MOHMED RAFIQ ABDUL RAHIM SHAIKH versus THE STATE OF GUJARAT

[2018] 11 S.C.R.

MOHMED RAFIQ ABDUL RAHIM SHAIKH

THE STATE OF GUJARAT

(Criminal Appeal No. 1078 of 2008)

SEPTEMBER 13, 2018

[S. A. BOBDE AND L. NAGESWARA RAO, JJ.]

Arms Act, 1959 – ss. 25(1)(a), 25(1AA) r/w s. 35 – Prohibitionof acquisition or possession, or of manufacture or sale, orprohibited arms or prohibited ammunition – On facts, cartridgesCfound in the car driven by accused A-1 in drunken state – A2 wasthe owner of the car – Disclosure made by A1 about some morearms hidden in bungalow of which A4 was shown as the occupierin the records – Weapons and live cartridges found inside the cellarof that house – A3 had stored the weapons and later on gave to A1Dfrom the cellar – Conviction of A2 and A4 for commission of offenceu/ss. 25(1)(a), 25(1AA) r/w s. 35 by the courts below – Sustainabilityof – Held: Not sustainable – As regards A2, it is necessary to provethat the accused was in conscious possession at some point in timebefore the discovery and retained control of the objects at the timeof the recovery – Accused was neither in the car when it wasEapprehended nor anywhere near the car – A-2 was arrested onlybecause he was found to be the registered owner – It is not even theprosecution’s case nor the courts below have rendered findingthat A-2 was in constructive possession of the live cartridgesrecovered from the car – Conviction of A2 u/s. 25(1AA) whollyFunwarranted – As regards, A4 he was not in possession or occupationof the house for almost three months as he was in detention – Thereis no evidence that the house was locked from the outside – Windowof the room, which led to the cellar, was said to be locked frominside and an iron gate that had lock on the outside had to bebroken – Prosecution could not establish intention andGconsciousness of the A4 of the arms and ammunition found in A4’shouse – Thus, A4 was not in constructive possession of the firearmsand conviction wholly unwarranted.

Gunwantlal vs. The State of Madhya Pradesh (1972) 2SCC 194 : [1973] 1 SCR 508 – referred to.

MOHMED RAFIQ ABDUL RAHIM SHAIKH v. STATE OFGUJARAT

Case Law Reference

[1973] 1 SCR 508referred toPara 20

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1078 of 2008.

From the Judgment and Order dated 11.09.2007 of the High Courtof Gujarat at Ahmedabad in Criminal Appeal No. 912 of 2004.

WITH

Criminal Appeal No. 1901 of 2008.

Sanjay Jain, Saleem, S. S. Rawat, Advs. for the Appellant.

Shubharanshu Padhi, Ms. Mamta Singh for Ms. Hemantika Wahi,Advs. for the Respondent.

The Judgment of the Court was delivered by

S. A. BOBDE, J. 1. The appellants in these appeals are SalimShamsuddin Shaikh in Criminal Appeal No. 1901 of 2008 (hereinafterreferred to as A-2) and Mohmed Rafiq Abdul Rahim Shaikh in CriminalAppeal No. 1078 of 2008 (hereinafter referred to as A-4). The CriminalAppeals are filed against the final Judgment and Order dated 11.09.2007passed by the High Court of Gujarat at Ahmedabad in Criminal AppealNos. 635 of 2004 and 912 of 2004 respectively. Wherein, the HighCourt has dismissed both the appeals and upheld the conviction andsentence passed by the Additional Sessions Judge, Ahmedabad in SessionsCase No. 46/1999 and 190/2000. A-4 and A-2 are convicted for offencescommitted under Section 25(1)(A) read with Section 35 of the ArmsAct, 1959 and sentenced to undergo three years rigorous imprisonmentand fine of Rs. 5000/-. A-4 and A-2 are also convicted under Section 25(1AA) read with Section 35 of the Arms Act, 1959 and sentenced toundergo seven years rigorous imprisonment and to pay fine of Rs.10,000/- each and in default of making payment of fine to undergo sixmonths imprisonment. Both the sentences were ordered to runconcurrently.

