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2017 DIGILAW 101 (GUJ)

Rameshchandra v. State of Gujarat

2017-01-17

Z.K.SAIYED

body2017
JUDGMENT : Z.K. Saiyed, J. 1. The present appeal, filed under Section 374(2) of the Code of Criminal Procedure, 1973, against the judgment and order of conviction and sentence dated 24.06.2005 passed in Sessions Case No. 109 of 2004 by the learned Additional Sessions Judge, Fast Track Court, Dahod, whereby the learned Sessions Judge was pleased to convict the appellant for the offence punishable under Section 25(1-B)(a) of the Arms Act and sentenced him to undergo simple imprisonment for a period of three months, and also imposed fine of Rs. 5000/-, and in default of payment of fine; sentenced him to undergo simple imprisonment for a further period of one year. 2. It is the case of the prosecution that on 21-22.09.2001, the complainant Shri J.N. Joshi, Senior Police Inspector, Dahod Rural Police Station, Dahod, Shri A.U. Garasiya, Senior Police Inspector and Shri Mohandas Kalidas, Unarmed Head Constable, Buckle No. 1516, Shri Somsinh Ramsinh, Police Constable, Buckle No. 1212 and Shri Mansukhbhai Ramsinh, Unarmed Head Constable, Buckle No. 770 and other police personnel in charge of night patrolling between 23:00 p.m. and 5:00 a.m. It is further alleged in the complaint that on 22.09.2001, one Santro Car was coming from Indore at 4:15 a.m. which was stopped by the police personnel and made the search in the said Santro Car where they found one country made revolver and 6 live/workable kartoos under the seat of driver of said Santro Car. It is further alleged that upon inquiry, the driver informed his named as Rameshbhai Dahyabhai Chauhan, resident of Devadivansol, Taluka: Mahemdabad, District: Kheda. The said Santro Car was of white colour and its front and rear number plates were indicating the number GJ-1-BK-8526. The so called country made revolver was lying in one polythene bag and it was manufacturedby hand made and the so called country made revolver was covered with wooden handle and there was no any brand displayed upon the so called country made revolver. The so called country made revolver and Kartoos would be worth of Rs. 15,000/- and Rs. 10/- of each Kartoos and therefore, its total value would be Rs. 15,060/- and the same was seized by the patrolling police party. 3. Thereafter, the complaint was filed, which was registered as II-C.R. No. 84 of 2001 before the Dahod Rural Police Station for the offence punishable under Section 25(1-B)(a) of the Arms Act. 15,000/- and Rs. 10/- of each Kartoos and therefore, its total value would be Rs. 15,060/- and the same was seized by the patrolling police party. 3. Thereafter, the complaint was filed, which was registered as II-C.R. No. 84 of 2001 before the Dahod Rural Police Station for the offence punishable under Section 25(1-B)(a) of the Arms Act. Thereafter, investigation was carried out and statements of the witnesses were recorded. After collecting sufficient evidence by the Investigating Agency, charge-sheet was filed before the learned Judicial Magistrate First Class, Dahod, which was numbered as Sessions Case No. 113 of 2002. As the said case was exclusively triable by the Court of Sessions, learned Chief Judicial Magistrate, Dahod, committed the case to learned Additional Sessions Judge, Dahod under Section 209 of the Criminal Procedure Code, which was thereafter, numbered as Sessions Case No. 109 of 2004. 4. On the basis of above allegations, charge was framed against the appellant-accused vide Exh. 2 for the alleged offence under the Arms Act and read over to the appellant, to which the appellant pleaded not guilty and claimed to be tried. 5. In order to bring home the charges levelled against the appellant, the prosecution has examined 5 witnesses and also produced two documentary evidences in support of its case. 6. Thereafter, after filing closing pursis by the prosecution, further statement of the appellant under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein the appellant has denied the case of the prosecution and has pleaded his innocence. The appellant has submitted that a false case is filed against him. 7. After considering the oral as well as documentary evidence and after hearing the parties, the learned Additional Sessions Judge, Dahod vide impugned judgment and order held the appellant-accused guilty to the charges levelled against him as mentioned aforesaid. 8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Sessions Judge, Dahod, the appellant has preferred the present appeal. 9. Heard Mr. J.M. Panchal, leaned counsel for Mr. Neeraj Vasu, learned advocate for the appellant and Mr. N.J. Shah, learned Additional Public Prosecutor for the respondent-State. 10. Mr. Panchal, learned counsel appearing for the appellant, has contended that the judgment and order passed by the learned Sessions Judge is illegal, invalid and improper. 9. Heard Mr. J.M. Panchal, leaned counsel for Mr. Neeraj Vasu, learned advocate for the appellant and Mr. N.J. Shah, learned Additional Public Prosecutor for the respondent-State. 