Karnataka High Court
Shri. Shantaram S/O. Raya Desai vs The State Of Karnataka on 26 March, 2024
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NC: 2024:KHC-D:5773
CRL.RP No. 100270 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 100270 OF 2017 (397)
BETWEEN:
SHRI. SHANTARAM S/O. RAYA DESAI
AGE:37 YEARS, OCC:COOLIE,
R/O:ARLANJADDI, TQ:YALLAPUR.
...PETITIONER
(BY SRI. GIRISH A. YADAWAD, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY YALLAPUR POLICE,
REPRESENTED BY SPP,
HIGH COURT BUILDING, DHARWAD.
...RESPONDENT
Digitally signed
by SAMREEN (BY SRI. M.B. GUNDAWADE, ADDL. SPP)
AYUB
DESHNUR
Location: THIS CRIMINAL REVISION PETITION IS FILED UNDER
HIGH COURT
OF SECTION 397 READ WITH SEC. 401 OF CR.P.C., PRAYING TO
KARNATAKA
ALLOW THIS REVISION PETITION BY SETTING ASIDE THE
IMPUGNED ORDER OF JUDGMENT OF CONVICTION DATED
16.06.2011 PASSED BY THE JMFC COURT, YELLAPUR IN C.C.NO.
178 OF 2010 AND CONFIRMATION ORDER DATED 29.08.2017
PASSED BY THE I ADDL. SESSIONS JUDGE, KARWAR SITTING AT
SIRSI CRL. APPEAL NO. 84 OF 2011, THEREBY ACQUIT THE
ACCUSED / PETITIONER IN THE ENDS OF JUSTICE AND EQUITY.
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CRL.RP No. 100270 of 2017
THIS PETITION, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the revision petitioner/accused assailing the judgment of conviction and order on sentence dated 16.06.2011 in C.C.No.178/2010 passed by the JMFC Court, Yellapur (for short "Trial Court"), confirmed by the I- Additional District and Sessions Judge, Uttar Kannada, Karwar sitting at Sirsi (for short "I-Appellate Court") in Crl.A.No.84/2011 vide its judgment dated 29.08.2017 for the offence punishable under section 25(1-B) (a) of the Indian Arms Act, 1959 (for short "Arms Act").
2. Parties to this petition are referred as per their rank before the Trial Court.
3. That, the accused was charge sheeted by the PSI, Yellapur Police Station for the offence punishable under Section 25(1-B) (a) of the Arms Act alleging that on 09.07.2009 at about 2.30 p.m. The complainant got a credible information about illegal possession of single barrel gun without licence by one person. Accordingly, the complainant secured the presence -3- NC: 2024:KHC-D:5773 CRL.RP No. 100270 of 2017 of panchas in the police station and also informed his staff, all of them went to Beeragadde road in their departmental vehicle. At that point of time, they found a person carrying a gun on his shoulder. On seeing the police, the said person started running away from the said place. The complainant and his staff chased and caught hold of him, who is the present accused. On enquiry and inspection, the accused did not produce any licence or permit to possess the said gun. Therefore, the complainant suspected and confirmed that it is the illegal weapon possessed and carried by the accused. Accordingly, in the presence of panchas, he prepared panchanama, seized the said unauthorized gun, arrested the accused, thereafter filed complaint before the SHO, Yellapur Police Station, which was registered in Crime No.137/2009 for the aforesaid offence and criminal law was set in motion.
4. After following the procedural formailities, accused was produced before the Court on 09.07.2009. He was enlarged on bail on 16.07.2009. The Investigating Officer, after completion of investigation, as there were sufficient materials to proceed against the accused for the aforesaid offence to be tried, has filed charge sheet against the accused for the -4- NC: 2024:KHC-D:5773 CRL.RP No. 100270 of 2017 aforesaid offence before the Trial. The Trial Court Magistrate took cognizance of the offence.
