The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.350 of 2011 (In the matter of an application under Section 401 of the Criminal Procedure Code, 1973) Trinath Majhi ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. Tirtha Kumar Sahu (Amicus Curiae) For the Opp. Party : Mr. B.K. Ragada, Addl. Government Advocate CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 27.06.2024 : Date of Judgment: 30.07.2024 S.S. Mishra, J. The present Criminal Revision filed under Section 401 of Cr.P.C. is directed against the judgment and order dated 10.03.2011 passed by the learned Additional Sessions Judge, Boudh in C.R.A. No.27 of 2010, whereby the order of conviction and sentence dated 04.12.2010 passed by the learned Chief Judicial Magistrate, Boudh in G.R. Case No.296 of 2003/T.R. No.194 of 2009 has been confirmed. 2. The prosecution case is that as per the direction of the A.D.M., Boudh, the O.I.C., Baunsuni Police Station searched the house of the accused and recovered one S.B.B.L. Gun bearing No.10598-78 and one ammunition on 21.11.2003 at about 9 A.M. from his house at village Usumilika (Buramunda) on the ground that the accused did not renew his gun license which was valid till 31.12.2001. Since the accused was having unauthorized possession of the S.B.B.L. Gun, the O.I.C., Baunsuni Police Station seized the gun and one ammunition along with the gun license and prepared separate seizure list in presence of the witnesses. Then the O.I.C. drew up the plain paper F.I.R. on the spot and registered Baunsuni P.S. Case No.53, dated 21.11.2003 under Section 25(1-B) (h) of the Arms Act, 1959 and directed the A.S.I. of Police, C. Mallick to take up the investigation. Page 2 of 9 3. During the investigation, the I.O. arrested the accused person and forwarded him to the Court and after obtaining the Sanction Order, the charge sheet was submitted against the petitioner. 4. To bring home the charges, the prosecution had examined as many as 6 witnesses and 5 documents were exhibited. The defence examined 2 witnesses. 5. The learned trial Court analyzed the entire evidence on record and convicted the petitioner of the offences he was charged with, accordingly, sentenced the petitioner to undergo S.I. for one year and to pay fine of Rs.500/- (Rupees five hundred) in default, to undergo S.I. for one month. 6. The judgment of conviction and order of sentence dated 04.12.2010 passed by the learned Chief Judicial Magistrate, Boudh in G.R. Case No.296 of 2003/T.R. No.194 of 2009 was called in question by filing C.R.A. No.27 of 2010 before the Court of the learned Addl. Sessions Judge, Boudh, by the petitioner. 7. The petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. Page 3 of 9 8. Heard Mr. Tirtha Kumar Sahu, learned Amicus Curiae appearing for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 9. Perused the impugned judgment and order of conviction and sentence passed against the petitioner and meticulously evaluated the evidence on record. 10. In the instant case, the petitioner was charged for the offences punishable under Sections-25 (1-B) (h) of the Arms Act for having possessed S.B.B.L. gun without valid license. 11. It is the admitted case on record that the petitioner has failed to renew the license of the gun, which was valid up till 31.12.2001. On the direction of the A.D.M., Boudh, the O.I.C., Baunsuni Police Station searched the house of the petitioner. The S.B.B.L. gun bearing No.10598-78 and one ammunition was recovered on 21.11.2023 at about 9 A.M. from the house of the petitioner. There is no explanation coming forth from the petitioner regarding the illegal possession of the arm except stating that he had applied for renewal of the licence. However, nothing was placed on record to substantiate the fact that the petitioner Page 4 of 9 had applied for renewal of the licence. On the contrary, the record speaks something else. The learned Magistrate, while dealing with the defence of the petitioner has recorded as under: “10. The learned counsel for the defence submits that the sanction order obtained from the District Magistrate, Boudh is not marked exhibit in this case which is wrong. The sanction order is marked Ext.4. It is further submitted that as the I.O. has not seized the personal file of the accused maintained in the office of the A.D.M., Boudh to ascertain the submission of treasury challan in view of renewal of the license, the prosecution case should not be relied on. It is a peculiar submission made by the learned counsel for the defence as if treasury challan submitted before the A.D.M., Boudh is to be proved by the prosecution. If he has deposited treasury challan for the purpose of license, it is the duty of the defence to establish regarding the missing of gun license and the money receipt. If he had deposited the treasury challan or money receipt, if any, he could have proved the same. However, the submission of the learned counsel for the defence does not hold good by taking the plea that the documents were missing from the office of the A.D.M., Boudh. The evidence of D.W.1 and 2 are so confusing that the plea taken by the defence is not established.” Therefore, the learned trial Court has rightly concluded that the petitioner is found guilty of the offence punishable under Section 25 (1- B) (h) of the Arms Act and sentenced him to undergo S.I. for one year and to pay fine of Rs.500/- (Rupees five hundred) in default, to further undergo one month S.I. for the aforementioned offence. Page 5 of 9 12. Feeling aggrieved and dissatisfied with the judgment of the Court below, the petitioner filed C.R.A. No.27 of 2010 before the Court of the learned Addl. Sessions Judge, Boudh. The Appellate Court vide its judgment dated 10.03.2011 