Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C. No.2562/PW/2021
MHMM180070402021 Received on : 06/12/2021
Registered on : 06/12/2021
Decided on : 27/04/2022
Duration : 00 Y. 04 M. 21 D.
Exh.No.-07
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.2562/PW/2021
b) The date of commission of
offence
: 03/12/2021
c) The name of the complainant if
any
: The State through Mahim police
station. Spl.L.A.C.No.58/2021.
d) The name of the accused persons,
parentage and residence
: Ibrahim Riyaz Shaikh
Age – 20 years,
Occupation- Nil
R/o.Dargah Galli Slum area,
Jama Masjid, Bandra(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 : 27/04/2022
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Judgment 2 C.C. No.2562/PW/2021
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Learned counsel for Prosecution: APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Mr.J.L.Tiwari
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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
11.00 a.m., near Raheja Hospital, Sion-Mahim Link Road accused found in
possession of knife.
3) The prosecution has examined only one witness i.e. P.W.No.1
Vijay Ramsingh Shinde, 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 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 Vijay
Ramsingh Shinde deposed that when he reached alongwith PSI Ghunawat, and
other officers while patrolling at near Rajeha Hospital, Sion-Mahim Link Road
one person was found in a suspicious condition. They caught hold that person.
That person was concealing something in the right side pocket of his pant. PSI
Ghunawant sent PC Jadhav to bring panchs and PC Gharat was sent to bring
articles required for seal. During personal search in presence of panchas one 'J'
shape, 15 inches long knife was found kept in the right side pocket of the pant of
the accused. Then name of that person was asked in presence of panchas and he
told his name as Ibrahim Riyaz Shaikh. The said knife was seized in presence of
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Judgment 3 C.C. No.2562/PW/2021
panchas. Then FIR was lodged against the accused at Exh.05. Witness
identified the knife Article-A produced before the Court as the same.
5) 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 prohibited 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.
6) 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. 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
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Judgment 4 C.C. No.2562/PW/2021
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 and to prove that the order issued by the Commissioner
of Police was in force at the relevant time.
7) As per evidence of P.W.1 Vijay Shinde, accused was caught hold
as found in suspicious condition, 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 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.
8) 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 with the following order.
O R D E R
1) The accused Ibrahim Riyaz 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.
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Judgment 5 C.C. No.2562/PW/2021
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
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