JUDGEMENT 1. The present revision application has been filed by the State of Bihar through Law Secretary against the order dated 4.3.2008, passed by the learned Special Judicial Magistrate cum Presiding Officer, in Trial No. 2139 of 2008. arising out of Hussainganj P.S Case No. 42/05. under Section 25(1-b)(a) of the Arms Act, whereby the learned Magistrate has partly allowed the petition of the petitioner to add charge under Section 35 of the Arms Act, while disallowing the prayer for adding charge under Section 25(1)(1-a) of the Arms Act, and Section 122 of the Indian Penal Code. 2. Before I take up the plea of State, it would be necessary to state the facts in brief. On 24.4.2005 at 8 a.m., the residential house of Opposite Party Md. Sahabuddin, Member of Parliament was raided and searched by a team consisting of the Executive Magistrate, Siwan and some police officials. In course of search, bullet proof jacket, telescopic device, Bosnel, night vision divice, cartridges and other items were recovered. The cartridges so recovered have been mentioned at Sl. Nos. 10, 11 and 12 of the seizure list contained in Annexure-1. 3. It has further been stated in this petition that on the same day other premises of Opposite Party No. 1 were searched at 11.30 a.m. and prohibited weapons were recovered for which Hussainganj P.S. Case Nos. 43 and 44 of 2005 were registered. A copy of Hussainganj P.S. case No. 44 of 2005 is annexed as Annexure-2 to this application. We need not go in details of Hussainganj P.S. Case Nos. 43 and 44 of 2005 as issue in hand only relates to Hussainganj P.S. Case No. 42 of 2005 bearing Trial No. 2139 of 2008. 4. The police after investigation submitted charge-sheet under Section 25(1-B)(a) and 26 of the Arms Act, Section 414 of the Penal Code and Sections 20 and 21 of the Telegraph Act. The cognizance was also taken under the aforesaid sections and charges were also framed thereunder. In view of the special notification of the High Court and State Government, the aforesaid case was tried in jail premises by the Special Judicial Magistrate. 5. The prosecution in all examined 7 witnesses who are all official witness. The learned P.P. filed an application on 23.1.2008 that no more witnesses are to be examined and consequently the case of prosecution was closed. 6. 5. The prosecution in all examined 7 witnesses who are all official witness. The learned P.P. filed an application on 23.1.2008 that no more witnesses are to be examined and consequently the case of prosecution was closed. 6. The statement of accusations was explained to the accused in terms of Section 313, Cr PC. Thereafter the case was fixed for argument on 31.1.2008. The case was adjourned to 1.2.2008 as the prosecution failed to open its argument on that date. Similarly the case was adjourned on 1.2.2008, 2.2.2008, 6.2.2008, 16.2.2008, 20.2.2008 and 26.2.2008, as the prosecution for some reasons or the other sought time. 7. On 27.2.2008 an application under Section 216, Cr PC was filed on behalf of the prosecution to add charge under Section 25(1)(1-A), 35, Arms Act and Section 122 of the Penal Code. The learned Magistrate only partially allowed the petition so far as addition of charge under Section 35 of the Arms Act was concerned, whereas it rejected their prayer of the prosecution for adding charge under Section 122 of the Penal Code and Section 25(1)(1-A) of the Arms Act. 8. The prayer of the petitioner was rejected on two counts; firstly there lacked sufficient evidence for altering and adding charge under Section 122 of the Penal Code and Section 25(1)(1-A) of the Arms Act. Secondly, the High Court by order dated 16.10.2006, passed in Cr Misc. No. 45671 of 2005, directed to dispose of the trial within six months and thus addition of charge under the aforesaid provisions would also delay the trial. 9. Mr. R.B. Mahto, learned Special P.P. appearing on behalf of the State assailed the aforesaid order both on law and on fact. He submits that the delay in trial cannot be a ground for refusing to alter a charge, if the evidence appearing on the record, justifies the alteration. He further submits that the Magistrate has himself allowed addition of Section 35 of the Arms Act and addition of other charge could have been easily tried within the same time without any additional delay. 10. So far as facts are concerned, learned counsel submits that it would appear from Sl. Nos. 10, 11 and 12 of the seizure list, cartridges of 30.06 were seized, which would come within the definition of prohibited arms under Section 2(h) of the Arms Act. 10. So far as facts are concerned, learned counsel submits that it would appear from Sl. Nos. 10, 11 and 12 of the seizure list, cartridges of 30.06 were seized, which would come within the definition of prohibited arms under Section 2(h) of the Arms Act. In support of his submission, learned counsel refers to Annexure-4 contained in the supplementary affidavit. Annexure-4 is a notification No. GSR 375(E), dated 21.6.1930, under Arms Act published in Gazette of India. The Central Government has specified that any multiple projectile ammunition, in which any projectile has a dimension of 5 mm or more, would be prohibited ammunition. He submits that in view of notification bearing G.S.R. 991 dated 13.7.1962, only the Central Government is competent to grant licence for prohibited arms and ammunition and that too, is restricted to a very specified class. The State has also annexed order dated 26.11.2008 contained in Annexure-5 whereby the learned Magistrate rejected the prayer to commit the case under Section 323, Cr PC. 11. Mr. Kanhaiya Prasad Singh, learned senior counsel appearing for the Opposite party submits that Section 35 of the Arms Act is not a punishing provision and as such addition of charge under the aforesaid provision would not require any further cross-examination on behalf of the Opposite Party. He submits that Section 35 of the Arms Act provides that if arms and ammunition is seized from any premises, then each of such person in respect of whom there is reason to believe that he or she was aware of the existence of arms or ammunition in their premises, vehicle, or other place, unless contrary is proved, will be liable for that offence. 