1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.703 OF 1991 Laxman Tatoba Jadhav 55 yrs., Occ: Labourer, residing at Peth, Tal: Walva, Dist. Sangli, at present on bail ...Appellant. v. State of Maharashtra ...Respondents. Mr.Pankaj Deokar, appointed advocate for the Appellant. Smt. P.P.Bhosale, APP for the Respondent/State. CORAM : J.H. BHATIA, J. DATED : DECEMBER 6, 2010 ORAL JUDGMENT: 1 The appellant before this Court is the original accused no.1, who was convicted for the offence punishable under sections 3 r/w Section 25 of the Indian Arms Act and was sentenced to undergo R.I. For one year and to pay fine of Rs.5,000/- and in default to pay fine, R.I. For further period of one year in Sessions Case No.6 of 1990 by the learned Additional Sessions Judge, Sangli. He has challenged the conviction and the sentence in the present appeal. 2 To state in brief, prosecution case is that, on 6th December, 1977, circle police inspector P.V.Patil of Islampur police station received secret information that the accused no.1/appellant was dealing in the 2 business of contraband liquor and was also selling refilled cartridges. In view of this, Inspector Patil raided the house of the accused alongwith the police party and two panch witnesses. They went to the house of the accused, which consisted of ‘baithak’ and residential house. Accused was present in the ‘baithak’ and he was actually refilling empty cartridges with the help of small re-priming machine. During the search, one refilled 12 bore gun cartridge, one hammer, percussion caps, a measuring flask, tools used for manufacturing or refilling process of cartridges , 34 refilled cartridges, 43- 12 bore cartridges alongwith gun powder were seized. Twelve bore double barrel gun and license for the same were also found in the baithak. After that police went to the residential house, which is at the distance of 41 feet in front of ‘baithak’. The accused was then in the service of army and had come on leave. A trunk supplied to him as a military personnel was lying in the said house. Said trunk was found locked. Accused, who was having its key, opened it. When the trunk was opened, 35 live cartridges of 9 mm in one box and 32 live cartridges of 9 mm pistol in another box were found. Similarly, 2 stacks of explosive, substance called gilatine wrapped in polythene paper, which could be used for preparing hand grenade, were found. All these articles were seized and sealed. Only the gun and the 3 license were returned to the accused. The Police Inspector Patil lodged report and registered offence. Articles, which were seized from the house of the accused were referred to C.A. and after C.A.Report and after obtaining sanction from the District Magistrate for the prosecution of the accused under the Arms Act, chargesheet was filed under the provisions of Section 3 r/w section 25 of the Arms Act and under Section 5 of the Indian Explosives Act. 3 Charges were framed against the accused. He pleaded not guilty. On behalf of the prosecution, in all six witnesses were examined. Some documents were also placed on record. After hearing the parties, the learned trial Court convicted and sentenced the accused under Section 3 r/w Section 25 of the Arms Act. He was acquitted of the charge under Indian Explosives Act on the ground that necessary sanction for prosecution under Section 7 of the Explosives Act was not obtained from the Central Government . 4 Heard the learned counsel for the appellant and the learned APP. Perused the record and proceedings of the trial Court. Out of the six witnesses, P.W.1 Sadashiv Raskar , who was panch witness did not support the prosecution and was declared hostile. P.W.2 ASI Shankar Katwate, P.W.3 Police Patil Shivajirao, P.W.5 PSI Narayan Bilad and 4 P.W.6 Inspector Pandurang Patil were the members of the raiding party, and they took search of the house of the accused. Evidence of these witnesses shows that P.W.6 P.I.Patil was posted as Circle Inspector at Islampur police station. He got the information that the accused used to sell contraband liquor and also used to refill cartridges at his house at village Peth. Accordingly, he called two panch witnesses and some police officers as well as P.W.3 Shivajirao Patil. With all these persons, he went to the house of the accused. Accused was himself present in the baithak. That was part of his house. As and when he used to come on leave from the Army, he used to sit there and used that part of the house as baithak or sitting room. Opposite to that baithak at the distance of 41 feet, there was remaining portion of his house and that was residential part of the house. When this party went to the said baithak, accused no. 1/appellant himself was present there and he was actually refilling cartridges. In that room, there was his own photograph in uniform. Besides, that there was 12 bore gun hanging on the wall of baithak. On enquiry, accused produced license showing that he was having valid license for 12 bore shot gun issued by the District Magistrate Nizamabad in 1976, where he was then posted. The gun found in baithak corresponded to the description of the weapon given in the license, 5 therefore, the said gun and license were returned to him. Besides, that raiding party seized small machine for refilling cartridges, some empty cartridges, some live cartridges, percussion caps, hammer and other tools as well as gun powder. 5 After that the police party went to his residential house . In that house there was a trunk provided to the accused from the Armed Forces as he was then in the service of Army and he had come on leave. Trunk was found locked. On enquiry accused admitted that he was having key of the same. He himself opened that trunk with key. During the search 67 cartridges of 9 mm pistol, 2 stacks of gilatine and other articles were found. About the said search and seizure, panchanama, Ex. 23 was prepared. Police patil P.W.3 fully supported the above prosecution evidence. 