STATE OF M.P.versusAYUB KHAN

                     [2012] 7 S.C.R. 427


                        STATE OF M.P.                                A
                                v.
                        AYUB KHAN
             (Criminal Appeal No. 1324 of 2012)
                      AUGUST 29 , 2012
                                                                     B
    [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

     ARMS ACT, 1959:

      s. 25(1 )(a) - Unauthorised possession of arms -               c
Punishment - Held: Proliferation of arms and ammunition,
whether licensed or not, in the country disrupts the social
order and development, vitiates law and order situation,
directly contributes towards lethality of violent acts which needs
to be curbed - Taking into consideration all these aspects,          D
including the national interest and safety of the citizens, the
Legislature in its wisdom has prescribed a minimum
mandatory sentence (imprisonment for a term 'not less than
three years' - Once the accused was found guilty of the
offence, he has necessarily to undergo the minimum                   E
mandatory sentence, prescribed under the Statute - Law
enforcing agencies and courts should not treat such crimes
lightly - High Court and the courts below have committed a
serious error in not awarding the minimum mandatory
sentence prescribed - Orders of sentence passed by High
                                                                     F
Court as well as the courts below are set aside - Respondent-
accused has to undergo a minimum period of three years
sentence as prescribed uls 25(1)(a) and a/so with a fine of
Rs.50001-.

     The instant appeal was filed by the State against the           G
judgment and order of the High Court by which it upheld
the conviction of the respondent u/s 25(1 )(a) of the Arms
Act, 1959 for being in possession of a country made gun
with 2 round bullets and 50 gms explosive, without
                           427                                       H
    428      SUPREME COURT REPORTS              [2012] 7 S.C.R.


A licence, but reduced the sentence of one year's RI and a
  fine of Rs.100/- imposed by the trial court and upheld by
  the appellate court, to the period already undergone ( i.e.
  7 days) with a fine of Rs.5000/-.

          Allowing the appeal, the Court
B
         HELD: 1. Proliferation of arms and ammunition,
    whether licensed or not, in the country disrupts the social
    order and development, vitiates law and order situation,
    directly contributes towards lethality of violent acts which
C   needs to be curbed. Legislature, in its wisdom, has fixed
    a mandatory minimum sentence for certain'offences -
    keeping, possessing arms and ammunition is a serious
    offence - which shall not be less than three years. A
    person who is found to be in possession bf country
D   made barrel gun with two round bullets and 50 grams
    explosive without licence, must in the absence of proof
    to the contrary be presumed l:o be carrying i\it with the
    intention of using it when an opportunity arises which
    would be detrimental to the people at larga. Once the
E   accused was found guilty of the offence u/s.. 25(1 )(a) of
    the Arms Act, he has necessarily to undergo th'e minimum
    mandatory sentence, prescribed under the Statute.
    Keeping in view the safety of the citizens, the national
    security, and integrity and unity of the country, the law
F   enforcing agencies and the courts should not treat such
    crimes lightly. [para 2 and 10] [429-E-F; 433-A-D]
       1.2 The High Court and the courts below have
  committed a serious error in not awarding the minimum
  mandatory sentence prescribed under the Statute. Error
G is apparent on the face of the High Court's order. The
  High Court has confined the sentence to the period the
  accused was in custody stating that he had already
  served substantive period of jail sentence. The accused
  was in custody only for seven days i.e. from 14.9.05 to
H 20.9.05. Thus, the High Court could not have reached a
              STATE OF M.P. v. AYUB KHAN                    429


finding that the accused had served the substantive                 A
period of jail sentence. The orders of sentence passed
by the High Court as well as the courts below are set
aside and it is ordered that the respondent-aecused has
to undergo a minimum period of three years sentence as
prescribed u/s 25(1 )(a) of the Arms Act and also with a            B
fine of Rs.5000/-. [para 8-9 and 12] (431-G-H; 432-A-B; 433-
F-G]

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1324 of 2012.
                                                                    c
    From the Judgment & Order dated 15.01.2009 of the High
Court of Madya Pradesh, Bench at Gwalior in Criminal Revision
No. 472 of 2008.

