22-REVN-217-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.217 OF 2017
HARISH VASU SHETTY )...APPLICANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.Girish Kulkarni i/b. Mr.M.G.Shukla, Advocate for the Applicant.
Ms.A.A.Takalkar, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 13th NOVEMBER 2017
JUDGMENT :
1 Heard. Admit. Heard finally with consent of the parties as record and proceedings has already been called by this court in pursuant to the order dated 4th April 2017. 2 The revision petitioner was an accused in Crime No.I- 52 of 2005 registered with Kashimira Police Station for offences punishable under Sections 466, 467, 468, 471, 474, 420 read with 34 of the Indian Penal Code (IPC) as well as under Section 25(1-
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B)(a) of the Indian Arms Act, registered at the instance of PW2 Vilas Chougule, Police Sub-Inspector. After investigation of the said crime, the charge-sheet came to be filed against the present revision petitioner/accused.
3 Case of the prosecution, as reflected from the charge- sheet, was to the effect that the Superintendent of Police had issued a letter dated 23rd March 2005 to the effect that within jurisdiction of the Thane (Rural) Police, several persons illegally possessing fire-arms are residing. The Superintendent of Police, Thane (Rural) further directed all heads of the police stations under his jurisdiction to make inquiry and collect evidence. The First Information Report (FIR) lodged by Police Sub-Inspector Vilas Chougule further shows that vide letter dated 3rd February 2005, the Senior Police Inspector of the Crime Detection Branch furnished list of 25 arms license holders to the concerned officer of Mon District of Nagaland State for verification and vide letter dated 10th February 2005, the Extra Assistant Commissioner, Mon, Nagaland, informed that all 25 Arms License sent for verification avk 2/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc are forged. The First Informant further reported that the revision petitioner/accused Harish Shetty resides within the jurisdiction of Kashimira Police Station and he is one amongst those 25 persons holding the forged Arm License holding the forged Arm License. He has registered that forged Arms License allegedly issued in his favour by the Deputy Commissioner, Mon, Nagaland, in the Office of the Collector Thane, and thereby cheated the said offence. 4 During the course of investigation in this crime, First Informant Police Sub-Inspector Vilas Chougule, seized the weapon i.e. 32 Bore Revolver of Webley and Scott Company with 8 cartridges as well as the alleged forged license from the present revision petitioner/accused under panchnama (Exhibits 44) and deposited those articles with the Malkhana under a receipt (Exhibit 45). It is alleged that the Investigating Officer had obtained a report from the Extra Assistant Commissioner/Deputy Commissioner, Mon, Nagaland, that the Arms License bearing no.3208/NL/Mon possessed by the revision petitioner/accused and allegedly issued by the said Deputy Commissioner, Mon, avk 3/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc Nagaland, has been verified from the office record of the said office and it is found to have been forged. The said license was not issued in favour of the revision petitioner/accused, but it was issued in favour of a person named Wagwing Konyak of Nagaland. Report of Ballastic examination of the seized fire-arms was also collected during the cause of the investigation. 5 On filing of the charge-sheet, the learned Judicial Magistrate First Class (JMFC) was pleased to frame the Charge and for the sake of convenience, it is necessary to reproduce the Charge, so framed, against the revision petitioner/accused. It reads thus :
" CHARGE I, N.R.Indalkar, Judicial Magistrate, F.C., Thane do hereby charge you Harish Vaasu Shetty aged 46 years, R/at A/24, Galanagar, J.N.Rd., Mulund (West), Mumbai.
as follows :
That on 08/04/2005 at 10.15 a.m. at 103, Silver Harimitage, Mira gaothamn, Bd.Vishnu Mandir, Dist.Thane, you above named accused, avk 4/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc along with one absconding accused, in furtherance of your common intention, dishonestly prepared forged Revolver License as given by Dy.
Commissioner, Mon, Nagaland State which purported to be a record of the public register and that you thereby committed an offence punishable under Sec.466 r/w. 34 of the Indian Penal Code and within the cognizance of this Court.
Secondly, That on above date, time and place you above named accused, along with one absconding accused, in furtherance of your common intention, forged Revolver License as given by Dy.
