JUDGMENT I.A. Ansari, J. 1. This revision is directed against the judgment and order, dated 24.01.2006, passed, in Criminal Appeal No. 88/2005, by the learned Sessions Judge, Kamrup, whereby the appeal has been dismissed and the judgment and order, dated 26.03.2003, passed, in GR Case No. 258/1992, by the learned Additional Chief Judicial Magistrate, Kamrup, convicting the accused-Petitioner under Section25(1)(a) of the Arms Act and sentencing him to undergo rigorous imprisonment for three years with fine of Rs. 1,000/- and, in default of payment of fine, to suffer rigorous imprisonment for a further period of six months, has been upheld. 2. In a narrow compass, the case of the prosecution, as projected at the trial, may be put thus: On 28.01.1992, at about 7 am, when Sub-Inspector of Police, Debendra Nath Barman, accompanied by two constables, namely, Nareswar Deka (P.W. 1) and Tapan Kalita (P.W. 2), was on patrol duty near Pandu Ferry Ghat, located on the bank of the river Brahmaputra, they, in their routine course of checking, intercepted the accused-Petitioner near the said Ghat and, on conducting a search of the person of the accused-Petitioner, they found a hand-made improvised pistol with one live cartridge tucked to the waist inside the trouser and covered under the shirt of the accused-Petitioner. On finding the accused-Petitioner in possession of the pistol and cartridge, the said Sub-Inspector of Police seized the pistol and the cartridge and, with the help of the said two constables, brought the accused to Jalukbari Police Station, where the said Sub-Inspector lodged a written FIR. Based on this FIR, Jalukbari Police Station case No. 52/92 under Sections 25(1)(a) of the Arms Act was registered against the accused. During the course of investigation, the said seized pistol and cartridge were sent to the Forensic Science Laboratory, Assam, Guwahati, and on examining the said seized materials, Forensic Laboratory, Assam, Guwahati, reported to the effect that the said seized materials were hand-made gun, which is a fire-arm, and the cartridge was meant for rifle and the same was manufactured at a Government owned factory at Jabbalpur. On completion of investigation, a charge sheet was laid against the accused-Petitioner under Section 25(1)(a) of the Arms Act. 3. To the charge framed under Section 25(1)(a) of the Arms Act, the accused-Petitioner pleaded not guilty. In support of their case, the prosecution examined altogether five witnesses. On completion of investigation, a charge sheet was laid against the accused-Petitioner under Section 25(1)(a) of the Arms Act. 3. To the charge framed under Section 25(1)(a) of the Arms Act, the accused-Petitioner pleaded not guilty. In support of their case, the prosecution examined altogether five witnesses. The accused-Petitioner was, then, examined under Section 313 Code of Criminal Procedure and in his examination aforementioned, the accused-Petitioner denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. On finding the accused-Petitioner guilty of the charge, framed against him, the learned trial Court convicted him accordingly and passed sentence against him as mentioned hereinabove. As the appeal preferred by the accused-Petitioner also failed, the accused Petitioner has come before this Court with the help of the present revision. 4. I have heard Mr. J.C. Barman, learned Counsel for the accused Petitioner, and Mr. V.S. Singh, learned Additional Public prosecutor, Assam, for the Respondents. 5. On a careful scrutiny of the evidence on record, what transpires is that according to the evidence of P.Ws. 1 and 2, when they, headed by SI Debendra Nath Barman, were on patrol duty near Pandu Ferry Ghat, they happened to notice and apprehend the accused and, on conducting a search of his person, they found one hand-made pistol and a cartridge tucked to the waist of the accused under his shirt, whereupon they, on being directed by the said Sub-inspector, brought the accused to Jalukbari Police Station and at the said Police Station, the accused could not produce any licence for possessing the said pistol and cartridge, whereupon the pistol and cartridge were seized by the said Sub-Inspector and a written Ejahar was lodged, in this regard, by the said Sub-Inspector. Though the informant, namely, the said Sub-Inspector, has not been examined, the evidence of P.Ws. 1 and 2 remained wholly unshaken in the cross-examination. At the time of hearing of this revision too, nothing could be pointed out, on behalf of the accused Petitioner, to show that the evidence given by P.Ws. 1 and 2, as indicated hereinbefore, could not have been relied upon. Thus, the evidence of P.Ws. 1 and 2 remained wholly unshaken in the cross-examination. At the time of hearing of this revision too, nothing could be pointed out, on behalf of the accused Petitioner, to show that the evidence given by P.Ws. 1 and 2, as indicated hereinbefore, could not have been relied upon. Thus, the evidence of P.Ws. 1 and 2 was sufficient to prove beyond doubt that the accused was found in possession of a pistol and a cartridge without having any licence therefor. 6. Coupled with the above, the evidence of P.W. 5 shows that on examining the said seized materials, the Forensic Science Laboratory found that the said pistol was a handmade gun and the cartridge was a live cartridge meant for rifle. 