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2020 DIGILAW 314 (MP)

Mohd Maksud v. State Of M. P.

2020-02-27

VIRENDER SINGH

body2020
JUDGMENT Virender Singh, J. - The petitioner is aggrieved by his conviction under Section 25 (1-B) (a) of the Arms Act, 1959 recorded by the Judicial Magistrate First Class, District Indore vide judgment and order dated 17.5.2017 rendered in Criminal Case No.12372/2007 and confirmed vide judgment & order passed in Criminal Appeal No.395/2017 delivered on 25.7.2019 by XXVI Additional Sessions Judge, District Indore. 2. The petitioner has been held guilty for having a pistol and 6 live cartridges in his illegal possession and has been awarded 1 year R.I. along with fine of Rs.200/- in default further to undergo 7 days additional R.I. 3. Prosecution case in brief is that on 1.1.2007 at about 1:10 in the afternoon during patrolling Ashok Singh, Head Constable of Police station Chatripura received an information that a person having pistol and cartridges in his possession is standing near Dargah. Acting on this information, Head Constable, Ashok Singh caught the accused and on search recovered one pistol and 6 live cartridges from his possession. He was asked to produce licence. He admitted that he has no license for having these firearm in his possession, therefore, he was arrested and taken to the police station, where Crime No.1/2007 was registered by deducing FIR.No.1/2007 Firearm was sent to the armourer, who confirmed that seized article was firearm and was in working condition. The police obtained sanction from the District Magistrate to prosecute the petitioner and after completing investigation filed the charge sheet. 4. The prosecution has produced and proved the following documents:- 5. The petitioner has been tried, charged and sentenced as stated in para 1 above. 6. The petitioner has preferred this petition on several grounds but during argument learned counsel for the petitioner has submitted that he does not want to press this petition on merits. His limited prayer is that this is the first offence of the petitioner. He was caught in the year 2007 and since then he is facing trial/Court proceedings and has always co-operated with the trial and the proceedings of the Court. No other criminal case has ever been registered against him either prior to or after the incident of this case. He remained on bail during the trial and has never misused the liberty and has led a life of law abiding person. He has crossed 60 years of age and is married man having responsibility of two children. No other criminal case has ever been registered against him either prior to or after the incident of this case. He remained on bail during the trial and has never misused the liberty and has led a life of law abiding person. He has crossed 60 years of age and is married man having responsibility of two children. No one else is there to take care of his family. Due to custody, his family is facing financial difficulties and is now nearly on the verge of starving. After 13 years years of the incident, no useful purpose would be achieved by keeping the petitioner in jail. 7. The petitioner has convicted for having a pistol and 6 live cartridges in his possession. There is slight difference in the bore of pistol as seizure memo Ex.P/1 shows that pistol having bore of 9 mm was seized while inspection report of this pistol (Ex.P/8) authored by armourer shows that it was 99 mm semi automatic pistol. Seizing Officer A.S.I. Ashok Singh (P.W.4) has stated that he had seized only 9 mm pistol and not 99 mm pistol. Head Constable Irfan (P.W.5) has stated that he had received 99 mm pistol for inspection. In para-5 of his cross-examination, he has clearly admitted that pistols of 9 mm and 99 mm are 2 different bores of pistols. They cannot be mixed with each other. Investigating Officer of this case has also not been examined before the trial Court. 8. Learned Public Prosecutor has opposed the prayer, however, he has fairly admitted the facts contended by the learned counsel for the petitioner that the petitioner has crossed 60 years of age, no other criminal case has ever been registered against him and there is no report of misuse of liberty of bail granted by the trial Court. 9. I have considered the contention of the learned counsel for the petitioner and have carefully examined the evidence produced by the prosecution. 10. Considering the facts and circumstances in totality, in the considered opinion of this Court, the prayer of the petitioner can be acceded. There are sufficient mitigating circumstances exists in the present case to reduce the sentence of the petitioner. Considering them in its broad spectrum and in its totality, the petition is partly allowed. 11. Conviction of the petitioner under Section 25 (1-B) (a) of the Arms Act, 1959 is hereby confirmed. There are sufficient mitigating circumstances exists in the present case to reduce the sentence of the petitioner. Considering them in its broad spectrum and in its totality, the petition is partly allowed. 11. Conviction of the petitioner under Section 25 (1-B) (a) of the Arms Act, 1959 is hereby confirmed. So far his sentence is concerned, it is reduced from 1 year R.I. to 9 months RI with the fine imposed by the learned trial Court with default stipulation. 12. The petitioner be set at liberty forthwith if not required in any other case. 13. With the aforesaid modification, the present petition is partly allowed and disposed of. Consequently, IA(s), if any, stands closed. 14. Order of the learned trial Court regarding disposal of the case property is hereby confirmed.