Commssioner, Mon, Nagaland State purporting to be a valuable security, and you have thereby committed an offence punishable under Sec. 467 r/w 34 of the Inidan Penal Code and within the cognizance of this Court.
Thirdly, That on above date, time and place you above named accused, along with one absconding accused, in furtherance of your common intention, forged Revolver License given by Dy.
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Commissioner, Mon, Nagaland State intending that it shall be used for the purpose of cheating to The Collector of Thane and that you have thereby committed an offence punishable under Sec. 468 r/w 34 of the Indian Penal Code and within the cognizance of this Court.
Fourthly, That on above date, time and place you above named accused, in furtherance of your common intention, fraudulently used a genuine document i.e. Revolver License as given by Dy. Commissioner, Mon, Nagaland State, which you knew at the time you used it to be a forged document and that you thereby committed an offence punishable under Section 471 r/w 34 of the India Penal Code and within the cognizance of this Court.
Lastly, That on above date, time and place, you above named accused along with absconding accused were found in possession with Revolver without holding any license in contravention of Section 3 and thereby you have committed an avk 6/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc offence punishable under Sec. 25(1-B)(a) of the Arms Act and within the cognizance of this Court.
And I do hereby direct you to face the trial on the said charges."
6 In support of the Charge, the prosecution examined two witnesses. Maruti Madhvi, the then Clerk working with the Home Branch of the Office of the Collector, Thane, is examined as PW1. Investigating Officer Vilas Chougule, Police Sub-Inspector, is examined as PW2. Certain documents filed with the charge-sheet are exhibited during the course of their evidence through these witnesses. On conclusion of the trial, the learned JMFC, Thane, while deciding RCC No.637 of 2007 was pleased to hold that the present revision petitioner/accused along with the absconding accused, in furtherance of their common intention, dishonestly prepared forged Arms License and exhibited it to be the record of the public register. It is further held that the present revision petitioner/accused along with the absconding accused, in furtherance of their common intention, forged the Arms License for the purpose of cheating and used that forged Arms License as avk 7/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc genuine. The learned trial court further held that the prosecution has proved that the revision petitioner/accused was possessing a revolver without having a license for is acquisition and possession. With these finding, the revision petitioner/accused came to be convicted of offence punishable under Section 466, 467, 468, 471 of the IPC and under Section 25(1-B)(a) of the Arms Act, 1959. He is sentenced to suffer rigorous imprisonment for two years with a direction to pay fine of Rs.500/- and in default, to undergo rigorous imprisonment for 15 days for the offence punishable under Sections 466 of the IPC. For offences punishable under Sections 467, 468, 471 of the IPC and under Section 25(1-B)(a) of the Arms Act, similar sentence is imposed on the revision petitioner/accused, with a further direction that all substantive sentence shall run concurrently. The seized fire-arms and cartridges were directed to be sent to the District Magistrate, Thane, for disposal according to law.
7 Feeling dissatisfied with this judgment and order of conviction recorded in RCC No.637 of 2007 against him by the avk 8/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc learned JMFC, Thane, the revision petitioner/accused preferred an appeal bearing No.194 of 2015 and by the impugned judgment and order dated 31st March 2017, the learned Additional Sessions Judge, Thane, was pleased to dismiss the said appeal by upholding the conviction as well as the sentence imposed on the revision petitioner/accused, with similar findings. 8 I have heard the learned advocate appearing for the revision petitioner/accused. He argued that no Charge for the offence punishable under Sections 465 and 420 of the IPC was framed and explained to the revision petitioner/accused, and therefore, he could not have been convicted for offences punishable under Sections 467, 468 and 471 of the IPC. Similarly, for want of prior sanction as envisaged by Section 39 of the Indian Arms Act, the cognizance of the offence punishable under Section 25(1-B)(a) of the Arms Act was not permissible and therefore, the resultant conviction and sentence is bad in law.
