STATE OF M.P. Vs AYUB KHAN
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: Crl.A. No.-001324-001324 / 2012
Diary number: 39163 / 2010
Advocates: C. D. SINGH Vs
VIKRANT SINGH BAIS
Page 1
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
1
Page 2
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
2
Page 3
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
3
Page 4
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
4
Page 5
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
5
Page 6
(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
6
Page 7
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.
7
Page 8
…..……....................................J (K.S. Radhakrishnan)
…..……......................................J (Dipak Misra)
NEW DELHI August 29 , 2012
8