:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.589 OF 2006 Sandeep Narayan Bendre, Age 38 years, Residing at Dr. Joshi Wada, Datta Ali,Tilak Chowk, Kalyan, Dist.Thane. ...Appellant. Vs. The State of Maharashtra, D.C.B., C.I.D., Unit No.11, Kandivali Police Station, Mumbai. ...Respondent. Mr. Girish Kulkarni for the Appellant. Ms.M.H. Mhatre, APP. for the State. CORAM: R.S. MOHITE, J. DATE : 02nd September, 2008 ORAL JUDGMENT 1. This is a appeal filed by Sandeep Narayan Bendre (hereinafter referred to as "accused No.2-") impugning a judgment and order passed by the Special Judge under MCOC Act and POTA, Greater Bombay on 28.3.2006 in MCOC Special Case No.3 of 2004. By the impugned judgment and order the Trial Court has convicted the appellant (hereinafter referred to as "Sandeep") for committing an offence punishable under Section 25 (1-A) read with Section 7 of the Arms Act and sentenced him to suffer R.I. for 6-years and to pay a fine of Rs.5000/- in default to suffer :2: further imprisonment for one month. It may be mentioned at this stage that there was another accused by name Shankar Raju Salian and since he was found carrying a country revolver he was sentenced for committing offence U/s. 25(1-B) (a) read with Section 3 of the Arms Act and is sentenced to suffer R.I. for two years and to pay a fine of Rs.5000/- in default to suffer further imprisonment for one month. Both the accused who were tried were acquitted in all other charges including charges under M.C.O.C. and POTA Act. 2. The brief facts of the prosecution case in so far as they relates to the present accused were as under. a) On 3.3.2004, Police Inspector Pradeep Sharma who was then incharge of Kandivali Police Station received information that a member of the Chota Rajan gang was likely to visit Ratna Hotel at Goregaon (W) to deliver some weapons. He therefore, arranged for a trap. The police party left the police station after making a station diary entry. Police Inspector- Pradeep Sharma, PSI Vichare, API Avinash Dharmadhikari, P.W.No.5 Constable Anil Sitaram Ghogare and the informant were the members of the police party. :3: b) The Police party reached near Ratna hotel at about 8.30p.m. At about 9..m. two persons arrived from the directions of Goregaon Railway Station. One of these persons was carrying a blue colour rexin bag on his shoulder. The informant confirmed his identity and the police party accosted him. Police Constable Gaikwad who was in the police party was asked to bring two panchas, one of who was Naresh Soni. In the presence of the panchas, on being asked, the person disclosed his name as Sandeep Narayan Bendre. During his search, an Ak-47 rifle was found in the rexin bag being carried by him. On examination and unloading of the same rifle, it was found that the magazine contained four live rounds. Wooden body of the said revolver had mark-"A". In the pant pocket of Sandeep, two more live cartridges were found. His wallet contained an amount of Rs.50/-, some chits and visiting cards. The articles were then seized under panchanama which was drawn by PSI-Vichare. A copy of the panchanama was given to the accused. The Panchanama so made was later on exhibited in the trial at Exh.P-8. c) In the course of the investigation, on 8.3.2004 the accused Sandeep volunteered to make :4: a statement. The statement made by him was to the effect that he had concealed a rifle and would like to point out the same. The panchas accompanied by the accused, Police officers and Constables went by a Tata Sumo vehicle towards Kalyan Via Dahisar Check Naka, Ghodbunder road. The accused asked the police vehicle to be stopped near the Police Chowki. On the other side of the road, there was one chawl of ground plus first floor. Accused-Sandeep led the police party and the panchas to the first floor of the chawl, on which there were three rooms. He knocked one room on which the name N.B. Bendre was written. On his knocking the door, same was opened by a Senior citizen who identified himself as Narayan Bendre- father of the appellant Sandeep. On the left side of the kitchen in the room there was a ladder. Accused-Sandeep along with constable climbed on that ladder and one gunny bag was taken out from the loft and was brought on to the ground floor. On opening the gunny bag, it was found to contain one rifle and two magazines. One magazine was loaded inside the weapon and the same was containing six live rounds. Other two magazines were empty. One plastic bag was also there in which 15 cartridges were found. The Investigating Officer Avinash Dharmadhikari identified the weapon as AK-56 :5: rifle. However, it may be noted that in the trial, there is some discrepancy as the AK-47 rifle was sometimes referred as rifle AK-56. All these articles were seized and sealed under a panchanama. The Memorandum and the discovery panchanamas were proved at the trial at Exh.s 14 and 14A. d) The articles and the cartridges were sent to the Chemical Analyser. In so far as the two rifles found with magazines at the behest of the appellant-Sandeep, vide his report dated 5.5.2004. The Asstt.Chemical Analyser opined that both the rifles were AK-47 rifles. He found that three empty magazines pertained to AK-47 rifle. The other ammunitions were also found to be live cartridges of AK-47 rifle. In due course, prior to the filing the charge-sheet, by order dated 31.5.2004 sanction was granted by the Dy. Commissioner of Police, Greater Mumbai to prosecute accused-Sandeep for contravening the provisions of Section-3 punishable under Section 25(1)(d) (a) of the Arms Act, 1959. e) Thereafter, after completion of the investigation, charge-sheet came to be filed. 