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9 The learned APP supported the impugned judgments
and orders passed by the courts below by submitting that the case is based on documentary evidence and the documentary evidence adduced by the prosecution unerringly points out commission of offence alleged against the revision petitioner/accused. 10 I have considered the rival submissions and also perused the record and proceedings carefully. It is well settled that normally revisional jurisdiction has to be exercised only in exceptional cases, when there is glaring defect in procedure or there is manifest error on the point of law, which has clearly resulted in miscarriage of justice. Evidence cannot be re- appreciated or re-appraised and finding of fact cannot be upset, unless and until it is shown that it is perverse or suffers from an error of law. Sufficiency of evidence cannot be a ground to set aside the finding of fact recorded by the courts below. If on the basis of evidence on record, no reasonable man could have come to the conclusion arrived at by the courts below, the revisional court can interfere with the impugned order. Keeping in mind these principles, let us examine the case in hand.
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11 Perusal of the charge-sheet and the documents
annexed thereto reflects the prosecution case. It is case of the prosecution that the revision petitioner/accused on 31 st July 2003 (Exhibit 32) applied to the District Magistrate, Thane, for registering his Arms License bearing no.3208/NL/MON issued by the Licensing Authority from Nagaland State for possessing the revolver/pistol. The said Arms License as well as the weapon was ultimately registered at the Office of the Collector, District Magistrate, Thane, after getting a favourable report dated 4th August 2003 (Exhibit 34) from the license issuing authority i.e. the Deputy Commissioner, Mon, Nagaland. Subsequently, it is revealed that the Arms License bearing no.3208/NL/MON for possessing revolver/pistol by the revision petitioner/accused was a forged license and the Verification Report received by the Collector, Thane, in respect of the same is also a forged document. During the course of investigation, according to the prosecution case, the Arms License allegedly produced by the revision petitioner/accused before the Collector, District Magistrate, Thane, was again got verified from the Office of the Deputy avk 11/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc Commissioner, Mon, Nagaland, vide letter dated 22 nd April 2005 sent by the Senior Inspector of Police, Kashimira, to the license issuing authority (Exhibit 46) and the report received from the Deputy Commissioner, Mon, Nagaland, vide letter dated 3rd June 2005 (Exhibit 47) reflected that the said license was not issued by the said licensing authority i.e. the Deputy Commissioner, Mon, Nagaland. Thus, the prosecution case is to the effect that the present revision petitioner/accused along with co-accused, had infact, prepared a false document with intent to commit fraud, by getting it registered with the Office of the Collector District Magistrate, Thane. The prosecution case is also to the effect that the said forged Arms License was used for the purpose of cheating by using it as a genuine Arms License issued by the Deputy Commissioner, Mon, Nagaland. It is worthwhile to note here that considering the nature of averments made against the present revision petitioner/accused in the charge-sheet, it was incumbent on the part of the learned trial court to frame the proper Charge for the offence punishable under Section 465 read with Section 34 as well as Section 420 read with Section 34 of the IPC against the avk 12/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc revision petitioner/accused as averments are also to the effect that this was done with the aid of one absconding accused. However, no such Charge is framed and explained to the revision petitioner/accused causing prejudice to him in defending the case against him, as seen from the record.
12 One of the Charge framed against the revision petitioner/accused is for the offence punishable under Section 466 read with Section 34 of the IPC and the same is held to be proved against him. A reading of this Charge shows that the revision petitioner/accused was explained that he dishonestly prepared forged revolver license purported to be given by the Deputy Commissioner, Mon, Nagaland, which is purported to be a record of the public register and thereby he has committed the offence punishable under Section 466 read with Section 34 of the IPC. Section 466 of the IPC deals with forgery of record of the court or of public register etc. What was explained to the revision petitioner/accused by this Charge is to the effect that he had committed forgery of record of a public register. This Charge is also held to be proved against him by the courts below.
