Arms Act [X1 of 1878)
Sections 16 & 18-Appellant was neither given any notice of enquiry nor was he given any hearing before cancellation of arms-Enquiry undertaken on a sprawling private complaint made by the local upazila Chairman-No emergency or any other compelling situation preventing giving of notice of enquiry to the appellant-Nothing on record to show that any specific case was started against the appellant involving alleged misuse of revolver- Inquisitorial nature of enquiry aggravating the degree of unfairness-Principles of natural justice to be observed in proceedings affecting "the person or property or other right of parties concerned Court adds a rider to the observance of the principle of natural justice that so far as exercise of power under section 18 of the Arms Act is concerned, the absence of a prior notice or hearing may not always invalidate the order passed thereunder if the security of the public peace is involved. Sk Ali Ahmed vs Secretary, Home Affairs 40 DLR (AD) 170.
Section 18- Cancellation and suspension of licence for arms The necessity of recording reasons by the appropriate authority in writing for the cancellation of the licence to be emphasised as a general rule-If the appropriate authority chooses not to make its order a speaking one and merely relies on the materials on record, its order stands a greater risk of being struck down. Sk Ali Ahmed vs Secretary Home Affairs 40 DLR (AD) 170.
Sections 19A and 19(f)
All the witnesses in a chorus corroborated the prosecution case that the arms were recovered as per showing of the two confessing accused and the confessional statements corroborated other materials on record. And such the submission for the petitioners that the arms and ammunition in question were not recovered from the direct possession of the assused person and the confessional statements of two accused perons are exclupatory in consideration. Kazi Kamrul and others-Vs.-The State. 4 ALR (AD) 2014 (2) 125
Section 19(a) & (f)- The arms in question have not been recovered from possession of the appellants and admittedly, they were not present at the place of occurrence The arms and ammuni- tion were recovered from the possession of the arrested accused persons and they disclosed the names of their other companions who are the appellants-The appellants cannot be held to be in possession of any arms. Pannu Mollah & anr vs State 56 DLR (AD) 142.
Section 19(a) & 19(1)- There may not be separate arms and ammunition in the possession of the two accused petitioners but when all of them were jointly together and the police party was receiving revolver shots and cocktails it cannot be said that the revolver and the cartridges recovered from Mokim Gazi were only in his exclusive possession. The law will ascribe joint possession in such circumstances. Lutfar Rahman vs State 51 DLR (AD) 120.
Sections 19(a) & 19(f)-Having regard to the submissions made by the learned Advocate as well as the manner of arrest of the convict- petitioner after chasing them following the encounter in the face of firing by the convicts towards the police force and the recovery of the arms and ammunitions from their possession, we are of the view that discrepancies pointed out by the learned Advocate cannot disprove charges levelled against the convict-petitioner. The convict-petitioner and others were caught red handed. The High Court Division considered the materials and evidence on record and on detailed discussion has correctly arrived at its decision dismissing the appeal. Jahedul Islam vs State 62 DLR (AD) 270.
Section 19A and 19(f)-Arms and ammunitions were recovered as per admission and also at the showing of accused-petitioner from a place which is very near to his dwelling house. The accused-petitioner did not give any explanation as to his knowledge about these concealed arms and ammunitions or as to how these arms and ammunitions came there. The Courts below rightly held that these arms and ammunitions were recovered from the possession of 4 accused-petitioner. Nasir Uddin vs State. 64 DLR (AD) 1
Section 19A-Prosecution under section 211 would have to be initiated upon a complaint in writing by the Presiding Officer of the Court under section 195(1)(b) of the Code and then forwarded to a Magistrate of the first class having jurisdiction as provided by section 476 of the Code.
