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Md. Sarfaraz @ Md. Sarfaraz Alam & Another v/s The State of West Bengal


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

Company & Directors' Information:- MD INDIA PRIVATE LIMITED [Active] CIN = U74999DL2016PTC306314

Company & Directors' Information:- MD R INDIA PRIVATE LIMITED [Strike Off] CIN = U72400DL1999PTC097812

    CRR. No. 65 of 2019 With CRAN. No. 336 of 2019

    Decided On, 05 July 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SHIVAKANT PRASAD

    For the Petitioners: Saurav Chatterjee, Pawan Kumar Gupta, Sofia Nesar, Santanu Sett, Advocates. For the Respondent: Ranabir Roy Chowdhury, Mainak Gupta, Advocates.



Judgment Text

In this revisional application petitioners in custody have assailed the judgment and order dated 29.11.2018 passed by the learned Additional District & Sessions Judge, FTC-II, Alipore, South 24 Parganas dismissing the Criminal Appeal No. 173 of 2018, thereby affirming the judgment dated 20.7.2018 and order dated 31.7.2018 passed by the Court of learned Chief Judicial Magistrate, Alipore whereby the appellants were convicted and sentenced to undergo rigorous imprisonment for three years each and to pay a fine of Rs. 5000/- each for having committed an offence under Section 25 (1B) of Arms Act, 1959 in connection with CGR No. 3050 of 2017; TR 277 of 2017 arising out of West Port Police Station Case No. 201 of 2017, dated 24.7.2017, under Sections 25 (1B)

(a)/ 29 of Arms Act, inter alia, on the grounds that the petitioners have been falsely implicated in the present case and the witnesses pertaining to search and seizure of the alleged arms are the pocket witnesses of the prosecution and petitioners have been introduced in the case as accused persons and that the learned Magistrate without appreciating the evidence on record convicted and sentenced the petitioners without application of judicial mind.

Now, the point for consideration in this appeal is as to whether the learned Courts below have erred in passing the judgment and order of conviction and sentence upon the petitioners without proper evaluation and appreciation of the evidence on record.

At the outset, the learned counsel for the petitioners submitted that the Appellate Court has not appreciated the fact that the prosecution have implicated the petitioners in the alleged crime inasmuch as no seizure was made within the State of West Bengal and no local witness could identify the petitioners before the Court. It is further argued that no agreement of tenancy or any other documents have been produced to support the presence of the petitioners at the alleged place of recovery.

Brief facts leading to the instant appeal is that acting on a tip of S.I. Vinod Kumar of West Port Police Station had been to Dhobiatalab Container Parking/Yard on the western bank of a huge water body, known as Dhobiatalab on 24.7.2017 at about 12.15 hours. After a prolonged watch at about 15.05 hours, he noticed that four persons riding on two motor cycles came near to the said spot. On being pointed out by the source, he chased them and they tried to flee on their motor cycles and tried to speed away. He could manage to catch one motor cyclist and its pillion rider and detained them while the other two managed to escape.

A few members of public gathered out of whom two, namely, Sk. Chand and Mohammad Farmuddin volunteered to become witnesses to the search of the detainee who disclosed their identities as Afroz Alam and Mohammad Imtiyaj.

On search, one improvised semi-automatic pistol fitted with a magazine loaded with five rounds of live ammunitions along with another magazine in empty condition was recovered from the possession of Afroz Alam.

Further search was made in presence of the witnesses and on search, one improvised semi-automatic pistol fitted with a magazine loaded with five rounds of live ammunitions along with another magazine in empty condition was recovered from the possession of Mohammad Imtiyaz.

On interrogation, Sub-Inspector Vinod Kumar found that those persons were in the racket of trade of illegal fire arms & ammunitions. He recorded the statements of those two detained persons as well as the seizure witnesses and produced those two accused persons along with seized alamats and case documents before the Officer-in-charge, West Port Police Station with a prayer to start a case under Section 25 (1B) (a)/ 29 of the Arms Act, 1959 against them and others. The case was endorsed to Sub-Inspector Avijit Kumar Bose for investigation. Those accused persons were taken into police custody and pursuant to their statements, the other four accused persons were arrested on 28.7.2017 at 13.20 hours from inside a room situated at premise no. 16D, C.N. Roy Road, Police Station- Tiljala, Kolkata-700039 for having in their possession semi-automatic fire arms with magazines and in total ten rounds of live ammunitions each from their individual possession and some machineries, tools, one jute (gunny) bag containing finished as well as unfinished fire arms, ten live cartridges with magazines and other articles were found and those were seized under seizure list dated 28.7.2017. He got the arms and ammunitions examined by Arms Expert, who opined that those articles fell under the purview of the Arms Act, 1959. He obtained necessary approval from the Commissioner of Police, Lalbazar, Kolkata and on completion of the investigation, charge sheet under Section 25 (1B) (a)/ 29 Arms Act, 1959 was submitted in connection with Tiljala P.S. case no. 195 dated 29.7.2017.