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13 The first witness examined by the prosecution to prove
the Charge is Maruti Madhvi, the then Clerk working in the Home Section of the Office of the Collector, District Magistrate, Thane. Evidence of this witness shows that the revision petitioner/accused came to the Office of the Collector and tendered an application for registration of the Arms License and therefore the letter was sent by his office to the Deputy Commissioner, Mon, Nagaland, for the purpose of verification. This witness submitted that the report Exhibit 34 was then submitted to his office by the revision petitioner/accused. Then the report came to be forwarded by him to the Resident Deputy Collector as well as the Collector, Thane. Cross-examination of this witness shows that he has no personal knowledge about the forgery as well as forgery for the purpose of cheating by using forged document as genuine, allegedly committed by the revision petitioner/accused. His cross-examination reveals that acting on the Arms License as well as the Verification Report Exhibit 34, the Arms License of the revision petitioner/accused came to be avk 14/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc registered. This was done, after getting necessary orders from the Tahsildar (Home), Resident Deputy Collector and the Collector, Thane. This witness nowhere states that the report at Exhibit 34 purported to be issued by Deputy Commissioner, Mon, Nagaland, informing about the genuineness of the Arms License bearing no.3208/NL/MON is a forged report or that the Arms License is a forged document. Infact, through evidence of this witness, the copy of the application dated 31st July 2003 purportedly submitted by the revision petitioner/accused for registration of the Arms License in his favour was got exhibited with the observations by the learned trial Magistrate that such marking of the Exhibit should not construed as proof of the document as the document is a true copy of the original document. However, perusal of the impugned judgment and order shows that infact this copy of the application at Exhibit 32 was read in evidence for inferring the guilt of the revision petitioner/accused without its proof. Thus, the unproved document is used for recording the conviction as well as the resultant sentence.
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14 Next comes evidence of Investigating Officer PW2
Vilas Chougule, Police Sub-Inspector. His evidence is too cryptic and vague. By his evidence, what is done is to mark exhibit numbers on the document without proving their contents. His evidence does not show that he has proved the contents of the documents which are marked as Exhibit during the course of his evidence. This witness has deposed that the letter bearing signature of the Senior Police Inspector (Exhibit 46) was sent to the Commissioner, Nagaland, for verification of the Arms License. Then, this witness has stated that reply to this letter is at Exhibit
47. Perusal of the record shows that the document at Exhibit 47 is, infact, a report purported to be sent by the Extra Assistant Commissioner / Deputy Commissioner, Mon, Nagaland, on 3 rd June 2005, in the matter of verification of the Arms License bearing no.3208/NL/MON. This document at Exhibit 47 contains a recital that as per the office record, the said license was not issued by the said office and it was issued originally in favour of Wagwing Konyak of Nagaland. For proving this Verification avk 16/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc Report at Exhibit 47, examination of the author of the said document was must. The prosecution ought to have summoned atleast the Record Keeper of the said office for proving contents of the said document. Even evidence of PW2 Vilas Chougule, Police Sub-Inspector, does not show that the document at Exhibit 47 was received by the police station in the ordinary course being received through the post. How this document at Exhibit 47 came in possession of the prosecuting agency is a fact which is not at all explained by the prosecution, leave apart proving the contents thereof. PW2 Police Sub-Inspector Vilas Chougule, the Investigating Officer, then deposed that he has received report of Ballastic Expert (Exhibit 49). His cross-examination reveals that he does not know the procedure of obtaining the Arms License. He admitted the fact that the Arms License of the revision petitioner/accused was registered at the Office of the Collector, Thane, on 14th August 2003, and it was registered after verification of the address of the revision petitioner/accused by the Office of the Collector, Thane.
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15 This is all evidence available on record against the
revision petitioner/accused. The documents which are purported to be pressed in service by the prosecution against the revision petitioner/accused for establishing forgery and forgery for the purpose of cheating by using as genuine a forged document, are not at all proved by the prosecution. Similarly, there is no iota of evidence on record to the effect that the document at Exhibit 34, which is a letter dated 4th August 2003, purportedly issued by Deputy Commissioner, Mon, Nagaland, informing the Office of the Collector that the Arms License bearing no.3208/NL/MON was issued in the name of the revision petitioner/accused is a letter forged by the accused person.
