DIPAK MISRA, J. ( 1 ) -THE petitioner having been convicted under section 25 (1-B) (a), of the Arms Act. 1959 (in short the Act) and sentenced to undergo imprisonment for one year and to pay a fine of Rs. 100/-in default to undergo rigorous imprisonment for one month more and the conviction and sentence having been confirmed in appeal has invoked the revisional jurisdiction of this Court for redressal of his grievance. ( 2 ) IN a nut-shell the prosecution case is that on 8-12-1987 at 8 a. m. the O. I. C. of Kotagarh Police Station alongwith his staff conducted raid in village Padalpadar and recovered one country made S. N. M. L. gun from the house of the accused. On demand the accused could not produce any licence to justify his possession of the gun and accordingly an FIR was drawn up under section 25 (a) of the Act for unlawful possession of the gun in question and ultimately charge-sheet was submitted. Subsequently, the accused faced trial for the offence under section 25 (1-B) (a) of the Act. ( 3 ) THE plea of the accused the present petitioner was one of complete denial. ( 4 ) TO substantiate the allegations against the accused the prosecution examined five witnesses. PW 1 is the Gramarakhi; PW5 2 and 4 are the police constables; PW 3 is the witness to the seizure; and PW 5 is the O. I. C. of Kotagarh Police Station who had conducted the investigation. ( 5 ) THE learned trial Judge believed the version of PW s 1. 2. 4 and 5 and came to hold that the accused was in possession of the gun in question without any valid licence and accordingly he found the petitioner guilty and imposed the sentence. as indicated earlier. On appeal being preferred before the learned Sessions Judge. Phulbani. forming the subjectmatter of Criminal Appeal No. 21/1992 the learned Sessions Judge confirmed the findings of the Court below and sustained the order of sentence. as indicated earlier. On appeal being preferred before the learned Sessions Judge. Phulbani. forming the subjectmatter of Criminal Appeal No. 21/1992 the learned Sessions Judge confirmed the findings of the Court below and sustained the order of sentence. Though it was contended before him that the prosecution had failed to prove the conscious possession of the gun and the possession and recovery having not been proved beyond reasonable doubt the appellant therein was entitled to the benefit of doubt the appellate Court did not accept the contentions, and came to hold that the possession and recovery part had been corroborated by PW5 1. 2 and 4 and the accused having failed to produce the licence as contemplated in law was not entitled to succeed in the said appeal. ( 6 ) MR. A. Routray, learned counsel for the petitioner assailing the impugned judgments has contended that the gun in question having not been produced. in Court, the seizure witness PW 3 having not stated a single word with regard to the factum of seizure and the other seizure witnesses having been withheld without offering any explanation it can be safely concluded that there has been no proof of the concerned gun from the possession of the present petitioner. It has also been urged, by Sri Routray that to constitute an offence under section 25 (1-B) (a) of the Act the Court has to arrive at a positive conclusion that unless the article seized is an arm as defined under section 2 (c) of the Act, and in absence of such proof the question of requirement of a licence as enjoined under section 3 of the Act is not attracted and as a necessary corollary there is no violation of any provision of the Act, the order of conviction is susceptible. He has also canvassed with vehemence that there is no proof whatsoever that the weapon seized, has not the requirement of fire-arm as defined under section 2 (e) of the Act and in absence of such proof the accused cannot be convicted for the aforesaid offence, and as the Courts below having not addressed themselves in proper perspective to appreciate the offence and its ingredients the orders passed by them are not sustainable in law. ( 7 ) SHRI S. Das, the learned Addi. ( 7 ) SHRI S. Das, the learned Addi. Standing Counsel, while refuting the submission made by the learned counsel for the petitioner has supported the orders of the Courts below. It is his submission that the Courts below have taken into consideration the evidence on record and have believed the version of the prosecution witnesses with regard to possession and recovery and have reached a positive conclusion in that regard and the said conclusion being not perverse or based on no evidence cannot be dislodged while exercising provisional jurisdiction. Shri Das has also highlighted that non-production of the gun and non-examination of other seizure witnesses do not affect the prosecution case as there is ample evidence on record to justify the conclusion of the Courts below. ( 8 ) I have perused the judgments of the Courts below. I have been taken through the evidence on record. The main thrust of the argument of Shri Routray is really relatable to the aspect of possession of the gun by the petitioner. The Gramarakhi who was examined as PW 1 has clearly stated in his cross-examination that the seized gun was not produced in Court. PW 2, the constable, has also given a cryptic statement With regard to possession by the accused. PW 3, the seizure witness stated that he