Abbas v. State by Inspector of Police B.12, Ukkadam Police Station, Coimbatore

BAIL SLIPThe Appellant/Accused was directed to be released on bail in andby the Order of this Court dated 06.02.2003 made in Crl.M.P.No.1086of 2003 in Crl.A.No.1645 of 2002 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05.02.2010 Coram:THE HONOURABLE MS. JUSTICE R.MALA Criminal Appeal No.1645 of 2002 Abbas ..Appellantvs.State byInspector of PoliceB.12, Ukkadam Police Station,Coimbatore. (Crime No. 262 of 2001) ..RespondentPrayer: Criminal Appeal is filed under Section 374 of Cr. P.C.praying to set aside the conviction and sentence imposed in S.C. No.130 of 2002 on the file of II Additional Sessions Judge (Fast TrackCourt-II) Coimbatore. For Appellants : Mr. R. Sankarasubbu For Respondent : Mr. I. Paul Noble Devakumar Government Advocate (Crl.side) J U D G M E N T This Criminal Appeal has been arising out of the convictionand sentence passed by the Additional Sessions Judge, Coimbatore(Fast Track Court-II) on 09.07.2002 in S.C. No.130 of 2002 convictingthe accused under Section 379 I.P.C. and sentencing him to undergotwo years' rigorous imprisonment and convicting him under Section 25(1)(1A) of Arms Act and sentencing him five years' rigorousimprisonment and imposing fine of Rs.1000/- in default to undergo sixmonths' simple imprisonment. 2. The case of the prosecution is as follows: On 24.06.2001 at3.30 a.m., when P.W.1 and P.W.2 were in banthopasth duty, P.W.3 is a https://hcservices.ecourts.gov.in/hcservices/ driver in the jeep bearing No. T.N.38G0175, the material object hasbeen kept in the jeep which was given by P.W.7 has handed over thesame to the P.W.1 and P.W.2 for bandhopasth duty. Without knowledgeof P,W.3 Dinesh the accused has stolen the M.O.1 which was belongingto Police Department. Then, P.W.2 made an enquiry, he came to knowthat M. O.1 has been missing. Then, they gave a complaint Ex.P1 andthe same was received by P.W.9 Inspector of Police. After receipt ofcomplaint, he registered a case in Crime No. 262 of 2001 underSection 379 I.P.C. and prepared Ex.P6 F.I.R. Then, at 8.20 p.m.P.W.9 gone to the place of occurrence and prepared an observationmahazar Ex.P7 in the presence of Yahoob and Yousuf. Then, he preparedEx.P8 rough sketch and examined the witnesses and recorded theirstatement at 4 p.m. 3. On the same day at Ukkadam Bye-pass road in front of HolyFamily School Board, he arrested the accused. At that time, theaccused gave a confession and the same was recorded in the presenceof P.W.6 Kuppusamy and one Murugesan. In the confession statement, hehas admitted and handed over the hidden property. The admittedportion of the confession statement is marked as Ex.P2 prepared byP.W.9 in the presence of P.W.6 and Murugesan, the accused has gone toPrabasam Rubber Company in the open terrace and handed over M.O.1 gunwhich was seized under Ex.P3 mahazar at 5.15 p.m. Then, P.W.9 hasgone to police station. Since the accused has sustained injury onhis right leg, he was sent to hospital where P.W.8 Dr.Paramasivamtreated him and gave Ex.P5 Accident Register. Then, P.W.9 examinedthe witnesses. He further gave requisition to record the Section 164Cr.P.C. statement of the witnesses P.W.4 Sikkendar Batcha and P.W.5Fyrose. The requisitions are marked as Exs.P10 and P12 and P.W.9concluded his investigation and filed charge sheet against theaccused under Section 379 I.P.C. and Section 25(1)(1A) of Arms Act.4. The learned Additional Sessions Judge after framing necessarycharges against the accused, questioned the accused and he pleadednot guilty. He examined the witnesses P.W.1 to P.W.9 and Exs.P1 toP12 and M.O.1, posed the question under Section 313 Cr.P.C. based onthe incriminating evidence against this accused/appellant for whichhe denied the same. On considering the oral and documentaryevidence, he found the accused guilty of the offence under Sections379 I.P.C. and 25(1)(1A) of Arms Act and sentenced the accused asindicated above.5. Challenging the conviction and sentence passed by theSessions Court, the learned Counsel appearing for the appellant wouldsubmit that before prosecuting the accused under Section 25(1)(1A) ofArms Act, sanction has not been obtained as per Section 39 of ArmsAct, from District Magistrate/District Collector. So, the entireprosecution under Section 25(1)(1A) is non existent in the eye oflaw. It is the case of the prosecution is that he has stolen theproperty as he is not having any motive of using. Hence, the Trial https://hcservices.ecourts.gov.in/hcservices/ Court has committed an error in convicting the accused under Section25(1)(1A) of Arms Act. He further submits that the appellant is notguilty under Section 379 I.P.C. Even if he will be found guiltyunder Section 379 I.P.C., he prays for lesser punishment.6. The learned Government Advocate (Criminal Side) submits thatingredients of Section 379 I.P.C. were made out by way of examiningindependent witnesses P.W.4, P.W.5 and P.W.6 who is none other thanfriends of the accused. They have deposed that the accused has stolenthe M.O.1. Moreover, P.W.6 Kuppusamy, the attestor of the confessionhas proved the seizure of M.O.1 and arrest of the accused. So, theTrial Court came to the conclusion that the accused guilty underSection 379 I.P.C. But, he fairly considered the sanction has notbeen obtained for prosecuting the accused under Section 25(1)(1A) ofArms Act. He prayed for the conviction of the accused under Section376 to be confirmed. Therefore, he prayed for the dismissal of theappeal.7. While considering the arguments advanced by both the counselsand after perusing the entire documents, even though theaccused/appellant found guilty under Section 25(1)(1A) of Arms Act,but no sanction has been obtained under Section 39. In suchcircumstances, it is appropriate to incorporate Section 39 of theAct, which is as follows:-"Section-39: Previous sanction of the DistrictMagistrate necessary in certain cases: No prosecution shall be instituted against any personin respect of any offence under Section 3 without theprevious sanction of the District Magistrate."Section-3 which is as follows: "Section-3: Licence for acquisition and possession offirearms and ammunition:(1) No person shall acquire, have in his possession, orcarry any firearm or ammunition unless he holds in thisbehalf a licence issued in accordance with theprovisions of this Act and the rules made thereunder: Provided that a person may, without himselfholding a licence, carry any firearm or ammunition inthe presence, or under the written authority, of theholder of the licence for repair or for renewal of thelicence or for use by such holder.