6 It appears that before the trial Court an argument was advanced that prosecution had failed to prove that the said house belonged to the accused. However, this contention was rejected for valid reasons. As stated above, in the baithak not only accused himself was present but his photograph in uniform was hanging on the wall. Similarly, his 12 bore short gun was also hanging on the wall of the said baithak. He was also having license for the said gun in that room. It has 6 come on the record that said baithak was not yet given any house number nor it was taxed. Merely because it was not given separate house number, prosecution story can not be rejected particularly, when accused was himself in possession of the house. As far as residential part of the house is concerned, his own trunk supplied by the military as member of the Armed Forces was found in that room. Key of that trunk was with him and he himself opened it. Therefore, possession of the accused over that house can not be disputed. 7 C.A.Report reveals that all the articles, which were seized by the police were referred to C.A. and those articles were marked Ex.1 to Ex.22. Some of the articles were found in sealed condition, while some of the articles were not found in sealed condition. As per the description of the property given in the C.A.Report Ex.15, some of the articles were in sealed condition, while other were not sealed. Out of sealed articles, article 1 was a 12 bore short gun empty, article 5 was percussion caps, article 9 was shining grayish powder, article 11 contained lead pellets, article 15 were refilled cartridges pouch, article 16 was a plastic bag containing gun powder, article 18 contains 35 KF 9 mm pistol cartridges, article 21A was two 6.35 mm cartridges and 21B was one 6.35 empty, Ex.22 was soft yellowish material. Other articles 7 were not found in the sealed condition. Important among them were articles 19 and 20 which contain 32 KF 9 mm and 33 KF 9 mm empties. Ex.17A contains seven 16 bore empties and Ex.17B contains 29 KF 12 bore empties. Ex. 17C contains 4 refilled cartridges. Ex.17 was not in sealed condition. As per the panchanama of the articles, all the articles were duly sealed and seized. However, some of the articles reached office of the C.A. in sealed condition while some were not in sealed condition. Therefore, possibility of tampering with some of the articles can not be ruled out. 8 Admittedly, accused was having license to hold 12 bore short gun and it has come in the evidence that a person, who has got license for such a shot gun, can refill cartridge for personal use and it does not require any separate license. Therefore, 12 bore cartridges and their empties need not be taken into consideration. As per the report of the C.A., Ex.18 contains 35 KF 9 mm pistol cartridges, Ex.19 also contains similar 32 KF 9 mm pistol cartridges. One from each of them was successfully test fired through 9 mm pistol in the laboratory and remaining were returned. Thus, it was established that the said cartridges were live cartridges for 9 mm pistols. Ex.20 also contains 33 KF 9 mm empties. One of them was successfully test fired. Thus, if all these 8 cartridges are taken into consideration, it appears that total 100 KF 9 mm pistol cartridges were found in possession of the accused. If Ex.19 and 20, being not sealed, are kept aside, still it will have to be held that he was in possession of 35 KF 9 mm cartridges, which were live. For this, he did not possess any license as required under Section 3 of the Arms Act. Therefore, accused is liable to be convicted under Section 25 of the Arms Act. It appears that Section 25 has been amended in 1983, 1985 and in 1988 to make the provisions of said section more and more stringent. However, while awarding punishment, we will have to see legal position at the time of commission of offence in 1977. At that time, Section 25 of the Arms Act was in force without amendment and offence was punishable with imprisonment for a term, which may extend to three years or with fine or with both. There was no provision for any minimum sentence. It appears that later on minimum sentence of six months was provided and in 1985 minimum sentence of one year was prescribed. The learned trial Court convicted accused in the year 1991 and, therefore, he awarded R.I. for one year and fine of Rs.5,000/-. Possibly, he must have felt that it is minimum sentence prescribed by law. However, there was no provision in the year 1977 for minimum sentence when the alleged offence was committed. It is settled position of law that penal provisions 9 can not be given retrospective effect. It is material to note that accused was in service of Army during the relevant period. He has produced his service book, which shows that two years after this incident, he retired from the service and his service record was good. Service record also shows that date of his birth is 4.5.1939. It means at present, he is more than 71 years old. He was not in possession of any firearm without license. He was found in possession of only a few cartridges of 9 mm. He was in custody for 7 days immediately after the arrest in this case, and thereafter he was on bail. In my considered opinion, sentence of imprisonment of one year would be too harsh for the accused, who had served for the nation in the Army and who is now senior citizen aged more than 71 years. During the relevant period of 1977, offence under Section 25 could be punishable with imprisonment or with fine or with both. It means sentence of imprisonment was not mandatory at that time. Therefore, in my opinion, in the interest of justice, impugned order, to the extent of sentence, needs to be modified: 9 Appeal is partly allowed. The conviction of the accused under Section 3 r/w Section 25 of the Arms Act is maintained. However, sentence stands modified as follows: 10 Accused/appellant is sentenced to undergo imprisonment, 10 which he has already undergone and to pay fine of Rs.5,000/-. In case of failure to pay fine, he shall undergo further R.I. for three months. He will deposit fine amount within two months from this date. The learned counsel for the appellant undertakes to communicate the order to the accused/appellant. (J.H. BHATIA,J.)