Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C.No.02/PW/2022
MHMM180000062022 Received on : 01/01/2022
Registered on : 01/01/2022
Decided on : 22/03/2022
Duration : 00 Y. 02 M. 21 D.
Exh.No.- 09
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
09TH COURT, BANDRA, MUMBAI
(Presided over by K.H. Thombre)
JUDGMENT
(As per Section 355 of Code of Criminal Procedure)
a) The Serial number of the case : C.C. No.02/PW/2022
b) The date of commission of
offence
: 30/12/2021
c) The name of the complainant if
any
: The State through Khar police
station. Spl.L.A.C.No.194/2021.
d) The name of the accused persons,
parentage and residence
: Rohitkumar Ramchandra Mandal
Age – 23 years,
Occupation- Nil
R/o.Kachha Hut, Khala Maidan,
Khardanda, Khar(W), Mumbai
e) The offence complained of or
proved
: Under section 4, 25 of Indian Arms
Act r.w.37(a) r.w.135 of Maharashtra
Police Act.
f) The plea of the accused and his
examination, if any
: Accused pleaded not guilty and
claimed to be tried.
g) The Final Order : The accused is acquitted .
h) The date of such order : 22/03/2022
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Judgment 2 C.C.No.02/PW/2022
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Learned counsel for Prosecution: APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Mrs. Rimpi Tuli
=====================================================
JUDGMENT
(Delivered on 22/03/2022)
1) The above named accused is charge-sheeted for the offence
punishable under section 4, 25 of Indian Arms Act r.w.Section 37(a), 135 of
Maharashtra Police Act.
R E A S O N S
2) The prosecution has examined in all two witnesses i.e. P.W.No.1
Vinod Mahadev Malatwadkar, informant at Exh.04 and P.W.No.2 Deepak
Ramesh Kharade, Investigation Officer at Exh.06.
3) In order to prove the charge of possession of weapon illegally and
to prove the charge against the accused P.W.1 Vinod Mahadev Malatwadkar
deposed that when they were on patrolling duty one person was found in
suspicious condition at Murti Galli, 03rd Road, Khar. They taken custody of that
person. On taking search they found that some weapon is concealed by him
behind his back under shirt. Then they called two panchas, taken personal
search of that person and found one knife having 21 inches long blade and 16
inches broad having wooden handle of 5 inch concealed under the shirt behind
back. The said knife was seized in presence of panchas and panchanama was
prepared. Then that person was brought to the police station and he lodged report
at police station. On the basis of report FIR Exh.05 was lodged. The said person
told his name as Rohitkumar Ramchandra Mandal.
4) Investigation Officer, P.W.2 Deepak Kharade, deposed as per the
evidence of P.W.1 Vinod Malatwadkar. As per P.W.2 Deepak Kharade a knife
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Judgment 3 C.C.No.02/PW/2022
was seized by him in presence of panchas and panchanama was prepared which
is at Exh.07.
5) The charge against the accused is under Section 4 punishable under
Section 25 of the Indian Arms Act. As per Section 4 of the Indian Arms Act a
notification is required to be issued describing prohibition on possession of
weapon without licence. It is also provided under section 4 of the Indian Arms
Act that the description of the weapon is to be mentioned on which prohibition is
imposed for its possession. The burden is on the prosecution to prove that the
place from where the alleged weapon is seized from the possession of the
accused was a prohibited area at the time of alleged seizure of knife. The burden
is also on the prosecution to prove that the alleged knife which is seized from the
possession of the accused is within the category of prohibited weapon described
under the notification issued under Section 4 of the Indian Arms Act. The
prosecution failed to file on record any notification prohibiting area as well as a
particular category of weapon prohibited by way of an notification issued under
Section 4 of the Indian Arms Act. In absence of the said notification no
conclusion can be drawn that accused was possessed alleged knife in
contravention of Section 4 of the Indian Arms Act. It is also not deposed by any
of the witness that for possession of the alleged knife a licence is required under
Section 4 of the Indian Arms Act.
6) The another charge against the accused is that he found in
possession of weapon in contravention of order issued by Commissioner of
Police, Brihan Mumbai. Both the witnesses failed to depose that at the time of
alleged seizure of knife from the accused an order of Commissioner of Police,
Brihan Mumbai was in force. It is also provided that any order issued by the
Commissioner of Police that order has to be promulgated and should be known
to the public. The evidence that such order has been promulgated to make
known to the public is absent on record. It is the burden on the prosecution to
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Judgment 4 C.C.No.02/PW/2022
place on record admissible copy of order of Police Commissioner to show that at
the time of alleged seizure of knife from the accued such order was in force.
Prosecution failed to file or to prove that the order issued by the Commissioner
of Police was in force at the relevant time.
7) As per evidence of P.W.1 Vinod Malatwadkar and P.W.2 Deepak
Kharade accused was caught hold, then one constable was sent to bring panchas
and one constable was sent to bring the articles of sealing. After panchas and
articles came at the place they took personal search of the accused and one knife
was found concealed under shirt behind back of the accused. The alleged seized
knife is not produced during the trial before the Court to establish that it was
seized, what was the length and breadth of knife. The pancha witnesses are also
not examined. In absence of clear and independent evidence no conclusion can
be drawn that possession of the knife has been proved beyond reasonable doubt.
8) The Prosecution failed to file on record notification under Section 4
of the Indian Arms Act prohibiting possession of alleged seized knife. The
possession of the knife from the accused is also not proved. For these reasons
accused cannot be held guilty for the charge levelled against him. For these
reasons following order is passed.
O R D E R
1) The accused Rohitkumar Ramchandra Mandal is acquitted of the
offence punishable under Section 25 of Indian Arms Act and under Section 135
of Maharashtra Police Act vide Section 248(1) of the Code of Criminal
Procedure.
2) The accused is in jail. He be released forthwith if, not required in
any other offence. Inform the Jail Authority accordingly.
3) The accused to furnish bail bonds in compliance of Section 437(A)
of the Code of Criminal Procedure. Jail Authority is directed to release the
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Judgment 5 C.C.No.02/PW/2022
accused on executing P.R.Bond of Rs.10,000/-(Rupees Ten Thousand only) and
to submit the report accordingly to this Court.
4) Seized knife be forwarded to the District Magistrate, Brihan
Mumbai for disposal according to law after appeal period.
5) The copy of the Judgment be forwarded to District Magistrate vide
Sec.365 of the Code of Criminal Procedure for further compliance.
6) Dictated and pronounced in the open Court.
Date:-22/03/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 22/03/2022
Dictated on : 22/03/2022
Typed on : 22/03/2022
Signed on : 22/03/2022
vnh
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