REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1324 OF 2012
@ Special Leave Petition (Crl.) No.5389 of 2011
State of M.P. … Appellant
Versus
Ayub Khan … Respondent
J U D G M E N T
K.S. Radhakrishnan, J.
1. Leave granted.
2. Proliferation of arms and ammunition, whether licensed or not, in the
country disrupts the social order and development, vitiates law and order
situation, directly contributes towards lethality of violent acts which
needs to be curbed. We are sorry to note the law enforcing agencies and to
certain extent the courts in the country always treat the crimes lightly
without noticing the havoc they can create -
to the ordinary peace loving citizens of this country and to the national
security and the integrity and the unity of this nation. We may indicate,
the case in hand shows, how casually and lightly, these types of cases are
being dealt with by the courts.
3. ASI S.S. Gaur and P.P. Mrigwas while on patrol duty apprehended that
the accused on 13.09.2005 at 8.30 pm while they were coming from Bakaniya
to Mrigwas Road, Guna, M.P. The accused was found to be in possession of
country made barrel gun with two round bullets and 50 grams of explosives,
without any licence. The accused was charge-sheeted for the offence
punishable under Section 25(1)(a) of the Arms Act, 1959 (for short ‘the
Arms Act’) and was tried before the Court of the Judicial Magistrate First
Class, Chachoda. From the side of the prosecution seven witnesses were
examined. After considering the oral and documentary evidence, the court
came to the conclusion that the accused was guilty of the offence under
Section 25(1)(a) of the Arms Act and on sentence, the court passed the
following order:
“There is no previous crime in the name of the accused and
certainly the accused is the first time offender but from the
possession of the accused a rifle was found illegally in his
possession, therefore, it is not proper to adopt a lenient
approach towards the accused. Only in view of the time taken by
the trial and the time already spent by the accused in custody,
the accused is not punished with the maximum punishment and,
therefore, the accused Ayub Khan is sentenced -
to one year of R.I. and a fine of Rs.100/- for the offence
punishable u/w 25(1)(a) of the Arms Act.”
4. The Court then noticed that the accused was in custody from 14.9.05
to 20.9.05 and the said period was deducted from the original sentence
applying Section 428 of the Code of Criminal Procedure .
5. Aggrieved by the said order the accused filed Criminal Appeal No.170
of 2008 before the Additional Sessions Judge, Chachoda on the ground that
the conviction of the accused under Section 25(1)(a) of the Arms Act was
illegal and that the accused had not committed any offence. The Additional
Sessions Judge, however, vide his order dated 9.7.2008 confirmed the
conviction and the sentence awarded by the Chief Judicial Magistrate. The
accused then filed Criminal Revision No.472 of 2008 before the Hon’ble High
Court of Madhya Pradesh, Bench at Gwalior. The High Court confirmed the
order of conviction passed by the trial court but so far as the sentence is
concerned, the High Court passed the following order on 15.01.2009:
“so far as the period of sentence is concerned, looking to the
limited prayer made by the counsel for the petitioner and the
nature of offence and the fact that the petitioner has already
served substantive period of jail sentence the purpose would be
served in case the jail sentence awarded to the petitioner is
reduced to the period already undergone, subject to depositing
fine of Rs.5,000/- within a period of two months, in default the
-
petitioner shall suffer jail sentence awarded by the Learned
Court below.”
6. Aggrieved by the said order, the State of Madhya Pradesh has
approached this Court.
7. Learned counsel appearing for the State submitted that the High Court
and the courts below have committed an error in not awarding the minimum
statutory sentence to the accused, even after, convicting him for an
offence committed under Section 25(1)(a) of the Arms Act. Learned counsel
submitted that as per the said Section the minimum statutory sentence is
three years but the same can be extended to seven years and the accused
shall also be liable to fine. Learned counsel appearing for the respondent-
accused submitted that on the peculiar facts and circumstances of the case
on hand, the High Court was justified in confining the sentence of the
accused to the period already undergone subject to depositing the fine of
Rs.5,000/-.
8. We are of the view that the Chief Judicial Magistrate as well as the
Sessions Court have committed an error in the manner in which sentence has
been awarded and the High Court has committed a grievous error in not
awarding the proper sentence after having found the accused guilty under
Section 25(1)(a) of the Arms Act. Error is apparent on the face of the
High Court’s order. The High Court has -
confined the sentence to the period the accused was in custody stating that
he had already served substantive period of jail sentence. We are sorry to
note that the High Court has not taken pains to examine what was the period
he had served by way of substantive sentence. The accused was in custody
only for seven days i.e. from 14.9.05 to 20.9.05. We fail to see how the
High Court has reached a finding that the accused had served the
substantive period of jail sentence.
9. We are of the view, that the High Court and the courts below have
committed a serious error in not awarding the minimum mandatory sentence
prescribed under the Statute. Chapter V of the Arms Act deals with the
offences and penalties. The accused was charge-sheeted for the offence
under Section 25(1)(a) of the Arms Act for which minimum mandatory
sentence was not less than three years. For reference sake, the said
provision, in its entirety, is extracted hereunder:
“25.Punishment for certain offences --(1) Whoever
(a) manufactures, sells, transfers, converts, repairs, tests or
proves, or exposes or offers for sale or transfer, or has in
his possession for sale, transfer, conversion, repair, test or
proof, any arms or ammunition in contravention of section 5; or
(b) shortens the barrel of a firearm or converts an
imitation firearm into a firearm in contravention of section 6;
or
-
(c) * * * * *
(d) brings into, or takes out of, India, any arms or
ammunition of any class or description in contravention of
section 11
shall be punishable with imprisonment for a term which shall
not be less than three years but which may extend to seven
years and shall also be liable to fine.”
10. Legislature, in its wisdom, has fixed a mandatory minimum sentence
for certain offences - keeping, possessing arms and ammunition is a serious
offence which shall not be less than three years. Legislature, in its
wisdom, felt that there should be a mandatory minimum sentence for such
offences having felt the increased need to provide for more stringent
punishment to curb unauthorised access to arms and ammunition, especially
in a situation where we are facing with menace of terrorism and other anti
national activities. A person who is found to be in possession of country
made barrel gun with two round bullets and 50 grams explosive without
licence, must in the absence of proof to the contrary be presumed to be
carrying it with the intention of using it when an opportunity arise which
would be detrimental to the people at large. Possibly, taking into
consideration all those aspects, including the national interest and safety
of the fellow citizens, the Legislature in its wisdom has prescribed a
minimum mandatory sentence. Once the accused was found guilty for the
offence committed under -
Section 25(1)(a) of the Arms Act, he has necessarily to undergo the minimum
mandatory sentence, prescribed under the Statute.
11. The Chief Judicial Magistrate has overlooked this vital fact and
awarded only one year’s R.I. and a fine of Rs.100/-, which was confirmed by
the Sessions Court. The High Court has made it worst by reducing the
sentence to the period already undergone, which was only seven days, in a
case where the accused should have undergone a minimum sentence of three
years and fine under Section 25(1)(a) of the Arms Act.
12. We, therefore, allow this appeal, set aside the order of sentence
passed by the High Court as well as the courts below and order that the
respondent-accused has to undergo a minimum period of three years sentence
as prescribed under Section 25(1)(a) of the Arms Act and also with a fine
of Rs.5000/-, in default, another three months simple imprisonment.
…..……....................................J
(K.S. Radhakrishnan)
…..……......................................J
(Dipak Misra)
NEW DELHI
August 29 , 2012
