Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C. No.2453/PW/2021
MHMM180063862021 Received on : 18/11/2021
Registered on : 18/11/2021
Decided on : 27/04/2022
Duration : 00 Y. 05 M. 09D.
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.2453/PW/2021
b) The date of commission of
offence
: 13/11/2021
c) The name of the complainant if
any
: The State through Khar police
station. Spl.L.A.C.No.56/2021.
d) The name of the accused persons,
parentage and residence
: Naushad Yusuf Mithani
Age – 19 years,
Occupation- Caterers
R/o. Footpath Opp.Magdumshah
Baba Dargah, 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 : 27/04 /2022
..2/-
-- 1 of 5 --
Judgment 2 C.C. No.2453/PW/2021
=====================================================
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 27/04 /2022 )
1) The above named accused is charge-sheeted 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 prosecution is that while on patrolling duty at about
08.00 p.m., at Bamboowadi in front of Sagar Chowky accused found in
possession of Sattu (weapon).
3) The prosecution has examined in all two witnesses i.e. P.W.No.1
Ganesh Bhaulal Patil, informant at Exh.04 and P.W.No.2 Chand Zakir Shaikh,
panch witness at Exh.06. Statement of accused under Section 313(1)(b) of
Cr.P.C. is recorded at Exh.09. The defence of accused was of total denial and
false implication.
R E A S O N S
4) In order to prove the offence against the accused P.W.1 Ganesh
Bhaulal Patil, informant deposed that when he reached alongwith PSI Avhad and
other Police constables while patrolling at Bamboowadi in front of Sagar Police
Chowky accused started running by seeing them. During personal search one
Sattu (weapon) was found kept under the shirt behind back of the accused. The
said Sattu was seized in presence of panchas. Then FIR was lodged against the
accused at Exh.05.
5) In support P.W.2 Chand Zakir Shaikh, pancha witness deposed
..3/-
-- 2 of 5 --
Judgment 3 C.C. No.2453/PW/2021
that on 13/11/2021 he was called at Retibunder Police Chowky for panchanama
where constable Pawar and accused was present. One iron Sattu was concelaed
at the waist of accused. The said iron Sattu was sealed and packed there and
panchanama Exh.07 was prepared. He identified iron Sattu Article-A produced
before the Court as the same which was seized by the police.
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 about prohibition of 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.
7) 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
..4/-
-- 3 of 5 --
Judgment 4 C.C. No.2453/PW/2021
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.
8) As per evidence of P.W.No.1 Ganesh Patil accused was caught
hold while he was running at Bamboowadi in front of Sagar Police Chowky. The
evidence clearly establishes that accused was caught hold and Sattu/knife was
seized at the place where he was caught hold. According to panch witness
seizure was made at police out post. This evidence is sufficient to discard the
allegations that Sattu/knife was seized from the possession of the accused.
9) 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 evidence about seizure of knife from the
accused is contradictory. For these reasons accused cannot be held guilty of the
charge levelled against him. Following order is passed.
O R D E R
1) The accused Naushad Yusuf Mithani 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
..5/-
-- 4 of 5 --
Judgment 5 C.C. No.2453/PW/2021
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:-27/04/2022. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on : 27/04/2022
Dictated on : 27/04/2022
Typed on : 27/04/2022
Signed on : 27/04/2022
vnh
../-
-- 5 of 5 --