7. What emerges from the above discussion is that there was sufficient evidence on record to prove beyond all reasonable doubt that the accused-Petitioner had been found in possession of a hand-made pistol and a live cartridge. 8. The questions, therefore, which still remain to be decided are as to what offence, if any, the accused-Petitioner had committed and what punishment could have been imposed on him? 9. My quest for an answer to the above questions brings me, first, to Section 3 of the Arms Act, which, I notice, reads as follows: 3. Licence for acquisition and possession of fire-arms and ammunition-1 No person shall acquire, have in his possession, or carry any fire-arm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder: Provided that a person may, without himself holding a licence, carry any fireman or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder. 2. 2. Notwithstanding anything contained in Sub-section(1) no person, other than a person referred to in Sub-section (3), shall acquire, have in his possession or carry, at any time, more than three fire-arms: Provided that a person who has in his possession more fire-arms than three of the commencement of the Arms (Amendment) Act, 1983, may retain with him any three of such fire-arms and shall deposit, within ninety days from such commencement the remaining fire-arms with the officer-in-charge of the nearest police station or, subject to the conditions prescribed for the purpose of Sub-section (1) of Section 21, with a licensed dealer or, where such person is member of the armed forces of the Union, in a armory referred to in that Sub-section. 3. Nothing contained in Sub-section (2) shall apply to any dealer in fire-arms or any member if rifle club or rifle association licensed or recognized by the Central Government using a point 22 bore rifle or an air rifle for target practice. 4. The provisions of Sub-sections (2) to (6) (both inclusive) of Section 21shall apply in relation to any deposit of fire-arms under the proviso to Sub-section (2) as they apply in relation to the deposit of any arm or ammunition under Sub-section (1) of that section.] 10. Close on the heels of Section 3, Section 25 of the Arms Act reads as under: 25. Punishment for certain offences - (1) Whoever- (a) manufactures, sells, transfers, converts, repairs, tests or proves or exposes or offers for the sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of Section 5; or (b) shortens the barrel of a fire-arm or converts an imitation fire-arm into a fire-arm in contravention of Section 6; or (c)(* * *) (d) brings into, or takes, out of India, any arms or ammunition of any cless or description in contravention of Section 11, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. (1-A) * * * (1-AA) * * * (1-AAA) * * * (1-B) Whoever- (a) acquires, has in his possession or carries any fire-arm or ammunition in contravention of Section 3; or (b) acquires, has in his possession or carries in any place specified by notification under Section 4 any arms of such class or description as had been specified in that notification in contravention of that section; or (c) sells or transfers any fire-arm which does not bear the name of the maker, manufacturer's number of other identification mark staped or otherwise shown thereon as required by Sub-section (2) of Section 8 or does any Act in contravention of Sub-section (2) of Section 8 or does any Act in contravention of Sub-section (1) of that section; or, (d) being a person to whom Sub-clause (ii) or Sub-section (1) of Section 9 applies, acquires, has in his possession or carries any fire-arm or ammunition in contravention of that section, or, (e) sells or transfers, or converts, repairs, tests or proves an fire-arm or ammunition in contravention of Clause (b) of Sub-section (1) of Section 9; or (f) brings into, or takes out of India, any arms or ammunition in contravention of Section 10; or (g) transports any arms or ammunition in contravention of Section 12; or (h) fails to deposit arms or ammunition as required by Sub-section (2) of Section 3, or Sub-section (1) of Section 21; or, (i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under Section44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refused to point out where the same are or is manufactured or kept, Shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine; Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year. (1-C) * * * (2)* * * (3) * * * (4) * * * (5) * * * 11. From a combined reading of Section 3 and Section 25 of the Arms Act, what clearly emerges is that when a person is found in possession of any fire-arm or ammunition without licence therefor, he contravenes the provisions of Sub-section (1) of Section 3 and for such contravention, he becomes liable for punishment under Section 25(1)(B) of the Arms Act, the maximum, punishment for an offence under Section 25(1)(B) being three years with fine and the minimum punishment, in this regard, being one year of imprisonment. 12. From a combined reading of Section 3 and Section 25, what also clearly emerges is that Section25(1)(a) is attracted, when a person makes, manufactures, sells, transfers, concerts, repairs, tests or proves or exposes or offers for the sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of Section 5 without proper licence therefore and the offence under Section 25(1)(a) is punishable by imprisonment of a period, which may extend to seven years, and the minimum punishment prescribed for an offence under Section 25(1)(a) being three years of imprisonment. 