5. The prosecution, to substantiate and to prove the guilt of the accused examined in all six witnesses as PW1 to PW6 and got marked Ex.P1 to Ex.P16 with respective signatures of the witnesses thereon and also got marked M.O.1-Single Barrel Gun and closed prosecution evidence.
6. The learned Magistrate of the Trial Court on hearing the arguments and on evaluation and assessment of the evidence found the accused guilty of committing offence under Section 25 (1-B) (a) of the Arms Act and sentenced him to undergo simple imprisonment for a period of one year for the said offence and imposed fine of Rs.500/- with default sentence. This judgment of conviction and order on sentence passed by the Trial Court was challenged by the accused before the I-Appellate Court. The I-Appellate Court on reappreciation and re-assessment of the evidence on record dismissed the appeal filed by the accused vide its judgment dated 29.08.2017. This is how the accused is before this Court challenging both the judgments of the Courts below. -5-
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7. It is argued by Sri.Girish Yadawad, the learned counsel for the revision petitioner, that so far as concurrent findings given by the Courts below is concerned, he submits that the Trial Court and the I-Appellate Court have committed error in coming to the conclusion that the accused has committed the aforesaid offence in the manner alleged by the prosecution. He submits that though both the Courts below have held the accused of committing the offence, but there is proper sanction by the competent authority which is necessary for initiating the proceedings against the accused. The sanctioning authority is not examined by the prosecution in this case and hence it is fatal to the case of the prosecution. He submits that as there are only official witnesses who have supported the case of the prosecution, their evidence would not inspire any confidence to prove the guilt of the accused. According to him, both the Courts have committed factual and legal error in finding the accused guilty.
8. So far as position of law with regard to powers of Revisional Court is concerned, the Revisional Court cannot sit as Appellate Court and re-appreciate the evidence is concerned, according to him, in view of factual and legal error being -6- NC: 2024:KHC-D:5773 CRL.RP No. 100270 of 2017 committed by the Trial Court and confirmed by the I-Appellate Court, he craves to acquit the accused. In the alternative he submits before this Court that, if this Court comes to the conclusion that the Trial Court as well as I-Appellate Court are right in holding the accused guilty of committing the offence under aforesaid section, a lenient view may be taken by this Court in imposing the sentence of imprisonment, since at the time of the alleged incident the accused was aged 33 years, now we are in 2024 and as sufficient years have been lapsed from 2010 till this date. He submits that, whatever the sentence being imposed has to be modified and the period already undergone by the accused in custody be given set off. So also he submits that instead of conviction, fine may be imposed on the accused. In support of his submission, he has relied on the following judgments:
i) In Vithal Mahadev Patil v. The State by
Belgaum Rural Police1
ii) In Sri. Sabu S/o. C.S.Joseph v. The State of
Karnataka, Kollur Police Station
(Crl.R.P.No.367/2019 DD 09.03.2023)
iii) In Khadir Sab @ Kadeer Magare S/o.
Mahmad Sab v. State by Vidya Nagar Police
1
1995 SCC Online Kar 541
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Station, Davanagere (Crl.P.No.6173/2020
DD-16.12.2020)
9. As against this submission, Sri.M.B.Gundawade, learned Additional SPP for respondent-State has supported the reasons assigned by the Trial Court and confirmed by the I- Appellate Court in convicting and sentencing the accused for the aforesaid offence. According to his submission, in an offence of present nature, no leniency has to be shown by the Court in imposing sentence. He submits with regard to the position of law and the powers of revisional courts. He submits that there cannot be any reappreciation of the evidence by this Court. He submits that after evaluation and assessment of the evidence led by both the sides, the Trial Court as well as I- Appellate Court have rightly come to the conclusion that, the accused is guilty of committing the offence alleged by the prosecution. He was found in possession of the said gun illegally without any licence or permit. The provisions of the Arms Act mandates possession of licence or permit from the competent authority to possession firearm. The accused without obtaining the permit or licence was found carrying country made gun. Hence, he prays to dismiss the revision petition.
