Tushar Agrawal vs The State Of Jharkhand ..... ... ...
2024 Latest Caselaw 778 Jhar

Jharkhand High Court

Tushar Agrawal vs The State Of Jharkhand ..... ... ... on 23 January, 2024

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

       IN     THE HIGH COURT OF JHARKHAND AT RANCHI
                           Cr.M.P. No. 1593 of 2016
      1. Tushar Agrawal
      2. Arvind Chaurasia @ Arbind Chaurasia          ..... ... Petitioners
                                  Versus
      The State of Jharkhand                        ..... ...      Opposite Party
                               --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners : Mr. A.K. Kashyap, Sr. Advocate.

                               :        Mrs. Juhi Kumari, Advocate.
      For the State            :        Mr. Anup Pawan Topno, A.P.P.
                               ------
04/ 23.01.2024     Heard Mr. A.K. Kashyap, learned senior counsel appearing for

the petitioners and Mr. Anup Pawan Topno, learned A.P.P. for the State.

2. This petition has been filed for quashing of the order dated 11.04.2016, passed by the learned S.D.J.M., Porahat at Chaibasa in connection with G.R. No. 260 of 2009 corresponding to Chakradharpur P.S. Case No. 125 of 2009, registered under Section 25 1-b(a)/26/35 of the Arms Act, pending in the court of learned 4th Additional District Judge at Chaibasa, being registered as S.T. Case No. 88 of 2016 after commitment of the case.

3. The F.I.R. was lodged on the basis of self statement of one Sakaldeo Ram. A police Inspector-cum- Officer In-charge, Chakradharpur police station, on 12.10.2009 at 11.15 hours.

It has been alleged therein that on 12.10.2009 at 9 A.M. when the informant was at the police station then he received confidential information that one Scorpio vehicle had met with an accident at Teboghat, in which one owner of crusher plant Nagpur and his servant was being taken away after kidnapping from Barbil Orissa and all were going for treatment in private vehicle towards Chakradharpur. The informant after entering into Station Diary Entry had proceeded along with other police official at Ashanthalia and saw one vehicle coming which was stopped then the occupants of that vehicle have tried to flee away, but they were apprehended, one person raised alarm to save and disclosed his name as Sanjay Agrawal and also told the name of his servant as Ram Sundhia. The vehicle was taken into custody. However, one miscreant fled away and third miscreants who were apprehended disclosed his name as Tushar Agrawal. In the presence of two independent witnesses, namely, Pradeep Kumar Verma and Arun

Kumar Poddar, the informant seized one country made pistol along with cartridge of .315 and mobile and from the possession of Bijay Singh one country made pistol along with cartridge of .315 and Mobile and from the possession of Arbind Chaurasia one country made pistol loaded with .303 cartridge and mobile were recovered. The seizure list was prepared and the accused persons did not give any explanation and they disclosed that Sanjay Agrawal and his servant were kidnapped and while they were coming the vehicle had met with an accident and they further disclosed the name of accused Rajesh Poddar, who had fled away.

4. Mr. A.K. Kashyap, learned senior counsel appearing for the petitioners submits that police submitted the chargesheet under Section 25 1-b(a)/26/35 of the Arms Act vide chargesheet dated 09.12.2009 showing of the articles i.e. 3 pistols, four cartridges of .315 and one cartridge .303. He submits that the trial was started before the learned Magistrate and the witnesses were being examined. He further submits that on 11.04.2016 one Jita Oraon has been examined as Sargent Major, Chaibasa, as P.W.-6. He submits that during his examination the alleged seized firearm were not produced before the learned trial court. He further submits that thereafter a petition was filed by the defence for effective cross-examination of P.W.-6. He submits that considering the evidence of P.W.-6, the learned trial court by the impugned order dated 11.04.2016 has committed the case to the court of session, only on the ground that the firearm comes under the category of restricted arm. He further submits that the said order has been passed in absence of any material exhibit to that effect. He further submits that there is no Gazette notification to that effect so far as the cartridge in question is concerned. On these backgrounds, he submits that the learned trial court has wrongly committed the case to the court of sessions and the said impugned order may kindly be quashed.

5. Learned A.P.P. appearing for the State is not in a position to demonstrate that there is any notification with regard to the cartridge in question in terms of Section 7 of the Arms Act. However, he submits that an arm can be said to be prohibited either because it is notified to be so by the Central Government or because it answers the definition of the prohibited arm appearing in Section 2(1)(i) of the Arms Act. To

buttress his argument, he relied in the case of State of Punjab Versus Swaran Singh, reported in 2009 SCC OnLine P&H 5872.

6. It is an admitted position that before the trial court, the trial has started and even the evidences were going on. P.W.-6 has stated that the cartridge in question is a restricted weapon and considering that only the learned trial court has committed the case to the court of sessions. It is also an admitted position that there is no notification in terms of Section 7 of the Arms Act with regard to the cartridge in question and in view of that in absence of any notification under Section 7 and Section 2(i) of the Arms Act, there is no notification with regard to the cartridge in question.

7. The best evidence, which ought to have been produced during the trial as marked material objection and mere oral evidence as to their features does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence in light of the Arms Act, 1959. In the case of Gunwantlal Versus State of M.P., reported in (1972) 2 SCC 194, it was held that a person cannot be charged with the offence unless it can be shown that he had the knowledge that any sort of prohibited item was present in his house. In para-5 of the said judgment, it has been held as follows:-

"5. ......................In some cases under Section 19(1)(f) of the Arms Act, 1878 it has been held that the word "possession" means exclusive possession and the word "control"

means effective control but this does not solve the problem. As we said earlier, the first precondition for an offence under Section 25(1)(a) is the element of intention, consciousness or knowledge with which a person possessed the firearm before it can be said to constitute an offence and secondly that possession need not be physical possession but can be constructive, having power and control over the gun, while the person to whom physical possession is given holds it subject to that power and control. In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person

was or was not in possession of the thing in question....................."

8. In view of the above facts, the court finds that the impugned order is not based on the legal position, as discussed hereinabove. Accordingly, the impugned order dated 11.04.2016, passed by the learned S.D.J.M., Porahat at Chaibasa in connection with G.R. No. 260 of 2009 corresponding to Chakradharpur P.S. Case No. 125 of 2009, registered under Section 25 1-b(a)/26/35 of the Arms Act, pending in the court of learned 4th Additional District Judge at Chaibasa, being registered as S.T. Case No. 88 of 2016 after commitment of the case, is hereby, set aside and now the trial is to proceed in accordance with law.

9. This petition is allowed and disposed of.

(Sanjay Kumar Dwivedi, J.) Amitesh/-

[A.F.R.]