Facts

2. On 4.2.1993 at about 7 pm one blue colored Maruti Fronty carwithout number plate was stopped by Constable Manuji Knauji Rajput.It was driven by Noormahammad Mahammadyasin Shaikh (herein after

Areferred to as A-1) in drunken state. Apparently, police inspector atthe Dariapur Police Station received information that A-1 was in thebusiness of transportation of illegal weapons together with AbduvahabAbdulmajid Pathan (hereinafter referred to as A-3) and that there aresome cartridges in the Maruti Fronty car. The car was then searched.

3. According to the prosecution six live cartridges were found inthe backside of the car in the cavity next to the speaker. These cartridgeshad the name ‘L.V London’ on them and they were meant for use in a.45 revolver, which is prohibited bore. The rest of the prosecutionstory deals with how the weapons have said to be recovered from thehouse of A-4.

Accused No. 2- Salim Shamsuddin Shaikh

4. A-2 who was nowhere near the car has been convicted by thelearned Sessions Court u/s 25(1)(a) & 25 (1AA) read with section 35 ofthe Arms Act, 1959 for period of seven years only because he was theDowner of the car Maruti Fronty registered as GCB 122.

5. Section 25(1)(a) of the Arms Act, 1959 reads as follows:

“(l) Whoever –(a) manufactures, sells, transfers, converts,repairs, tests or proves, or exposes or offers for sale ortransfer, or has in his possession for sale, transfer, conversion,Erepair, test or proof, any arms or ammunition in contraventionof section 5; or

(b) shortens the barrel of firearm or converts an immitationfirearm into firearm in contravention of section 6; or

(d) bring into, or takes out of, India, any arms or ammunitionof any class or description in contravention of section 11,

shall be punishable with imprisonment for term which shallnot be less than three years but which may extend to sevenyears and shall also be liable to fine.”

6. Section 25 (1A) of the Arms Act, 1959 reads as follows:

“Whoever acquires, has in his possession or carries anyprohibited arms or prohibited ammunition in contraventionof section 7 shall be punishable with imprisonment for termwhich shall not be less than five years, but which may extendto ten years and shall also be liable to fine”.

7. In effect, this section provides for the punishment of personwho has in his possession, etc.-prohibited arms or prohibited ammunitionin contravention of Section 7. Section 7 prohibits possession etc. ofprohibited arms or ammunition it reads as follows:

“7. Prohibition of acquisition or possession, or ofmanufacture or sale, of prohibited arms or prohibitedammunition – No person shall-

(a)acquire, have in his possession or carry;

(c)….”[1]

8. Section 25 (1)(a) essentially makes person who is found to bein possession for sale, transfer etc. of any prohibited arms or ammunitionin contravention of Section 5 punishable with imprisonment for term,which shall not be less than three years but which may extend to sevenyears and shall also be liable to fine.

9. The crucial question vis- -vis the conviction of A-2 is whetherhe was found in possession of prohibited ammunition: the six livecartridges seized from the Maruti Fronty car owned by him.

10. We have no hesitation in saying that the conviction of thisAccused under Section 25 (1AA) is wholly unwarranted since he wasnot in possession of the prohibited ammunition at all, much less for thepurpose of sale which is requirement for attracting the provision ofSection 25 (1AA). It reads as follows:

“(1AA) Whoever manufactures, sells, transfers, converts,repairs, tests or proves, or exposes or offers for sale or transferor has in his possession for sale, transfer, conversion, repair, 1 Prohibition of acquisition or possession, or of manufacture or sale, or prohibitedarms or prohibited ammunition –No person shall –

(a) acquire, have in his possession or carry ; or

(b) [ [ Note: Subs. by Act 42 of 1988, s. 4 (w.e.f. 27-5-1988) ] use, manufacture,]sell, transfer, convert, repair, test or prove ; or

(c) expose or offer for sale or transfer or have in his possession for sale,transfer, conversion, repair test for proof, any prohibited arms or prohibitedammunition unless he has been specially authorized by the Central Governmentin this behalf.

Atest or proof any prohibited arms or prohibited ammunitionin contravention of section 7 shall be punishable withimprisonment for term which shall not be less than sevenyears but which may extend to imprisonment for life and shallalso be liable to fine.”

