A bench comprising of Hon’ble Justice S. A. Bobde and Justice L. Nageswara Rao of the Hon’ble Supreme Court held that merely because the accused hold the ownership of a vehicle in which prohibited ammunition are found cannot made him liable under Arms Act, 1959 (hereinafter referred as ‘the Act’). The presence of evidence regarding “the accused was in conscious possession at some point of time before the discovery and retained control of the objects at the time of the recovery” is necessary for conviction under the Act.
In the case of Mohmed Rafiq Abdul Rahim Shaikh v. State of Gujarat an appeal was preferred before the Hon’ble Apex Court of the country against an order and judgement of the Additional Sessions Judge and confirmed by Hon’ble High Court of Gujarat, wherein the appellants were granted an imprisonment for seven years under sections 25(1)(A), 25(1AA) read with section 35 of the Act.
While rejecting the conviction of the appellants, the bench opined that there is no evidence against the appellant no. 2 that he was anywhere in possession of the said ammunition as he was not found in the actual possession of the cartridges, which in turn was found in a vehicle driven by accused no. 1. The court concluded that “. . . A-2 cannot have said to be in possession- actual or constructive. . . We do not take the view that a remote location of the firearm of ammunition or recovery from a remote place would exonerate an accused in all cases. But it is necessary to prove that the accused was in conscious possession at some point of time before the discovery and retained control of the objects at the time of recovery.”
With respect to accused no. 4 also cannot be said to be convicted in accordance with the Act because his house which was the subject matter of the raid undertaken in pursuance of the leads given that there are certain ammunition hidden in accused no. 4’s house, as three months prior to the raid the accused happens to be in detention, and there is no proof with respect to the fact that he was in possession of the ammunition as well as in control of the house where it is found owing to the fact that he was in detention.
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