BAIL SLIP The Appellant/Accused was directed to be released on bail in and by the Order of this Court dated 06.02.2003 made in Crl.M.P.No.1086 of 2003 in Crl.A.No.1645 of 2002 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.02.2010 Coram: THE HONOURABLE MS. JUSTICE R.MALA Criminal Appeal No.1645 of 2002 Abbas ..Appellant vs. State by Inspector of Police B.12, Ukkadam Police Station, Coimbatore. (Crime No. 262 of 2001) ..Respondent Prayer: Criminal Appeal is filed under Section 374 of Cr. P.C. praying to set aside the conviction and sentence imposed in S.C. No. 130 of 2002 on the file of II Additional Sessions Judge (Fast Track Court-II) Coimbatore. For Appellants : Mr. R. Sankarasubbu For Respondent : Mr. I. Paul Noble Devakumar Government Advocate (Crl.side) J U D G M E N T This Criminal Appeal has been arising out of the conviction and sentence passed by the Additional Sessions Judge, Coimbatore (Fast Track Court-II) on 09.07.2002 in S.C. No.130 of 2002 convicting the accused under Section 379 I.P.C. and sentencing him to undergo two years' rigorous imprisonment and convicting him under Section 25 (1)(1A) of Arms Act and sentencing him five years' rigorous imprisonment and imposing fine of Rs.1000/- in default to undergo six months' simple imprisonment. 2. The case of the prosecution is as follows: On 24.06.2001 at 3.30 a.m., when P.W.1 and P.W.2 were in banthopasth duty, P.W.3 is a https://hcservices.ecourts.gov.in/hcservices/ driver in the jeep bearing No. T.N.38G0175, the material object has been kept in the jeep which was given by P.W.7 has handed over the same to the P.W.1 and P.W.2 for bandhopasth duty. Without knowledge of P,W.3 Dinesh the accused has stolen the M.O.1 which was belonging to Police Department. Then, P.W.2 made an enquiry, he came to know that M. O.1 has been missing. Then, they gave a complaint Ex.P1 and the same was received by P.W.9 Inspector of Police. After receipt of complaint, he registered a case in Crime No. 262 of 2001 under Section 379 I.P.C. and prepared Ex.P6 F.I.R. Then, at 8.20 p.m. P.W.9 gone to the place of occurrence and prepared an observation mahazar Ex.P7 in the presence of Yahoob and Yousuf. Then, he prepared Ex.P8 rough sketch and examined the witnesses and recorded their statement at 4 p.m. 3. On the same day at Ukkadam Bye-pass road in front of Holy Family School Board, he arrested the accused. At that time, the accused gave a confession and the same was recorded in the presence of P.W.6 Kuppusamy and one Murugesan. In the confession statement, he has admitted and handed over the hidden property. The admitted portion of the confession statement is marked as Ex.P2 prepared by P.W.9 in the presence of P.W.6 and Murugesan, the accused has gone to Prabasam Rubber Company in the open terrace and handed over M.O.1 gun which was seized under Ex.P3 mahazar at 5.15 p.m. Then, P.W.9 has gone to police station. Since the accused has sustained injury on his right leg, he was sent to hospital where P.W.8 Dr.Paramasivam treated him and gave Ex.P5 Accident Register. Then, P.W.9 examined the witnesses. He further gave requisition to record the Section 164 Cr.P.C. statement of the witnesses P.W.4 Sikkendar Batcha and P.W.5 Fyrose. The requisitions are marked as Exs.P10 and P12 and P.W.9 concluded his investigation and filed charge sheet against the accused under Section 379 I.P.C. and Section 25(1)(1A) of Arms Act. 4. The learned Additional Sessions Judge after framing necessary charges against the accused, questioned the accused and he pleaded not guilty. He examined the witnesses P.W.1 to P.W.9 and Exs.P1 to P12 and M.O.1, posed the question under Section 313 Cr.P.C. based on the incriminating evidence against this accused/appellant for which he denied the same. On considering the oral and documentary evidence, he found the accused guilty of the offence under Sections 379 I.P.C. and 25(1)(1A) of Arms Act and sentenced the accused as indicated above. 5. Challenging the conviction and sentence passed by the Sessions Court, the learned Counsel appearing for the appellant would submit that before prosecuting the accused under Section 25(1)(1A) of Arms Act, sanction has not been obtained as per Section 39 of Arms Act, from District Magistrate/District Collector. So, the entire prosecution under Section 25(1)(1A) is non existent in the eye of law. It is the case of the prosecution is that he has stolen the property as he is not having any motive of using. Hence, the Trial https://hcservices.ecourts.gov.in/hcservices/ Court has committed an error in convicting the accused under Section 25(1)(1A) of Arms Act. He further submits that the appellant is not guilty under Section 379 I.P.C. Even if he will be found guilty under Section 379 I.P.C., he prays for lesser punishment. 6. The learned Government Advocate (Criminal Side) submits that ingredients of Section 379 I.P.C. were made out by way of examining independent witnesses P.W.4, P.W.5 and P.W.6 who is none other than friends of the accused. They have deposed that the accused has stolen the M.O.1. Moreover, P.W.6 Kuppusamy, the attestor of the confession has proved the seizure of M.O.1 and arrest of the accused. So, the Trial Court came to the conclusion that the accused guilty under Section 379 I.P.C. But, he fairly considered the sanction has not been obtained for prosecuting the accused under Section 25(1)(1A) of Arms Act. He prayed for the conviction of the accused under Section 376 to be confirmed. Therefore, he prayed for the dismissal of the appeal. 