Allahabad High Court
Dilip Kumar vs State Of U.P. And Another on 6 January, 2023
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 67
Case :- MATTERS UNDER ARTICLE 227 No. - 10542 of 2022
Petitioner :- Dilip Kumar
Respondent :- State of U.P. and Another
Counsel for Petitioner :- Anil Kumar
Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the petitioner as well as learned A.G.A.
This petition is being filed assailing the legality and validity of the order dated 18.09.2021 passed by learned Additional Sessions Judge, Court No.5, Shahjahanpur confirming the orders of learned Magistrate dated 22.05.2019 passed by learned Additional Chief Judicial Magistrate/Civil Judge(S.D.), F.T.C. Shahjahanpur.
I have perused both the orders. It is admitted that the hut in question is occupied by the petitioner and his wife and she was found dead by the fire arm injury but in the punchnama, alleged illegal weapon(the illegal tamancha) was found in her right hand. The weapon in question is unlicensed country made pistol and make the applicant liable under Section 25(A) of Arms Act.
The petitioner has moved an application for discharging him from the offences under section 35(A) of the Arms Act which read thus :-
"35. Criminal responsibility of persons in occupation of premises in certain cases.?Where any arms or ammunition in respect of which any offence under this Act has been or is being committed are or is found in any premises, vehicle or other place in the joint occupation or under the joint control of several persons, each of such persons in respect of whom there is reason to believe that he was aware of the existence of the arms or ammunition in the premises, vehicle or other place shall, unless the contrary is proved, be liable for that offence in the same manner as if it has been or is being committed by him alone."
It is clear that the hut in question was occupied by the petitioner and his wife and now under the circumstances, there is responsibility for any person who is in occupation of the premises and if there is recovery of any illegal weapon from the hut in question, then under these circumstances, it would be deemed that the petitioner has full knowledge of the weapon in question. There is no question of discharging the petitioner of the offence in question in the light of the aforesaid provision of Arms Act.
Learned counsel for the petitioner has relied upon the judgment of Hon'ble Apex Court in the case of Mohd. Rafiq Abdul Raheem Shaikh VS. State of Gujrat in Criminal Appeal No.1078 of 2008 decided on 13.09.2018 in which Hon'ble Apex Court has opined that to bring home a change under section 35 of Arms Act, it is necessary for the prosecution to establish the intention and the consciousness of the weapon in question. This issue with regard to the mental element for example, intention or consciousness to keep the weapon would be adjudged at the time of trial. At the stage of 482 Cr.P.C, it cannot be adjudicated and thus, above citation is of no help to the applicant.
Under the circumstances, perusal of both the judgments clearly indicates that there is no legal fallacy or illegality in the order impugned. All these are the subject matter of trial and cannot be appreciated at punitive stage of discharge.
Accordingly, the present petition is devoid of merit and accordingly stands dismissed.
Order Date :- 6.1.2023
Sumit S