has declined the appeal and confirmed the judgment of conviction and the order of sentence passed against the petitioner. The Appellate Court, inter alia, recorded the following finding: “07. Having regard to the aforesaid contention and counter contention of the counsels for the parties I succinctly scrutinized the L.C.R. in G.R. No.296/2003 containing the evidence of the witnesses, the documents exhibited as well as the statements of the accused persons and the Judgment of the learned Lower Court. On perusal of the evidence of the parties and the Judgment of the learned lower court, it is found that the independent witnesses P.Ws. 1, 2, 3 & 4 have not supported the alleged prosecution story of the recovery and seizure of a Gun or Ammunition from the house of the convict appellant as alleged by the prosecution. But it is to be mentioned here that there is no denial on behalf of the appellant that he was having no gun rather Ext.5 which is the gun license standing in the name of the appellant visa-vis the seizure list marked Ext.1/2 and 2/1 indicates that the convict appellant was having with the possession of the seized gun of that case and moreover regarding Ext.5 there is no denial on behalf of the appellant. So the finding of the learned Lower Court regarding the recovery and seizure of the alleged Gun and Ammunition from the house of the convict appellant accepting the evidence of the I.O. as well as the seizure officer i.e. P.W. 6 & 5 is justified. Now the next question is that whether the convict appellant had possessed the said seized gun and ammunition without Page 6 of 9 having any license. On that score the learned lower court at para-8 and 11 of his Judgment has given his reasonable finding over the issue considering the evidence of P.W.5 & 6 and the defense witnesses such as D.W. 1 & 2. Rightly he has observed that when a Gun license holder is in possession of a gun by virtue of a license he is duty bound to renew his license at the stipulated period and in case of any inconvenience he is to substantiate it properly. But in the aforementioned G.R. Case after the proof of the seizure when the onus shifts to the defence it is found that the defence plea is not been well substantiated and the testimony of D.W. 1 & 2 on that score are quite confusing. So in these situation I find that the findings and conclusion in the Judgment and order of conviction passed by the learned lower court against the convict appellant who has failed to substantiate his inability to renew the gun license is liable u/s. 25(1-B) (h) of Arms Act is well justified and needs no interference. Hence, it is ordered.” 13. Taking into consideration the evidence on record and the admitted facts illuminating from the evidence recorded by the prosecution, no fault could be found from the finding recorded by the learned Courts below. Therefore, the Criminal Revision Petition in so far as the conviction is concerned is dismissed. 14. At this stage, Mr. Tirtha Kumar Sahu, learned Amicus Curiae appearing for the petitioner submits that the petitioner could be given the benefit of Probation of Offenders Act. He relies upon the judgment in the case of Pida Singh vs. The State of Rajasthan, reported in 1992 0 Page 7 of 9 Supreme (Raj) 615. He has placed emphasis on paragraphs-8, 9 & 10 which are reproduced hereunder: “8. The Arms Act, 1959 does not exclude the application of provisions of section 360 Cr. PC as well as those of the Probation of Offenders Act, 1959. In such circumstances mere prescribing the minimum sentence does not create any bar for giving the benefit of section 360 Cr. PC or of the provisions of the Probation of Offenders Act to the accused in an appropriate case. In Ram Pratap v. The State of Raj., 1989 Cr. LR (Raj.)- 9. 139, the accused was found guilty for the offence under section 25(I)(a) of the Indian Arms Act and sentenced to 6 months’ rigorous imprisonment and a fine of Rs.300/-. The accused was not a previous convict. He had also been under detention for 12 days. This Court after considering those circumstances, granted the benefit of probation to the accused. Similarly in Mishri Lal v. State, 1989 RCC 169, the 10. accused was convicted for offence under section 3 read with 25 of the Indian Arms Act and was sentenced to 6 months’ rigorous imprisonment and a fine of Rs.100/-. He was granted the benefit of provisions of section 360 Cr. PC.” Mr. Sahu, learned Amicus Curiae has also relied on the judgment of the Allahabad High Court, Lucknow Bench in the case of Abhay Verma vs. State of U.P. passed in Criminal Appeal No.1308 of 2012. 15. Taking into consideration the aforementioned judgments and the facts of the present case, I am inclined to accede to the oral prayer made by Mr. Sahu, learned Amicus Curiae. Page 8 of 9 16. Accordingly, the conviction of the petitioner under Section 25 (1- B) (h) of the Arms Act is maintained. However, the petitioner is granted the benefit of the Probation of Offenders Act on his furnishing a personal bond in the sum of Rs.10,000/- (Rupees ten thousand) with one sound and solvent surety for the like amount to the satisfaction of the learned trial Court, to keep peace and be of good behaviour for a period of one year and to appear and receive the sentence as and when required by the Court. 17. This Court acknowledges the effective assistance rendered by Mr. T.K. Sahu, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,000/- (Rupees seven thousand) to be paid by the State as a token of appreciation.
Decision
18. The Criminal Revision petition is accordingly disposed of. …………………. (S.S. Mishra) Judge High Court of Orissa, Cuttack The 30th July, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 29-Aug-2024 18:41:27 Page 9 of 9