Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C. No.205/PW/2022
MHMM180005512022 Received on : 25/01/2022
Registered on : 25/01/2022
Decided on : 13 /05/2022
Duration : 00 Y. 03 M. 18 D.
Exh.No.-11
Accused produced through V.C.
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.205/PW/2022
b) The date of commission of
offence
: 24/01/2022
c) The name of the complainant if
any
: The State through Mahim police
station. Spl.L.A.C.No.02/2022.
d) The name of the accused persons,
parentage and residence
: Faizan Salim Qureshi @ Petali
Age – 36 years,
Occupation- Porter work
R/o.Bori Chawl, Room No.12,
Gaiwadi, Wanzewadi, Mahim(W),
Mumbai.
e) The offence complained of or
proved
: Under section 4, 25 of Indian Arms
Act r.w. 37(1) (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 : 13 /05/2022
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Judgment 2 C.C. No.205/PW/2022
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Learned counsel for Prosecution: APP Smt.M.F.Pakajade for State
Ld. Counsel for Accused : Adv. Mr.P.P.Khot
=====================================================
JUDGMENT
(Delivered on 13/05/2022)
1. The above named accused is charged for the offence punishable
under section 4, 25 of Indian Arms Act r.w. 37(1) (a), 135 of Maharashtra Police
Act.
2. The case of the prosecution is that while on patrolling duty at
opposite Raheja Hospital, Sion Mahim Link Road Bridge, Mahim(W), Mumbai
accused found in possession of 14 inches knife.
3. The prosecution has examined in all three witnesses i.e. P.W.No.1
Dinesh Nimba Bachhav, informant at Exh.04, P.W.No.2 Chand Zakir Shaikh,
pancha witness at Exh.06 and Rajendra Govind Nagare,Investigating Officer at
Exh.09.
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
24/01/2021 at about 23.20 hrs. opposite
Raheja Hospital, Sion-Mahim Link Road
Bridge, Mahim(W), Mumbai-16 accused
found in possession of one iron 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?
No.
2] Whether the prosecution proved that on the
aforesaid date, time and place accused was
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Judgment 3 C.C. No.205/PW/2022
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?
No.
3] What order? Accused is acquitted.
R E A S O N S
5. In order to prove the offence against the accused P.W.1 Dinesh
Nimba Bachhav deposed that on 24/01/2022 during the call out operation he was
accompanied by PSI Nagare, ASI More, P.C.Jadhav and Kamble and P.C.Mr.
Shinde. At about 11.20 p.m. during patrolling they found one person in a
suspicious condition near Raheja Hospital, Sion-Mahim Link Road. They caught
hold that person and they found that the said person was concealing something
in the pocket of his pant. On taking personal search in presence of panchas they
found iron knife covered under pant from right side leg. The said weapon was
seized and sealed in presence of panchas by constable. The person told his name
as Faizan Qureshi. Then he lodged FIR (Exh.05).
6. In support P.W.2 Chand Zakir Shaikh deposed that on 24/01/2022
he was called at Retibunder Police Chowky for panchanama. At police Chowky
one constable Pawar and one accused person was present. One knife was in the
pocket of pant of the accused. The said knife was sealed and packed in his
presence by drawing panchanama Exh.07. Witness identified the knife
Article-A produced before the Court as the same which was seized by the police.
P.W.No.3 Rajendra Govind Nagale, Investigation Officer deposed that on
24.01.2022 there was call out operation at about 11.00 p.m.. On that day they
were doing patrolling duty alongwith Police Squad. At about 11.20 p.m. one
person was found in suspicious condition near Raheja Hospital on Sion Link
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Judgment 4 C.C. No.205/PW/2022
Road. Then they taken that person in custody and taken personal search in
presence of panchas. One knife having 9 inches blade and 4 inches of handle
was found tied below knee of right leg of accused. He seized and sealed that
knife in presence of panchas and obtained signatures of panchas. Then accused
was brought to the police station. One of the police constable lodged
report(Exh.05) against the accused. Thereafter he recorded statements of
witnesses, collected the photocopy of the order of the Deputy Police
Commissioner and filed it alongwith charge-sheet and after completion of
investigation filed charge-sheet against the accused in the Court.
7. 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 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.
8. The another charge against the accused is that he found in
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Judgment 5 C.C. No.205/PW/2022
possession of weapon in contravention of the order issued by Commissioner of
Police, Brihan Mumbai. 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
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.
9. As per evidence of P.W.1 Dinesh Bachhav and P.W.3 Rajendra
Nagale, accused was caught hold in a suspicious condition near Raheja Hospita,
Sion-Mahim Link Road. As per evidence of P.W.2 Chand Shaikh,pancha
witness, he was called at Retibunder Police Chowky for panchanama where the
knife was seized. It is seen from the evidence of police witnesses and
independent pancha witness the place from where the alleged seizure of knife
was made is different. Independent pancha witness has deposed different place
from where the alleged search and seizure was made from the accused. It clearly
establishes that there is no corroboration in respect of the search and seizure of
the place from where alleged knife was seized from the accused. In absence of
clear evidence the seizure of the knife from the accused become doubtful.
10. Prosecution failed to file on record notification under Section 4 of
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 Faizan Salim Qureshi is acquitted of the offence
punishable under Section 25 of Indian Arms Act and under Section 135 of
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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 and pronounced in the open court through Video
Conference.
Date:-13/05/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 13/05/2022
Dictated on : 13/05/2022
Typed on : 13/05/2022
Signed on : 13/05/2022
vnh
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