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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  

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country always treat the crimes lightly without noticing the havoc they can create  

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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  

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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    

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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  

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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  

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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

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(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  

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(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  

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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.

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                      …..……....................................J        (K.S. Radhakrishnan)

…..……......................................J    (Dipak Misra)

NEW DELHI August  29 , 2012  

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