K. Vinod @Vinu vs State Of Kerala

The revision petitioner was the accused in CC No.1257 of 2005 on the file of the Judicial First Class Magistrate Court-1, Hosdurg and the appellant

in Crl.Appeal No.314 of 2010 on the file of the Additional Sessions Court (Adhoc I), Kozhikode. The offence alleged against the accused is punishable

under Section 3 r/w 25(1-B)(a) of the Arms Act, 1959.

The prosecution allegation is that, on 05.07.2003 at about 9 a.m, Pw4, the accused was found in possession of country made unlicensed gun with

gun powder weighing 50 grams, 3 caps, 42 pellets and some coconut husk fibre in contravention of the provisions under Section 3 r/w 25(1-B)(a) of

the Arms Act, 1959.

During the trial of the case, PWs 1 to 10 were examined and marked Exts.P1 to P8 and MOs 1 to 5 on the side of the prosecution. On closing the

evidence of the prosecution, the accused was questioned under Section 313(1)(b) of Cr.P.C. He denied all the incriminating circumstances appearing

in the evidence against him. However, no defence evidence was adduced.

On appreciation of the evidence, the trial court found the accused guilty for the offence punishable under Section 3 r/w 25(1-B)(a) of the Arms Act,

1959 and Section 9(B)(b) of the Explosives Act, 1884 and he was convicted thereunder. Accordingly, the accused was sentenced to undergo rigorous

imprisonment for two years and also to pay a fine of Rs.3,000/- , in default of payment of fine to undergo rigorous imprisonment for a further period of

six months more under Section 3 r/w 25(1-B)(a) of the Arms Act, 1959. Over and above, the accused was sentenced to pay a fine of Rs.2,000/-

under Section 9(B)(b) of the Explosives Act,1884 and in default of payment of fine to undergo rigorous imprisonment for a period of one month more.

Challenging the conviction and sentence the accused preferred Crl.Appeal No.314 of 2010 before the appellate court. While confirming the conviction

imposed by the trial court, the learned Sessions Judge modified the sentence to undergo rigorous imprisonment for two years and also to pay a fine of

Rs.3,000/-under Section 3 r/w 25(1-B)(a) of the Arms Act, 1959 and in default of payment of fine to undergo rigorous imprisonment for six months

more. The accused was found not guilty for the offence under Section 9(B)(b) of the Explosives Act, 1884 and accordingly, he was acquitted

thereunder.

Heard Sri.Vipindas.T.K., the learned counsel for the revision petitioner and Sri.M.S.Breez, the learned Senior Public Prosecutor for the State.

The revision petitioner has been convicted mainly under the provisions under Section 25 of the Arms Act, 1959. What has been alleged and proved

against the accused is that on 05.07.2003 at about 9 a.m, the accused was found in possession of country made unlicensed gun with gun powder

weighing 50 grams, 3 caps, 42 pellets and some coconut husk fibre. During the trial of the case, MO1 Gun, MO2 Pouch, MO3 series (42 Nos) lead

pieces, MO4 Caps and MO5 coconut fibre were marked.

The learned counsel for the revision petitioner contended that the prosecution evidence itself would show that MOs 1 to 5 had been recovered from

the accused did not have any number or distinctive mark on them and after their seizure by the police they were not sealed. Thus, the identity of the

weapon and other materials produced before the court was not established by the prosecution. On going through the evidence of PWs 1 to 10, it is

clear that the contention raised on behalf of the accused is correct. The detecting officer has no case that he had sealed the gun immediately after

seizure in accordance with law. The impact of non-sealing of the weapon allegedly seized by the detecting officer was considered by the Apex Court

in Jasbir Singh v. State of Punjab (1998 KHC 1535). In Jasbir Singh's case (supra), it was held that the identity of the incriminating article alleged to

have been seized by the detecting officer should be established by the prosecution beyond doubt. In the case on hand, the pistol alleged to have been

recovered from the accused did not have any number or some distinctive mark on it after its seizure by the police and it was not sealed as well. The

dictum laid down in Jasbir Singh's case (supra) was followed by this Court in Damodaran v. State of Kerala (2016 KHC 192).

The learned counsel for the revision petitioner further contended that Ext.P8 sanction order issued by the District Collector according sanction to

prosecute the offender was not proved in accordance with law. It is further contended that Ext.P8 would indicate that the seizure was allegedly made

from the residence of the accused. However, the charge framed in this case would indicate that the material objects were seized from the custody of

the accused at the mud road. The mud road has no connection whatsoever with the residence of the accused. Ext.P3 scene mahazar is also against

the contents in Ext.P8 sanction order. It is true that, the authorized officer was not examined to prove Ext.P8 before the trial court. Ext.P8 sanction

order was issued in respect of an illegal act alleged to have committed some where else. It has no connection whatsoever with the place of

occurrence involved in this case. Hence, this Court has no hesitation to hold that Ext.P8 has not been proved in evidence.

Both the trial court and appellate court appreciated the evidence without considering the above two vital legal aspects and illegally convicted the

accused for the offences alleged against him. Thus, the conviction and sentence imposed against the revision petitioner/accused are liable to the set

aside.

In the result, the revision petition is allowed. The revision petitioner/accused is found not guilty for the offence under Section 3 r/w 25(1-B)(a) of the

Arms Act, 1959 and he is acquitted thereunder. Cancelling his bail bond, this Court directs that he be set at liberty. During the pendency of the

revision if any fine amount has been deposited by the accused before the trial court pursuant to the direction of this Court, the same shall be refunded

to the revision petitioner/accused, in accordance with law. Pending applications, if any, stand disposed of.