12. Learned counsel further submits that arms were seized from the guest house of the Opposite Party and he was admittedly not present at the time of occurrence. As the Opposite Party is a political functionary, lot of visitors come frequently and stay in the guest house. According to him, as the Opposite Party has been made an accused, the alteration of charge under Section 35 of the Arms Act, would not require any further, evidence or cross-examination and as such the same would not delay the trial. 13. According to him, as the Opposite Party has been made an accused, the alteration of charge under Section 35 of the Arms Act, would not require any further, evidence or cross-examination and as such the same would not delay the trial. 13. Learned counsel further submits that in case the materials on record would have justified alteration of charge under Section 25(1)(1-A) of the Arms Act and Section 122 of the Penal Code, the same would necessitates examination of witnesses all over again. He next submitted that the seized cartridges would not come within the specification of prohibited ammunition relied upon by the State as contained in Annexure-4. Moreover, the aforesaid notification bearing G.S.R. No. 375 (6) dated 31.6.1930 refers to ammunitions, in which any projectile has a dimension of 5 mm or more would be prohibited ammunition. Learned counsel further submitted that none of the witnesses state that the projectile of seized cartridges has a dimension ef 5 mm or more. He submits that on the contrary, the evidence of witnesses is silent on the point and they merely state that the cartridges are of .30.06 bore. He submits that the dimension of projectile and bore of a cartridges are not one and the same thing. It would appear from the order dated 26.11.2008, contained in Annexure- 5, to the supplementary affidavit filed on behalf of the State that the petitioner and some others also have been issued licence in respect of such cartridges by the District Magistrate, Siwan, itself and as such the seized ammunition cannot be said to be an unauthorised one. Furthermore, had the seized cartridges come within the purview of prohibited ammunition, the District Magistrate, Siwan would not have granted licence for the same, as contained in Annexures-A 2 to A 5 referred to in order dated 26.11.2008 annexed by the State counsel as Annexure-5. 14. There cannot be any dispute that the Court under Section 216, Cr PC may alter or add to any charge any time before judgment is pronounced, if the materials on record would justify the same. It is no where the prosecution case that any of the witnesses in course of trial stated that the seized cartridges are prohibited ammunition within Section 2(h) of the Arms Act. Moreover, no witness stated that the seized cartridges had a projectile of a dimension of 5 mm or more. It is no where the prosecution case that any of the witnesses in course of trial stated that the seized cartridges are prohibited ammunition within Section 2(h) of the Arms Act. Moreover, no witness stated that the seized cartridges had a projectile of a dimension of 5 mm or more. In fact it is stated that the seized cartridges are of .30.06 bore. The seizure list contained in Annexure-I does not mention that the seized articles are having a projectile of dimension of 5 mm or more. Furthermore, licence filed by the petitioner would also show that he had valid licence from the District Magistrate for purchasing cartridges some of which have seized. Moreover, as per Opposite Party the cartridges seized were under licence granted by the District Magistrate. In such circumstances, the same cannot be said to unauthorised. In case the seized items would have been prohibited ammunition, the District Magistrate would not have granted licence for purchase of the same, as only Central Government is the sanctioning authority for grant of such licence and that also to person covered under Schedule-1 of notification bearing G.S.R. No. 991 dated 13.7.1962. 15. Similarly so far as Section 122 of the Penal Code is concerned, there is no material on record justifying the addition of charge under the aforesaid section and learned P.P. has also not stressed the same beyond a point. 16. As the materials available on record, do not justify the addition of charge under Section 122 of Penal Code and Section 25(1)(1-A) of the Arms Act, the learned Special Magistrate has rightly rejected the application under Section 323, Cr PC to commit the case to the Court of Sessions. Only if such charges would have been allowed to be added then only the case would have been required to be committed to the Court of Sessions, under Section 323, Cr PC. 17. In view of the facts and circumstances of the case, this Court does not find any illegality in the order of learned Special Magistrate rejecting the application of the petitioner so far as addition of charge under Section 122 of the Penal Code or Section 25(1)(1-A) of the Arms Act are concerned. 17. In view of the facts and circumstances of the case, this Court does not find any illegality in the order of learned Special Magistrate rejecting the application of the petitioner so far as addition of charge under Section 122 of the Penal Code or Section 25(1)(1-A) of the Arms Act are concerned. There is complete lack of evidence to justify the addition of charge under Section 25(1)(1-A) of the Arms Act and Section 122 of the Penal Code and the learned Magistrate has rightly disallowed the application in that respect. 18. Learned counsel for the State submits that the trial Court has unnecessarily passed remarks holding him responsible for delay the trial. Learned P.P. by referring to some dates in the trial states that the same had proceeded on account of paucity of time as Presiding Officer was seized with other cases. 19. In these circumstances, I find that the remarks made against the learned Special P.P. are not justified and as such the same are expunged from the record of the case. 20. In the result, this revision application is dismissed. Revision dismissed.