Mahendra Singh v. State of West Bengal

DUA, J .-This appeal by special leave is directed against the order of summary dismissal of the appellant's appeal by the High Court of Calcutta from the judgment and order of a learned AJditional Sessions Judge, Asansol dated June 18, 1969 convicting the appellant for offences under ss. 25(1)(a) and 27 of the Arms Act, 1959.

According to the prosecution case, on receipt of secret information, Inspector Kali Prasanna Chaudhury of Detective Department. along with Circle Inspector, S. L. Routh, S.I. K. D. Chakravarty, Officer-in-charge of Hirapur police station and S.l. K. D. Chatterjee, Town Sub-Inspector of Asansol and some constables searched the appellant's house on May 14, 1968 between 6.40 a.m. and 9 a.m. in the presence of some other witnesses. In the Central Room of the hou'e there was an almirah of which the key was produced by the appellant and handed over to Inspector Kaliprasanna Chaudhury (P.W. 1 ). The almirah was opened with the said key wherein was found a bag containing seven .12 bore live cartridges, seven .410 bore live cartridges, nine rifle ammunition and one .12 bore fired cartridge case. There was also found a gun folded into two parts under a bundle of clothes on the lowest shelf. The appellant could not produce any licence or permit for the possession of the gun and the cartridges. As a result of this recovery the appellant was arrested and challanged. He was duly com-mitted by a magistrate to the court of Sessions. The principal ques-tion which fell for decision at his trial was whether it could be said that he was in possession of the articles found from the almirah, as con-L templated by s. 25 of the Arms Act. After discussing the evidence

and the legal position on the question of presumption of conscious pos-session in circumstances like the present, the learned Additional Ses-sions Judge came to the conclusion that these articles were in the appel-lant's conscious possession. No licence or permit for these articles having been produced, the appellant was convicted ,both under s. 25 (1 )(a) and under s. 27 of the Arms Act. Under s. 27 of the Arms Act no separate sentence was considered necessary but under s. 25 ( 1 )(a) he was se!'tenced to rigorous imprisonment for two years.

It may incidentally be mentioned that in the trial court on behalf of the appellant the legality of the investigation into the offence in ques· tion was also assailed, it being further contended that the S.I. K. D. Chakravarty, Officer-in-charge of Hirapur police station was not em-powered to investigate the case. As these questions are not agitated in this Court, we need say nothing on those points.

Against his conviction the appellant appealed to the High Court under.s. 410. Cr.P.C. but this appeal was dismissed summarily on June 24. 1969 without indicating any reasons in support of the order of summary dismissal.

64 SUPREME COURT REPOP.TS ( 1974) 1 p.C.I.

Before us on behaH of the appellant it was contended that the order of summary dismissal by the High Court is contrary to the con-sistent view taken by this Court in numerous decisions where it has been firmly laid down that if an appeal raises arguable points of fact or law, then, it is undesirable and improper to dismiss it summarily with-out indicating, at least broadly the reasons for sue h dismissal. In this case, according to the submission, the question of the conscious posses-sion of the articles, on the facts and circumstances of this case. was of considerable importance and it required scrutiny of the evidence on the record. The appeal also raised some other questions relating to the alleged infirmities in the search conducted during the investigation. Indeed, according to the appellant's counsel, there were nearly ten grounds of appeal in the memorandum which suggest that the question of the conscious possession of these articles clearly required a closer scrutiny of the evidence in the case.

In our view, there is force in the appellant's contention. Begin-ning with the decision in Mushtak Hussein v. The Staie of Bombay(') this Court has, in numerous cases, emphasised the extreme desirability of indicating, however broadly, the reasons which prevail with the High Court in dismissing summarily an appeal in which questions of fact or law are raised, which do not seem to be unarguable or insub>tantial. This, however, does not mean that the statute does not empower the High Court to dismiS"S an appeal in limine where in its opinion there is no substance in the appeal. The latest decision of this Court was given on March 13. 1973 in Musraq Ahmed Mnhnme'1 Hussain and Mukhtar Hussain Ali Hussain v. The State of Gujarat( 2 ) in which some of the previous decisions of this Court on this point have been digested. In arguable cases not only would the reasons recorded by the High Court be helpful to this Court in better understanding and appreciating the High Court's line of approach, but it would also serve to assure the accused that the arguable points in his appeal were pro-perly argued and duly considered by the High Court. This assurance cannot be considered to be without importance and value.

