1 12.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.12 OF 2010 IN CRIMINAL APPEAL NO.890 OF 2009 Shamsherali @ Lambu Shamsuddin Mansuri ...Applicant Versus The State of Maharashtra ...Respondent ...... Mr.Nitin Sejpal with Ms.Pooja Bhojne for Applicant. Dr.F.R.Shaikh, A.P.P. for Respondent. ...... CORAM:- A.M.KHANWILKAR AND A.P.BHANGALE, JJ. DATED:- NOVEMBER 26, 2010. P.C. 1. Heard Counsel for the Applicant/accused No.9 and learned A.P.P. 2. The first contention of the Applicant is that MCOCA offence has been wrongly applied in the fact situation of the present case. In any case, neither charge could be framed for that offence nor the Applicant convicted therefor, as no legal evidence has been produced to place on record as to the circumstances in which MCOCA provisions have been applied. No evidence has been produced to suggest that more than one charge-sheet is 2 12.10.sxw filed against any of the accused or for that matter, the Applicant. The argument, though attractive, will have to be rejected in view of the opinion recorded by the Trial Court in Paragraph 59 of the impugned decision. Assuming that the Applicant is right in contending that MCOCA provisions cannot be invoked for want of evidence, the fact remains that the Applicant has been convicted also for offence punishable under Section 3 r/w 27 of the Arms Act besides other provisions referred to in the impugned order. For the said offence, the Applicant has been sentenced to undergo imprisonment for five years and fine of Rs.5,000/-, in default, to suffer further imprisonment of six months. 3. Insofar as the finding recorded with regard to the offence under Section 3 r/w 27 of the Arms Act is concerned, prima facie, we are in agreement with the said finding recorded by the lower Court. There is ample evidence to indicate that the Applicant was found in possession of the revolver and in fact, had opened firing in Titan Showroom at Mulund. That evidence is unexceptionable. On the basis of that evidence, the conviction in any case with regard to offence under Section 3 r/w 27 of the Arms Act is inevitable. 3 12.10.sxw 4. Indeed, learned Counsel for the Applicant made attempt to persuade us that the evidence regarding recovery of weapon is not sufficient and replete of deficiencies. As aforesaid, for considering the prayer for bail and in view of our prima facie opinion that the conclusion reached by the Trial Court seems to be correct, the argument will have to be stated to be rejected. 5. It was then contended that there was no prior sanction for framing charge in respect of offence under Section 3 r/w 27 of Arms Act which came only by way of Exhibit 102 dated 20th December 2008. The validity of sanction is an issue in the context of argument raised by the Applicant that it is without application of mind. That is a mixed question of fact and law. It appears that no such argument was canvassed before the lower Court. If so, it is doubtful whether such argument can be taken forward for the first time before this Court. More so, when no attempt was made to bring any evidence on record to question the validity of sanction given under the Arms Act. If it were to be a pure question of law that of course can be examined. However, that will have to be done during the hearing of the Appeal. For the time being, we would proceed on the basis of the finding recorded by the Trial Court and considering those findings, in our 4 12.10.sxw opinion, this is not a case for grant of bail. Hence, prayer for bail is rejected. 6. We make it clear that observations made for deciding prayer for bail will not influence the final outcome of the Appeal and the issues to be answered in the Appeal will have to be decided on its own merits. 7. Counsel for the Applicant submits that the Applicant is already in jail since 20th June 2008, for which reason, he should be released on bail having undergone substantial period of sentence. Even this argument does not commend to us. The Applicant/accused No.9 has been convicted for several offences such as Section 387 r/w 511, 452, 427 of Indian Penal Code, Section 3 r/w 27 and 3 r/w 25 of the Arms Act. 8. Accordingly, the Application is rejected. At the same time, it is made clear that if the Appeal is ready in all respects, the same shall proceed for hearing as per its turn under caption `convicts in jail’, which in itself is an expedited category of cases as per the present assignment. (A.P.BHANGALE, J.) (A.M.KHANWILKAR, J.)