knew nothing about the case. He had not stated anything to implicate the petitioner. On behalf of the prosecution cross-examination was declined. PW5 4 and 5, the other two official witnesses have deposed with regard to the possession of the gun by the petitioner and non-production of the licence. The seizure list has been marked as Ext. I, but no explanation has been offered why the gun in question was not produced in Court, and the other seizure witness as mentioned in the charge-sheet was withheld. It is no doubt that a seizure can be proved by the testimony of the raiding officer if his evidence is otherwise, credible. His sole testimony regarding seizure can be accepted in the facts and circumstances of the case. It is well known if the seizure witnesses do not support the seizure the version of the official witnesses can be taken into consideration and there testimony can be appreciated in proper perspective to arrive at the truthfulness of the seizure. His sole testimony regarding seizure can be accepted in the facts and circumstances of the case. It is well known if the seizure witnesses do not support the seizure the version of the official witnesses can be taken into consideration and there testimony can be appreciated in proper perspective to arrive at the truthfulness of the seizure. But in the instant case, the seizure list indicates that there are two witnesses to the seizure PW 3 and another, namely, Tasindra Sandimajhi. PW 5 the Investigating Officer has admitted that Ext. 1, the seizure list does not contain the signature of the accused. The copy of Ext. 1 was not supplied to the accused. There is also no mention with regard to the zima of the gun being given to anyone. Under these circumstances, non-examination of the other seizure witness becomes a vital is sue and creates a sense of doubt and suspicion. That apart, the seized gun has also not been produced in Court. It is also noticed that the, accused while examined under section 313 Cr. P. C. has not been specifically asked whether the seized gun was seized from his house though the prosecution case is that the gun in question has been seized from his house. The question put to him was that it was seized from his possession. There is no evidence that the house in question belonged to the petitioner. In fact, PW 5, the Investigating Officer has categorically stated that he has not verified the documents of the house wherefrom the gun was seized. There is no evidence that the house belonged to the petitioner and he was the exclusive owner in possession of the house. Even assuming that it has been recovered from the premises of the petitioner that alone cannot make the petitioner guilty of the offence. The prosecution has to prove beyond reasonable doubt by adducing cogent evidence that the accused was in possession of the fire-arm without licence. In the instant case, taking various factors into consideration, it can be safely concluded that the Courts below have really failed to appreciate the factum of possession in proper sense of the term and have misdirected themselves by accepting the prosecution version. Mr. In the instant case, taking various factors into consideration, it can be safely concluded that the Courts below have really failed to appreciate the factum of possession in proper sense of the term and have misdirected themselves by accepting the prosecution version. Mr. Routray has also contended that there is no material on record to come to a definite conclusion that the gun seized was a firearm as there is no proof whether the said firearm was in working condition, and could have been used after repairs and whether the same has retained its specific character. The onus is on the prosecution to prove that the weapon seized is a firearm and remained as firearm. In absence of such proof the Courts below have grossly erred in accepting the version of the prosecution, submits the learned counsel for the petitioner. ( 9 ) TRUE it is, in this case there has been no cross-examination by the accused that the firearm was not a firearm. But it is not to be forgotten that the accused was challenging the very factum of possession and the prosecution in that case should have established by adducing cogent, credible and trustworthy evidence to substantiate its version that the accused was in possession of the gun a firearm without a licence. Copy of the seizure list having not been handed over to the petitioner, the gun having not been produced in Court no explanation having been offered for such non-production, nothing having been stated with regard to the whereabouts of the seized gun declining of cross-examination of the seizure witness, PW 3 non-examination of the other seizure-witness and absence of any explanation for the same examination under section 313, Cr. P. C. only with regard to possession but without mentioning recovery from the house and the cryptic evidence on record. I am obliged to reject the case of the prosecution which means setting aside the judgment of conviction passed by the Courts below and entitlement of the revisionist to an order of acquittal. ( 10 ) IN the result the Criminal Revision is allowed. The conviction and sentence of the petitioner are set aside. The bail bond of the petitioner be discharged and fine amount if paid be returned to him forthwith. Revision allowed. .