S.M. Ali, J.
1. These two appeals arise from the same judgment conviction and sentence passed against the appellant by the Addl. Deputy Commissioner. Aizawl in case No. G.R. 37/82 under Section 25(1) (a)/27 of the Arms Act convicting the accused-appellant to 3 years R.I. Under Section 25(11(a) of the Arms Act and also R.I. for 4 years Under Section 27 of the Arms Act, the sentences on both the counts running consecutively.
2. On 14-1-82 the officer-in-charae of Aizawl Police Station received a written report from Saisima of 1 MAP to the effect that on the night of 13-1-82 the accused-appellant was found possessing one M-20 Pistol and 150 rounds of ammunitions and 2 magazines without any valid licence or permit. On this information investigation was started by the police and on completion of the investigation charge-sheet was submitted against him. At the trial the accused-appellant was charged under those sections of the Arms Act. The accused-appellant denied the allegations. In the trial 5 P.Ws. were examined and the accused was examined under Section 313. Cr. P. C. The learned Magistrate found the accused guilty and punished him as said above. Learned defence counsel in the trial Court preferred an appeal against the conviction and sentence and another appeal was filed through jail by the accused-appellant himself. The two appeals therefore have been taken and heard together and this judgment will cover both the appeals.
3. The prosecution case is that SI Saisiama attached to the 1st Battalion of MAP at Aizawl received an information on 13-1-82 at about 9 P.M. that in the house of P.W. 4 Aichhinga of Electric Veng, Aizawl one person was stavins with illegal arms and ammunitions in his possession. On this information which was communicated to the Assistant Commandant a party consisting of the S.I, and Commandant A. Agha and two constables as well as the driver of a vehicle rushed to the spot and conducted search in the house of P.W. 4 Aichhinga and found accused-appellant Rodingliana lying on the bed. On being challenged the accused-appellant identified himself as Rodingliana. a Lieutenant in the Mizo National Front.
On removal of the pillow which was being used by the accused-appellant, SI Saisiama found one M-20 Pistol loaded with one round in the chamber and 7 rounds in its magazine. Assistant Commandant A. Agha unloaded the pistol and found a magazine inside it. Close to the bed on which the accused-appellant was lying a green jacket was hung to a chair and in the pocket of that jacket one more magazine with 7 rounds of ammunition was also found. Then along with the arm and the ammunitions the party brought the accused-appellant to their battalion headquarters and after some interrogation took him to the Police Station which was at about 10 P.M. in the same night and both the accused-appellant and the arm and ammunitions were handed over to the Officer-in-charge of the Police Station. SI Saisiama also lodged a complaint (Ext. 1) to the Officer-in-Charge of the Police Station who seized the arm and the ammunitions vide seizure list Ext. 2. As said before, investigation was taken up and after investigation charge-sheet was submitted against the accused-appellant.
4. Mr. Nurmohammad learned Counsel appearing for the accused-appellant assailed the conviction and sentences on several grounds one of which is that no search warrant was issued and that in absence of a search warrant the entire search operation was illegal. Dr. Sharma. learned Standing Counsel for Mizoram pointed out that by virtue of the provisions of Section 3(d) of the Armed Forces (Assam and Manipur) Special Power Act, 1958 which has been in force in the Union Territory of Mizoram. the members of the armed forces are authorised to enter and search without warrant any premises for the purpose of arresting any person who in their opinion is acting in contravention of any law or order for the time being in force and/or to recover any arms, ammunitions or explosive substance believed to be unlawfully kept in such premises and also may for that purpose use such force as may be necessary.
There, is no dispute that those who conducted the search in the instant case belonged to the armed forces as defined under Section 2 of the aforesaid Act and also it is undisputed that the area in which the house of the search fell was a disturbed area. Dr. Sharma also referred to Section 23 of the Police Act which authorises every Police Officer to enter and inspect without warrant any drinking shop, gaming house or other place of resort of loose and disorderly characters It is therefore found that the search conducted by the members of the armed forces was not illegal or unauthorised.
5. The next point argued by Mr. Nurmohammad is that there was no valid sanction for prosecution in the present case. 'Section 39 of the Arms Act provides that no prosecution shall be instituted against any person in respect of any offence Under Section 3 without previoussanction of the District Magistrate. Section 3 of the Arms Act savs that no person shall acquire, have in his possession or carry any fire arms or ammunition unless he holds in this behalf a licence issuer] in accordance with the provisions of this Act and the Rules made thereunder etc. etc. In this case. Ext, 3 is the sanction issued bv the Addl. District Magistrate. Aizawl District. CW. 1 Miss Saiaguri proves this document. This witness was serving in the Deputy Commissioner's office Aizawl as P.A. to Addl. Deputy Commissioner. At the relevant time she was also acting as P.A. to A.D.C. Mr. Kakesh Bihari who accorded sanction to prosecute the accused-appellant. Mr. Rakesh Bihari was also having the power of Addl. District Magistrate. The witness is fully acquainted with the signature , of Rakesh Bihari and she identified the signature of the Addl. District Magistrate (Ext. 3-1).
Although there is no mention in the order Ext. 3 that the Addl. District Magistrate consulted the necessary documents/papers before issuing the order of sanction, there appears to be no reason to think that he did not apply his mind to the facts and circumstances of the case while giving the order of sanction. It was done in the usual course of official work and there is no reason to think otherwise than that he properly applied his mind and issued the order for prosecution.