The Appellate Division held that an essential component of section 195(1)(b) read with section 476(1) is that the offences mentioned in section 195(1)(b), which includes section 211 of the Penal Code, must have been committed in or in relation to a proceeding in that Court. And in that event prosecution under section 211 would have to be initiated upon a complaint in writing by the Presiding Officer of the Court under section 195(1)(b) of the Code and then forwarded to a Magistrate of the first class having jurisdiction as provided by section 476 of the Code. The earlier view of the High Court Division as appears from the decision in the case of Haji Abdus Samad & ors Vs. Haji Jobed Ali alias Haji Abdul Jabbar, 28 DLR 58 was that when in any case the police files final report against the accused named in the FIR there is no proceeding existing they had been discharged, and the naraji petition was rejected. That decision was followed by the High Court Division in a later decision in the case of Abdul Quader -Vs.- Serajuddowla and others, 8 BLD (HCD) 517. However, on appeal before this Divi- sion Serajuddowla Vs. Abdul Kader and another, (reported in 13 BLD (AD) 94) his Lordship ATM Afzal, J. as his Lordship was then, by reference to the case of Abdur Rahman Vs. State reported in 29 DLR (SC) 256, observed that "when a Magi- strate on the basis of a final report sub- mitted by the police discharges an accused his order amounts to a judicial order under the scheme of the Code and not merely administrative order." Their Lordships held in the Serajuddowla case that a Magistrate acts in his judicial capacity while discharging an accused on the basis of a final report submitted by the police and that the offence under section 211 of the Penal Code was allegedly committed by the appellant of that case in relation to a proceeding in Court and as such the bar under section 195(1)(b)of the Code is attracted, and, therefore, a complaint by the Presiding Officer of the Court is necessary. Md. Solim Ullah Vs. The State, and others (Criminal) 15 ALR (AD) 100-105
Section 19A-The case cannot be said to be one of no evidence, especially in view of the recovery of the arms consequent upon confession made by the accused-petitioner and which he himself brought out of his straw store located within his homestead. This is supported by the seizure list.
The Appellate Division is of the view that the case cannot be said to be one of no evidence, especially in view of the recovery of the arms consequent upon con- fession made by the accused-petitioner and which he himself brought out of his straw store located within his homestead. This is supported by the seizure list. In the facts and circumstances discussed above, the Appellate Division does not find any illegality in the conviction of the accused- petitioner. However, the Appellate Division is of the view that the ends of jus- tice would be sufficiently met if the sentence of the convict-petitioner imposed for the offence under section 19A of the Arms Act is reduced to rigorous imprison- ment for 10 (ten) years. Both the sentences shall run concurrently. Any period that the convict-petitioner suffered in custody during the course of the trial shall be deducted from the period of his sentence. With the above observations and directions the criminal petition for leave to appeal is dismissed. Abdur Rab Munshi Vs. The State (Criminal) 15 ALR (AD) 127-129
Section 19A r/w
Whether on the admitted facts the High Court Division is justified in maintaining the appellant’s conviction under section 19A of the Arms Act– The Appellate Division held that whatever allegations made in the FIR and the statements made by P.Ws.1-4 are the result of the investigation and therefore, those statements are hit by section 162 of the Code. The appellant was not an accused on 13.12.2004 and the recovery of fire arm as per his statement is a doubtful story to believe on. After recovery of the fire arm, the police officer in course of investigation found that the appellant planted the fire arm in the hayrick of Abdul Hoque. This statement is not admissible under section 27 of the Evidence Act. The High Court Division has totally misconstrued section 27 of the Evidence Act and illegally held that the recovery of the fire arm was on the basis of the statement made by the appellant with a sketch map ‘pointing to an arm which is sufficient to have a knowledge, possession and control by himself and nobody else, even not Abdul Hoque’. This conclusion arrived at is based on misconception of law. There is no legal evidence to prove the recovery of he firearm from the exclusive control or knowledge of the appellant. .....Md. Tofajjal Hussain =VS= The State, [1 LM (AD) 483]
Section 19A-In view of the recovery of the arms consequent upon confession made by the accused-petitioner and which he himself brought out of his straw store located within his homes- tead. This is supported by the seizure list and as such it is the view of the appellate Division that the case cannot be said to be no evidence.
The Appellate Division has considered the submissions of the learned Advocate for the petitioner, perused the impugned judgement and other connected papers on record. The grounds taken and submissions made by the learned Advocate for the petitioner may have been urged in an appeal. Contradictions in evidence may well be argued in an appeal, but cannot support a submission that it is case of no evidence. Having considered the evidence and materials on record, the Appellate Division is of the view that the case cannot be said to be one of no evidence, especially in view of the recovery of the arms consequent upon confession made by the accused-petitioner and which he himself brought out of his straw store located within his homestead. This is supported by the seizure list. In the facts and cir- cumstances discussed above, the Appellate Division does not find any illegality in the conviction of the accused-petitioner. However, the Appellate Division is of the view that the ends of justice would be sufficiently met if the sentence of the convict-petitioner imposed for the offence under section 19A of the Arms Act is reduced to rigorous imprisonment for 10 (ten) years. Both the sentences shall run concurrently. Any period that the convict- petitioner suffered in custody during the course of the trial shall be deducted from the period of his sentence. With the above observations and directions the criminal petition for leave to appeal is dismissed. Abdur Rab Munshi -Vs. The State (Criminal) 18 ALR (AD) 86-88
Section 19A read with Evidence Act [I of 1872]
Section 27-Whether on the admit- ted facts is justified in maintaining the appellant's conviction under section 19A of the Arms Act.
