Act, 1983 against the accused Chandrapal Yadav on 27-10-87 and cognizance was taken by the court on 16-11-87.Charge sheet in case crime number 143/87 under the Arms Act was filed before the court of Special Judge(Dacoity Affected Areas)Act, 1983, against the accused Azad Singh on 27-10-87, and cognizance was taken by the court on 16-11-87.
4. The accused appeared before the court, and charges were framed against the accused under sections 399/402 IPC in case crime number 140/87 and under section 25 Arms Act in case crime numbers 141/87. 142/87 and 143/87 respectively on 08-01-1988. The accused denied the charge and claimed to be tried.
5. The accused were on bail during the trial. The proceedings under s.399/402 IPC and those under s.25 Arms Act, against the three accused viz. Sheo Dutt, Chandrapal Yadav and Azad Singh were consolidated as they were founded on the same evidence.
6. The prosecution examined 4 witnesses in support of their case, the details of which are as follows: ?
Sl. No. Name of Witness Category (Formal/fact) Exhibit proved P.W.-1 S.I., Sharad Prasad Tripathi Witnesss of facts and recovery The scribe of the recovery and arrest memo has proved recoveries of gun and contrymade pistols from the arrested accused and cartridges, viz.
From accused Sheo Dutt Gun, Gun as Exhibit-1 and 4, Cartridges as Exhibit-2 to 5.
From accused Chandrapal, Country made pistol as Exhibit-6 and 3, cartridges as Exhibit-6 to 9.
From accused Azad Singh, Country made pistol as Exhibit-10 and 2, Cartridges as Exhibit-11 to 13 and a Torch as Exhibit-14.
Proved Chik FIR Exhibit-K-2, written by HC Krishnapal Shukla as secondary evidence.
P.W.-2 Chandrapal Singh, Station House Officer, Police Station, Sikandra.
Informant, as witness of fact and recovery Exhibit Ka-1 (Arrest cum recovery memo of the accused Sheo Dutt, Chandrapal and Azad Singh).
P.W.-3 S.I. Rameshwar Singh Investigating officer Site Plan Exhibit Ka-3, Charge sheets, Exhibit Ka-7 to Exhibit Ka-12, Sanction orders of the District Magistrate, Exhibit Ka-4 to Exhibit Ka-6.
P.W.-4 Ram Suresh Witness of fact and recovery Paper Exhibits Exhibit Ka'1 Arrest and Recovery memorandum (Fard) Exhibit Ka'2 Chik FIR Exhibit Ka'3 Site Plan Exhibit Ka'4 Sanction order accused Sheo Dutt in the case crime number 141/87 Exhibit Ka'5 Sanction order accused Chandrapal Yadav, in case crime number 142/87 Exhibit Ka'6 Sanction Orde accused Azad Singh in the case crime numbber 143/87 Exhibit Ka'7 Charge sheet Case Crime Number 140/87, against the accused Ship Dutt, Chandrapal Yadav, Azad Singh and Digvijay Singh, under section 399/402 IPC Exhibit Ka'8 Charge Sheet Case Crime Number 141/87, under section 25, Arms Act, against the accused Sheo Dutt.
Exhibit Ka'9 Charge Sheet Case Crime Number 142/87, under section 25 Arms Act, against the accused Chandrapal Yadav Exhibit Ka'10 Charge Sheet Case Crime Number 143/87, under section 25 Arms Act, against the accused Azad Singh Exhibit Ka'11 Charge Sheet Case Crime Number 140/87, under section 25 Arms Act, against the accused Gopal Singh, under section 399/402 IPC Exhibit Ka'12 GD No.4 case institution case crime number 140/87 to 143/87 Material Exhibits Accused Material Exhibit Sheo Dutt Exhibit 1- Gun & Exhibits 2 to 5 -Cartridges Chandrapal Exhibit-6 ? Country made pistol (Tamancha) & Exhibits 7 to 9 Azad Singh Exhibit-10 ? Country made pistol (Tamancha) & Exhibits 11 to 13 ? Cartridges & Exhibit-14 - Torch
7. After the conclusion of the prosecution's evidence, statements of the accused were recorded under s.313 Cr.P.C wherein the witnesses alleged false implication in the case by the police and have stated that no recovery of any firearm from their possession was made.