(2) Notwithstanding anything contained in Sub-section(1) no person, other than a person referred to in sub- https://hcservices.ecourts.gov.in/hcservices/ section(3), shall acquire, have in his possession orcarry, at any time, more than three firearms:Provided that a person who has in his possession morefirearms than three at the commencement of the Arms(Amendment Act), 1983, may retain with him any three ofsuch firearms and shall deposit, within ninety daysfrom such commencement the remaining firearms with theofficer in charge of the nearest police station or,subject to the conditions prescribed, for the purposesof sub-section (1) of Section 21, with a licenseddealer or, where such person is a member of the armedforces of the Union, in a unit armoury referred to inthat sub-section. (3) Nothing contained in sub-section (2) shall apply toany dealer in firearms or to any member of rifle clubor rifle association licensed or recognised by theCentral Government using a point 22 bore rifle or anair rifle for target practice. (4) The provisions of sub-sections (2) to (6) (bothinclusive) of section 21 shall apply in relation to anydeposit of firearms under the proviso to Sub-section(2) as they apply in relation to the deposit of any armammunition under Sub-Section (1) of that section. "Admittedly, M.O.1 gun was seized from this accused which was deposedby P.W.6 Kuppusamy attestor and Exs.P2 confession and P3 mahazar andthe same was corroborated by P.W.9. So, the accused was in possessionof M.O.1 gun is proved an offence under Section 3 of Arms Act. Ifany person prosecuted offence under Section 3 of Arms Act, sanctionis necessary from the District Magistrate/District Collector. Butadmittedly, no sanction has been obtained before prosecution. So,the entire prosecution case is vitiated in respect of offence underSection 25(1)(1A) of this Act. 8. So, the conviction and sentence passed against the accusedunder Section 25(1)(1A) is hereby liable to be set aside.9. Now, this Court has to decide, whether the Trial Court iscorrect in held that the appellant is guilty under Section 379 I.P.C.As per the evidence of P.Ws 1 to 3 and P.W.7, have clearly provedthat M.O.1 is belonging to the Police Department. P.W.7 has deposedbefore the Court that on the day of bandhopasth duty, M.O.1 washanded over to P.W.1, which was corroborated by the evidence of P.W.1and P.W.2. So, M.O.1 is belonging to the Police Department. As perthe evidence of P.W.6 and Exs. P2 and P3, M.O.1 has been seized onthe basis of the confession given by the accused and that has been https://hcservices.ecourts.gov.in/hcservices/ proved by the prosecution beyond reasonable doubt. So, I am of theopinion that M.O.1 has been seized from the accused. 10. At this juncture, the evidence of P.W.4 and P.W.5 who werethe friends of the accused is relevant. In their evidence, they havecategorically stated that accused has shown the M.O.1 and stated thathe has stolen M.O.1 from the jeep. In such circumstances, I had nohesitation to concur with the findings of the Trial Court that theaccused is guilty under Section 379 I.P.C. Hence, the Trial Courtwas correct in held that the accused is guilty of the offence underSection 379 I.P.C.11. The Trial Court has found the accused guilty under Section379 I.P.C. and sentencing him two years' rigorous imprisonment. Atthis juncture, the learned counsel appearing for the appellant wouldsubmit that he is in young age, hence, he prayed for reducing ofsentence. At this juncture, the learned Government Advocate (CriminalSide) would contend that he has bad antecedents, so many criminalcases against him. Nearly, 10 cases were against him under Section379 I.P.C. Hence, there is no leniency in sentence to be shown tohim. Considering the arguments of both the counsels, since appellantwas involved in 10 more criminal cases of the offence under Section379 I.P.C., I do not find any force in the arguments advanced by theappellant counsel. Hence, I am forced to concur with the sentenceawarded by the Trial Court. Hence, sentencing the accused to undergotwo years' rigorous imprisonment is hereby confirmed. 12. In fine,*The criminal appeal is partly allowed.*The conviction and sentence under Section 25(1)(1A) of Arms Actare hereby set aside. Fine amount if any paid by the appellant isordered to be refunded. *The conviction and sentence under Section 379 I.P.C. are herebyconfirmed. * The Trial Court is directed to take steps to secure the custodyof the appellant/accused to undergo the remaining period of sentenceif any.*The period of sentence already undergone by theappellant/accused is ordered to be set off under Section 428 Cr.P.C.Sd/Asst.Registrar/true copy/msr/kj Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional Sessions Judge, Fast Track Court No.II Coimbatore.2. The Inspector of Police B.12, Ukkadam Police Station, Coimbatore. 3. The Superintendent, Central Prison, Coimbatore.4. The Public Prosecutor, High Court, Madras. Crl.A.No.1645 of 2002KA (CO)GSK 25.02.2010.