Calcutta High Court (Appellete Side)
Abdul Mokid vs The State Of West Bengal on 28 January, 2019
Author: Rajarshi Bharadwaj
Bench: Rajarshi Bharadwaj
1
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
PRESENT:
The Hon'ble Mr. Justice Rajarshi Bharadwaj
C.R.A. 675 of 2007
Abdul Mokid
Versus
The State of West Bengal
For the Appellant: Mr. Navanil De
Ms. Ayantika Roy
Mr. Rajeswar Chakraborty
For the State : Mr. Rana Mukherjee, A.P.P.
Ms. Faria Hossain
Ms. Trina Mitra
Heard on : 27th June, 2018, 2nd July, 2018, 27th July, 2018 and 5th
October, 2018.
Judgement on: 28th January, 2019
Rajarshi Bharadwaj, J.:
This appeal arose out of a judgement and order of conviction and sentence dated 15th September, 2007 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Berhampore, Murshidabad convicting the accused/appellant under Section 25(1B) of the Arms Act and sentencing him to suffer rigorous imprisonment 2 for 2 ½ years and to pay a fine of Rs. 1000/-; in default to suffer further rigorous imprisonment for three months.
The prosecution case in brief is that on 19th April, 2002 one Prasanta Mukherjee, Sub-Inspector of Daulatabad Police Station lodged a complaint with the Officer-in-Charge of Daulatabad P.S. alleging that he along with S.I. Partha Sarathi Chakraborty, Constable Ananda Pramanick, Constable Rup Sanatan Kundu and Constable Sanjib Dhar were performing night patrol duty on State Highway within the jurisdiction of Daulatabad P.S. and holding raid against accused persons vide Daulatabad P.S. G.D. Entry no. 758 dated 19th April, 2002 and MCC no. 976/02 dated 19th April, 2002. The complainant along with his companion went to Gurudaspur village where according to the secret information, the appellant being a notorious criminal was supposed to be found out. It was also alleged that the appellant was a wanted accused in connection with Daulatabad Police Station Case no. 53/2001 dated 29th December, 2001 under Sections 326/307/34 of the Indian Penal Code read with Section 25/27 of the Arms Act and Section 3/4 of the Explosive Substances Act. Accordingly, on the basis of the secret information the complainant tried to collect two local witnesses, but in vain as none of the local witnesses extended their co-operation to them. Then he called one Ajijul Haque and one Nausad Sk. of Benidaspur, P.S. Daulatabad who accompanied them to the house of the accused. Then they conducted raid at the house of the accused and in presence of the above two local witnesses, the complainant interrogated the accused and in course of interrogation that accused 3 confessed that he was in possession of illegal firearms. The accused brought one iron made improvised pistol type pipe gun measuring 8 ½" in length and one round .303 ammunition from his bedroom and handed over the same to the complainant. He also failed to produce any valid papers in support of possessing the firearms. The arms and the ammunition were seized by the complainant in presence of the witnesses, who put their signature on the seizure list. Accordingly, the accused was arrested and they came back to the Police Station and lodged the complaint. On the basis of the written complaint, a criminal case, being Daulatabad P.S. Case no. 33/2002 dated 20th April, 2002 under Sections 25/27 of the Arms Act was initiated against the accused person. Investigation was started and after completion of the same, charge sheet was submitted under Section 25/27 of the Arms Act against the accused/appellant. Thereafter, cognizance was taken by the learned Sub-Divisional Judicial Magistrate, Berhampur and the case was committed to the learned Sessions Judge, Murshidabad and then the case was transferred to the Court of the learned Additional Sessions Judge, 2nd Fast Track Court, Berhampur, Murshidabad for disposal. The learned Additional Sessions Judge, 2nd Fast Track Court, Berhampore, Murshidabad framed charge of the offence punishable under Section 25(1B) of the Arms Act against the accused/appellant to which he pleaded not guilty and claimed to be tried.
Learned advocate for the appellant submitted that the search and seizure effected by the complainant was not in accordance with the provisions of the Code of Criminal Procedure. Section 100 of the 4 Code of Criminal Procedure provides certain safeguards against arbitrary seizure and search and invasion of privacy. One of the main objects is to ensure that anything incriminating which may be said to have been found in the premises searched, was really found there and was not planted by any member of the search party. Section 165(4) of the Code of Criminal Procedure provides that the general provisions as to search in Section 100 shall, so far as may be, apply to a search under the said section. Consequently, when a search is made by an Investigating Officer under Section 165(1) of the Code of Criminal Provisions, he must comply with the requirements of sub- section (1) of Section 100 of the Code of Criminal Procedure relating to forcible entry, sub-section 4 of Section 165 of the Code of Criminal Procedure regarding search witnesses and sub-Section (5) of Section 165 of the Code of Criminal Procedure relating to search list. In the absence of emergent circumstances a burglaries entry into a house is illegal. Section 100 of the Code of Criminal Procedure provides that -
" Persons in charge of closed place to allow search:
(1) Whenever any place liable to search or inspection under this chapter is closed, any person residing in or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto and afford all reasonable facilities for a search therein.
(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 47. (3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which 5 search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.
(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
(5) The search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
(6) The occupant of the place searched or some person in his behalf, shall, in every instance, be permitted to attend during the search and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.
(7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared and a copy thereof shall be delivered to such person.
(8) Any person who without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code."