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10. I have given my anxious consideration to the arguments of both the sides. Perused the materials. On evaluation of oral and documentary evidence led by the prosecution, it shows that on getting credible information on 09.07.2009, the complainant along which his staff and panchas went to Beeragadde road and there they noticed the accused walking along with a gun on his shoulder. On seeing the police, he started running away from the said place. When the police chased him and caught hold of him, on enquiry the accused did not give account for possession of the said gun. He was possessing and carrying the said gun without any licence or permit. Therefore, he prepared panchanama as per Ex.P1 in the presence of panchas, seized M.O.1, arrested the accused and brought him to the police station. Thereafter, based upon Ex.P1, he lodged complaint which is marked at Ex.P2 and submitted the same to the Court along with FIR, which is marked at Ex.P3. During the course of investigation, he recorded the statements of the witnesses, sent the seized gun for examination to the FSL Bengaluru, obtained report as per Ex.P5, submitted requisition to the District Magistrate, Uttara Kannada and obtained sanction (Ex.P6) to prosecute the -9- NC: 2024:KHC-D:5773 CRL.RP No. 100270 of 2017 accused and thereafter filed the charge sheet against the accused.
11. These factual features have been corroborated by the investigating officer in his evidence examined as PW1. This PW1-Gopalkrishna T Nayak, Police Inspector, Yellapura P.S. at the relevant time has reiterated the contents of the panchanama and complaint in his evidence at his examination in chief with regard to preparation of panchanama in the presence of panchas.
12. PW2-Sayyed Javed and PW3-Irshad Mohammed Hussain, are independent panchas to seizure panchanama marked at Ex.P1. Both the witnesses have identified the accused, gun marked at M.O.1 seized from the possession of the accused.
13. On scrupulous reading of the evidence of PW1 to PW3, they are consistent in their evidence about PW1 getting information on 09.07.2009 at 2.30 p.m. that near Arebailu- Beeragadde road, one person was moving with a gun, on getting information, they went to the said place and noticed the presence of the accused, who was carrying a gun on his
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NC: 2024:KHC-D:5773 CRL.RP No. 100270 of 2017 shoulder without any licence or permit. Though these PW1 to PW3 have been thoroughly cross-examined by the defence, but throughout their evidence, they are consistent in their evidence about they getting information and going to the said place where the accused was carrying gun on his shoulder. These three witnesses have withstood the test of cross-examination.
14. PW4-Masti B Mukri, was ASI at the relevant time, who was accompanied with complainant-PW1 (Police Inspector) and PW5-Jayaram Hosakatta (Police Constable) at the relevant time to conduct raid at the said place. Even PW4 and PW5 have also spoken in line with the evidence of PW1 to PW3. They have been thoroughly cross-examined by the defence but nothing worth is elicited from the mouth of these witnesses.
15. PW6-S.V.Patil, was PSI at the relevant time who accompanied PW1 at the time of raid. He too has spoken about seizing of M.O.1 from the possession of the accused. He has filed charge sheet against the accused after investigation. Though PW6 is also cross-examined at length but he also withstood the test of his cross-examination.
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16. Learned counsel for the accused submits that there is no proper sanction being obtained by the prosecution, the whole proceedings are vitiated under law. So far as contents of the opinion of FSL with regard to presence of firearms discharge residues is not in dispute. On reading the contents of Ex.P5-FSL report shows that in the said gun the presence of firearm discharge residues were not detected in the barrel of the SBML gun (M.O.1) Even the methods of examination of the said gun is also stated in the report. The said barrel was not rusted and not oiled but it was in working condition. According to the opinion of the FSL, this M.O.1-gun is an illegally manufactured firearm.
17. So far as sanction is concerned, Ex.P6 is relied by the prosecution. As per the contents of Ex.P6, on perusal of the records being submitted to the District Magistrate and on evaluation of the same and on enquiry it was revealed that the accused was found carrying said M.O.1-gun without any licence. After satisfaction only, the District Magistrate issued said sanction as per Ex.P6. It is observed by the Trial Court as well as I-Appellate Court that at the time of marking this document no little finger was raised by the defendants.
