Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 270 (CHH)

Vridhichand v. State of Chhattisgarh

2014-07-17

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. Questioning the legality, validity and correctness of the judgment affirming the applicant's conviction for offence under Section 25(1B)(b) of the Arms Act, 1959 (henceforth 'the Act, 1959') and sentence of rigorous imprisonment for one year and fine of Rs. 2,000, the applicant has preferred the instant revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (henceforth 'Cr.P.C.'). The prosecution case, in brief, as unfolded during the course of trial, is as under:-- 2.1 On 15-2-2005, at around 7:05 p.m., on a secret information received to the Assistant Sub-Inspector B.P. Rajwade (PW-2), who, on that date, was a Head Constable in Police Chowki Koriya, when they were on patrolling duty, that one person is roaming around with a Gandasa, which is a prohibited arms and upon which, they reached on the spot and seized the gandasa admeasuring 10.5 inches long, width 2 inches and total length of the Gandasa is 14.5 inches which is an arms within the meaning of Section 2(1)(c) of the Act, 1959 and possession of the same is prohibited by notification issued under Section 4 of the Act, 1959 and possession of the same without licence is punishable under Section 25(1B)(b) of the Act, 1959. 2.2 The applicant was charge-sheeted before the jurisdictional criminal Court for the said offence after due investigation. He pleaded no guilt to the charge and entered into defence. 2.3 In order to bring home the charge, the prosecution examined five witnesses and brought on record and exhibited five documents in support of its case. Whereas, the defence neither examined any witness nor brought any document on record. 2.4 The trial Magistrate, upon conclusion of the trial, convicted the applicant finding him guilty for the offence under Section 25(1B)(b) of the Act, 1959 and sentenced with rigorous imprisonment for the period of one year and with fine of Rs. 2,000. 2.5 In appeal, the appellate Court did not interfere with the finding of the trial Court rather accepted the finding with regard to conviction and sentence as well leading to filing of the instant revision questioning the conviction and sentence." 2. 2,000. 2.5 In appeal, the appellate Court did not interfere with the finding of the trial Court rather accepted the finding with regard to conviction and sentence as well leading to filing of the instant revision questioning the conviction and sentence." 2. Shri Pawan Shrivastava, learned counsel appearing for the applicant, while criticising the judgment of conviction recorded by the two Courts below, would submit that the conviction as recorded by the two Courts below is patently illegal as the prosecution has failed to prove the said offence beyond shadow of doubt as neither the prosecution has proved that the alleged arms seized is a prohibited arms under Section 4 of the Act, 1959 and further more the seizure of the said arms is also not duly established. Therefore, the conviction followed by the sentence deserves to be set aside. 3. Opposing the above submission, Shri Prasun Bhaduri, learned Government Advocate appearing for the State/non-applicant would submit that the arms seized from the applicant is a Gandasa which is a prohibited arms under the notification issued under Section 4 of the Act, 1959. He would further submit that the seizure of the said arms from the applicant is duly established by the prosecution witnesses. 4. I have heard and considered the rival submissions made by learned counsel appearing for the parties and have perused the record with utmost circumspection. 5. Upon hearing learned counsel appearing for the parties, following two questions emerge for consideration: "1. Whether the object seized, i.e., sharp edged weapon Gandasa vide Ex. P-1 is a prohibited arms within the meaning of Section 4 of the Act, 1959? 2. If yes, whether seizure of the said arms has duly been established by the prosecution 6. Answer to First Question: The word "arms" has been defined in Section 2(1)(c) of the Act, 1959, which states as under:-- "2. P-1 is a prohibited arms within the meaning of Section 4 of the Act, 1959? 2. If yes, whether seizure of the said arms has duly been established by the prosecution 6. Answer to First Question: The word "arms" has been defined in Section 2(1)(c) of the Act, 1959, which states as under:-- "2. Definitions and interpretation.--(1) In this Act, unless the context otherwise requires,-- xxxxx xxxxx xxxxx (c) "arms" means articles of any description designed or adapted as weapons for offences, or defence, and includes firearms, sharp-edged and other deadly weapons, and parts of, and machinery for manufacturing arms, but does not include articles designed solely for domestic or agricultural uses such as a lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or of being used otherwise than as toys or of being converted into serviceable weapons;" 7. Section 4 of the Act, 1956 provides for licence for acquisition and possession of the arms of specified description in certain cases, as under:-- "4. Licence for acquisition and possession of arms of specified description in certain cases.--If the Central Government is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder". 8. Rule 3 of the Arms Rules, 1962 (henceforth 'the Rules, 1962') provides for classification of arms or ammunition, as under:-- "3. Classification of arms or ammunition:-- For the purposes of the Act and these rules, "arms" or "ammunition" shall be of the categories specified in columns 2 and 3 respectively of Schedule I and references to any category of arms or ammunition in these rules shall be construed accordingly". 9. Classification of arms or ammunition:-- For the purposes of the Act and these rules, "arms" or "ammunition" shall be of the categories specified in columns 2 and 3 respectively of Schedule I and references to any category of arms or ammunition in these rules shall be construed accordingly". 