       Sunny Chaudhary, C.D. Singh for the Appellant.
                                                                    D
       Yogesh Tiwari, Vikrant Singh Bais for the Respondent.
       The Judgment of the Court was delivered by
       K.S. RADHAKRISHNAN, J. 1. Leave granted.
                                                                    E
      2. Proliferation of arms and am_munition, whether licensed
or not, in the country disrupts the soeial order and development,
vitiates law and order situation, directly contributes towards
lethality of violent acts which needs to be curbed. We are sorry
to note the law enforcing agencies and to certain extent the
courts in the country always treat the crimes lightly without       F
noticing the havoc they can create to the ordinary peace loving
citizens of this country and to the national security and the
integrity and the unity of this nation. We may indicate, the case
in hand shows, how casually and lightly, these types of cases
are being dealt with by the courts.                                 G

     3. ASI S.S. Gaur and P.P. Mrigwas while on patrol duty
apprehended that the accused on 13.09.2005 at 8.30 pm while
they were coming from Bakaniya to Mrigwas Road, Guna, M.P.
The accused was found to be in possession of country made           H
    430      SUPREME COURT REPORTS                   [2012] 7 S.C.R.

A barrel gun with two round bullets and 50 grams of explosives,
  without any licence. The accused was charge-sheeted for the
  offence punishable under Section 25(1)(a) of the Arms Act,
  1959 (for short 'the Arms Act') and was tried before the Court
  of the Judicial Magistrate First Class, Chachoda. From the side
B of the prosecution seven witnesses were examined. After
  considering the oral and documentary evidence, the court came
  to the conclusion that the accused was guilty of the offence
  under Section 25(1)(a) of the Arms Act and on sentence, the
  court passed the following order:
c         "There is no previous crime in the name of the accused
          and certainly the accused is the first time offender but from
          the possession of the accused a rifle was found illegally
          in his possession, therefore, it is not proper to adopt a
          lenient approach towards the accused. Only in view of the
D         time taken by the trial and the time already spent by the
          accused in custody, the accused is not punished with the
          maximum punishment and, therefore, the accused Ayub
          Khan is sentenced to one year of R. I. and a fine of Rs.100/
          - for the offence punishable u/w 25( 1)(a) of the Arms Act."
E
        4. The Court then noticed that the accused was in custody
    from 14.9.05 to 20.9.05 and the said period was deducted from
    the original sentence applying Section 428 of the Code of
    Criminal Procedure.
F      5. Aggrieved by the said order the accused filed Criminal
  Appeal No.170 of 2008 before the Additional Sessions Judge,
  Chachoda on the ground that the conviction of the accused
  under Section 25(1 )(a) of the Arms Act was illegal and that the
  accused had not committed any offence. The Additional
G Sessions Judge, however, vide his order dated 9.7.2008
  confirmed the conviction and the sentence awarded by the
  Chief Judicial Magistrate. The accused then filed Criminal
  Revision No.472 of 2008 before the Hon'ble High Court of
  Madhya Pradesh, Bench at Gwalior. The High Court confirmed
H the order of conviction passed by the trial court but so far as
            STATE OF M.P. v. AYUB KHAN                       431
             [K.S. RADHAKRISHNAN, J.]

the sentence is concerned, the High Court passed the following       A
order on 15.01.2009:

    "so far as the period of sentence is concerned, looking to
    the limited prayer made by the counsel for the petitioner
    and the nature of offence and the fact that the petitioner       8
    has already served substantive period of jail sentence the
    purpose would be served in case the jail sentence
    awarded to the petitioner is reduced to the period already
    undergone, subject to depositing fine of Rs.5,000/- within
    a period of two months, in default the petitioner shall suffer   C
    jail sentence awarded by the Learned Court below."

