Kaleem @ Sartaj vs State Govt. of NCTD of Delhi

V.K. Shali, J.

Crl.M.B.1364/2011

This is an application for suspension of sentence and enlargement of the appellant on bail. The appellant was convicted for an offence u/S 489C

IPC for being in possession of fake currency notes and he was sentenced to imprisonment of 3 years apart from fine of Rs. 5000/-. The appellant

was also sentenced to RI of five years and fine of Rs. 5,000/-, u/S 25 of the Arms Act, 1959. The contention of Mr. Rajat Wadhwa, the learned

counsel is that the order of sentence shows that the appellant has been sentenced for a period of 5 years by the learned trial court on the

assumption that the appellant has been convicted u/S 25(1A) of the Arms Act, which prohibits the acquisition, possession or carrying of the

prohibited arms and ammunitions in contravention to Section 7 which carries an imprisonment which shall not be less than 5 years, but may extent

to 10 years. It has been contended by him that the ''prohibited arms'' have been defined in Section 2(i) of the Act. A reading of the same would

show that a prohibited arm is basically an automatic rifle, etc. where with the press of the trigger, number of shots are fired while as, in the instant

case, the appellant was having only a Desi Katta. It is contended that the trial court has fallen into a grave error by convicting the appellant for an

offence u/S 25(1A) of the Arms Act erroneously, as he was not in possession of prohibited arms. It is contended by him that admittedly the

appellant was in possession of desi katta, which could not have been treated as prohibited arm and as a matter of fact, he ought to have been

convicted u/S 25(1B) of the Arms Act, under which the maximum sentence is 3 years. Accordingly, it is urged that if the appellant would have

been sentenced to 3 years only then as per law by virtue of Section 389 Cr.P.C., the appellant would have been extended the benefit of

suspension of sentence by the trial court itself.

It is next contended by the learned counsel that even otherwise, the appellant has already been in custody for almost 8 months after the

conviction and as the appeal is not likely to be taken up in immediate future, the appellant be extended the benefit of suspension of sentence.

The learned APP has opposed the prayer for suspension of sentence on the ground that he has not been in custody for a long period, which

would warrant suspension of his sentence. It is contended by him that the appellant has not been sentenced u/S 25(1A) of the Arms Act in fact

only reference has been made to the said Section in the order of sentence.

I have carefully considered the submissions made by the learned counsel for the appellant and perused the record.

The facts of the case are that the appellant was apprehended on 11.7.2007 at about 6.30 p.m. at the crossing light of Khalsa College, Mall

Road, New Delhi by the raiding party and he was found in possession of three currency notes of 100 denomination each and one currency note of

500 denomination, which was found to be counterfeit. He was also found in possession of an alleged desi katta with one live cartridge, the

appellant was charged for an offence u/S 489(C) IPC and Section 25 of the Arms Act. Total 11 witnesses were examined. Incriminating evidence

was put to the accused in his statement u/S 313 Cr.P.C. The accused also examined two defence witnesses, after hearing arguments u/S 489(C)

and section 25 of the Arms Act.

The appellant was heard and the learned trial court after considering the facts, sentenced the appellant to 5 years for an offence u/S 25 of the

Arms Act and 3 years for an offence u/S 489 (C) IPC.

The trial court, no doubt seems to have committed an error by referring to Section 25(1A) of the Arms Act which deals with the prohibited

arms or ammunitions, contravention of which is punishable with an imprisonment of not less than 5 years. To that extent, the contention of the

learned counsel for the appellant is absolutely correct. The appellant ought to have been dealt with u/s 25(1B) of the Arms Act because he was

found in possession of desi katta which cannot be said to be a ''prohibited arm''. The word ''prohibited arms'' has been defined in the Act itself,

which reads as under:-

(i) firearms so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the

trigger or the magazine containing the missiles is empty, or

(ii) weapons of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing, and includes artillery, anti-

aircraft and anti-tank firearms and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited

arms.

However, so far as the quantum of sentence is concerned, if the appellant would have been convicted for an offence u/S 25(1B) of the Arms

Act, even then the maximum sentence is of 3 years. Merely because of this infirmity, the appellant does not deserve to be enlarged on bail because

what is relevant to be seen is the complete factual matrix in respect of which, he has been found guilty. Here is a case where the appellant is found

to be in possession of counterfeit currency. In addition to this, he was also found in possession of live desi katta. The offence of being in possession

of counterfeit currency is a serious offence as it impacts the economy of the country. On the top of it being in possession of loaded katta gives a

different flavor. It prima facie shows that in case, somebody would have accosted him for the fake currency, he would not have even hesitated to

fire also.

In the light of this background, I feel that the appellant just having undergone a sentence of eight months cannot claim it as a matter of right to get

his sentence suspended. I feel in the facts of the case, at this stage, he does not deserve the concession of suspension of sentence. The application

is accordingly dismissed.