10. Mr. Panchal, learned counsel appearing for the appellant, has contended that the judgment and order passed by the learned Sessions Judge is illegal, invalid and improper. He has also contended that the learned Sessions Judge has not considered the case of the defence and material evidence produced on record and has passed absolutely wrong order. He has contended that the prosecution has miserably failed to prove its case beyond reasonable doubt, yet the learned Sessions Judge has not considered the probable defence of the appellant and has wrongly convicted the appellant. Mr. Panchal has read the charge and contended that it is the case of the prosecution that during the search made by the police personnel in Santro Car, one country made revolver and six live cartridges were recovered from the possession of the appellant-accused. Mr. Panchal further contended that two documentary evidences are produced on record one is complaint at Exh. 15 and second is panchanma of physical condition of the accused and panchnama of recovered muddamal. The prosecution has examined three police officials, PW1 Mr. Kantibhai Udesinh Solanki, Unramed Police Constable, who was examined at Exh. 6, PW2 Mr. Mohnalal Kalidas Parekh, Head Constable, who was examined at Exh. 7 and PW2 Jayendrakumar Nathala Joshi, Senior Police Sub Inspector, who was examined at Exh. 14. The prosecution has examined tow panch witnesses, one PW3 Chandubhai Bhagabhai Damor, who was examined at Exh. 8 and PW4 Fatesinh Ransingh Athaliya, who was examined at Exh. 10, however both the panch witnesses subsequently declared hostile. He then submitted that in present case, though police personnel disclosed their evidence in support of the prosecution case, two legal aspects are required to be considered. First, whether sanction to file complaint was obtained from the competent authority or not and second, whether opinion of the ballistic experts (FSL) was obtained or not. Mr. Panchal drew attention of the Court to the decision of the Apex Court rendered in the case of Mohinder Singh and Another v. State of Haryana, reported in (1996) 11 SCC 369 and contended that in case of offence under the provisions of Arms Act or Tada Act, it is mandatory provisions of law to obtain sanction from the competent authority. In present case, no such sanction was obtained by the Investigating Officer to file complaint. Secondly, recovered county made revolver or live cartridges are not sent to the FSL to verify as to whether they are in working condition or not, however, no such report or opinion of the Forensic Ballistics Expert (FSL) was obtained. Mr. Patel, submitted that learned trial Judge, after considering the evidence of the prosecution, held the appellant-accused guilty for the alleged offence, but in absence of sanction obtained from the Collector or the Magistrate to file complaint, case of the prosecution cannot be believed. Therefore, the learned trial Judge committed grave error in convicting the appellant-accused. He prayed that present appeal is required to be allowed and appellant is required to be acquitted from the charges levelled against him. 11. As against this, Mr. Shah, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Sessions Judge is absolutely just and proper. He has contended that the prosecution has proved its case beyond reasonable doubt. He has contended that looking to the overall facts and circumstances of the case, and evidence produced on record, the order passed by the learned Sessions Judge is absolutely just and legal and is not required to be interfered with. Mr. Shah has vehemently argued that appellant-accused has committed serious offence as country made revolver and 6 live cartridges were recovered from the possession of the appellant-accused. Even in statement recorded under Section 313 of the Cr.P.C., the appellant-accused did not disclose anything about the licence or sanction. Mr. Shah submitted that as far as the sanction is concerned, no evidence is produced on record. He fairly admitted that he is unable to explain whether sanction was obtained or not and whether the opinion of the Forensic Ballistics Expert (FSL) was produced before the lower Court or not. He contended that considering the serious offence under the Arms Act, present appeal is required to be dismissed and judgment and order of conviction and sentence is required to be confirmed. 12. I have gone through the impugned judgment and order passed by the learned Sessions Judge and oral as well as documentary evidence produced on record of the case. I have read the oral evidence of prosecution witness and also perused the charge framed against the appellant. 13. 12. I have gone through the impugned judgment and order passed by the learned Sessions Judge and oral as well as documentary evidence produced on record of the case. I have read the oral evidence of prosecution witness and also perused the charge framed against the appellant. 13. It is true that prosecution has failed to produce expert opinion of the FSL to arrive at a conclusion that country made revolver and cartridges, which were recovered from the possession of the appellant-accused, are in working condition or not. Secondly, prior to the filing of the complaint or during the pendency of the complaint, no sanction was tagged with the charge-sheet papers. The Apex Court in the case of Mohinder Singh and Another (Supra) has held in paragraph No. 6, which read as under:- "6. The other appeal filed by Harjinder Singh against his conviction under Section 25 of the Arms Act, 1959 read with Section 6 of TADA for unlawful possession of the revolver has got to be allowed for the simple reason that the prosecution did not prove that sanction as required under Section 39 thereof was accorded for prosecuting him for the above offence." 14. On the conclusions as above, I am not in agreement with the judgment and order passed by the learned trial Judge, which is proved beyond reasonable doubt and probable defence is required to be considered in favour of the present appellant-accused. 15. Hence, in view of the foregoing reasons, present appeal is allowed. The Judgment and order of conviction and sentence dated 24.06.2005 passed in Sessions Case No. 109 of 2004 by the learned Additional Sessions Judge, Fast Track Court, Dahod, is hereby quashed and set aside. The appellant is on bail. His bail bond shall stand discharged. Since the appellant is on bail, no order in respect to setting him at liberty is passed. The appellant is hereby acquitted from the charges levelled against him in the present Sessions Case. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.