9. Category V of Schedule I enacted under Rule 3 of the Rules, 1962 also includes sharp edged weapons, which states as under:-- “SCHEDULE I (See rule 3) Category Arms Ammunition 1 2 3 xxxxx xxxxx xxxxx V Arms other than fire-arms; sharp-edged and deadly weapons, namely-swords (including sword-sticks), daggers, bayonets, spears (including lances and javelins); battle-axes, knives (including kirpans and khukries) and other such weapons with blades longer than 9” or wider than 2” other than those designed for domestic, agricultural, scientific or industrial purposes; steel batton; “Zipo” and other such weapons, called “life preservers”; machinery for making arms other than category II; and any other arms which the Central Government may notify under section 4. Nil” 10. Under Section 2(1)(c) of the Act, 1959, the word 'arms' inter alia means articles of any description designed or adapted as weapons for offence or defence, and includes firearms, sharp-edged and other deadly weapons. Section 3 of the Act, 1959 then prohibits, among other things, possession of firearms or ammunition except under a licence issued under the Act, 1959 or the rules made thereunder, So far as arms, other than firearms, are concerned, Section 4 of the Act, 1959 empowers the Central Government, if it is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest, that acquisition, possession or carrying of arms, other than firearms, should also be regulated, it may by notification direct that this section shall apply to the area specified in such notification, and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification, except under a licence issued under the provisions of the Act, 1959 or the rules made thereunder. 11. 11. In view of Sections 2(1)(c), 3 and 4 of the Act, 1959, once, therefore, such a notification is issued under the Act, 1959 or the rules made thereunder, and that notification specifies any arms, e.g., a Gandasa, possession of or carrying such a Gandasa without licence in the specified area would be an offence under the Act, 1959. Section 25(1B)(b) of the Act, 1959 provides that whoever acquires, has in his possession or carries in any place specified by notification under Section 4 of the Act, 1959 any arms of such class or description as has been specified in that notification in contravention of that section 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. 12. In the instant case, though the Gandasa is said to be a sharp-edged weapon and an arms within the meaning of Section 2(1)(c) of the Act, 1959 and the applicant has been prosecuted and convicted for the said offence, no such notification was issued under the Act, 1959 specifying the possession of Gandasa in the specified area has been brought on record. Section 25(1B)(b) of the Act, 1959 clearly provides that whoever acquires, has in his possession or carries in any place specified by notification under Section 4 of the Act, 1959 any arms of such class or description as has been specified in that notification in contravention of that section 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. Thus, to constitute an offence under Section 25(1B)(b) of the Act, 1959, the arms must be of such class or description as has been specified in that notification is sine qua non. 13. The prosecution did not lead any evidence that a notification had been issued by the Central Government, as provided for in Section 4 of the Act, 1959 prohibiting possession or carrying of arms (Gandasa) in the area where the offence was alleged to have been committed. Unless the notification is issued and placed on record and is duly proved, the possession or carrying of the arms is not prohibited. Unless the notification is issued and placed on record and is duly proved, the possession or carrying of the arms is not prohibited. There is no proof on the file that with reference to the area where the offence was committed, a notification under Section 4 of the Act, 1959 was issued. 14. In Subhash Ramkumar Bind alias Vakil and another v. State of Maharashtra (2003) 1 SCC 506 : ( AIR 2003 SC 269 ), it has been held by their Lordships of the Supreme Court that to bring an arms within the category of prohibited arms, a notification in the Official Gazette will be necessary and it cannot be done by an administrative order. 15. In the instant case, neither any statutory notification as issued under Section 4 of the Act, 1959 prohibiting possession and carrying of the alleged arms Gandasa has been brought before the two Courts below nor before this Court. Apart from this, Assistant Sub-Inspector B.P. Rajwade (PW-2), who has seized the alleged arms Gandasa from the applicant clearly states that he has not filed any such notification issued in the Government Gazette and he is also the Investigating Officer of the case. Thus, there is no oral or documentary evidence on record to hold that any such notification has been issued under Section 4 of the Act, 1959 bringing the alleged sharp-edged weapon Gandasa prohibiting possession of the same under Section 4 of the Act, 1959 which is punishable under Section 25(1B)(b) of the Act, 1959. Thus, the first question is answered accordingly in favour of the applicant. 16. Answer to Second Question: "The seizure of alleged arms Gandasa from the applicant is also not free from doubt. Ex. P-1 records the seizure from the applicant of the said Gandasa in presence of two witnesses Anand (PW-5) and Ravi Kumar Thakur (PW-1). During the course of trial, Ravi Kumar Thakur (PW-1) was examined. He flatly denied any information with regard to the incident as well as the seizure from the applicant and on being asked the leading question, he also denied the fact of seizure of arms Gandasa from the applicant. The other witness Anand (PW-5), in his examination-in-chief, has deposed that the applicant is roaming with a knife. He flatly denied any information with regard to the incident as well as the seizure from the applicant and on being asked the leading question, he also denied the fact of seizure of arms Gandasa from the applicant. The other witness Anand (PW-5), in his examination-in-chief, has deposed that the applicant is roaming with a knife. Thus, he has not supported the prosecution case about seizure of the arms Gandasa from the applicant as he has only proved his signature on the papers and he has clearly stated that no seizure was made in his presence by the police." 17. Thus, considering the statements of two seizure witnesses and in absence of any other witness, it cannot be said that the Gandasa was seized from the possession of the applicant. 18. The finding recorded by the trial Court holding that the seizure is duly established from the testimony of the aforesaid two seizure witnesses is grossly perverse and contrary to the record and the appellate Court has also perpetuated the illegality by accepting the finding with regard to the seizure as recorded by the trial Court. Thus, the conviction recorded and the sentence awarded by the trial Court and affirmed by the appellate court lacks incriminating evidence against the applicant. The conviction followed by the sentence has no leg to stand. Concludingly, the revision is allowed. The impugned judgment of conviction and sentence for offence under Section 25(1B)(b) of the Act, 1959 is hereby set aside. The applicant is acquitted of the charge under Section 25(1B)(b) of the Act, 1959. Under the provision of Section 437A, Cr.P.C., the bail bounds executed by him shall remain in force for a further period of six months from today.