Delhi High Court
Kaleem @ Sartaj vs State Govt. Of Nct Of Delhi on 29 August, 2012
Author: V.K.Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL APPEAL NO.965/2011
Decided on : 29.08.2012
KALEEM @ SARTAJ ...... Appellant
Through: Mr. Rajat Wadhwa, Adv.
Versus
STATE GOVT. OF NCTD OF DELHI ..... Respondent
Through: Mr. Sunil Sharma, APP for the State.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
Crl.M.B.1364/2011
1. This is an application for suspension of sentence and
enlargement of the appellant on bail. The appellant was
convicted for an offence u/S 489-C IPC for being in
possession of fake currency notes and he was sentenced
to imprisonment of 3 years apart from fine of Rs.5000/-.
The appellant was also sentenced to RI of five years and
fine of Rs.5,000/-, u/S 25 of the Arms Act, 1959.
2. The contention of Mr.Rajat Wadhwa, the learned counsel
is that the order of sentence shows that the appellant
has been sentenced for a period of 5 years by the
learned trial court on the assumption that the appellant
has been convicted u/S 25 (1-A) of the Arms Act, which
prohibits the acquisition, possession or carrying of the
prohibited arms and ammunitions in contravention to
Section 7 which carries an imprisonment which shall not
be less than 5 years, but may extent to 10 years. It has
been contended by him that the 'prohibited arms' have
been defined in Section 2(i) of the Act. A reading of the
same would show that a prohibited arm is basically an
automatic rifle, etc. where with the press of the trigger,
number of shots are fired while as, in the instant case,
the appellant was having only a Desi Katta. It is
contended that the trial court has fallen into a grave
error by convicting the appellant for an offence u/S 25(1-
A) of the Arms Act erroneously, as he was not in
possession of prohibited arms. It is contended by him
that admittedly the appellant was in possession of desi
katta, which could not have been treated as prohibited
arm and as a matter of fact, he ought to have been
convicted u/S 25(1B) of the Arms Act, under which the
maximum sentence is 3 years. Accordingly, it is urged
that if the appellant would have been sentenced to 3
years only then as per law by virtue of Section 389
Cr.P.C., the appellant would have been extended the
benefit of suspension of sentence by the trial court itself.
3. It is next contended by the learned counsel that even
otherwise, the appellant has already been in custody for
almost 8 months after the conviction and as the appeal is
not likely to be taken up in immediate future, the
appellant be extended the benefit of suspension of
sentence.
4. The learned APP has opposed the prayer for suspension
of sentence on the ground that he has not been in
custody for a long period, which would warrant
suspension of his sentence. It is contended by him that
the appellant has not been sentenced u/S 25 (1-A)of the
Arms Act in fact only reference has been made to the
said Section in the order of sentence.
5. I have carefully considered the submissions made by the
learned counsel for the appellant and perused the record.
6. The facts of the case are that the appellant was
apprehended on 11.7.2007 at about 6.30 p.m. at the
crossing light of Khalsa College, Mall Road, New Delhi by
the raiding party and he was found in possession of three
currency notes of 100 denomination each and one
currency note of 500 denomination, which was found to
be counterfeit. He was also found in possession of an
alleged desi katta with one live cartridge, the appellant
was charged for an offence u/S 489 (C) IPC and Section
25 of the Arms Act. Total 11 witnesses were examined.
Incriminating evidence was put to the accused in his
statement u/S 313 Cr.P.C. The accused also examined
two defence witnesses, after hearing arguments u/S
489(C) and section 25 of the Arms Act.
7. The appellant was heard and the learned trial court after
considering the facts, sentenced the appellant to 5 years
for an offence u/S 25 of the Arms Act and 3 years for an
offence u/S 489 (C) IPC.
8. The trial court, no doubt seems to have committed an
error by referring to Section 25 (1-A) of the Arms Act
which deals with the prohibited arms or ammunitions,
contravention of which is punishable with an
imprisonment of not less than 5 years. To that extent,
the contention of the learned counsel for the appellant is
absolutely correct. The appellant ought to have been
dealt with under Section 25(1B) of the Arms Act because
he was found in possession of desi katta which cannot be
said to be a 'prohibited arm'. The word 'prohibited arms'
has been defined in the Act itself, which reads as under:-
"(i) firearms so designed or adapted that,
if pressure is applied to the trigger, missiles
continue to be discharged until pressure is
removed from the trigger or the magazine
containing the missiles is empty, or
(ii) weapons of any description designed
or adapted for the discharge of any noxious
liquid, gas or other such thing, and includes
artillery, anti-aircraft and anti-tank
firearms and such other arms as the
Central Government may, by notification in
the Official Gazette, specify to be
prohibited arms."
9. However, so far as the quantum of sentence is
concerned, if the appellant would have been convicted for
an offence u/S 25(1B) of the Arms Act, even then the
maximum sentence is of 3 years. Merely because of this
infirmity, the appellant does not deserve to be enlarged
on bail because what is relevant to be seen is the
complete factual matrix in respect of which, he has been
found guilty. Here is a case where the appellant is found
to be in possession of counterfeit currency. In addition
to this, he was also found in possession of live desi katta.
The offence of being in possession of counterfeit currency
is a serious offence as it impacts the economy of the
country. On the top of it being in possession of loaded
katta gives a different flavor. It prima facie shows that
in case, somebody would have accosted him for the fake
currency, he would not have even hesitated to fire also.
10. In the light of this background, I feel that the appellant
just having undergone a sentence of eight months cannot
claim it as a matter of right to get his sentence
suspended. I feel in the facts of the case, at this stage,
he does not deserve the concession of suspension of
sentence.
11. The application is accordingly dismissed.
V.K. SHALI, J.
AUGUST 29,2012
RN
