Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C. No.2223/PW/2021
MHMM180052852021 Received on : 12/10/2021
Registered on : 12/10/2021
Decided on : 03/03/2022
Duration : 00 Y. 04 M. 21 D.
Exh.No.- 10
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.2223/PW/2021
b) The date of commission of
offence
: 13/08/2021
c) The name of the complainant if
any
: The State through Khar police
station. Spl.L.A.C.No.69/2021.
d) The name of the accused persons,
parentage and residence
: Shivnath Pyarelal Dhuriya @
Kallu, Age – 32 years,
Occupation- Nil
R/o.Murti Galli, Khar Railway
Station Footpath, Khar(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 : 03/03/2022
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Judgment 2 C.C. No.2223/PW/2021
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Learned counsel for Prosecution: APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Mr.P.P.Khot
=====================================================
JUDGMENT
(Delivered on 03/03/2022)
1) The above named accused is charge-sheeted for the offence
punishable under section 4, 25 of Indian Arms Act r.w. 37(a), 135 of Maharashtra
Police Act.
The case of prosecution in short is as under: -
2) Informant Ajit Mahadev Jadhav is a Police Constable attached to
Police Station, Khar. On 13/08/2021 he was on duty at Police Station from 21.00
hrs.. At that time informant alongwith PSI Sachin Katkar, ASI Wagh, Police
Head Constable Mohite, More and Jadhav proceeded for patrolling to obey the
order of All Out Operation issued by their senior. At about 11.30 they reached at
Murti Galli, 3rd Road near Khar Railway Station, Khar(W) one person started
running by seeing the patrolling squad. They chased and caught hold that person.
They got a doubt that person has concealed something behind his back under
shirt. Police Constable Jadhav brought two panchas and Police Constable More
brought articles for sealing and labeling. Personal search of the accused was
taken in presence of panchas by PSI Katkar. During personal search accused
disclosed his name as Shivnath Pyarelal Dhuriya @ Kallu and found one 34
inches long knife having blade of 20 inches long and 3.5 inches width with 14
inches handle. Accused possessed this weapon without any permission and in
contravention of the order of Commissioner of Police, Brihan Mumbai. Accused
and the sealed articles brought to he police Station. Informant lodged the FIR.
Offence vide Crime No.69/2021 was registered against the accused and after
completion of investigation filed the charge-sheet against accused.
3) Charge is framed against the accused at Exh.02 . The contents of
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Judgment 3 C.C. No.2223/PW/2021
the charge were explained to the accused in vernacular on V.C. to which accused
pleaded not guilty and claimed to be tried. Plea of the accused was recorded at
Exh.03.
4) The prosecution has examined in all two witnesses i.e. P.W.No.1
Ajit Mahadev Jadhav, informant at Exh.04 and P.W.No.2 Sachin Ganpat Katkar,
Investigation Officer at Exh.06.
5) The statement of accused under section 313(1)(b) of the Code of
Criminal Procedure, 1973 (for short the code) is recorded vide Exh.09. Defence
of the accused is of total denial and false implication. Heard Ld. APP and Ld.
Advocate for the accused.
6) 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
13/08/2021 at about 23.30 hrs. at Murti Galli,
3rd Road, near Khar Railway Station,
Khar(W), Mumbai accused found in
possession of one big knife 34 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
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.
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Judgment 4 C.C. No.2223/PW/2021
R E A S O N S
AS TO POINT NOs. 1 AND 2: -
7) In order to prove the offence against the accused P.W.1 Ajit
Mahadev Jadhav deposed that when he reached alongwith PSI Sachin Katkar and
other officers while patrolling at Murti Galli accused started running by seeing
them. During personal search one knife of 34 inches 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. In support P.W.2
Sachin Katkar deposed that he seized 34 inches knife in presence of panchas
from the accused which was kept under a shirt behind back of accused.
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 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
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Judgment 5 C.C. No.2223/PW/2021
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. 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
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.1 Ajit Jadhav and P.W.2 Sachin Katkar
accused was caught hold as he was running, 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.
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 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.
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Judgment 6 C.C. No.2223/PW/2021
O R D E R
1) The accused Shivnath Pyarelal Dhuriya @ Kallu 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
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:03/03/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 03/03/2022
Dictated on : 03/03/2022
Typed on : 03/03/2022
Signed on : 03/03/2022
vnh
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