B11. It is nobody’s case that A-2 was found in actual possession ofthe cartridges. The cartridges were recovered from car, which wasdriven by A-1 in drunken state. A-2 was nowhere near the car. A- 2was arrested only because he was found to be the registered owner ofthe car during the course of investigation. This fact of ownership has notbeen contested by A-2 since he on his own made an application for hisCcar as the registered owner and the Court in fact granted this application.

12. The only question is whether the A-2 can be said to have beenin possession of the six cartridges found in the Maruti Fronty car?

13. The Trial Court has merely on the basis of the uncontestedDfact that A-2 is the owner of the car convicted him for period of sevenyears u/s 25(1)(a), 25 (1AA) read with Section 35 of the Arms Act,1959. The High Court upheld that conviction. The Courts below havenot even rendered finding that A-2 is in constructive possession of thesix live cartridges recovered from the car. It might be remembered thatthis Accused was neither in the car when it was apprehended norEanywhere near the car.

14. The prosecution has not led any evidence to establish thecomplicity of A-2. There is no evidence that this accused knew whatA-1 was carrying in the car or that he had kept the prohibited ammunitionin the car. There is no evidence to establish the knowledge or even theFconsent of A-2.

15. The question whether A-2 had any control over either the caror the cartridges found in the car does not even arise for consideration.Without any evidence of the proximity of A-2 with the car, or how hehanded over the prohibited ammunition to A-1 or how he kept them inGthe car makes it difficult to imagine how he could have been convictedfor possession of prohibited ammunition.

16. It is thus clear that this accused cannot be said to have been inpossession of the six live cartridges allegedly recovered from the car. A-2 cannot have said to be in possession- actual or constructive. It may beH

of some consequence, that A-2 is an estate cum car broker who dealt inused cars and may have given the car, as claimed by him in his defenseto A-1 who wanted to purchase it. The Trial Court has disbelieved thisdefense only on the ground that A-2 continued to be the registered ownerof the car.

17. It is also not possible to sustain the conviction of the Accusedu/s 35 of the Arms Act, 1959[2] that renders each of the several peoplewho may have been found in joint occupation/ joint control of anypremises, vehicle or other place, as if the accused has committed theoffense alone.

18. We fail to see how the conviction of A-2 is sustainable u/s 35of the Arms Act,1959 since it is not even the prosecution’s case, that theA-1 and A- 2 were found in joint control or occupation of the MarutiFronty car from which the prohibited ammunition was recovered.

19. We do not take the view that remote location of the firearmof ammunition or recovery from remote place would exonerate anaccused in all cases. But it is necessary to prove that the accused was inconscious possession at some point in time before the discovery andretained control of the objects at the time of the recovery.

20. In Gunwantlal vs. The State of Madhya Pradesh[3], this Courtheld that person cannot be charged with the offences unless it can beshown that he had the knowledge that any sort of prohibited item waspresent in his house.

“5. *********** In some cases under Section 19(1)(f) ofthe Arms Act, 1878 it has been held that the word “possession”means exclusive possession and the word “control” meanseffective control but this does not solve the problem. As wesaid earlier, the first precondition for an offence under Section25(1)(a) is the element of intention, consciousness or

2 35. Criminal responsibility of persons in occupation of premises in certain cases –Where any arms or ammunition in respect of which any offence under this Act has beenor is being committed are or is found in any premises, vehicle or other place in the jointoccupation or under the joint control of several persons, each of such persons inrespect of whom there is reason to believe that he was aware of the existence of thearms or ammunition in the premises, vehicle or other place shall, unless the contrary isproved, be liable for that offence in the same manner as if it has been or is beingcommitted by him alone. 3 (1972) 2 SCC 194

Aknowledge with which person possessed the firearm beforeit can be said to constitute an offence and secondly thatpossession need not be physical possession but can beconstructive, having power and control over the gun, whilethe person to whom physical possession is given holds it subjectto that power and control. In any disputed question ofBpossession, specific facts admitted or proved will aloneestablish the existence of the de facto relation of control orthe dominion of the person over it necessary to determinewhether that person was or was not in possession of the thingin question.”