8. The accused were given an opportunity to give evidence in their defence but no evidence was produced.
9. Arguments were heard, and the trial court acquitted all accused of charges under Sections 399/402 of the IPC but convicted accused Sheo Dutt, Chandrapal Yadav and Azad Singh under Section 25 of the Arms Act. Hence the present appeal.
10. The State preferred no appeal against the order of acquittal of the appellant under s.399/402 IPC, and acquittal under Sections 399/402 IPC has attained finality.
11. PW-1 SI Sharda Prasad Tripathi, in his Examination in Chief, has stated that on 4/5-10-1987, he was posted as SI at Police Station Sikandara and at 10:05 pm, he received information from a Mukhbir that in the vicinity of, towards south of Sikandara Chauraha, a group of 5-6 persons was to assemble in a Berry Orchard and were preparing to commit dacoity in house of Mithelesh Kumar of Sikandra and on information received, he, along with SO Sikandra(PW-3)and a contingent of Inspector Hari Shankar, HC Devi Charan and 7 other constables proceeded towards the spot and also procured the presence of Ram Suresh, Ravindra Kumar to the place indicated and when they reached the place near Microwave tower, they all divided themselves into three teams and surrounded the people assembled there and after a brief challenge, two of the five persons succeeded in escaping and three persons were arrested from the spot and illegal fire arms and cartridges were recovered from their possession. The three arrested persons were Sheo Dutt, Chandrapal and Azad Singh. The memorandum of recovery of the illegal weapons seized and arrest was prepared by him under the directions of the SO Chandrapal Singh(PW-2). The names of two persons who had escaped were disclosed by the arrested persons as Gopal Singh and Digvijay Singh.
12. PW-2 Chandra Pal Singh was the Station Officer on 5/6-10-1987 and led the police party to the place where he had arrested 3 persons from the spot, viz. Sheo Dutt, Chandrapal and Azad Singh, as per the information received, 5-6 persons were to assemble in preparation for dacoity and has proved recovery and arrest memorandum as Exhibit Ka'1.
13. PW-3 is the investigation officer of the case and has prepared the site plan of the place of recovery and arrest of accused, and has obtained sanction to prosecute co accused Sheo Dutt accused/appellant Chandrapal Yadav, Azad Singh and has filed charge sheets against the accused after concluding the investigation.
14. PW-4 is a witness of fact and in his examination in Chief, has stated that he was summoned by the SO Chandrapal Singh, when he had gone to the shop of one Rakesh, to accompany them, and there, he witnessed three accused being arrested from a place near the microwave tower by the police party while two persons had made good their escape. At around 11 pm at night he also witnessed the recovery of weapons made from the arrested persons. In his cross-examination, the witness stated that he did not know the accused persons prior to the day of arrest, and no test identification was conducted by him in regard to the accused Gopal Singh and Digvijay Singh. In his cross-examination, the witness stated that the place of arrest was 3-4 furlongs from the police station Sikandra, and the orchard abuts a road where traffic moves 24 hrs.
15. Heard learned Counsel for the appellant Azad Singh and learned AGA for the respondents/State of UP and perused the record.
16. The appellant along with the other two co-accused Chandrapal and Sheo Dutt was convicted of an offence under Section 25 of the Arms Act, and acquitted of the charge under Section 399/402 IPC. Hence the present appeal.
17. Learned counsel for appellant has submitted that the appellant, along with other co-accused in aforesaid case crime number, have been falsely implicated in the case and the fact of false implication is strengthened by factum of acquittal recorded by the trial court acquitting the appellant of charge under sections 399/402 IPC by reaching a conclusion that in absence of independent corroborative evidence in regard to the fact that the appellant, along with the other co accused, had assembled in preparation to commit offence of dacoity but conviction of appellant on same evidence under s.25 of Arms Act manifests non application of Judicial Mind, is total ignorance of the fact that there was no independent witness of recovery of the alleged illegal fire arms from possession of the appellant and there was no report of ballistic expert to corroborate the fact that the recovered fire arms were in a functional state to classify them as weapon.The fact of the matter is that the police had wrongly roped in the appellant as accused due to personal grudge that the police had against the accused persons.
