Sk. Rejaul @ Dalal Rejaul (in Jail) vs State of West Bengal

Partha Sakha Datta, J.—Leave is granted to correct the cause title.

This criminal appeal has been directed against the judgment and order dated 30.6.07 passed by learned Additional Sessions Judge, Fast Track 1st Court, Uluberia, Howrah convicting the appellant in Sessions Trial No. 17/04 u/s 25(1)(a) of Arms Act and u/s 14 of Foreigner''s Act.

The convict was sentenced to suffer imprisonment for five years on account of offence u/s 25(1)(a) of the Arms Act and also for five years with a fine of Rs. 5,000/- i.d. to suffer S.I. for one year on account of offence u/s 14 of the Foreigner''s Act.

The grounds of revision are that the learned Court below did not appreciate the fact and circumstances of the case. The learned Judge misread, misunderstood the evidence on record and while the learned Judge acquitted all other accused persons of the offence u/s 399/402 of IPC, he convicted the lone appellant of the charge u/s 25(1A) of the Arms Act and Section 14 of the Foreigner''s Act.

Pursuant to source information that a good number of persons had assembled at Birshibpur near NH 6 opposite to Bisk Farm Factory with deadly weapons with a view to committing offence, the de facto complainant with armed forces of Uluberia PS had been to Birshibpur by the side of NH 6 and more particularly at the opposite side of Bisk Farm Factory under PS Uluberia. Having reached there he spotted some persons, number being 7/8, surrounded them and managed to arrest those accused persons and some seizures of arms were made from the possession of two accused, namely Sk. Rejaul @ Dalai Rejaul who is the present appellant and one Raju Das. Thus, against all the accused persons, a case being Uluberia PS Case No. 152/02 was registered u/s 399/402 of IPC and also under Sections 25/27 of Arms Act and u/s 14 of the Foreigners Act as against the appellant. One improvised six chambered fire-arm loaded with one 303 bore cartridge was recovered from the possession of Sk. Rejaul @ Dalai Rejaul in respect of which he could not give any explanation.

Chargesheet was submitted against the present appellant Sk. Rejaul @ Dalai Rejaul, Raju Das, Jahangir Mondal, Sk. Moharam, Sk. Lal Md. Mallick, Kamal Khanra, Sk. Kalu & Sk. Hasanurjaman u/s 399/402 of IPC and this present accused was also charge sheeted u/s 25/27 Arms Act and u/s 14 of the Foreigner''s Act. Learned Trial Court examined 7 witnesses on the aforesaid charges and acquitted all the accused persons of the charge u/s 399/402 of IPC, while convicting the present appellant u/s 25(1)(a) of the Arms Act and also Section 14 of the Foreigner''s Act.

P.W.1, SI, Subhrajit Majumdar is the officer who lodged the complaint, arrested the accused persons opposite the Bisk Farm under Uluberia PS on the night of 30.7.2002 effected seizure of arms and ammunition for the present appellant and Raju Das and took them to the police station after seizure. P.W.2, ASI, Sanjib Roy accompanied P.W.1 to the place of occurrence pursuant to source of information that certain persons had assembled on the opposite side of Bisk Farm to commit cognizable offence and arrested the accused persons with seizure of arms and ammunition from the present appellant as also from Raju Das. P.W.3 is Ashim Kr. Nandy who was also a member of the team led by P.W.1. So also is ASI, Ashoke Kr. Ghosh P.W.4. P.W.5 is ASI, R. Bej who drew the formal FIR P.W.6, Gopal Chakraborty is Inspector of Police who received exhibits in connection with the case. His evidence is not worth consideration. P.W. 7 is the I.O. of the case.

I have heard Mr. Abhijit Auddy, learned Advocate appearing for the appellant and Mr. P.K Majumder, learned Advocate appearing for the State of West Bengal. An interesting important question has arisen in this case as to whether conviction of the appellant u/s 25(1)(a) of the Arms Act on the allegation of possession of improvised fire-arm of the appellant at the night of 30.7.2002 by the side of NH 6 and opposite to the Bisk Farm is credible and trustworthy when the same learned Judge acquitted all the accused persons of the case u/s 399/402 of IPC. I have perused the judgment of the learned Trial Court. The learned Judge has observed that even if it is presumed for the sake of argument that Sk. Rejaul @ Dalai Rejaul, Jahangir Mondal and Raju Das after their apprehension by the police during investigation disclosed before the police personnel that they along with the other accused persons had assembled at the spot of committing dacoity at Bisk Farm Factory such confessional statement in police custody was inadmissible in evidence and none of the accused persons made any statement u/s 164 of Cr. PC. The learned Judge observed that if, in the circumstances, it is presumed that firearms were recovered from the two accused persons namely, Sk. Rejaul and Raju Das. There is no legal evidence to show that these accused persons assembled at the spot for the purpose of committing dacoity and were making preparation to achieved that object and that they had no other purpose or object at that time. Thus, the learned Judge disbelieved the prosecution story with regard to charge u/s 399/402 of IPC and acquitted all the 7 accused persons of the said charge including the present appellant. I fail to reconcile myself with the treatment of the learned Judge when he convicted the present appellant u/s 25(1)(a) of the Arms Act. The judgment of the learned Judge is not clear as to whether he was totally disbelieving the prosecution case that the accused persons had assembled opposite the Bisk Farm in the night of 30.7.2002 for the purpose of committing dacoity or whether he was believing the prosecution case that the accused persons had really assembled at that place but also disbelieving the prosecution case that they assembled there for the purpose of committing dacoity. In the circumstances, if the presence of the accused persons opposite the Bisk Farm on the night of 30.7.2002 is disbelieved, then the basis of conviction of the present appellant u/s 25(1)(a) of the Arms Act has got to be disbelieved.

With regard to the charge u/s 14 of the Foreigner''s Act, there is no evidence that the appellant was detected while entering into Indian territory from any foreign country. The accused was found amongst the company of the 7 accused persons and simply on the basis of hearsay evidence that he was a man of Bangladesh, a charge u/s 14 of the Foreigner''s Act was added as against the present accused.

Thus, having regard to the circumstances, I hold that the prosecution case could not be proved on the very reasoning given by the learned Judge with respect to the appellant.

Accordingly, the appeal succeeds.

The appellant is found not guilty punishable u/s 25(1)(a) of the Arms Act and Section 14 of the Foreigner''s Act and is acquitted of the charges. If not on bail, the appellant shall be released forthwith.

Criminal Section is directed to supply certified copy of this order, if applied for, to the learned Advocate for the parties expeditiously.