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IN THE HIGH COURT OF BOMBAY
D.M. Mehta, J.
Ramesh Mulchand Ramani.... Petitioner.
Versus
State of Maharashtra.... Respondent.
Criminal Revision Application No. 125 of 1980, decided on 4-7-80.
Advocates appeared :
Smt. Usha Madbhavai, (appointed) for petitioner.
S.B. Patil, P.P., for respondent-State.
BOMBAY POLICE ACT - SECTION 37 - PUBLIC PROMULGATION OF ORDER - NECESSITY - ORDER NOT PUBLICLY PROMULGATED - ACCUSED ENTITLED TO ACQUITTAL.
Fact of the Case:
The accused was convicted under section 135 read with section 37 of the Bombay Police Act, 1951, for possessing a knife in a public place during a period when an order prohibiting the carrying of weapons was in force. The accused challenged the conviction on the ground that the order was not publicly promulgated as required by section 37 of the Act.
Finding of the Court:
The court found that there was no evidence to show that the order of the District Magistrate prohibiting the carrying of weapons was publicly promulgated as required by section 37 of the Bombay Police Act, 1951. The court held that the order had not been published in the Government Gazette and there was no evidence to show that it had been brought to the notice of the public by affixing it at prominent places in the city or proclaiming it by the beat of drums.
Issues: Whether the order prohibiting the carrying of weapons was publicly promulgated as required by section 37 of the Bombay Police Act, 1951.
Ratio Decidendi: The court held that the order had not been publicly promulgated as required by section 37 of the Bombay Police Act, 1951. The court relied on the decision of a Division Bench of the Bombay High Court in State v. Azizkhan Subedarkhan, which held that mere publication in the Government Gazette cannot be regarded as equivalent to public promulgation.
Final Decision: The court quashed the conviction of the accused and set aside the sentence passed on him.
2. The prosecution case was that on 21-12-1977 the accused was seen near Lal-Taki Ahmednagar by P.S.I. Kharote and Police Constables Fanase and Khandagale, who were patrolling in the area. On seeing the patrol the accused tried to run away. He was, however, chased and apprehended. Thereafter in the presence of Panch witnesses the person of the accused was searched and a knife or a dagger was found in the pocket of his pyjama. The same was taken charge of under a Panchanama (Ex. 7). P.S.I. Kharote lodged his complaint, which has been treated as the First Information Report (Exhibit 5). The accused was thereafter charged as aforesaid.
3. The learned Chief Judicial Magistrate, Ahmednagar, was pleased to convict the accused under section 135 read with section 37 of the Bombay Police Act, 1951, and the learned Chief Judicial Magistrate sentenced the accused to suffer rigorus imprisonment for six months.
4. Being aggrieved by the said conviction and sentence the accused appealed to the learned Sessions Judge, Ahmednagar. The learned Sessions Judge by his judgment and order dated 18th January, 1980 was pleased to allow the appeal partly. The conviction of the accused was confirmed. However, the penal sentence was reduced to a period of rigorous imprisonment for four months and an additional sentence of fine of Rs. 100.00; in default to suffer rigorous imprisonment for one month was imposed.
5. Against the judgment and order of the learned Sessions Judge, Ahmednagar, the accused has now approached this Court in revision.
6. The only point canvassed by Smt. Madbhavi, the learned Advocate appearing on behalf of the petitioner, is that the prosecution had not complied with the provisions of section 37(1) of the Bombay Police Act, 1951, in that the order of the District Magistrate had not been publicly promulgated as required by that section. According to Smt. Madbhavi the order of the District Magistrate dated 8th December, 1977 had been in force from 12-12-1977 to 23-12-1977 i.e. for a period of eleven days. Smt. Madbhavi argued that this being one of those temporary orders promulgated by the District Magistrate, it was incumbent upon the prosecution to show that it was publicly promulgated in the sense that it was published in the Government Gazette and also displayed at prominent places in the City of Ahmednagar or proclaimed by beat of drums or Bataki. Smt. Madbhavi urged that before an accused person could be found guilty of having committed a breach of such a temporary order, it was necessary to prove that the accused had knowledge of the promulgation of the order and unless it was shown that the order was publicly promulgated as required by section 37 of the Bombay Police Act, 1951 the accused could not be found guilty of any offence in breach of such an order. Section 37 of the Bombay Police Act, 1951 provided :---
"Section 37(1). The Commissioner and the District Magistrate in areas under their respective charges may, whenever and for such time as he shall consider necessary for the preservation of public peace or public safely by a notification publicly promulgated or addressed to individuals, prohibit at any town, village or place or in the vicinity of any such town, village or place---
(a) the carrying of arms, cudgels, swords, spears, bludgeons, guns, knives, sticks or lathis, or any other article, which is capable of being used for causing physical violence,"
(The rest of the section is not material for the purpose of this discussion)
At this stage it will be pertinent to point out the evidence of Police Constable Ramesh Joseph Khandagale (P.W. 1) who stated :
"District Magistrate had issued an order under section 37 of the Bombay Police Act that nobody should possess any dangerous weapon or explosive substance. I produce the copy of that o
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