18. Learned AGA has strongly contradicted the arguments forwarded by the counsel for the appellant and has submitted that the trial court has rightly convicted the appellant of charge under s.25 Arms Act,1959, as the fact of possession of illicit firearms by the appellant is substantiated by evidence and the recovery of weapons is duly proved and the sanction to prosecute was granted by the District Magistrate after due examination of weapons and due application of mind.
19. Perusal of the judgment of the trial court shows that the trial court has acquitted the accused of the charge under sections 399/402 IPC and no appeal has been preferred by the State against the order of acquittal and the order of acquittal under sections has attained finality.
20. Now the question that comes up for consideration is as to whether the conviction of the appellant under section 25 Arms Act, 1959, is justified, being founded on the same evidence that led to the acquittal of the appellant of the charge under section 399/402 IPC ?
21. Perusal of the record of the trial court reveals that the prosecution did not tender the Rawangi GD and the report of the ballistic expert in evidence before the trial court.
22. The question now arises as where the prosecution's case rests solely on the recovery of alleged illegal firearms and cartridges from the physical possession of the accused, to what extent it would affect the prosecution's case?
23. Learned counsel argued that the conviction under Section 25 of the Arms Act is unsustainable, as it rests on the same evidence which led to the acquittal under Sections 399/402 IPC. He emphasised that the PW-4 Ram Suresh is a chance witness or rather a witness procured by the police to lend credence to the proceeding although the place of arrest is an orchard adjacent to a busy road, but the recovery memo nowhere suggests that the arresting party had made an effort to obtain evidence of people passing by and the dacoits, though armed, did not fire at the police party to save themselves from arrest and to escape. Absence of independent witnesses, non-production of Ravangi GD entries before the court and absence of ballistic verification create serious doubts regarding the prosecution's case. It was submitted that the trial court's approach, while convicting the appellant under s.25 Arms Act reflects the non-application of the judicial mind.
24. Learned AGA contended that the conviction was rightly recorded. He argued that the recovery of illicit firearms was duly proved, the weapons were produced before the court, and sanction to prosecute was granted by the District Magistrate after due examination and application of mind. The learned AGA further submits that the prosecution's case is substantiated by the recovery of illegal arms and ammunition from the appellant and the non-production of Ravangi GD before the trial Court is merely a lapse on the part of the prosecution, and the appellant will not get any advantage.
25. Perusal of record shows that the prosecution's case rests on police testimony and the testimony of sole independent witness, PW-4 Ram Suresh, who was summoned by the police before arresting the alleged miscreants/dacoits, and he was with the police from 10:15 pm onwards and remained with the police till ten minutes after the arrest of the appellant. In his cross-examination, the witness stated that he had heard the accused persons talking for around 45 minutes and had supported the prosecution's case. As per the recovery memorandum Exhibit Ka'1 and evidence of PW-2, the accused Digvijay and Gopal Singh, who were able to escape from the spot, were known to the SO Chandrapal Singh since before the incident which led to registration of the present case and were identified by him while escaping.
26. The trial Court Judge, in its Judgment, himself noted discrepancies in the evidence of PW-1, PW-2 and PW-4 regarding what had transpired between the accused while they were planning and preparing to commit dacoity on the date of arrest of the accused persons, and the trial court has acquitted the appellant and the accused Sheo Dutt and the other two accused of charges under s.399/402 IPC on the ground that the witnesses were at such a distance that they could not have heard what the accused were discussing and thereby disbelieved the prosecution's case to that extent and did not find evidence of an independent witness worthy to convict the accused under section 399/402 IPC. The court cannot act selectively and pick and choose between the evidence.
27. No independent witness from the place around the place of arrest was examined, though recovery allegedly took place late at night from a secluded place, but the place is adjacent to a busy road. The Ravangi GD entry, which is a procedural safeguard against fabrication, was not proven by the prosecution and is not on record, and no cogent explanation has been forthcoming from the prosecution side for non-production thereof. No armourer or ballistic expert's report was produced to establish that the seized firearms were functional. Insofar as the sanction to prosecute under s.39 of the Arms Act is concerned, the prosecution has proved the same as Exhibit Ka'4 to Exhibit Ka 5.
