ABBAS Vs. STATE

JUDGEMENT

(1.) THIS Criminal Appeal has been arising out of the conviction and sentence passed by the Additional Sessions Judge, Coimbatore (Fast Track Court-II) on 09.07.2002 in S.C. No.130 of 2002 convicting the accused under Section 379 I.P.C. and sentencing him to undergo two years' rigorous imprisonment and convicting him under Section 25(1)(1A) of Arms Act and sentencing him five years' rigorous imprisonment and imposing fine of Rs.1000/- in default to undergo six months' simple imprisonment.

(2.) THE case of the prosecution is as follows: On 24.06.2001 at 3.30 a.m., when P.W.1 and P.W.2 were in banthopasth duty, P.W.3 is a driver in the jeep bearing No. T.N.38G0175, the material object has been kept in the jeep which was given by P.W.7 has handed over the same to the P.W.1 and P.W.2 for bandhopasth duty. Without knowledge of P,W.3 Dinesh the accused has stolen the M.O.1 which was belonging to Police Department. THEn, P.W.2 made an enquiry, he came to know that M. O.1 has been missing. THEn, they gave a complaint Ex.P1 and the same was received by P.W.9 Inspector of Police. After receipt of complaint, he registered a case in Crime No. 262 of 2001 under Section 379 I.P.C. and prepared Ex.P6 F.I.R. THEn, at 8.20 p.m. P.W.9 gone to the place of occurrence and prepared an observation mahazar Ex.P7 in the presence of Yahoob and Yousuf. THEn, he prepared Ex.P8 rough sketch and examined the witnesses and recorded their statement at 4 p.m.

(3.) CHALLENGING the conviction and sentence passed by the Sessions Court, the learned Counsel appearing for the appellant would submit that before prosecuting the accused under Section 25(1)(1A) of Arms Act, sanction has not been obtained as per Section 39 of Arms Act, from District Magistrate/District Collector. So, the entire prosecution under Section 25(1)(1A) is non existent in the eye of law. It is the case of the prosecution is that he has stolen the property as he is not having any motive of using. Hence, the Trial Court has committed an error in convicting the accused under Section 25(1)(1A) of Arms Act. He further submits that the appellant is not guilty under Section 379 I.P.C. Even if he will be found guilty under Section 379 I.P.C., he prays for lesser punishment.