3. At the trial, the learned Special Judge :6: framed several charges under M.C.O.C., POTA and the Arms Act. In order to prove its case, the prosecution examined as many as 11 witnesses. The reference to the witnesses who are relevant in so far as present accused was concerned has already been made hereinabove. The defence of the accused was of total denial. No defence evidence was led after the 313 Statement was recorded. Ultimately, by the impugned judgment and order, the trial court convicted and sentenced the accused as already stated herein above and that is why accused Sandeep has filed the present appeal in this court. 4. The first contention that was raised on behalf of the accused is that the prosecution had not proved the sanction for the offence punishable under Section 3 of the Arms Act. In my view, this contention is not required to be gone into. While it is true that Section 39 of the Arms Act requires prior sanction for the prosecution of the offence punishable under Section 3 of the Arms Act. It appears that no such permission is required for the offence punishable under Section 7 of the Act. It does appear that sanction has been obtained for offence under section 3 by way of precaution but ultimately the conviction is one under Section 7 :7: of the Arms Act for which there appears to be no requirement of sanction before initiating a criminal proceeding. 5. The second contention which was raised was that the entire evidence relating to the discovery of AK 47 rifle and ammunitions on 3.3.2004 should be disbelieved because there were several infirmities relating to the finding and seizure of the said weapons. It was contended that the prosecution case to the effect that P.I. Pradeep Sharma received information on 3.3.2004 and thereafter, proceeded to the spot, where the present accused was likely to be found ought to be disbelieved. In normal course, the police officer should have secured presence of the panchas and not proceed to the spot, without panchas. There is no rule that panchas should be arranged for at the police station itself. In the present case, after present accused Sandeep was accosted, two panchas from the nearby area where procured on the spot. It has not been brought out in the cross examination as to when the actual information was received by the police about the likelihood of the accused arriving near Ratnam hotel. It is quite possible that there might be urgency for proceeding to the spot. If the police were late in arriving at the spot of :8: incident, they might have missed the bus. I find from the evidence that the story about the accused being accosted by laying a trap near the Ratnam hotel and consequent seizure of live ammunitions and seizure of the AK-47 rifle from him is consistently deposed by P.W.No.11 API Avinash Dharmadhikari, panch P.W.No.4 Tanaji Santu Patil and P.W.5 Anil Sitaram Ghogare who were all members of the party that proceeded from the police station. There is nothing damaging which could be elicited from their cross examination. There are no major contradictions or omissions in their evidence. It was sought to be contended that P.W.No.5 Anil Sitaram Ghogare had lodged an FIR and on perusal of the FIR it could be seen that there were some interpolations. I have perused the said interpolations. The FIR was typed on the computer. It appears that the name of the accused was originally written as Praveen Narayan Bendre and the same is changed to Sandeep Narayan Bendre. It is however, seen in the copy of the FIR that there is also mention of word Pradeep Sharma. It is quite possible that word Pradeep occurred while typing on a word processor since it had occurred earlier. There is also correction on Buckal Number of P.W.No.5 Constable- Anil Ghogare. But on seeing the :9: nature of changes, I find that the numbers were corrected at different numerals. It is not suggested to the police constable Anil Ghogare that his Buckal Number is not correct. His name does appear in the F.I.R. It was pointed out that the type of information as mentioned in the FIR ( Column No.4) is "Lekhi". All this means is that the FIR was in a written form. There is no FIR in ink. The nature of interpolation does not appeared to be of such nature as would render the entire prosecution story suspect. 6. It was then contended on behalf of the appellant that there was also some discrepancy in relation to the discovery said to have been made at the behest of accused-Sandeep on 8.3.2005. It was sought to be contended that the signature of one of the pancha witness indicated that his name was Pralhad Yadav whereas in the title given in the FIR, his surname was not Pralhad but some other name. It is quite possible that the person may sign as Pralhad Yadav though he may also have different family name. In any case, that witness is not examined by the prosecution. 7. An attempt was made to argue that the prosecution has not proved that the seized rifles were AK-47 rifles. A reference was made to :10: Exhibit-29 which was an opinion on the distinction between AK-47 and 56 rifles. However, there is no substance in the contention because the Investigating Officer had sent the rifles to the Chemical Analyser and there is a clear opinion to the effect that the rifles were AK 47 rifles in working condition and that some of the ammunition was live. 8. In the net result, I find that there is no substance in the appeal and therefore, appeal is dismissed. (R.S. MOHITE,J.)