The Appellate Division held that what- ever allegations made in the FIR and the statements made by P.Ws.1-4 are the result of the investigation and therefore, those statements are hit by section 162 of the Code. The appellant was not an accused on 13.12.2004 and the recovery of fire arm as per his statement is a doubtful story to be- lieve on. After recovery of the fire arm, the police officer in course of investigation found that the appellant planted the fire arm in the hayrick of Abdul Hoque. This statement is not admissible under section 27 of the Evidence Act. The High Court Division has totally misconstrued section 27 of the Evidence Act and illegally held that the recovery of the fire arm was on the basis of the statement made by the appel- lant with a sketch map 'pointing to an arm which is sufficient to have a knowledge, possession and control by himself and no- body else, even not Abdul Hoque'. This conclusion arrived at is based on miscon- ception of law. There is no legal evidence to prove the recovery of he firearm from the exclusive control or knowledge of the appellant. Md. Tofajjal Hussain @ Tofajjal Hus- sain -Vs. The State (Criminal) 8 ALR (AD) 81-86
Section 19A
The Explosive Substances Act, 1908
Sections 4/6 r/w
The Arms Act, 1878
Section 19A
Pending any prohibitory order from the Apex Court–– The court has knowledge of the order it is bound to obey it and if it does not, it not only acts illegally, and all proceedings taken after the knowledge of the order but also all proceedings taken even without knowledge too would be a nullity in toto. ––The order of the High Court Division for dismissing the criminal appeal no. 7403 of 2021 allowing the petition for non-prosecution on 27.06.2022 is set aside and the Criminal Appeal no.7403 of 2021 is hereby restored to its original file and number and in the category of Rule hearing. The order of stay granted by this Division to be continued till disposal of the Rule. ––The High Court Division is further directed to dispose of the Rule on merit. The copy of this judgment be communicated to the Judges of the criminal Benches of the High Court Division at once for further reference and steps. .....The State =VS= Omit Hasan @ Azmir, (Criminal), 2022(2) [13 LM (AD) 588]
Section 19A
The Arms Act, 1878
Section 19A r/w
Evidence Act [I of 1872]
Section 27
Whether on the admitted facts the High Court Division is justified in maintaining the appellant’s conviction under section 19A of the Arms Act–
The Appellate Division held that whatever allegations made in the FIR and the statements made by P.Ws.1-4 are the result of the investigation and therefore, those statements are hit by section 162 of the Code. The appellant was not an accused on 13.12.2004 and the recovery of fire arm as per his statement is a doubtful story to believe on. After recovery of the fire arm, the police officer in course of investigation found that the appellant planted the fire arm in the hayrick of Abdul Hoque. This statement is not admissible under section 27 of the Evidence Act. The High Court Division has totally misconstrued section 27 of the Evidence Act and illegally held that the recovery of the fire arm was on the basis of the statement made by the appellant with a sketch map ‘pointing to an arm which is sufficient to have a knowledge, possession and control by himself and nobody else, even not Abdul Hoque’. This conclusion arrived at is based on misconception of law. There is no legal evidence to prove the recovery of he firearm from the exclusive control or knowledge of the appellant. .....Md. Tofajjal Hussain =VS= The State, (Criminal), 2016-[1 LM (AD) 483]
Section 19(f)
Seizure list witnesses were not examined as such alleged recovery of seized ammunitions from the possession of the accused-appellant not proved–
The Appellate Division observed that the High Court Division pointed out that the person-who prepared the seizure list was not examined before the court although he was cited as a witness in the charge sheet and that both the seizure list witnesses were declared hostile. the place wherefrom the seized ammunitions were allegedly recovered was a shop in public place located besides the road and was accessible to the public at large and that in that situation it could not be said that the accused-appellants had exclusive control and possession over the place of occurrence. The High Court Division commented also that in that circumstances the possibility of false implication by business rival, as has been suggested by the learned Counsel for the accused-appellants, could not be brushed aside. .....The State =VS= Asif Khan Riyad & another, (Criminal), 2016-[1 LM (AD) 534]
Sections 19A/19(f)
Recovery of the arms consequent upon confession made by the accused-petitioner and which he himself brought out of his straw store located within his homestead–
After consideration of the evidence and materials on record the Special Tribunal No.1, Narail by its judgement and order dated 14.06.2011 convicted the accused under sections 19(f)/19A of the Arms Act sentencing him to suffer rigorous imprisonment for life for the offence under section 19A and 7(seven) years for the offence under section 19(f) of the Arms Act.