13. Bearing in mind the provisions of Section 3 and Section 25, as noted above, when I turn to the factual matrix of the present case, what becomes transparent is that the accused-Petitioner, having been found in possession of fire-arm and ammunition without licence, can be safely held to have contravened the provisions of Sub-section (1) of Section 3 and was, therefore, liable for punishment under Section 25(1)(B). It also logically follows that Section 25(1)(a) was not attracted to the facts of the present case, for, the case against the accused-Petitioner is not that he had, without licence, manufactured, sold transferred, converted, repaired, tested or proved or exposed or offered for the sale or transfer, or had in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of Section 3 of the Arms Act. 14. The offence, thus, committed by the accused-Petitioner being one under Section 25(1)(B)punishable by imprisonment, which could have extended, at the most, to three years, the minimum punishment being, however, one year. 14. The offence, thus, committed by the accused-Petitioner being one under Section 25(1)(B)punishable by imprisonment, which could have extended, at the most, to three years, the minimum punishment being, however, one year. Had the accused-Petitioner been found liable for punishment under Section 25(1)(a), the punishment could have extended to seven years, the minimum punishment being three years. 15. The learned trial Court has, however, in the present case, convicted the accused-Petitioner under Section 25(1)(a). This conviction is completely illegal and cannot be sustained. The learned Sessions Judge did not even read the provisions of Section 25(1)(a) before upholding the conviction of the accused Petitioner. In short, the accused-Petitioner was liable for conviction under Section 25(1)(B)and not under Section 25(1)(a) and he was accordingly liable for punishment with imprisonment which could have extended, at the most, to three years with fine and the minimum punishment being imprisonment for a period of one year. 16. In the case at hand, the learned Sessions Judge, while dismissing the appeal, observes that since the accused has been sentenced to three years, his sentence is the minimum which could have been imposed under Section 25(1)(a). The observations, so made by the learned Sessions Judge, are wholly incorrect and it is shocking to note that neither the learned trial Court nor the learned Sessions Judge has taken note of the changes, which have been introduced into the Arms Act with effect from 22.06.1983. Section 25(1)(a) makes manufacture, sale, transfer, convert, repair, test or prove or expose or offer for the sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition without licence an offence punishable by imprisonment of seven years, whereas possession simpliciter of fire-arms and ammunitions without licence is an offence punishable under Section 25(1)(B). 17. In the case at hand the learned trial Court has assigned no reason for imposing maximum punishment, which could have been imposed on the Petitioner under Section 25(1)(B). The learned Sessions Judge refused to interfere even with the sentence of the accused-Petitioner on the ground that the punishment of three years imposed on the Petitioner was the minimum prescribed punishment. While so upholding the sentence, the learned Sessions Judge did not, as already indicated hereinbefore, notice that Section 25(1)(a) was not attracted at all in the present case. 18. While so upholding the sentence, the learned Sessions Judge did not, as already indicated hereinbefore, notice that Section 25(1)(a) was not attracted at all in the present case. 18. Because of what have been pointed out above, it is abundantly clear that the conviction of the accused-Petitioner shall be treated to be one under Section 25(1)(B) and not under Section 25(1)(a)of the Arms Act. Conviction under the wrong penal section has really made the learned trial Court impose maximum punishment, which was impossible on the accused-Petitioner under the law. As far as learned Sessions Judge is concerned, he has completely ignored this aspect of the matter. 19. In the facts and attending circumstances of the case, I am of the view that the accused-Petitioner ought not to have been punished with imprisonment for more than one year. 20. Considering, therefore, the matter in its entirety and in the interest of justice, while the conviction of the accused-Petitioner is treated to be one under Section 25(1)(B) of the Arms Act, he is sentenced to imprisonment already undergone, which is a little more than one year. 21. With the above modification in the conviction of the accused-Petitioner and the sentence passed against him, this revision shall stand disposed of. 22. Let the accused-Petitioner be released forthwith unless he is required to be detained in connection with any other case. 23. Send back the LC Rs. 24. Send copies of this order to the Additional Chief Judicial Magistrate and the Sessions Judge concerned, wherever they are serving.