16 Now let us examine the legal position, so far as averments against the present revision petitioner/accused reflected from the charge-sheet bereft of the defective Charge framed and explained to him. Section 463 of the IPC defines the term Forgery. It reads thus :-
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"463. Forgery - Whoever makes any false
documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
What amounts to making a false document is prescribed by Section 464 of the IPC. It reads thus :
"464 - Making a false document - A person is said to make a false document or false electronic record -
First - Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, avk 19/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly - Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
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Thus, essential elements of the offence of forgery are :-
a) the making of a false document as part of it.
b) such making must be with an intent -
i) to cause damage or injury to (1) public or (2) any person or
ii) to support any claim or title or
iii)to cause any person to part with property or
iv)to cause any person to enter into express or implied contract or
v) to commit fraud or that fraud may be committed.
17 To bring home an offence punishable under Section 465 of the IPC it is incumbent on the part of the prosecution to prove that the accused had made a false document as understood in the three clauses enumerated in Section 464 of the IPC. The second requirement for proof of commission of offence punishable under Section 465 of the IPC is that such a false document was made by the accused with the intentions such as to cause damage or injury to public or to any individual, to support a claim or title or to cause any person to part with the property or to cause any person to enter into contract or to commit fraud or that fraud may avk 21/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc be committed. Section 25 of the IPC provides that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. Fraud is a deliberate deception to secure unfair or unlawful gain or to deprive a victim of a legal right. False document is said to have been made when a person dishonestly or fraudulently makes a document with the intention of causing it to be believed that such document was made by some other. To constitute forgery, there must be deceit or intention to deceive coupled with actual or possible injury to others. 18 In the case in hand, it was necessary for the prosecution to establish by a clear and cogent evidence that the revision petitioner/accused dishonestly or fraudulently made, signed and executed documents purported to be the the Arms License bearing no.3208/NL/MON issued by the Deputy Commissioner, Mon, Nagaland, as well as Verification Report dated 4th August 2003 (Exhibit 34) purportedly indicating the fact that the said Arms License is genuine, with the intention of causing it to be believed that such a document was made, signed, avk 22/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc sealed and executed by the authority of Deputy Commissioner, Mon, Nagaland. In addition, the prosecution was enjoined to establish that the revision petitioner/accused was knowing that said documents i.e. the Arms License bearing no.3208/NL/MON and its Verification Report dated 4th August 2003 (Exhibit 34) were not signed, sealed and executed by the Office of the Deputy Commissioner, Mon, Nagaland. In addition, the prosecution, for proving the guilt of the revision petitioner/accused for the alleged offences, ought to have proved the Report Exhibit 47 by examining the author of that Report.
19 The prosecution was also duty bound to show that the revision petitioner/accused had committed forgery and that he did it with the intention that such forged document shall be used for cheating and the revision petitioner/accused had intended to cheat the public servants from the Office of the Collector, Thane, by fraudulently and dishonestly inducing the said office to grant / register the Fire-Arm and the Arms License at the Office of the Collector, Thane. Using a document as genuine when the avk 23/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc document is known to be a forged document is a gravamen of the offence punishable under Section 471 of the IPC. Use as genuine of any document which is known or believed to be a forged document is requirement of Section 471 of the IPC. To bring the case under the preview of Section 471 of the IPC, it needs to be established that the accused knew or had very good reason to believe that the document he was using is a forged document. 20 In the case in hand, the revision petitioner/accused had not accepted / admitted the fact that he has executed the disputed documents such as the Arms License or the Verification Report (Exhibit 34). When issuance of the license by the Deputy Commissioner, Mon, Nagaland, is a disputed fact and when the revision petitioner/accused is being prosecuted on that count, then the evidence that the document is forged and was not issued by the Office of the Deputy Commissioner, Mon, Nagaland, should have been adduced by the prosecution by calling atleast the Record Keeper of that office. Truth of facts stated in the document and the document viz., the Arms License and Verification Report avk 24/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc (Exhibit 34) itself was in issue. Hence, it was incumbent on the part of the prosecution to get the fact that the document is forged, proved by calling atleast the concerned officer from the Office of the Deputy Commissioner, Mon, Nagaland, who would have vouched about the said documents being forged. By mere filing of the document it cannot be presumed that the same are false documents.