The question, however, arises whether it is desirable and necessary in the larger interest of justice to send the present case back to the High Court for re-decision or it would be more conducive to the cause of justice that we ourselves examine the evidence and dispose of the appeal finally without further prolonging the proceedings against the appellant. It may be pointed out that the recovery of the articfos in ·question was effected as far back as May, 1968 and the appellant's conviction by the trial court is dated June 16, 1969. The High Court dismissed his appeal on June 24, 1969, and this Court granted special leave on January 8, 1970 when the appellant was released on bail. More than 3 years have now elapsed since the grant of special leave and the appellant's release on bail We consider it would be highly unfair and unjust to the appellant to prolong the uncertainty of the final fate of this case by sending it back to w"' the High Court for final disposal of the appeal after re-hearing. have. therefore, under-taken to examine the evidence ourselves because that would guaran~ee speedy disposal of the case against the appellant. We may in this con-

(!) (1953) S.C.R. 806. (2) Crl. A. No. 9of1973 decided on 13-3-73. nection point out that undue delay in the final disposal of criminal cases tends, to some extent, to defeat the very purpose of criminal justice. Speedy disposal of criminal cases for commission of offences promotes confidence of the society in the administration of criminal justice which is essential for sustaining the faith of the Jaw-abiding members of the society in the effectiveness of the rule of law. It also saves the accused from avoidable harassment inherent in unreasonably prolonged trials and appeals.

After having been taken through the evidence, we find that the testimony of K. P. Choudhary, P.W.l that the appellant had produced the key of the almirah in question and handed it over to the witness who opened the almirt;h with that key is trust-worthy and no infirmity is found in his evidence. The evidence of Dharmadas Thakur, P.W.- 2, fully supports the evidence of P.W.1 on this porn!. So does the evi-dence of Santosh Lal Routh, P.W.4. No doubt P.W.I and P.W.4 are police officers, but P.W.2 is an employee of Indian Iron & Steel Com-pany Ltd. The appellant worked in the department of ~.W. 2. Now once it is held that the appellant had produced the key of the almirah the presumption arises that the arms found in that almfrah were in his possession. No doubt, there were certain articles belonging to women. but that is immaterial. It is not the appellant's case that this key used' to be taken by the other members of his family who used to place their articles in this almirah without the appellant's knowledge and that any-one of them might, therefore, have placed the arms in question in that almirah without his knowledge. In fact, the appellant has on the other hand, completely denied the recovery of these articles from the almirah. His plea is not wholly irrelevant and can certainly be taken into consideration.

On the evidence on the record, therefore, it is not possible to hold that ihe existence 'of the arms in the almirah were without the appel-lant's knowledge or that his possession of the arms was unconscious. His conviction under s. 25(1) (a) of the Arms Act, 1969 is, therefore, fully justified. It is, however, difficult to sustain his conviction under s. 27 of the Arms Act. There is no, evidence to support the offence under that section and indeed the trial court has convicted him without properly applying its mind to the ingredients of that offence. The judgment of the trial court seems to suggest that mere possession of the arms would also constitute an offence under s. 27 of the Arms Act. This view is clearly not correct. But since no separate sentence was imposed under s. 27, it is unnecessary to say anything more about it than that the· conviction under s. 27 must be quashed.

The question, however, arises as to what sentence in the circums-iances of the case would meet the ends of justice. As already observ-ed, the offence was committed in May, 1968 and the appeilant was convicted in June, 1969. We are now in April, 1973. The posses-sion of the arms in question has not been shown to be inspired by any sinister purpose. There is no evidence of any undesirable antece-dents of the appellant, nor is there any suggestion that the arms were likely to be used for some antisocial purpose. Their possession by the appellant might well have been intended to be utilized for the purpose 6-L944 Sup. CI/73

66 SUPREME COUllT REPORTS [ 1974] 1 S.C.L

of self-defence, though undoubtedly the possession was without a prcr per licence. Considering all the relevant circumstances of the case, we feel that it would meet the ends of justice if the sentence of impri-sonment is reduced to that already undergone and a sentence of fine of Rs. 5001-is in addition imposed on the appellant and in default of payment of fine, the appellant is directed to serve a sentence of rigo-rous imprisonment for one month. We order accordingly.

The appeal succeeds in part to the extent just stated.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 3 of

Appeal by special leave from the judgment and order dated June 24, 1969 of the Calcutta High Court in Cr. Appeal No. 378 of 1969.

I. N. Shroff, for the appellant.

P. K. Chatterjee and G. S. Chatterjee, for the respondent.