Judgment:
HIGH COURT OF MADHYA PRADESH AT JABALPUR SINGLE BENCH PRESENT : HON'BLE SHRI JUSTICE N. K. GUPTA CRIMINAL REVISION NO.346/2009 Raju Vs. State of M.P. ................................................................................................. Shri Vishal Dhagat, counsel for the applicant. Shri S. K. Kashyap, Public Prosecutor for the State/respondent. .................................................................................................... ORDER
(Delivered on the 6th day of March, 2013) The applicant was convicted for offence punishable under Section 25(1-B)(a) of the Arms Act vide judgment dated 10.7.2008 passed by the JMFC, Damoh in Criminal Case No.1756 of 2008 and sentenced for three years rigorous imprisonment with fine of Rs.1000/-. In Criminal Appeal No.90 of 2007 the learned Sessions Judge, Damoh vide judgment dated 2.1.2009 confirmed the conviction as well as the sentence directed by the trial Court. Being aggrieved with aforesaid judgments, the applicant has preferred the present revision.
2. The prosecution's case in short is that, on 14.4.2004 ASI, R. K. Choubey (PW6) who was posted at outpost Narsinghgarh of the Police Station Damoh Dehat, had received an intimation that the applicant having a hand made 2 Criminal Revision No346/2009 pistol with him, threatening the public in general to recover some amount and therefore, Shri Choubey went to the spot which was the bus stand of the township of Narsinghgarh along with Police Force including the Constable Narayan Singh (PW3), Ram Shankar Mishra (PW5). Shri Choubey found the applicant at the bus stand holding a country made pistol in his hand and therefore, he called two witnesses Raju Vyas (PW1) and Vinot Kumar (PW2) from the public and seized a firearm along with one live cartridge. By the seizure memo Ex.P/1 the applicant was arrested and a case was registered at outpost Narsinghgarh thereafter, re-registered at Police Station Damoh Dehat. The firearm as well as cartridge was sent for their examination to the Armour. Virendra Singh (PW4), Constable Armour, examined the weapon and gave his report Ex.P/5. According to him the country made pistol was in a working condition and the cartridge was live. After getting a prosecution sanction from the District Magistrate a charge sheet was filed before the competent Court.
3. The applicant abjured his guilt. He has stated that he was falsely implicated in the matter but, no defence evidence was adduced.
4. The learned JMFC, Damoh vide judgment dated 7.8.2007 convicted the applicant for aforesaid offence and sentenced as mentioned above but in Criminal Appeal no.90 of 2007 the appellate Court remanded the matter and therefore, 3 Criminal Revision No346/2009 the learned JMFC, Damoh vide judgment dated 10.7.2008 convicted and sentenced the applicant as mentioned above whereas the appeal thereafter, filed by the applicant was also dismissed.
5. I have heard learned counsel for the parties.
6. Learned counsel for the applicant has submitted that the independent witnesses Raju Vyas and Vinot Kumar were turned hostile and the evidence of Shri Choubey is not at all corroborated but Police Official Ramshankar Mishra who, was sent to the outpost Narsinghgarh because of a special duty due to festival has corroborated the evidence given by Shri Choubey and there is nothing negative obtained in his statement by which it can be said that he was otherwise impressed by ASI, Shri Choubey. Under such circumstances, by corroboration of the Constable Narayan Singh and Ram Shankar Mishra the testimony of ASI Choubey appears to be believable and it is proved beyond doubt that the applicant had a katta of 12 bore along with a cartridge of same bore.
7. The learned counsel for the applicant has challenged that after the seizure, katta and cartridge were not sealed properly. Shri R. K. Choubey has accepted that at the time of seizure, he did not have any sealing material and therefore, such things could not be sealed at the spot but those were sealed at the Police Station. However, those articles were sent to the Reserve Inspector, Police Lines, Damoh within 2-3 days and a report received from the 4 Criminal Revision No346/2009 Constable Armour within three days and therefore, non- sealing of the articles at the spot appears to be not fatal in the present case. Description of the articles given by the Constable Armour is same as it is mentioned in the seizure memo and therefore, it appears that the Constable Armour examined the same fire arm which was recovered from the applicant.
8. The learned counsel for the applicant has also challenged the sanction order Ex.P/7. It is challenged on the ground that below the name of the District Magistrate his official seal was not affixed whereas a round seal of Additional District Magistrate was affixed on that order. It is a clerical mistake that the round seal of the Additional District Magistrate was affixed on the order but, by such a mistake the value of order does not diminish. Gopal Patel (PW9) the then Arms Clerk has proved the signature of the District Magistrate on the order. Though the Ex.P/7 is the copy of the order sent to the S.P Damoh but the verbatim of that order is available in that copy and therefore, it was not required for the trial Court to examine the District Magistrate to prove that sanction. If District Magistrate is directed to be examined in each and every case of sanction then it would be impossible for the District Magistrate to do his remaining work. It is sufficient that copy of order be duly proved by a person who was involved during the passing of that order with the fact that what was the material placed before the District 5 Criminal Revision No346/2009 Magistrate at the time of passing order. The Arms Clerk has stated that the country made pistol and a live cartridge were produced with the case diary before the District Magistrate. The contention of the learned counsel for the applicant cannot be accepted that production of the pistol and a cartridge was not mentioned in the order Ex.P/7 and therefore, the Arms Clerk was telling a falsehood because it was not required to be mentioned in the order itself. Production of articles is necessary so that it should be established that such articles exist otherwise District Magistrate is not an authority who, can examine the firearms etc. Under such circumstances, by perusal of the order Ex.P/7, it is apparent that the District Magistrate has used its judicial discretion in passing that order and there is no irregularity done in grant of sanction of the prosecution.
9. On the basis of the aforesaid discussion, it is apparent that a valid sanction was given by the District Magistrate and applicant was found with a firearm and a cartridge therefore, the conviction inflicted by the trial Court and confirmed by the appellate Court appears to be correct. So far as the sentence is concerned, it is apparent that the applicant remained in the custody for more than nine months during the trial. He has faced the trial and appeal along with the revision for five long years. He was the first offender and therefore, there is a reason that his sentence should not only be reduced but it should be reduced to the period less than 6 Criminal Revision No346/2009 the minimum prescribed by the statute. Looking to the facts and circumstances, of the case, it would be proper that the sentence should be reduced to the period which he has already undergone in the custody.
10. On the basis of the aforesaid discussion, the revision filed by the applicant may be partly accepted and consequently, it is partly allowed. The conviction directed under Section 25(1-B)(a) of the Arms Act is hereby maintained but the sentence is reduced to the period which he has already under gone in the custody. No change in the fine amount imposed upon the applicant,.
11. The applicant is in custody in some other case. However, office is directed to issue a super session warrant so that the applicant be released in the case without any delay.
12. Copy of the order be sent to the trial Court as well as the appellate Court along with their record for information and compliance. (N.K.Gupta) Judge 06.03.2013 bina