MOHMED RAFIQ ABDUL RAHIM SHAIKH versus THE STATE OF GUJARAT

Citation: [2018] 11 S.C.R. 166 · Decided: 13-09-2018 · Supreme Court of India · Bench: S.A. BOBDE · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 11 S.C.R.
MOHMED RAFIQ ABDUL RAHIM SHAIKH
v.
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 – Prohibition
of acquisition or possession, or of manufacture or sale, or
prohibited arms or prohibited ammunition – On facts, cartridges
found in the car driven by accused A-1 in a drunken state – A2 was
the owner of the car – Disclosure made by A1 about some more
arms hidden in a bungalow of which A4 was shown as the occupier
in the records – Weapons and live cartridges found inside the cellar
of that house – A3 had stored the weapons and later on gave to A1
from the cellar – Conviction of A2 and A4 for commission of offence
u/ss. 25(1)(a), 25(1AA) r/w s. 35 by the courts below – Sustainability
of – Held: Not sustainable – As regards A2, it is necessary to prove
that the accused was in conscious possession at some point in time
before the discovery and retained control of the objects at the time
of the recovery – Accused was neither in the car when it was
apprehended nor anywhere near the car – A-2 was arrested only
because he was found to be the registered owner – It is not even the
prosecution’s case nor the courts below have rendered a finding
that A-2 was in constructive possession of the live cartridges
recovered from the car – Conviction of A2 u/s. 25(1AA) wholly
unwarranted – As regards, A4 he was not in possession or occupation
of the house for almost three months as he was in detention – There
is no evidence that the house was locked from the outside – Window
of the room, which led to the cellar, was said to be locked from
inside and an iron gate that had a lock on the outside had to be
broken – Prosecution could not establish intention and
consciousness of the A4 of the arms and ammunition found in A4’s
house – Thus, A4 was not in constructive possession of the firearms
and conviction wholly unwarranted.
Gunwantlal vs. The State of Madhya Pradesh (1972) 2
SCC 194 : [1973] 1 SCR 508 – referred to.
[2018] 11 S.C.R. 166
166
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Case Law Reference
[1973] 1 SCR 508
referred to
Para 20
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1078 of 2008.
From the Judgment and Order dated 11.09.2007 of the High Court
of 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 Salim
Shamsuddin Shaikh in Criminal Appeal No. 1901 of 2008 (hereinafter
referred to as A-2) and Mohmed Rafiq Abdul Rahim Shaikh in Criminal
Appeal No. 1078 of 2008 (hereinafter referred to as A-4).  The Criminal
Appeals are filed against the final Judgment and Order dated 11.09.2007
passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal
Nos. 635 of 2004 and 912 of 2004 respectively.  Wherein, the High
Court has dismissed both the appeals and upheld the conviction and
sentence passed by the Additional Sessions Judge, Ahmedabad in Sessions
Case No. 46/1999 and 190/2000.  A-4 and A-2 are convicted for offences
committed under Section 25(1)(A) read with Section 35 of the Arms
Act, 1959 and sentenced to undergo three years rigorous imprisonment
and 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 to
undergo seven years rigorous imprisonment and to pay a fine of Rs.
10,000/- each and in default of making payment of fine to undergo six
months imprisonment.  Both the sentences were ordered to run
concurrently.
Facts
2. On 4.2.1993 at about 7 pm one blue colored Maruti Fronty car
without a number plate was stopped by Constable Manuji Knauji Rajput.
It was driven by Noormahammad Mahammadyasin Shaikh (herein after
MOHMED RAFIQ ABDUL RAHIM SHAIKH v. STATE OF
GUJARAT
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SUPREME COURT REPORTS
[2018] 11 S.C.R.
referred to as A-1) in a drunken state. Apparently, a police inspector at
the Dariapur Police Station received information that A-1 was in the
business of transportation of illegal weapons together with Abduvahab
Abdulmajid Pathan (hereinafter referred to as A-3) and that there are
some cartridges in the Maruti Fronty car. The car was then searched.
3. According to the prosecution six live cartr

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