The appellants were charged for the offence punishable under Section 25 (1B) (a) of Arms Act while an offence under Section 25 (2) Arms Act was made out against one accused Sourav Kumar to face the trial before the learned CJM. It would appear from the judgment passed by the Appellate Court that the judgment and the order of conviction and sentence passed by the learned CJM, Alipore was not preferred by the convict Sourav Kumar under Section 374 Cr.P.C. for setting aside the judgment for conviction and sentence against him but the State of West Bengal has also not preferred in appeal under Section 374 Cr.P.C. for enhancement of the quantum of sentence passed against the convict Sourav Kumar. It would appear from the material placed on that the raid conducted on 27.7.2018 was based on disclosure statement of convict Md Sarfaraz @ Md. Sarfaraz Alam. Prosecution has proved the portion of the disclosure statement made by the two convicts bearing their signatures thereon in their presence at the spot cannot be doubted on consideration of the evidence of P.W. 4 and 5. The disclosure statement of the accused persons in the police custody has been well proved as required under Section 27 of the Offence Act which shows that the statement so made by the convicts were made voluntarily and leading to their statement certain facts were discovered and reliance has been made to the sentence at page 67 in case of Pulukuri Kottaya Vs. Emperor, AIR 1947 PC 67 thus-

" 67. It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history of the object produced is not related to his discovery in the setting in which it is discovered. Information supplied by a person in custody that I will produce a knife concealed in the roof of my house does not lead to the discovery of the knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the information to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added with which stabbed A, these words are inadmissible since they do not related to the discovery of the knife in the house of the informant."

It is settled principle of law that the 'fact discovered' includes not only physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in the above cited decision. Such disclosure statement is undoubtedly a link in the proof of the prosecution case.

It is evident from the seizure list dated 24.7.2017 that improvised pistol, five round of ammunitions along with magazine and 7.65 mm pistol vide Mat Exhibit- 1, Mat-2, Mat-3, Mat- 4, Mat-5, Mat-6, Mat-7, Mat-8 were seized respectfully from the convict accused person Sourav Kumar at the place inside Dhobiatalab container parking/yard (D.C.P.) on the Western Bank of huge waterbody known as 'Dhobiatalab' Kolkata-700043. It is also revealed from the seizure list that pistol with preloaded magazine collectively, ten cartridges, two cm finished pistol collectively, two ready pistol collectively, ten round of ammunitions collectively, hackshaw, hammer, pieces of iron collectively, tools and machineries kept in a gunny bag collectively, lathe machine along with accessories, drill machine along with accessories collectively respectfully marked Exhibit-7 to Exhibit-17 were seized from a room situated at the ground floor at 16D, C.N. Roy Road, P.S.- Tiljala, Kol-39 pursuant to the disclosure statement Exhibit-17 made by the convicts Md. Imtiaj, Afroz Alam..

The prosecution has also produced and proved one pistol, one preloaded magazine collectively, ten cartridges collectively, one pistol, one preloaded magazine and one empty magazine collectively, ten cartridges collectively which were seized respectfully from the possession of Md. Imtiaj, Afroz Alam while the raid was conducted by the Investigating Officer. It is also evident from the materials on record that one pistol loaded with magazine and one empty magazine collectively, ten cartridges collectively Exhibit-22 and 23 were seized from Md. Imtiaj, Afroz Alam at the ground floor at 16D, C.N. Roy Road, P.S.- Tiljala, Kol-39. It is axiomatic from the evidence that the incriminating articles being the finished and unfinished arms were seized from the accused convicted persons.

It is also evident from the evidence on record that the seized arms and ammunitions were examined by the ballistic experts. The appellants/accused persons from whom said material exhibits were seized had no license for possession of the fire arms and ammunitions and such an act or omission on their part is undoubtedly a clear violation of Section 3 Arms Act, 1959.

On critical analysis of evidence on record and on perusal of the judgment impugned, the learned Appellate Court below rightly held the accused persons/appellants guilty of the charge punishable under Section 25 (1B) of the Act.

On the question of sentence, Mr. Pawan Kumar Gupta learned counsel for the appellants made a request for reduction of the sentence to the period undergone by the convicts/appellants who have, by now, suffered sentence for more than a year. I find that the convicts Afroz Alam, Mohammad Imitiyaz, Mohammad Izaz @ Mohammad Sonu @ Mohammad Azaz, Mohammad Sarfaraz Alam and Mohammad Raju @ Settu were sentenced to undergo imprisonment for three years each and to pay Rs. 5000/- for charge punishable under Section 25 (1B) of Arms Act in delicto to suffer rigorous imprisonment for another six months. It is pointed out that the learned Magistrate has observed in his judgment that though there has been allegation of manufacturing of illegal fire arms by the accused persons and the police also seized machineries and other items but the prosecution has not been able to prove the same because P.W. 4 and 5 did not make any comment regarding manufacturing of ill-legal fire arms in the grounds of P.W. 4.

I am aware that no restriction has been placed on the power of the High Court to enhance or to reduce the sentence nevertheless; it is a judicial act involving the exercise of discretion which has to be exercised on judiciously. The question of sentence is no doubt a matter of discretion of the trial Court. It is well settled that discretion has been properly exercised and Appellate Court should not interfere unless there are very strong reasons and where the sentence cannot be said to be so grossly inadequate as to amount to a misc

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arriage of justice. I find that while hearing the convicted persons /appellants herein on the question of sentence, the learned trial Court was not inclined to deal with the appellants to sentence them with lenity, though lenient and sympathetic consideration was made in respect of the convict Sourav Kumar who was found to be in conflict with law considering his age, however, having regard to the grave nature of the offence, learned Court has rightly exercised its discretion in awarding sentence on the convicts/appellants who were involved in manufacturing of illegal arms and ammunitions and were in possession of the same. Hence, I do not find strong reasons to deal with the appellants/convicted persons by a sympathetic consideration to reduce their sentence to the period already under gone by them. Consequently, the successive judgments of the learned Courts below are hereby affirmed. Let a copy of this judgment be sent to the learned Courts below for their information for doing the needful. Accordingly, the Criminal Appeal No. 173 of 2018 is hereby dismissed and thus application being CRAN 336 of 2019 stands disposed off. Urgent certified photocopy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
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