    6. Aggrieved by the said order, the State of Madhya
Pradesh has approached this Court.

     7. Learned counsel appearing for the State submitted that       o
the High Court and the courts below have committed an error
in not awarding the minimum statutory sentence to the accused,
even after, convicting him for an offence committed under
Section 25(1 )(a) of the Arms Act. Learned counsel submitted
that as per the said Section the minimum statutory sentence is       E
three years but the same can be extended to seven years and
the accused shall also be liable to fine. Learned counsel
appearing for the respondent-accused submitted that on the
peculiar facts and circumstances of the case on hand, the High
Court was justified in confining the sentence of the accused to
                                                                     F
the period already undergone subject to depositing the fine of
Rs.5,000/-.

     8. We are of the view that the Chief Judicial Magistrate
as well as the Sessions Court have committed an error in the
manner in which sentence has been awarded and the High               G
Court has committed a grievous error in not awarding the
proper sentence after having found the accused guilty under
Section 25(1 )(a) of the Arms Act. Error is apparent on the face
of the High Court's order. The High Court has confined the
sentence to the period the accused was in custody stating that       H
    432         SUPREME COURT REPORTS                 [2012] 7 S.C.R.


A he had already served substantive period of jail sentence. We
  are sorry to note that the High Court has not taken pains to
  examine what was the period he had served by way of
  substantive sentence. The accused was in custody only for
  seven days i.e. from 14.9.05 to 20.9.05. We fail to see how the
B High Court has reached a finding that the accused had served
  the substantive period of jail sentence.

       9. We are of the view, that the High Court and the courts
  below have committed a serious error in not awarding the
C minimum mandatory sentence prescribed under the Statute.
  Chapter V of the Arms Act deals with the offences and
  penalties. The accused was charge-sheeted for the offence
  under Section 25(1)(a) of the Arms Act for which minimum
  mandatory sentence was not less than three years. For
  reference sake, the said provision, in its entirety, is extracted
D hereunder:

          "25.Punishment for certain offences --(1) Whoever

          (a) manufactures, sells, transfers, converts, repairs, tests
          or proves, or exposes or offers for sale or transfer, or has
E
          in his possession for sale, transfer, conversion, repair, test
          or proof, any arms or amniunition in contravention of
          section 5; or

          (b) shortens the barrel of a firearm or converts an "imitation
F         firearm into a firearm in contravention of section 6; or

          (c)    *****

          (d) brings into, or takes out of •. India, any arms or
          ammunition of any class or description in contravention of
G         section 11

         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."
H
            STATE OF M.P. v. AYUB KHAN                     433
             [K.S. RADHAKRISHNAN, J.]
     10. Legislature, in its wisdom, has fixed a mandatory A
minimum sentence for certain offences - keeping, possessing
arms and ammunition is a serious offence which shall not be
less than three years. Legislature, in its wisdom, felt that there
should be a mandatory minimum sentence for such offences
having felt the increased need to provide for more stringent B
punishment to curb unauthorised access to arms and
ammunition, especially in a situation where we are facing with
menace of terrorism and other anti national activities. A person
who is found to be in possession of country made barrel gun
with two round bullets and 50 grams explosive without licence,    c
must in the absence of proof to the contrary be presumed to
be carrying it with the intention of using it when an opportunity
arise which would be detrimental to the people at large.
Possibly, taking into consideration all those aspects, including
the national interest and safety of the fellow citizens, the
                                                                   0
Legislature in its wisdom has prescribed a minimum mandatory
sentence. Once the accused was found guilty for the offence
committed under Section 25(1 )(a) of the Arms Act, he has
necessarily to undergo the minimum mandatory sentence,
prescribed under the Statute.
                                                                   E
     11. The Chief Judicial Magistrate has overlooked this vital
fact and awarded only one year's R.I. and a fine of Rs.100/-,
which was confirmed by the Sessions Court. The High Court
has made it worst by reducing the sentence to the period
already undergone, which was only seven days, in a case where F
the accused should have undergone a minimum sentence of
three years and fine under Section 25(1)(a) of the Arms Act.
     12. We, therefore, allow this appeal, set aside the order
of sentence passed by the High Court as well as the courts
below and order that the respondent-accused has to undergo G
a minimum period of three years sentence as prescribed under
Section 25(1 )(a) of the Arms Act and also with a fine of
Rs.5000/-, in default, another three months simple
imprisonment.
R.P.                                          Appeal allowed.     H