Vinay Purushotam Bhange v. State of Maharashtra & Ors.

Heard.

ADMIT. Heard finally with the consent of learnedcounsel for the applicant, learned APP for non-applicantrkn 52apl1410.2024.odt2No.1/State.

The present application is preferred by the applicantfor quashing of the FIR in connection with Crime No. 349 of2018, for the offence punishable under Sections 3 and 25 ofthe Arms Act, 1959; Section 135 of the Bombay Police Act,1951; Section 84 of the Bombay Prohibition Act, 1998 and Sections 100(2) and 177 of the Motor Vehicles Act, 1988 andthe consequent proceedings in Regular Criminal Case No. 210of 2019, pending before the Judicial Magistrate First Class, Nagpur.

The FIR came to be registered on the basis of areport lodged by Police Naik- Gayaprasad Babulal Yadav, onan allegation that, when he was on patrolling duty along withother police officials at that time, he observed one Tata SafariCar bearing vehicle No. MH-40-AC-4450 and therefore, heintercepted the car. On his interception, one person from thecar has opened the door of the car, and they found that theyare under the influence of liquor. On personal search, onepistol and two cartridges were found in their possession. Atthe relevant time, one person fled away away from the spot.rkn 52apl1410.2024.odt3On the basis of said report, police have registered the caseagainst the present applicant.

During the course of investigation, the investigatingofficer recorded the statements of the witnesses, and itrevealed that the person who eloped from the spot is thepresent applicant, and therefore, present applicant alsoarraigned as an accused. On completion of the investigation, the chargesheet came to filed against the present applicant.

Heard learned counsel for the applicant, whosubmitted that, as far as the present applicant is concerned, neither the offence punishable under Section 3/25 of the Arms Act, Section 135 of Mumbai Police Act and Section 84 ofthe Maharashtra Prohibition Act are not made out. It isfurther submitted that the offences under Sections 100 and177 of Motor Vehicles Act are also not made out, as thepresent applicant is not the owner of the vehicle.

Learned counsel for the applicant pointed out thatthe said pistol in question was seized from the possession ofaccused No.1 - Rakesh Mohan Gade. The present applicantwas not found in possession of any pistol or any cartridge andrkn 52apl1410.2024.odt4he was subsequently arrested from his hotel. As far as theoffence punishable under Section 84 of the MaharashtraProhibition Act is concerned, which is also not made out asthe present applicant was not found drinking the liquor, at thecommon drinking house. There is no no such allegations alsoagainst the present applicant and therefore, Section 84 is alsonot made out against the present applicant. He submitted that Section 135 is also not made out against the presentapplicant, as it provides the punishment for contravention of Sections 37, 39, and 40 of the Maharashtra Prohibition Act, which are not applicable in the present case.

Thus, it is submitted that the present applicant hasbeen implicated merely on the suspicion. As far as theconstitution of the offences alleged are concerned, which arenot made out against him. None of the statements discloseshis involvement and therefore, the application deserves to beallowed.

Per contra, learned APP strongly opposed the saidcontentions and submitted that the statements of two policeconstables shows that he was present at the spot of incidence, rkn 52apl1410.2024.odt5and in view of that, application deserves to be rejected.

After hearing both the sides and on perusal of theentire investigation papers, it reveals that it is alleged by theprosecution that present applicant and the other co-accusedwere found in possession of one pistol and the live cartridges. However, admittedly, the said pistol was recovered from theco-accused Rakesh Gadekar, who was found at the spot.

Section 3 of the Arms Act deals with licence foracquisition and possession of firearms and ammunition whichreads as no person shall acquire, have in his possession, orcarry any firearm or ammunition unless he holds in thisbehalf a licence issued in accordance with the provisions ofthis Act and the rules made thereunder. The proviso to sub-section(1) says that a person may, without himself holding alicence, carry any firearm or ammunition in the presence, orunder the written authority, of the holder of the licence forrepair or for renewal of the licence or for use by such holder. He said to have committed an offence punishable under Section 3 of the Arms Act. 12. From this section it is clear that while for firearms inrkn 52apl1410.2024.odt6view of the provisions of section 3 of Arms Act, it is necessaryto hold a valid licence normally no licence is required topossess any arms other than the firearm unless there is aNotification published in the Official Gazette by the CentralGovernment for that purpose and made applicable to theparticular area specified in the notification. If such anotification is issued for a specified area no person mayacquire, posses or carry any such weapon, without necessarylicence. Before a charge under section 4 r/w section 25 (1B)of the Arms Act could be framed, it was necessary for theprosecution to allege that there was such a notification issuedby the Central Government made applicable to the particulararea in which the accused persons were found.

Section 25 of the Arms Act deals with thepunishment for contravention of Sections 3 and 5. Admittedly, the applicant was not found in possession of any arms andammunition, and there is no such allegations against him.

As far as the offence punishable under Section 84 ofthe Maharashtra Prohibition Act is concerned, which dealswith drinking at common drinking house. The entire recitalsrkn 52apl1410.2024.odt7of the FIR nowhere reveals that the present applicant wasfound drinking in common drinking house. Therefore, theapplication of Section 84 is also doubtful. Admittedly, Section135 is for the contravention of Sections 37, 39 and 40 of the Maharashtra Prohibition Act is not attracted. The entirerecitals of the FIR and the statements of the witnesses aresilent about the same. Thus, considering the role attributed tothe present applicant, which is only to the extent that heeloped from the spot when the vehicle was intercepted. Except that, no overt-act is attributed to him.

On considering the entire investigation papers, admittedly there is no material on record to show that eitherthe present applicant was found in possession of any arms orammunition or that he was found drinking in any commondrinking house. Thus, the essential ingredients of the offencewhich are required for constitution of the offence itself isabsent from the entire recitals of the FIR and the investigationpapers.

By applying the parameters laid down in the Hon’bleSupreme Court of India in the case of State of Haryana & Ors.rkn 52apl1410.2024.odt8Vs. Bhajan Lal & Ors. reported in AIR 1992 SC 604, whichreproduced as under :-(1) Where the allegations made in the first informationreport or the complaint, even if they are taken attheir face value and accepted in their entirety donot prima-facie constitute any offence or make outa case against the accused. (2) Where the allegations in the first information reportand other materials, if any, accompanying the FIRdo not disclose a cognizable offence, justifying aninvestigation by police officers under Section 156(1) of the Code except under an order of aMagistrate within the purview of Section 155(2) ofthe Code. (3) Where the uncontroverted allegations made in theFIR or complaint and the evidence collected insupport of the same do not disclose the commissionof any offence and make out a case against theaccused. (4) Where, the allegations in the FIR do not constitutea cognizable offence but constitute only a non-cognizable offence, no investigation is permitted bya police officer without an order of a Magistrate ascontemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaintrkn 52apl1410.2024.odt9are so absurd and inherently improbable on thebasis of which no prudent person can ever reach ajust conclusion that there is sufficient ground forproceeding against the accused. (6) Where there is an express legal bar engrafted in anyof the provisions of the Code or the Act concerned(under which a criminal proceeding is instituted) tothe institution and continuance of the proceedingsand/or where there is a specific provision in the Code or the Act concerned, providing efficaciousredress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attendedwith mala fide and/or where the proceeding ismaliciously instituted with an ulterior motive forwreaking vengeance on the accused and with aview to spite him due to private and personalgrudge.

Pending application(s), if any, stands disposed of. (URMILA JOSHI PHALKE , J. )rkn