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18. The law mandates that in an offence of present nature, it is the duty of the prosecution that sanction must be obtained. Section 3 of the Act says that licence for acquisition and possession of firearms and ammunition is necessary. Evidently, in this case, no such licence is being obtained by the accused. Section 25 is the penalty section stated in Chapter-V of the said Act. According to Section 25 (1) (a) and (b), it shows that a person who manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any terms or ammunition in contravention of section 5 or shortens the barrel of a fire-arm or converts an imitation fire-arm into a fire-arm in contravention of section 6 and punishment prescribed is with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine for the offence taken prior to 2019.
19. In this case, no evidence has been placed on record that the accused was in possession of the said fire-arm for a sale or transfer. Even the said M.O.1 fire-arm was not used at any point of time for the purpose of shooting. As per the FSL
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NC: 2024:KHC-D:5773 CRL.RP No. 100270 of 2017 report no such evidence is produced about discharge of firearms from the said gun. It is alleged by the prosecution that, accused was found in possession of the said gun. The concept of possession is not easy to comprehend as writers of Jurisprudence have had occasions to point out. In some cases under Section 19(1)(f) of the Arms Act, 1878 it has been held that the word "possession" means exclusive possession and the word "control" means effective control but this does not solve the problem. Thus Section 25 (1) (a) is the element of intention, consciousness or element of intention, consciousness or knowledge with which a person possessed the firearm before it can be said to constitute an offence and secondly that possession need not be physical possession but can be constructive, having power and control over the gun, while the person to whom physical possession is given holds it subject to that power and control. In this case accused was found in possession of the same. He was caught hold by the police. There is consistent evidence of PW1 to PW6 on record regarding the seizure of firearm from the possession of the accused. The accused has not produced any valid licence to possess the firearm found in his possession. Therefore, the
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NC: 2024:KHC-D:5773 CRL.RP No. 100270 of 2017 evidence of this PW1 to PW6, who were the members of raiding party, have sufficiently corroborated with each others statements. Nothing has been brought on record by the defence in the cross-examination to disbelieve the testimony of PW1 to PW6. Therefore, as rightly submitted by the Additional SPP appearing for the respondent-State, the prosecution has successfully proved the guilt of the accused beyond all reasonable doubt.
20. With regard to the sanction, it is a mandate that, Section 39 of the Act says previous sanction of the District Magistrate is necessary. Ex.P6-sanction order is marked in evidence without any objection. As rightly observed by the Trial Court and affirmed by the I-Appellate Court, it can be stated that there is satisfactory evidence led by the prosecution about prior sanction. A sanction which simply names the person to be prosecuted and specifies the provision of the order which he is alleged to have contravened. The burden of proving that requisite sanction has been obtained as per the prosecution and by producing the same as per Ex.P6-sanctin order, the prosecution has discharged the burden. As to how the said sanction order is invalid is not explained by the defendants.
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NC: 2024:KHC-D:5773 CRL.RP No. 100270 of 2017 Merely because the district Magistrate who has issued the said sanction is not examined, would not became fatal to the case of the prosecution. While marking the said document as stated supra, no little finger was raised by the defence. Since the said sanction order is marked in evidence without any objection by the defence, now the accused cannot say that sanctioning authority was required to be examined by the prosecution. Moreso, according to Section 3 of the Act, no person shall acquire, have in his possession or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and rules provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder. It is true that definition to section 3 of the Act has been made punishable under section 25(1-B) (a) of the Act.
21. Section 39 of the Act does not prescribe for obtaining of sanction for any other offence other than the offence under Section 3 which is punishable under certain penal provisions. Thus the ingredients of Section 3 are not being
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NC: 2024:KHC-D:5773 CRL.RP No. 100270 of 2017 satisfied by the prosecution except proving that accused was found in possession of the firearm without any licence. When sanction is marked in evidence and admitted by the defence at the time of marking documents, now accused has no voice to say and challenge the sanction as invalid. Though the learned counsel for the petitioner has relied on the decisions cited supra, but the facts of this case do not warrant applying to the said principles being laid down in the aforesaid judgments. That means, the said facts are quite different to the facts of this case and they cannot be justifiably made applicable to the present facts of the case. With all due respect, the said judgments relied by the counsel for the petitioner-accused have no application to the present case on hand.
