Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 351 (MP)

Kamlesh v. State of M. P.

2009-03-19

B.M.GUPTA

body2009
ORDER 1. Being aggrieved by the judgment dated 3.11.2003 passed by Additional Sessions Judge, Ganj Basoda in Criminal Appeal No. 85/03, whereby affirming the judgment dated 9th June 2003 passed by JMFC, Basoda in Criminal Case No. 65/01, the learned Judge has convicted the petitioner-accused under section 25 (lB) (b) of the Arms Act imposing punishment of one year's RI along with fine of Rs. 50, this revision has been preferred. 2. The facts of the case, in brief, are that on 31st January, 2003, In-charge police station, Shamshabad, Shri S.N. Mukharjee took search of present petitioner and seized one spring actuated (khatkedar) knife having 4 inch long blade. Seizure memo was prepared. Petitioner was arrested vide arrest memo Ex. P-2. While returning at police station Shri Mukherjee lodged FIR, which was registered at Crime No. 62/01 for the aforesaid offence against the petitioner, and after completing rest of the investigation, filed the challan in the Court of learned Magistrate. The petitioner was tried and convicted as aforesaid by the learned Magistrate, which has been affirmed by the learned Judge vide impugned judgment, against which the present revision has been filed. 3. Shri Shrivastava, learned counsel appearing on behalf of the petitioner, has assailed the impugned judgment on the following counts: (1) That, the independent witness of seizure memo has become hostile. The single testimony of the police officer, who seized the knife, ought not be believed on the ground that he himself, conducted the investigation and filed the challan. (2) That, the dimension of the blade of the knife is not six inches long and two inches wide as required for the conviction. 4. Shri D.R. Sihare, PL for the State has also been heard. He has not denied this fact that seizure officer and investigation officer is the same person, but he has submitted that being a public officer, his testimony should be believed. 5. On perusal of the statement of S.N. Mukherjee (PW 1), it appears that he was In-charge of Police Station, Shamshabad, he searched the person of the petitioner and found the aforesaid knife in his possession. He prepared seizure memo Ex. P-l. In para 3, he has stated that he recorded the statement of witnesses during investigation. On perusal of the record, it also appears that he signed on seizure memo (Ex. P-1), arrest memo (Ex. P-2), FIR (Ex. He prepared seizure memo Ex. P-l. In para 3, he has stated that he recorded the statement of witnesses during investigation. On perusal of the record, it also appears that he signed on seizure memo (Ex. P-1), arrest memo (Ex. P-2), FIR (Ex. P-3) and statement of Hameer Singh (Ex. P-4) and also produced the challan/the report filed in the Court under section 173 of CrPC. Thus, right from the seizure of the weapon till filing of the challan, every step was taken by this officer. As observed by the apex Court in the case of Megha Singh v. State of Haryana, AIR 1995 SC 2339 , such steps by the police officer has been negated. Similar view has been taken by this Court in the case of Raju Dubey v. State of M.P. [1998 (1) JLJ 236]. Single testimony of the officer, who seized the weapon, can usually be believed and can be a base of conviction, but in view of the fact that such steps taken by a Police Officer, which have been deprecated or negated by the apex Court and this Court, requirement of corroboration appears necessary in such cases where the liberty of a citizen is involved. Witness Hameer Singh (PW 2), who is one of the Panch witness does not support the seizure of the knife from the possession of the petitioner. He has been declared hostile. The another witness Lakshmi Narayan was also available to the prosecution, but for the reason best known to the prosecution, he has not been examined. Inference can be drawn that had Laxmi Narayan been examined, he would have not supported the case of prosecution. In view of this, there is absence of corroboration of the testimony of such police officer who not only seized knife, but also conducted the investigation and filed the challan. In these circumstances, the single testimony of S.N. Mukharjee (PW 1) does not appears safe to be believed. 6. On perusal, charge also appears erroneous on the counts that (i) the charge has been framed under the provisions of section 25 (1) (B) (b), which is apparently erroneous and misleading. It should be under the provisions of section 25 (lB) (b) of the Arms Act, and (ii) no description of notification concerned under which possession of knife was illegal has been given. It should be under the provisions of section 25 (lB) (b) of the Arms Act, and (ii) no description of notification concerned under which possession of knife was illegal has been given. When a charge is based on some notification, number of that notification at least should be mentioned in the charge to specify as to why the accused is being tried. The same view has been taken by another single bench of this Court in the case of Baijnath Singh v. State of M.P. [1998 (2) ILl 69]. 7. For appreciating the another contention raised on behalf of Shri Shrivastava, perusal of the notification concerned with the requirement is necessary, which has been reproduced herein below: "Notification No. 6312-6552-II (B) (i) dated the 22nd November, 1974. -- Whereas the State Government is of the opinion that having regard to the prevailing conditions in the State of Madhya Pradesh, it is necessary and expedient in the public interest that the acquisition, possession and carrying of sharp edged weapons with a blade more than 6 inches 10ng/2 inches wide and spring actuated knives with a blade of any size/in public places should also be regulated. Now, therefore in exercise of the powers conferred by section 4 of the Arms Act, 1959 (No. 54 of 1959) read with the Government of India, Ministry of Home Affairs, Notification No. G.S.R. 1309, dated the 1st October 1962, the State Government hereby directs that the said section shall apply with effect from the date of publication of this Notification in the "Madhya Pradesh Gazette" to the whole of the State of Madhya Pradesh in respect of acquisition, possession or carrying of sharp edged weapons with a blade more than 6 inches long/or/2 inches wide and spring actuated knives/with a blade of any size in public places only. (Published in 1975 L.T. 47 Part II at page 51)." (Emphasis supplied) On perusal, of the highlighted part of the notification, it appears that if the knife is spring actuated, it is not required that the blade should be six inches long and two inches wide. The dimension of blade may be of any size, but if the knife is spring actuated, it is punishable under this provision. 8. In view of the above, the single testimony of Shri S.N. Mukerjee (PW 1) does not appear safe to be believed. Consequently the revision is allowed. The dimension of blade may be of any size, but if the knife is spring actuated, it is punishable under this provision. 8. In view of the above, the single testimony of Shri S.N. Mukerjee (PW 1) does not appear safe to be believed. Consequently the revision is allowed. The conviction and sentence of the petitioner under section 25 (1 B) (b) of the Arms Act is set aside. He is discharged from this charge. With regard to disposal of the property, the order of learned Magistrate in para 17 is affirmed.