21. We thus hold that the conviction of Salim Shamsuddin Shaikh(A-2) cannot be sustained and we accordingly set it aside.

Accused No. 4 -Mohmed Rafiq Abdul Rahim Shaikh

22. A-4 was implicated when A-1 is said to have disclosed to thepolice that there are some more arms hidden in another location;DBungalow 19 Satyam Society. A-4 is said to be guilty as he was theoccupier of the said bungalow according to the Ahmedabad MunicipalCorporation records.

The Search

23. The police entered the bungalow in the presence of twopanchas and A-1. The house is two-storied building with cellar. Thepolice found window, which was closed from inside. A-1 stated thatthe weapons and live cartridges found inside the cellar were stored thereby A-3.

24. A-1 further stated that A-3 had given him the weapons fromFthe cellar. An iron door was broken through which the party entered theroom and found the automatic weapons and cartridges in the cellar asstated by A-1. Additionally, in gold bag an AK -47 rifle was found. Inanother bag, seven kattas (country revolvers) were found. White metalwas found in another bag made from spun material.G

25. The Panchnama has the description of the weapons and thecartridges found. There were about fifty live cartridges for the AK 47rifle and about fifty other live cartridges of 12 bore. Other cartridgeswere of varying bores .38, 7.65 etc. Surprisingly, around 18-firedcartridges are said to have been found. The white metal wire was foundto be silver.H

26. The details of the seizure are not strictly relevant for decisionof this case. A-4 has been convicted only on the basis of his admission inthe cross-examination, wherein he is shown as the occupier of the housein the records of the Ahmedabad Municipal Corporation. It is not adisputed fact that A-4, was not present in the house nor had he beenpresent in the house for days before the recovery. In fact, it is not indispute that from 15.12.1992 – 7.1.1994 he was in prison.

27. Therefore, he was in prison when his house was raided on5.2.1993. Strangely, the panchnama does not state that the room, whichled to the cellar from where the weapons were recovered, was evenlocked from outside. It records that the window presumably from whichthe entry was gained was locked from inside. There is nothing to showthat the lock on the iron Gate was put there by A-4.

28. Obviously, A-4 had not occupied this house from the date ofhis detention i.e. 15.12.1992 that is about three months before the raidtook place. A-4 was certainly not found in actual possession of theweapons or even the house in which the weapons and ammunition werefound.

29. In Gunwantlal (supra) this Court has held in Para 5 that:

“5, ****the first precondition for an offence under Section25(1)(a) is the element of intention, consciousness orknowledge with which person possessed the firearm beforeit can be said to constitute an offence and secondly thatpossession need not be physical possession but can beconstructive, having power and control over the gun, whilethe person to whom physical possession is given holds it subjectto that power and control.”

30. To bring home charge it was obviously necessary for theprosecution to establish intention and consciousness of the A-4 of thefire arms and ammunition found in A-4’s house. This was not done. Buteven if one considers whether A-4 was in constructive possession thecharge and conviction cannot be sustained. For, in order to consider afinding of constructive possession it is necessary that either there isproof that the Accused had placed the weapons or was at least in controlof the house in which they were found.

31. In this case, the only proof relating to the alleged complicity ofthe Accused is that he has not been in possession or occupation of the

Ahouse for almost three months as he was in detention. Strangely, there isno evidence that the house was locked from the outside. The window ofthe room, which led to the cellar, was said to be locked from inside.Additionally, an iron gate that had lock on the outside had to be broken.We consider it highly inappropriate in these circumstances to uphold aconviction of constructive possession of the firearms with which A- 4 isBnot shown to have had any connection or control.

32. We, accordingly, set aside the conviction of Mohmed RafiqAbdul Rahim Shaikh (A-4) under Section 25 (1) (a) & 25 (1AA) readwith Section 35 of the Arms Act, 1959. Since the Accused was in jail itis not possible to hold that he was in joint occupation of the house inCaccordance to Section 35 of the Arms Act, 1959.

33. Both the appeals are allowed accordingly.

Nidhi Jain

Appeals allowed.