22. The learned counsel for the accused in alternative submits that since accused-petitioner is the first time offender and was aged about 33 years at the time of the alleged incident; nearly 14 years have been lapsed after the incident; accused is now 46 years old having children and family who are solely depending on him, some leniency may be shown in imposing sentence. He submits that instead of imposing
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NC: 2024:KHC-D:5773 CRL.RP No. 100270 of 2017 sentence of imprisonment some fine amount may be imposed on the accused.
23. As against this submission, learned Additional SPP appearing for the respondent-state submits that there cannot be any leniency be shown in favour of the accused because both the Courts have rightly found the accused guilty of the offence and imposed the sentence. With regard to alternative prayer of the counsel for accused, he submits that if any leniency is shown, it would send a wrong message to the society.
24. Admittedly, the firearm which was seized from the possession of the accused marked at M.O.1 was in working condition. Ex.P5-Ballestic report is also marked in this case. While marking of the same document, no objection was raised by the defence. That means accused was found in possession of the firearm when the raid was conducted and was possessing the same without any licence or permit. Thus all the ingredients as stated supra with regard to commission of offence have been complied with as per the case of the prosecution. Even there is no explanation being offered by the accused during the
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NC: 2024:KHC-D:5773 CRL.RP No. 100270 of 2017 course of recording of his statement before the Trial Court under Section 313 of Cr.P.C. Therefore, it is difficult to accept the contentions of the accused. Even the ignorance of law is no excuse. The arguments of the counsel for petitioner-accused cannot be countenanced in law and as both the Courts have rightly found the accused guilty of commission of the offence. I do not find any patent and factual defect or perversity in the judgments of the Courts below. The said findings of the Courts below are based on factual evidence based on logical reasons. Therefore, the conviction of the accused for the offence is concerned, the same cannot be found fault with. With regard to alternative submission, the accused is having wife and children and he is only the bread earning members of his family. Now he is more than 45 years old as per the submission of the counsel for the petitioner-accused. In view of the facts and circumstances of the case, if the accused is sentenced to undergo simple imprisonment of 8 days with fine of Rs.50,000/- it would meet the ends of justice. The period already undergone by the accused in jail shall be given set off. Therefore, I am of the considered opinion that the sentence
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NC: 2024:KHC-D:5773 CRL.RP No. 100270 of 2017 imposed by both the Courts below needs to be interfered with. Accordingly, I pass the following:
ORDER Criminal Revision Petition filed by the petitioner-accused is hereby allowed in part.
The judgment of conviction dated 16.06.2011 in C.C.No.178/2010 passed by the JMFC Court, Yellapur, confirmed by the I-Additional District and Sessions Judge, Uttar Kannada, Karwar sitting at Sirsi in Crl.A.No.84/2011 vide its judgment dated 29.08.2017 for the offence punishable under Section 25(1-B) (a) of the Indian Arms Act, 1959 is hereby confirmed. However, the order of sentence passed by both the Courts below is hereby modified to the extent that the accused shall undergo simple imprisonment of 8 days with fine of Rs.50,000/- for the offence under Section 25(1-B) (a) of the Indian Arms Act, 1959 along with the fine of Rs.500/-
imposed by the Trial Court. In default to pay the fine
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amount, the accused shall undergo simple
imprisonment for a period of two months.
The accused is directed to deposit the above said fine amount within a period of 30 days from today.
The period of imprisonment already undergone by the petitioner-accused shall be given set off.
The operative portion of this order is directed to be communicated through Additional Registrar (Judicial) to the concerned Trial Court by mail, forthwith.
Send back the Trial Court Records to the Concerned Courts along with copy of this order for compliance.
Sd/-
JUDGE YAN, List No.: 1 Sl No.: 1