6. Learned counsel for the accused-appellant submitted that all the witnesses to the search belonged to the armed forces and that there was no independent witness deposing to the search and finding of the arms and ammunitions in possession of the accused-appellant. He referred to the evidence of P.W. 4 Aichhinga who was present in the house while the search was being conducted but who does not say that these materials were found in possession of the accused-appellant. In this connection, the testimony of P.W. 4 should be looked into. He says that on 13-1-82 while ' he was staving in the house at about 10 P.M. some Police personnel came to his house and knocked at the door. His wife opened the door and found the Police personnel who informed that they wore looking out for one Bhanlal Faka. The witness informed that such a person was not living in the house. On knowing from the witness that a guest named Rodingliana was living in one of the rooms of the house, they entered that room and made Rodingliana get up from the bed. At this moment the witness was not inside the room in which Rodingliana was found.
After about 5 minutes of the entry of the Police personnel into that room the witness himself entered the room. As he entered the room he found accused Rodingliana standing in the room being properly dressed. The witness enquired from the Police personnel as to whether they were arresting him to which they replied that they were taking him for interrogation. Thereafter, they left the house along with accused Rodingliana. The witness was cross-examined by the prosecution and was confronted with his statement before the I.O. to the effect that Adjt. Agha of MAP and his party recovered, one M-20 pistol with its ammunitions and took him to the Police Station in the same night. P.W. 5 P. B. Chetri affirms in his deposition that P.W. Aichhinga stated to him that Adit. Agha of MAP and his party recovered one M-20 Pistol with its ammunitions and took him to the Police Station same night. On this statement of P.W. 5. he was not cross-examined by the defence.
7. The search operation was done between 9 and 10 P.M. In view of the then existing condition of the locality in which the search house was situated and also in consideration of the precaution with which the searching party advanced to the house it is quite justifiable that they avoided calling any public witness of the locality to be present during the search. On receipt of the secret information the party led by the Asstt. Commandant advanced towards the house of P.W. 4 and got down from their vehicle at a little ahead of the house. Thereafter they proceeded on foot. On reaching the house they cordoned it and then the Assistant Commandant SI Saisiama. L/MK Maihkima and Constable Vanlalawna entered the bedroom where the accused-appellant was lying.
There is no suggestion in the cross-examination of the members of the searching party that the prosecution or the witnesses who carried out the search produced to the I.O. the arm and the ammunitions from any other source and that these were not found in the possession of the accused and that this was done by the prosecution only to procure conviction of the accused-appellant. Even P.W. 4 does not say categorically that these materials were not recovered from the possession of the accused-appellant or in the manner as said by the P.Ws. P.W. 4 avoided saying anything on this. His simple version is that he did not enter that room for about 5 minutes and that he entered it only to see the accused-appellant prepared and properly dressed presumably to go out. There is no suggestion even that there was a collusion between P.Ws. 1. 2 & 3 on the one hand and the I.O. on the other to implicate the accused-appellant in a false charge. Before the Investigating Officer P.W. 4 stated that the pistol and the ammunitions were recovered from the possession of the accused-appellant. In view of what has been said above I find that there is no reason to disbelieve the prosecution case that the pistol and the ammunitions were recovered from the possession of the accused-appellant, The accused-appellant had no licence or permit to possess the firearm and the ammunitions.
8. The presence of the accused-appellant in the house of P.W. 4 and the search are not disputed. The P.Ws. corroborate each other and the totality of the prosecution case has been well proved. P.W. 3 A. Agha was a Commanding Officer and hence quite responsible. There is no reason to think that a false case was fabricated against the accused-appellant. There may be some minor discrepancies in the prosecution evidence but the substratum of the case remains unshattered. It was also faintly submitted by the learned Counsel for the accused-appellant that no ballistic test was held with reward to the pistol and ammunitions to prove their genuineness, effective use and any other condition. But this point was not raised in the Court below and in the circumstances of the case it has to be taken that the pistol and the ammunitions found in possession of the accused-appellant were capable of being effectively used. I therefore, find no reason to interfere with the finding and conviction under Section 25 of the Arms Act made by the learned trial Court. The learned trial Court convicted the accused-appellant both Under Section 25 and Under Section Police Act of the Arms Act.
While the prosecution has been able to prove its case Under Section 25(1)(a) of the Arms Act. there is no iota of evidence regarding the ingredients of the penal Section 27 of the Arms Act. Section 27 provides for punishment for possessing arms etc. with intent to use them for unlawful purpose. There is no evidence to show that the accused-appellant had the intent to use this pistol and the ammunitions for any unlawful purpose or to enable any other person to use the same for any unlawful purpose. It is one thing to possess the arms/ammunitions in contravention of Section 3 of the Act and quite a different thing to possess the same with intent to use the same for any unlawful purpose or to enable any other person to use the same for unlawful purpose. So it has been wrong on the part of the learned trial Court to convict the accused-appellant under Section 27 of the Arms Act as if as a corrollary to its order of conviction under Section 25(1)(a) of the Act. The conviction under Section 27 of the Act has to be set aside.
9. The result is that the appeal is partly allowed and partly dismissed. The conviction and sentence passed against the accused-appellant under Section 25(1)(a) of the Arms Act are upheld and those under Section 27 of the Arms Act are hereby set aside. Therefore the accused-appellant will have to undergo R. I. for 3 years only. He shall have the benefit of set off of detention period according to law.