21 Moreover, perusal of the entire evidence does not show that the prosecution has attempted to place on record allegedly forged Arms License bearing no.3208/NL/MON tendered by the revision petitioner/accused to the District Magistrate, Thane, for the purpose of registration. There is no attempt to show that said Arms License is a forged license. 22 In this view of the matter, it is seen that inadmissible evidence was used by the courts below for convicting the revision petitioner/accused for offences punishable under Sections 466, 467, 468, 471 of the IPC. Similarly, when there was no evidence avk 25/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc on record to show that the revision petitioner/accused had forged the Arms License, for the purpose of cheating the Public Officer, he came to be convicted. Perversity in the impugned judgment and order of conviction of the revision petitioner/accused for offences punishable under Sections 466, 467, 468, 471 of the IPC is writ large from perusal of the evidence on record. 23 Now let us examine whether courts below were justified in convicting the revision petitioner/accused for the offence punishable under Section 25(1-B)(a) of the Indian Arms Act, 1959. Section 25(1-B)(a) provides punishment for acquiring or possessing or carrying any fire-arm or ammunition in contravention of Section 3 of the said Act. Section 3 of the Arms Act, 1959, deals with license for acquisition and possession of fire- arms and ammunition. It provides that no person shall acquire, have in his possession or carry any fire-arm or ammunition unless he holds in this behalf a license issued in accordance with the provisions of the Arms Act, 1959, as well as the Rules made thereunder. Breach of this provision is made punishable by avk 26/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc Section 25 of the Arms Act, 1959. Section 39 of the Arms Act provides that no prosecution shall be instituted against any person in respect of any offence under Section 3 without the previous sanction of the District Magistrate. In the case in hand, the prosecution has not proved the sanction for prosecuting the revision petitioner/accused for the offence punishable under Section 25(1-B)(a) read with Section 3 of the Arms Act, 1959. The sanction order is not produced and proved on record by examining the sanctioning authority. As such, the conviction rendered for the offence punishable under Section 25(1-B)(a) of the Arms Act, 1959, for contravention of provisions of Section 3 thereof is per se illegal and cannot be sustained. 24 It is seen that vide panchnama Exhibit 44, the Investigator i.e. PW2 Police Sub-Inspector Vilas Chougule has shown that a 32 Bore Revolver of Webley and Scott Company with 8 cartridges is seized from the revision petitioner/accused. In terms of the impugned judgment and order, the said fire-arm and ammunition is directed to be sent to the Office of the District avk 27/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc Magistrate, Thane, for disposal, according to the provisions of law. The revision petitioner/accused has neither claimed the said fire- arm or ammunition shown to have been seized from him nor it is his defence that the said fire-arm or ammunition belongs to him as owner with a valid license issued in terms of provisions of Section 3 of the Arms Act, 1959. Hence, so far as disposal of the property shown to have been seized from the revision petitioner/accused is concerned, no infirmity is found in the impugned judgments and orders of the courts below.
25 In the result, I proceed to pass the following order :
ORDER
i) Criminal Revision Application No.217 of 2007 is partly allowed.
ii) The impugned judgment and order passed by the learned JMFC, 7th Court, Thane, in RCC No.637 of 2007 on 2 nd November 2015 as well as the impugned judgment and order dated 31st March 2017 passed by the learned Sessions Judge, Thane, in Criminal Appeal No.194 of 2015, so far as avk 28/29 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 01:40:41 ::: 22-REVN-217-2017.doc convicting the revision petitioner/accused for offences punishable under Sections 466, 467, 468, 471 of the IPC and under Section 25(1-B)(a) of the Arms Act, 1959, and sentencing him accordingly for those offences are quashed and set aside.
iii)The revision petitioner/accused stands acquitted of the offences punishable under Sections 466, 467, 468, 471 of the IPC and under Section 25(1-B)(a) of the Arms Act, 1959. His bail bonds stand cancelled.
iv)Needless to mention that the impugned judgments and orders in so far as they relate to the disposal of the seized property, are maintained.
v) The revision petition is accordingly disposed of.
(A. M. BADAR, J.)
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