Section 165 of the Code of Criminal Procedure provides -
"Search by Police Officer:6
(1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place with the limits of the police station of which he is in charge, or to which he is attached and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of is belief and specifying in such writing, so far as possible, the thing for which search is to be made, search or cause search to be made, for such thing in any place within the limits of such station.
(2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search in person. (3) If he is unable to conduct the search in person and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched and so far as possible, the thing for which search is to be made and such subordinate officer may there upon search for such thing in such place.
(4) The provisions of this Code as to search- warrants and the general provisions as to searches contained in section 100 shall so far as may be, apply to a search made under this section.
(5) Copies of any record made under sub-section (1) or sub-
section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate."
7He further submitted that it is evident from the deposition of P.W.7, Prosanto Mukherjee that there were 1500 villagers in Gurudaspur village but none of the local witnesses was examined or called on during the process of search and seizure and as such the process of search and seizure is in violation of the provisions of Sections 100 and 165 of the Code of Criminal Procedure. In support of his submission, he relied on a decision of the Hon'ble Supreme Court in the case of Mohan Singh -vs- State of Haryana reported in 1995 SCC (Cri) 428. Thus, learned advocate for the appellant prayed for acquittal of the appellant.
Learned advocate for the State submitted that the prosecution has been able to prove its case beyond all reasonable doubt and the learned Trial Judge rightly convicted the appellant for commission of offence under Section 25(1B) of the Arms Act. Thus, he prayed for dismissal of the appeal.
Heard learned advocates for the parties and perused the impugned judgement.
In the instant case the prosecution examined as many as ten witnesses. According to the prosecution, P.W.1 Nausad Ali Mondal and P.W.2 Azizul Haque, who were the residents of village Benidaspur, were present at the time of search and seizure and in the presence of those witnesses the said pistol type pipegun and .303 ammunition were recovered from the possession of the accused Abdul Mokid at his house. They put their signature in the seizure list, however, both the witnesses had turned hostile. P.W.3, Constable 8 Ananda Pramanick, P.W.4, Constable Rupsanatan Kundu and P.W.5, Constable Sanjib Dhar, who accompanied the complainant, deposed that they surrounded the house of the accused and recovered one pipegun and .303 cartridge and the accused was arrested. The articles were seized by P.W.7 in presence of two witnesses. P.W.6, Deb Kumar Sinha, Inspector of Police as well as the Arms Expert of Murshidabad district deposed that he recovered the improvised pipegun and .303 ammunition and on examination he found that the improvised pistol type pipegun being 9" in length bore point 303" in good working condition, which was endanger to human life. P.W.7, Prasanta Mukherjee, Sub-Inspector of Daulatabad P.S. deposed that on 20th April, 2002 at night he along with other officers apprehended the accused who was absconding in connection with Daulatabad P.S. case no. 53/2001 dated 29th December, 2001 under Section 326/307/34 of the Indian Penal Code and Section 25/27 of the Arms Act and Section 3/4 of the Explosive Substantive Act. On interrogation the accused admitted in presence of witnesses that he had a pipegun and one round .303 ammunition in his possession and agreed to hand over the same to P.W.7. The accused could not produce any valid documents for possessing the same. Accordingly, P.W.7 seized those articles in presence of witnesses under a seizure list. P.W.8, Partha Sarathi Chakraborty, Sub-Inspector of Police corroborated the evidence of P.W.7. P.W.9, Subir Kumar Pal, Sub- Inspector of Police received written complaint along with seizure list and on the basis of the written complaint he started Daulatabad P.S. Case no. 33/02 dated 20th April, 2003 under Section 25/27 of the 9 Arms Act against the accused Abdul Mokid and endorsed the case to Sub-Inspector Bimal Mondal for investigation. P.W.10, Bimal Mondal, Investigating Officer of this case, took up investigation of this case and after investigation he interrogated the accused Abdul Mokid and thereafter, he forwarded him to the learned Sub-Divisional Judicial Magistrate, Berhampore. He visited the place of occurrence, drew up sketch map with index, recorded the statement of the seizure witnesses as well as the members of the raiding party under Section 161 of the Code of Criminal Procedure. He sent the seized alamats through the learned Magistrate, Berhampore and collected the sanction order of the District Magistrate, Murshidabad for prosecuting the accused under the Arms Act.
On close reading of the evidence on record it appears that the seizure witnesses, being P.W.1 and P.W.2 were declared hostile by the prosecution but in cross-examination both the witnesses stated that they were sleeping at night at their respective houses when the Police came and asked them to put their respective signature on blank sheet of paper. Moreover, both of them were residents of Banidaspur village and place of occurrence was Gurudaspur village. Furthermore, the search and seizure effected by P.W.7 was in violation of the provisions of Sections 100 and 165 of the Code of Criminal Procedure. From the evidence of P.W.3, P.W.4, P.W.7 and P.W.8 it appears that there were discrepancies in the time of search and seizure, which has raised a grave shadow of doubt on the seizure of the alleged articles. According to P.W.6, after testing the arm and ammunition, he sealed the same and made a packet under his seal, 10 but the sealed packet containing the seal was not produced before the Court. Hence, the learned Judge erred in holding the conviction of the appellant for commission of offence under Section 25(1B) of the Arms Act.
In my view, the appellant is not found guilty for commission of offence punishable under Section 25(1B) of the Arms Act. The appellant is acquitted of the charge levelled against him and he is discharged from his bail bond.
Accordingly, the appeal is allowed.
Copy of the judgement along with Lower Court Records be sent down to the trial court at once for necessary compliance.
Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Rajarshi Bharadwaj, J.)