28. So far as the question of grant of sanction is concerned, mere filing of a document along with other papers submitted at the time of police report, cannot be said to be a proper compliance with giving evidence to prove the requirement of Section 39 of the Arms Act. Section 39 of the Arms Act provides that a previous sanction of the District Magistrate is necessary for the prosecution against any person in respect of any offence under Section 39. Sanction under Section 29 of the Arms Act is not a mere formality. It has to be proved that it was granted by the District Magistrate after applying his mind. It must be shown that the firearm or weapon with respect to which the sanction was prayed was actually taken to the authority concerned, and after looking at the relevant papers, understanding and after applying his mind, the sanction was granted.
29. In the present case, there is no due application of mind by the sanctioning authority. It must appear from the sanction order itself that actually application of mind has been made, and the Officer granting the sanction order was fully aware of the facts of the case. It does not speak any word about the date on which the offence was committed, the manner in which the accused was arrested or the manner of making search and seizure and recovery of the arms. Sanctioning the prosecution of a person could not be an act to issue a licence for the sale of arms or any commodity, as is done by the officers of the Executive.
30. At this juncture, Section 3(4) Cr.P.C. assumes relevance and is being reproduced below ?
"s.3(4) Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters-
(a) which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or
(b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate."
31. Order granting Sanction under s.39 of the Arms Act,1959, an act which forms part of the judicial function of an officer of the Executive, which is defined by Section 3(4) of the Cr.P.C. It might be an administrative executive action, but the function ultimately being of putting a person on trial for a particular offence, it could really be quasi-judicial in nature, which could have an administrative tinge. It was required that the District Magistrate, Kanpur Dehat, ought to have indicated facts of the case and other details of it sufficiently in his sanction order, to indicate that the order has been passed on due application of mind, but the sanction order suffers from infirmities and lacuna, and it cannot be upheld.
32. The Investigating officer of the case, PW-3 Rameshwar Singh, in his examination in chief, has stated that he had obtained the Sanction orders to prosecute on 26-10-87, and he nowhere states that he had produced the recovered seized weapons before the District Magistrate in a sealed state for his examination at the time of obtaining the sanction order.
33. The recovery memorandum Exhibit Ka'1 shows that the weapons and cartridges recovered were sealed separately on the spot but the fact that the weapons were produced in sealed state is not verifiable from the statement of PW-1 or PW-2 and nowhere it is mentioned, either in the recovery memorandum or statements of PW-1, PW-2 or PW-4 as to whose seal had been applied on the sealed items and the seals have not been produced before the trial court for its examination and comparision with seals that had been applied to the seized weapons and cartridges.
34. Production of seal is necessary before the trial court to establish authenticity of recovery. Non-production is generally fatal unless corroborated by strong independent evidence. The seal impression must be produced in court and compared with the seal on seized property.If seals are not produced, courts presume possibility of tampering, and benefit of doubt goes to the accused.
35. The prosecution's failure to prove that the seized arms were properly sealed at the time of recovery is a serious evidentiary lapse. Courts have consistently emphasized that sealing is not a mere formality?it is a safeguard against tampering, substitution, or fabrication of material evidence.Since conviction under Section 25 Arms Act hinges on authenticity of recovery, absence of sealing proof undermines the prosecution's case.In firearm cases, this lapse is compounded if there is also no armourer/ballistic report or no independent witnesses, making conviction under the Arms Act highly vulnerable.
36. Hon'ble Supreme Court, in the case of State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314), wherein recovery of contraband opium was the subject matter in issue, held that the failure to prove proper sealing and safe custody of seized contraband fatally undermines the prosecution case, as it creates a serious doubt about tampering or substitution. This principle has since been applied to Arms Act cases as well, and the Court held that the absence of proof regarding sealing and safe custody of seized articles creates a fatal gap in the prosecution case.