7. While considering the arguments advanced by both the counsels and after perusing the entire documents, even though the accused/appellant found guilty under Section 25(1)(1A) of Arms Act, but no sanction has been obtained under Section 39. In such circumstances, it is appropriate to incorporate Section 39 of the Act, which is as follows:- "Section-39: Previous sanction of the District Magistrate necessary in certain cases: No prosecution shall be instituted against any person in respect of any offence under Section 3 without the previous sanction of the District Magistrate." Section-3 which is as follows: "Section-3: Licence for acquisition and possession of firearms and ammunition: (1) 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 the rules made thereunder: 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. (2) Notwithstanding anything contained in Sub-section (1) no person, other than a person referred to in sub- https://hcservices.ecourts.gov.in/hcservices/ section(3), shall acquire, have in his possession or carry, at any time, more than three firearms: Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment Act), 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed, for the purposes of sub-section (1) of Section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub-section. (3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice. (4) The provisions of sub-sections (2) to (6) (both inclusive) of section 21 shall apply in relation to any deposit of firearms under the proviso to Sub-section (2) as they apply in relation to the deposit of any arm ammunition under Sub-Section (1) of that section. " Admittedly, M.O.1 gun was seized from this accused which was deposed by P.W.6 Kuppusamy attestor and Exs.P2 confession and P3 mahazar and the same was corroborated by P.W.9. So, the accused was in possession of M.O.1 gun is proved an offence under Section 3 of Arms Act. If any person prosecuted offence under Section 3 of Arms Act, sanction is necessary from the District Magistrate/District Collector. But admittedly, no sanction has been obtained before prosecution. So, the entire prosecution case is vitiated in respect of offence under Section 25(1)(1A) of this Act. 8. So, the conviction and sentence passed against the accused under Section 25(1)(1A) is hereby liable to be set aside. 9. Now, this Court has to decide, whether the Trial Court is correct in held that the appellant is guilty under Section 379 I.P.C. As per the evidence of P.Ws 1 to 3 and P.W.7, have clearly proved that M.O.1 is belonging to the Police Department. P.W.7 has deposed before the Court that on the day of bandhopasth duty, M.O.1 was handed over to P.W.1, which was corroborated by the evidence of P.W.1 and P.W.2. So, M.O.1 is belonging to the Police Department. As per the evidence of P.W.6 and Exs. P2 and P3, M.O.1 has been seized on the basis of the confession given by the accused and that has been https://hcservices.ecourts.gov.in/hcservices/ proved by the prosecution beyond reasonable doubt. So, I am of the opinion that M.O.1 has been seized from the accused. 10. At this juncture, the evidence of P.W.4 and P.W.5 who were the friends of the accused is relevant. In their evidence, they have categorically stated that accused has shown the M.O.1 and stated that he has stolen M.O.1 from the jeep. In such circumstances, I had no hesitation to concur with the findings of the Trial Court that the accused is guilty under Section 379 I.P.C. Hence, the Trial Court was correct in held that the accused is guilty of the offence under Section 379 I.P.C. 11. The Trial Court has found the accused guilty under Section 379 I.P.C. and sentencing him two years' rigorous imprisonment. At this juncture, the learned counsel appearing for the appellant would submit that he is in young age, hence, he prayed for reducing of sentence. At this juncture, the learned Government Advocate (Criminal Side) would contend that he has bad antecedents, so many criminal cases against him. Nearly, 10 cases were against him under Section 379 I.P.C. Hence, there is no leniency in sentence to be shown to him. Considering the arguments of both the counsels, since appellant was involved in 10 more criminal cases of the offence under Section 379 I.P.C., I do not find any force in the arguments advanced by the appellant counsel. Hence, I am forced to concur with the sentence awarded by the Trial Court. Hence, sentencing the accused to undergo two years' rigorous imprisonment is hereby confirmed. 12. In fine, * The criminal appeal is partly allowed. * The conviction and sentence under Section 25(1)(1A) of Arms Act are hereby set aside. Fine amount if any paid by the appellant is ordered to be refunded. * The conviction and sentence under Section 379 I.P.C. are hereby confirmed. * The Trial Court is directed to take steps to secure the custody of the appellant/accused to undergo the remaining period of sentence if any. * The period of sentence already undergone by the appellant/accused is ordered to be set off under Section 428 Cr.P.C. Sd/ Asst.Registrar /true copy/ msr/kj Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional Sessions Judge, Fast Track Court No.II Coimbatore. 2. The Inspector of Police B.12, Ukkadam Police Station, Coimbatore. 3. The Superintendent, Central Prison, Coimbatore. 4. The Public Prosecutor, High Court, Madras. Crl.A.No.1645 of 2002 KA (CO) GSK 25.02.2010. https://hcservices.ecourts.gov.in/hcservices/