No appeal was preferred against the judgement and order of the trial Court. However, being aggrieved by and dissatisfied with the judgement and order of conviction and sentence dated 14.06.2011, the convict-petitioner preferred Criminal Miscellaneous Case No.6610 of 2012 under section 561A of the Code of Criminal Procedure and obtained Rule, which upon hearing was discharged.
We are of the view that the ends of justice would be sufficiently met if the sentence of the convict-petitioner imposed for the offence under section 19A of the Arms Act is reduced to rigorous imprisonment for 10(ten) years. Both the sentences shall run concurrently. Any period that the convict-petitioner suffered in custody during the course of the trial shall be deducted from the period of his sentence. ...Abdur Rab Munshi =VS= The State, (Criminal), 2019 (1) [6 LM (AD) 95]
Sections 19(f) and 19A read with Special Powers Act [XIV of 1974]
Section 25D-Whenever two or more persons commit any schedule of- fence with firearms, explosive substances or the offences of smuggling, adultera- tion, counterfeiting currency-notes and government stamps etc., all persons in- volved in such offences may be tried for violation of law even if the contraband article is recovered from the possession of one person.
The Appellate Division held that if two persons conjointly commit an offence of robbery with arms, both of them will be liable to conviction for robbery and posses- sion of arms. If an arm is recovered from the possession of one accused, the other ac- cused can be convicted for abetment of the offence of possession of firearm if it is proved that both of them committed the offence with arms or found in the company with illegal firearm or preparing to commit an offence with such firearm. The State -Vs. Md. Ali Reza (Criminal) 13 ALR (AD) 65-68
Section 19(f) - Seizure list witnesses were not examined as such alleged re- covery of seized ammunitions from the possession of the accused-appellant not proved.
The Appellate Division observed that the High Court Division pointed out that the person-who prepared the seizure list was not examined before the court although he was cited as a witness in the charge sheet and that both the seizure list witnesses were declared hostile. the place wherefrom the seized ammunitions were allegedly recov- ered was a shop in public place located be- sides the road and was accessible to the public at large and that in that situation it could not be said that the accused-appel- lants had exclusive control and possession over the place of occurrence. The High Court Division commented also that in that circumstances the possibility of false im- plication by business rival, as has been suggested by the learned Counsel for the accused-appellants, could not be brushed aside.
আপীল বিভাগের সিদ্ধান্ত এই যে, হাইকোর্ট বিভাগ উল্লেখ করেছেন যে, যে ব্যক্তিটি জব্দ তালিকা তৈরি করে ছিলেন তাকে আদালতে পরীক্ষা করা হয়নি যদিও তাকে চার্জশীটে একজন স্বাক্ষি দেখানো হয়েছে এবং জব্দ তালিকার দু'জন স্বাক্ষিই বৈরী ঘোষিত হয়েছেন। যেখান থেকে জব্দকৃত গোলাবারুদ সমূহ উদ্ধার করা হয়েছিল বলে দেখান হয়েছে, সেটি লোকালয়ে অবস্থিত একটি দোকান ঘর, রাস্তার ধারে অবস্থিত এবং সেখানে জনসাধারণের যাতায়াত আছে এবং তাই, একথা বলা যায় না যে, ঘটনাস্থলের ওপর আপীলকারী আসামীদের ঐ জায়গায় পুরো দখল ও নিয়ন্ত্রণ ছিল। হাইকোর্ট বিভাগ আরও উল্লেখ করেন যে, এমতাবস্থায় ব্যবসায়িক প্রতিদ্বন্দ্বি দ্বারা মিথ্যাভাবে আপীলকারীকে এই মামলায় জরানো হয়েছে মর্মে তাদের বিজ্ঞ আইনজীবী যে, আবেদন পেশ করেছেন তা একেবারে উড়িয়ে দেয়া যায় না। The State Vs. Asif Khan Riyad and another (Criminal) 7 ALR (AD) 8
Section 26
Section 26 of the Arms Act does not empower the Deputy Commissioner to issue such an order for seizure of arms. Only the Government is empowered to seize arms of any person and to detain the same for such time as it thinks necessary for the public safety. Golam Ambia Vs. Deputy Commissioner & Ors 12 BLT (AD)-63