37. The trial Court has ignored the aforementioned important aspects regarding the procedure that the arresting officer was to comply at the time of recovery. The whole process of recovery of alleged illegal arms and ammunition and sanction of prosecution comes under the shadow of doubt.
38. There is no evidence on record to show that the investigating officer asked for sanction, and nothing has been brought on record to suggest that the country-made pistol was made available to the District Magistrate at the time of granting sanction under section 39 of the Arms Act. The investigating officer nowhere states that he had produced the recovered items in a sealed state before the District Magistrate. Perusal of the sanction order clearly reveals the fact of the absence of a description of the weapons that were produced before the District Magistrate, and in the absence thereof, the court comes to the conclusion that the sanction to prosecute was given mechanically, without due application of mind and is unreliable and defective, but the same was not considered by the trial court.
39. In the present case, the objects allegedly seized from the appellant were not sent for any expert opinion, either to any ballistic expert or to any armourer. There is no evidence about the recovered articles sent for an FSL report or opinion of a ballistic expert to ascertain whether the bullet could have been fired from the recovered weapon. There is no evidence on record to show that the objects recovered from the appellant satisfied the definition of "arm" ", ammunition", or "firearm" as contained in the Arms Act.
40. Thus, the absence of corroborative and technical evidence creates reasonable doubt. Conviction under Section 25 Arms Act cannot be sustained merely on police testimony and that of an independent witness who has been procured by the police from the very onset when police received the information that a few miscreants were to assemble at a particular place, without making any effort to obtain independent witnesses of arrest and recovery near the place of arrest, when the place abuts a busy road with ongoing traffic, particularly when the same evidence was found insufficient to prove the charge under Sections 399/402 IPC.
41. Hon'ble Supreme Court, in the case of Buta Singh Vs State of Punjab, 1997 SCC (Cri.) 1217, in para 4, has observed that ?
"4. We need not detain ourselves to consider the statements of PW 1 and PW 2, the recovery witnesses, as we find that the prosecution's case suffers from a serious infirmity in this case. The objects allegedly seized from the appellant were not sent for any expert opinion, either to the ballistic expert or to any armourer. There is no evidence on the record to show that the objects recovered from the appellant satisfied the definition of "arm" "ammunition" or "firearm" as contained in the Arms Act. In the absence of any such evidence, the conviction of the appellant cannot be sustained. This appeal consequently succeeds and is allowed. The conviction and sentence of the appellant are set aside, and he is hereby acquitted."
42. Hon'ble Supreme Court, in the case of D. K Basu v. State Of W.B . (1997) 1 SCC 416 opined: "We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals. Many hard-core criminals like extremists, terrorists, drug peddlers, smugglers who have organized gangs, have taken strong roots in society. It is being said in certain quarters that with more and more liberalisation and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation. It is felt in those quarters that if we lay too much of emphasis on the protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality, with the result that the crime would go unpunished and in the ultimate analysis, the society would suffer. The concern is genuine, and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so in view of the expectation of society that police must deal with criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worse than the disease itself."
43. In the case of State of Punjab v. Baldev Singh, 1999 INSC 282 (Jul 21, 1999), in para 57, sub-para 4, the Hon'ble Supreme Court has drawn a conclusion that ?
"(4) That there is indeed a need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously, and the failure to do so must be viewed by the higher authorities seriously, inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case, the result is important, but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations, and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial would render the trial unfair."
44. The principles laid down in the aforementioned case laws are guiding principles that the trial courts must adhere to while scrutinizing recovery evidence, be it in an Arms Act case or a case involving narcotics, and so on and so forth.
45. In the light of the above discussion, the judgment and order of conviction passed by the trial court is not sustainable and is liable to be set-aside.
46. Hence, criminal appeal filed by appellant, Azad Singh is allowed.
47. The judgment and order dated 27.05.1988 of the trial court convicting the appellant under Section 25 of the Arms Act, is hereby set-aside, and the appellant is acquitted of the said charge.
48. The appellant, Azad Singh, is already on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged.
49. Let a copy of this judgment and order be sent to the trial court along with the trial court record for information and necessary compliance.
(Achal Sachdev,J.) April 29, 2026 VKG