Pradeep Kumar Srivastava, J
1. Heard learned counsel for the parties.
2. Both the criminal revisions have been admitted vide order dated 08.07.2015 on the limited question of sentence only.
3. Learned counsel for the petitioners has submitted that the petitioners have been convicted for the offence punishable under Sections 25(1-c) / 26 / 35 of the Arms Act and Section 17 of C.L.A. vide judgment of conviction and order of sentence dated 30.05.2009 passed by learned Judicial Magistrate, 1st Class, Dhanbad in G.R. No. 3815 of 2003 (Tundi P.S. Case No. 72 of 2003) and sentenced to undergo R.I. for three years each and fine of Rs. 500/- for the offence under Sections 25 (1-C) read with Section 35 of the Arms Act and Section 26 read with Section 35 of the Arms Act and further directed to undergo R.I. imprisonment for six months for offence under Section 17 of C.L.A. Act with default stipulation. All the sentences were directed to be run concurrently and on appeal preferred against the said judgment of conviction and order of sentence, the appellate court has affirmed the same.
4. It is further submitted that virtually the case comes under Section 25(1-B)a & 26 of the Arms Act, but FIR was registered under wrong sections and accordingly, charge sheet has been submitted against the petitioners and they were tried in this case jointly.
5. It is further argued that Section 25(1-C) of Arms Act provides punishment if the offence under Section 25(1-B) a of Arms Act is committed in any disturbed area. The nature of punishment is enhanced one than normal sentence provided for the offence under Section 25 (1-B) a of Arms Act. Section 25(1-C) further explains the meaning of “disturbed area” as any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under Section 24A or Section 24B of this Act. It is most vehemently argued that neither in the FIR nor in the charge sheet and even the contents of charge read over and explained to the petitioners clarifying the offence that has been committed by them in disturbed area as defined or notified within the meaning of Explanation appended to Section 25(1-C) of the Arms Act has been mentioned. Section 25(1-C) provides punishment, which reads as under:-
[(1C) Notwithstanding anything contained in sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed area 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.
The said provision was substituted vide Amendment Act 39 of 1985 by which the earlier sentence of “One Year”, but which may extend to seven years has been substituted. Therefore, instead of minimum sentence of three years passed under Section 25(1-C) of Arms Act is liable to be reduced to minimum one year as prescribed prior to amendment of 48 of 2019 under Section 25(1-B) a of the Arms Act. The petitioner – Ram Lochan Tiwari has undergone considerable period of custody for about one year and nine months during trial and during pendency of the appeal and revision. The petitioner – Dulal Mandal has undergone considerable period of custody for about three years and two months during trial and during pendency of the appeal and revision. Hence, petitioners may be released on sentence of imprisonment already undergone.
6. On the other hand, learned APP appearing for the State vehemently opposed the aforesaid contentions raised on behalf of petitioners and submitted that Jharkhand is Naxalite infested area and several banned organizations are instrumental in creating disturbances and menace to public order.
In the instant case, the petitioners are also sentenced for the offence under Section 17 of the Criminal Law Amendment Act and they were found in possession of naxalite pamphlets containing instructions to create disturbances in the society. Therefore, conviction and sentence of the petitioners for the offence under Section 25(1-C) of the Arms Act is justified under law, under which the petitioners have been awarded maximum sentence as prescribed. Therefore, this revision which has been admitted on limited question of sentence is fit to be dismissed.
7. The factual matrix giving rise to this revision is that on 31.12.2003 at about 12:00 noon the informant along with police party had gone on raid at Village – Palma. They were also checking the vehicles on road as area was Naxal infested. When they reached Palma, they found the jeep bearing registration no. OR02F/0595 coming from Dhanbad side. When asked to stop, the driver sped away. However, due to barricade the driver could not go far. The driver and another passenger were arrested. On search, mobile phone, letter written by known Kisun Da, posters relating to Naxal activities, Naxal letters and several other articles were recovered. On search, special box was found behind the back seat which was opened. From there four 0.315 cartridges and one 0.303 bullet was recovered. The accused persons could not produce any document for possessing the recovered contraband. However, they confessed their guilt relating to their involvement in Naxal activities. They stated their names as Ram Lochan Tiwari and Dulal Mandal.
8. I have gone through the record of the case and it appears that there is contravention of Section 3 read with Section 25(1-B) a the Arms Act along with offence under Section 17 of the C.L.A. Act by the present petitioners. The learned trial court as well as appellate court has failed to record any findings that the place, wherein the alleged crime was committed, was declared or specified by the State Government to be Disturbed Area under the provisions of Arms Act. Therefore, conviction and sentence of petitioners for the offence under Section 25(1)C of Arms Act is illegal and not justified. The petitioners have already undergone imprisonment of about more than two years for offence under Section 26/35 of Arms Act and Section 17 C.L.A. Act, which appears to be sufficient punishment of their guilt.
9. In view of above discussion and reasons, conviction of petitioners for the offence under Section 25(1C) is set aside. Further for the offences under Sections 26/35 of Arms Act and Section 17 of C.L.A. Act, petitioners are sentenced with imprisonment already undergone.
10. Accordingly, with the above observations, these criminal revisions are partly allowed.
11. Petitioners are on bail; hence, they are discharged from the liability of bail bonds and sureties shall also be discharged.
12. Let a copy of this judgment along with trial court record be sent to the court concerned for needful.
