Harpreet Singh alias Happy vs State of Punjab

R.L. Anand, J.

Shri Harpreet Singh alias Happy has filed the present revision and it has been directed against the judgment dated 25th November, 1997 passed by the Court of Additional Sessions Judge, Hoshiarpur, who confirmed the conviction of the petitioner under Section 25 of the Arms Act, and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 500/. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for three months.

The facts can be stated as follows :

The case of the prosecution is that Harpreet Singh alias Happy was arrested on 28th December, 1991 in case F.I.R. No. 128 dated 28th December, 1991 under Sections 380 and 411, Indian Penal Code, registered at Police Station Mukerian. During the course of investigation, the petitioner was interrogated and he disclosed that he had kept concealed two sten guns and four empty magazines underneath the heap of husk lying in the premises of O.K. Rice Sheller and he could get the same recovered by pointing out the place of concealment. His disclosure statement was recorded. It was handed over and explained to him and he admitted the same as correct. The petitioner led the police party to the disclosed place and got recovered two sten guns bearing Nos. 209569 and 52576 mark 9 MM and four empty magazines from underneath the heap of paddy husk. The accused could not produce any licence or permit for the possession of the fire arm. Resultantly, case F.I.R. No. 129 dated 28.12.1991 under Section 25 of the Arms Act was registered. The petitioner was prosecuted in the Court of Chief Judicial Magistrate, who convicted the petitioner under Section 25 of the Arms Act and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 500/. In default of payment of fine, the petitioner was ordered to undergo rigorous imprisonment for a period of three months.

Aggrieved by the conviction and sentence, the petitioner has filed an appeal before the Court of Additional Sessions Judge, who vide judgment dated 25th November, 1997 dismissed the appeal. Aggrieved by the judgment passed by the Additional Sessions Judge, present revision has been filed, which I am disposing of with the assistance rendered by Sh. J.B.S. Gill, Advocate, appearing on behalf of the petitioner, and Shri J.S. Brar, D.A.G. Punjab, appearing on behalf of the State.

It is the settled principle of law that the concurrent findings of fact cannot be disturbed in the revision. Learned counsel for the petitioner, however, submits that the trial Court as well as the first appellate Court had committed a patent illegality in convicting the petitioner under Section 25 of the Arms Act in case F.I.R. No. 129 of 1991 as the petitioner had already been acquitted in case F.I.R. No. 128 of 1991 as the subjectmatter of both the F.I.Rs. was the same. In support of his contention, learned counsel for the petitioner has relied upon the judgment dated 14th February, 1996 passed by the Judicial Magistrate 1st Class, which was in case F.I.R. No. 128 dated 28th December, 1991. The submission raised by the learned counsel for the petitioner is devoid of any merit. In order to appreciate this contention, it has to be seen that the said F.I.R. No. 128 was registered under Sections 380 and 411 of the Indian Penal Code. One application No. 205/TRG/Camp dated 27th December, 1991 was received by the police authorities on 28th December, 1991 regarding the annual training camp of N.C.C., S.P.N. College, Mukerian, and it was reported to the police that some weapons, including the sten guns and magazines in dispute were found missing. On the basis of this information this F.I.R. was recorded. The petitioner was arrested on 28th December, 1991 when the police was busy in the investigation of F.I.R. No. 128, the subject matter of which was theft. The ingredients of Section 380 read with Section 411, Indian Penal Code, are totally different than the ingredients of Section 25 of the Arms Act. The theft may or may not be proved, but if the recovery of weapons is proved and established from the petitioner and the petitioner could not produce any valid evidence for the possession of the firearms, his liability under Section 25 of the Arms Act is independent from Section 380 read with Section 411, I.P.C. Moreover the judgment of the learned Magistrate, relied upon by the petitioner would indicate that the petitioner was arrested in case F.I.R. No. 128 under Section 380 read with Section 411, Indian Penal Code, because the prosecution could not produce any evidence for the statement of A.S.I. Jagdish Singh, in spite of the fact that several opportunities were granted to the prosecution. I have already stated above that acquittal of the petitioner in case F.I.R. No. 128 is not a bar for the prosecution to prove that at the time of the alleged recovery of the stenguns and magazines, the petitioner was not in a position to produce any licence or permit therefor.

So far as the present recovery is concerned, it stands proved from the statements of P.W.1 Sub. Major Sewa Singh, who deposed that Harpreet Singh along with others was interrogated and during the course of investigation he disclosed that he had kept concealed two sten guns and four magazines underneath the heap of paddy husk and could get the same recovered therefrom. The disclosure statement (Exhibit PA) was recorded. It has also come in the statement of P.W.1 that the accused led the Police Party and got recovered two stenguns and four magazines from the place of concealment. Learned counsel for the petitioner has not been able to point out any circumstance from which I may be in a position to say that P.W.1 Sub. Major Sewa Singh was hostile to the petitioner. The recovery has also been proved from the statement of the Investigating Officer. It has also been brought on the record through the statement of Shri Rakesh Kumar, Clerk of the office of Deputy Commissioner that the District Magistrate granted the sanction for the prosecution of the petitioner. I have already stated above that the consistent finding of fact cannot be allowed to be disturbed in revision.

Faced with this difficulty, learned counsel for the petitioner submitted that the petitioner was a young boy of 19 years at the time of the alleged commission of crime and in these circumstances, he should be granted the benefit of probation under Section 360, Cr.P.C., read with Section 4 of the Probation of Offenders'' Act. In support of his connection, learned counsel for the petitioner has drawn my attention to the report of the Probation Officer, wherein it has been submitted that the petitioner was not a previous convict, and there is every possibility that he may become a hardened criminal in case he mixes up with the criminals.

The prayer made by the learned counsel for the petitioner has been opposed by Shri J.S. Brar, Deputy Advocate General, Punjab, on the plea that the act complained of was not an innocent one. The petitioner earlier had stolen the stenguns for some other purposes. Though the prosecution had failed to prove the charges of theft against the petitioner, yet the possession of the fire arm by the petitioner in the year 1991, when the State of Punjab was burning, prima facie indicates that the petitioner wanted to commit some heinous crime.

I agree with the contention raised by Shri J.S. Brar, D.A.G. Punjab. The petitioner while he was attending the N.C.C. Camp, should have acted in a disciplined manner, as he was learning discipline. The possession of fire arms, i.e., two stenguns without any licence or permit in the year 1991, is a prima facie proof that the intention of the petitioner was not clear and he could commit more heinous offence with the firearms. No doubt the age is a factor which always has to be kept in mind while granting probation, but keeping in view the facts and circumstances of this case, I am not inclined to grant probation to the petitioner, specially when the Legislature has prescribed the stringent provisions under Section 25 of the Arms Act. In this view of the matter, I do not see any merit in this revision petition and the same is hereby dismissed.