Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C. No.194/PW/2022
MHMM180005222022 Received on : 25/01/2022
Registered on : 25/01/2022
Decided on : 02/05/2022
Duration : 00 Y. 03 M. 07 D.
Exh.No.-07
Accused produced on Video Conference
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.194/PW/2022
b) The date of commission of
offence
: 24/01/2022
c) The name of the complainant if
any
: The State through Khar police
station. Spl.L.A.C.No.37/2022.
d) The name of the accused persons,
parentage and residence
: Mohammad Allauddin Mohd.
Siraj Shaikh Age – 40 years,
Occupation- Nil
R/o. Patel Nagari Footpath,
Opp. Bandra Railway Station,
Bandra(W),Mumbai
e) The offence complained of or
proved
: Under section 4, 25 of Indian Arms
Act r.w. 37 (a), 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 : 02/05/2022
..2/-
-- 1 of 5 --
Judgment 2 C.C. No.194/PW/2022
=====================================================
Learned counsel for Prosecution: APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Mr.P.P.Khot
=====================================================
J U D G M E N T
(Delivered on 02/05/2022)
1) The above named accused is charged for the offence punishable
under section 4, 25 of Indian Arms Act r.w. 37(a), 135 of Maharashtra Police Act.
2) The case of prosecution is, on 24/01/2022 at about 10.20 p.m.
informant and other police staff were on patrolling. Near Hindu Crematory,
Mahim, accused found in possession of 14 inches knife in contravention of
Section 4 of the Indian Arms Act and in contravention of the order of Police
Commissioner.
3) The prosecution has examined only one witness P.W.No.1
Vijaykumar Shankarrao Dabale, informant at ( Exh.04). Statement of accused
under Section 313(1)(b) of Cr.P.C. is recorded at (Exh.06). The defence of
accused is of false implication.
4) Considering the evidence and arguments of the parties, following
points arose for determination. Findings are recorded for reasons to follow.
Sr.No POINTS FINDINGS
1] Whether the prosecution proved that on
24/01/2022 at about 22.20 hrs. at Khala
Maidan, Carter Road, Khardanda, Khar(W),
Mumbai accused found in possession of one
big knife 14 inches in length in contravention
of Section 4 of Indian Arms Act thereby
committed an offence punishable under
Section 25 of Indian Arms Act?
In the negative
2] Whether the prosecution proved that on the
..3/-
-- 2 of 5 --
Judgment 3 C.C. No.194/PW/2022
aforesaid date, time and place accused was
found in possession of aforesaid knife in
contravention of order of Commissioner of
Police issued under Section 37 of
Maharashtra Police Act on prohibition for
carrying arms thereby committed an offence
punishable under Section 135 of Maharashtra
Police Act?
In the negative
3] What order? Accused is acquitted.
R E A S O N S
AS TO POINT NO.1 TO 3:
5) In order to prove the offence against the accused (P.W.1)
Vijaykumar Shankarrao Dabale deposed that while patrolling at about 10.00
a.m. at Khala Maidan near Crematory accused started running by seeing them.
During personal search one 14 to 16 inches iron knife was found kept under the
shirt behind back of the accused. The said knife was seized in presence of
panchas. Then FIR was lodged against the accused at Exh.05.
6) 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
..4/-
-- 3 of 5 --
Judgment 4 C.C. No.194/PW/2022
Section 4 of the Indian Arms Act. In absence of the said notification no
conclusion can be drawn that accused possessed alleged knife in contravention
of Section 4 of the Indian Arms Act. It is also not deposed by (P.W.No.1)
Vijaykumar that for possession of the alleged knife a licence is required under
Section 4 of the Indian Arms Act.
7) Another charge against the accused is that he found in possession
of weapon in contravention of the order issued by Commissioner of Police,
Brihan Mumbai. The witness 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. The burden is on the prosecution to place on record
admissible copy of order of Police Commissioner to show that at the time of
alleged seizure of knife from the accused 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.
8) As per evidence of (P.W.1) Vijaykumar Dabale accused was caught
hold as he was running, on taking personal search of the accused, one knife
was found concealed under shirt behind back of the accused. The said knife was
seized in presence of panchas. Then accused was brought to the police station
followed by registration of FIR (Exh.05). 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.
9) Prosecution failed to file on record notification under Section 4 of
..5/-
-- 4 of 5 --
Judgment 5 C.C. No.194/PW/2022
the Indian Arms Act and order issued by Commissioner of Police 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 of the
charge levelled against him . For these reasons following order is passed.
O R D E R
1) The accused Mohammad Allauddin Mohd. Siraj Shaikh
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
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 on computer and pronounced on Video Conference in the
open court.
Date:-02/05/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 02/05/2022
Dictated on : 02/05/2022
Typed on : 02/05/2022
Signed on : 02/05/2022
vnh
../-
-- 5 of 5 --