Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C. No.2203/PW/2021
MHMM180051832021 Received on : 09/10/2021
Registered on : 09/10/2021
Decided on : 13 /05/2022
Duration : 00 Y. 07 M. 04 D.
Exh.No.-09
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.2203/PW/2021
b) The date of commission of
offence
: 08/10/2021
c) The name of the complainant if
any
: The State through Mahim police
station. Spl.L.A.C.No.52/2021.
d) The name of the accused persons,
parentage and residence
: Suraj Suran Yadav
Age – 23 years,
Occupation- Nil
R/o.Footpath opp. Pir
Makhdumshah Baba Dargah
Junction, Mahim(W), Mumbai-16
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.2203/PW/2021
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Learned counsel for Prosecution: APP Smt.M.F.Pakajade for State
Ld. Counsel for Accused : Adv. Mr.Mohd. Yusuf
=====================================================
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
Bamboowadi, beside Coastal Police Chowky, Mahim Retibunder, Mahim(W),
Mumbai accused found in possession of 14.8 inches long knife.
3. The prosecution has examined in all two witnesses i.e. P.W.No.1
Vijay Ramsingh Shinde, informant at Exh.04 and P.W.No.2 Atul Shantaram
Avhad, Investigating Officer at Exh.06.
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
08/10/2021 at about 22.55 hrs. at
Bamboowadi, beside coastal police Chowky,
Mahim Retibunder, Mahim(W), Mumbai-16
accused found in possession of one iron knife
14.8 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.2203/PW/2021
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
As to Point No.1 to 3:-
5. In order to prove the offence against the accused P.W.1 Vijay
Ramsingh Shinde deposed that he was attached to Police Station, Mahim as
police constable in Crime Detection Unit. He was accompanied by API Avhad,
Police constable Jadhav and police constable Gharat proceeded for patrolling at
10.35 p.m. They reached at Mahim Retibunder Bamboowadi, at that time they
found one person started running by seeing them, they parked their vehicle and
caught hold that person by chasing him. On asking that person his name he
disclosed his name as Suraj Saran Yadav, after reaching articles of sealing and
panchas Police Constable Gharat took search of the accused and found one knife
at the left side waist of the accused. This knife was seized and sealed in
presence of panchas. Then FIR was lodged against the accused vide Exh.05.
6. As per evidence of P.W.2 Atul Avhad, his evidence is in
corroboration to the evidence of P.W.1 Vijay Ramsingh Shinde about search and
seizure of the knife from the accused. According to P.W.2 Atul Avhad he seized
and sealed the knife vide panchanama Exh.07. It is clear from the evidence of
both the witnesses that after the accused was caught hold Constable Gharat was
sent to bring panchas and the articles of sealing and laptop.
7. Both the witnesses deposed that at that time order of Prohibition of
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Judgment 4 C.C. No.2203/PW/2021
possession of weapon issued by Commissioner was in force. Then accused was
brought to the police station. Police Constable Shinde lodged FIR against the
accused. Thereafter he recorded statements of witnesses and after completion of
investigation filed charge-sheet against the accused in the Court.
8. 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.
9. The 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. 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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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.
10. As per evidence of P.W.1Vijay Shinde and P.W.2 Atul Avhad,
accused was caught hold as he was running, then panchas were called. After
panchas and articles of sealing came at the place they took personal search of the
accused and one knife was found concealed at the left side waist of accused. It
is not clearly explained by the prosecution witnesses how much time has taken
place to reach the witness and articles of sealing from arrest of the accused.
There is no evidence to prove that where the accused was during that period and
under what condition. The absence of this evidence creates doubt about seizure
of knife from 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. In absence of clear and independent evidence no conclusion
can be drawn that possession of the knife has been proved beyond reasonable
doubt.
11. 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 Suraj Suran Yadav 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
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Judgment 6 C.C. No.2203/PW/2021
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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