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2023 DIGILAW 121 (KER)

VISHNU S/O VIKRAMAN v. STATE OF KERALA

2023-02-06

ZIYAD RAHMAN A.A.

body2023
ORDER : 1. The petitioners are accused Nos. 1 to 5 in Crime No. 1301/2018 of Konni Police Station, which is pending as C.C. No. 1237/2018 on the file of the Judicial First Class Magistrate Court-II, Pathanamthitta. The aforesaid crime was registered for the offences punishable under Sections 7(a) r/w. 25(1A) of Arms Act, 1955. 2. The prosecution case is that, while the 2nd respondent, along with the police party was conducting patrol duty, they found the petitioners, who were members of ABVP/BJP, with arms in a car bearing Registration No. KL-03-Z-1125. It is alleged that the vehicle was found near a college affiliated to Mahatma Gandhi University, where an election was forthcoming. The petitioners were arrested from the spot along with arms which consisted of hammer and a brake cable made of steel and a sharp-edged weapon that comes within the category of churika. The said articles were seized from the back side of the car. Annexure-A1 is the F.I.R. and Annexure-A2 is the final report submitted by the police. The learned Magistrate had taken cognizance of the same, and it is now pending trial. This Crl. M.C. is filed by the petitioners for quashing all further proceedings pursuant to Annexure-A2 final report. 3. Heard Sri. T.K. Biju (Manjinikara), the learned counsel for the petitioners, Smt. Sreeja V. the learned Senior Public Prosecutor for 1st and 2nd respondents. 4. The contention of the learned counsel for the petitioners is that even if the allegations contained in the final report are accepted as true, no offences alleged against the petitioners are made out. According to the petitioners, mere possession of the arms seized from the petitioners would not make out any offences under the Arms Act. It is further contended that no notification as contemplated under Section 4 of the Arms Act is in force requiring any licence for manufacturing or selling or possessing the arms which were allegedly seized from their possession. 5. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. 6. I have carefully gone through the materials placed on record. One of the offences alleged is under Section 7(a) of the Arms Act, which reads as follows: “7. Prohibition of acquisition or possession, or of manufacture or sale, of prohibited arms or prohibited ammunition: No person shall: (a) acquire, have in his possession or carry. (b)........... (c)........... 6. I have carefully gone through the materials placed on record. One of the offences alleged is under Section 7(a) of the Arms Act, which reads as follows: “7. Prohibition of acquisition or possession, or of manufacture or sale, of prohibited arms or prohibited ammunition: No person shall: (a) acquire, have in his possession or carry. (b)........... (c)........... Any prohibited arms or prohibited ammunition unless he has been specially authorised by the Central Government in this behalf.” As per the same, in order to attract the said offence, the accused must have acquired or have in his possession or carry any prohibited arms or prohibited ammunition. The term ‘prohibited arms’ is defined under Section 2(i) of the Arms Act, which reads as follows: “S.2(i) “prohibited arms” means: (i) firearms so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty. (ii) weapons of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing, and includes artillery, anti-aircraft and antitank firearms and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms.” Going by the averments in the final report and the seizure mahazar, which forms part of the final report, it can be seen that no arms which come within the description of prohibited arms were admittedly seized from the possession of the accused persons. Therefore, the offence under Section 7(a) would not get attracted. The next offence is under Section 25(1AA) which reads as follows: “25(1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which extend to ten years and shall also be liable to fine.” For attracting the said offence, the accused must have manufactured or possessed any arms or ammunition in contravention of Section 7 of the Arms Act. In this case, I have already found that the arms seized from the possession of the petitioners are not coming with the description of prohibited arms which is the only article dealt with in Section 7 of the Arms Act. In this case, I have already found that the arms seized from the possession of the petitioners are not coming with the description of prohibited arms which is the only article dealt with in Section 7 of the Arms Act. Without any seizure of prohibited arms as defined under Section 2(i), the offence under Section 25(1A) would not be attracted. 7. Thus, it is evident that mere possession of arms or carrying arms other than firearms and ammunition, which are not prohibited, would not attract any of the offences. The prosecution has a case that the petitioner has not obtained any licence for possessing the said article. Section 4 of the Arms Act provides for the licence for the acquisition and possession of arms of specified description in certain cases. As per the said provision, if the Central Government is of the 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. Rule 4 of the Arms Act provides that unless the Central or the State Government by notification in the Official Gazette so directs, no licence shall be required for the manufacture, sale, possession for sale or test, of arms of category V in Schedule I except in the areas notified under section 4. It is true that some of the arms seized from the possession of the petitioners would fall under category-V in Schedule I being sharp edged weapon. However, a joint reading of Section 5 of the Arms Act and Rule 5 of the Arms Rules would indicate that in the absence of a notification issued in this regard, no licence is required for any person to possess the said arms. However, a joint reading of Section 5 of the Arms Act and Rule 5 of the Arms Rules would indicate that in the absence of a notification issued in this regard, no licence is required for any person to possess the said arms. Therefore, it is evident that since the allegation against the petitioners is confined to the possession of the arms, that by itself is not something which would attract any of the offences contemplated under the provisions of the Arms Act or any Rules framed thereunder. The view taken by me is fortified by decision of this Court in Stephen vs. State of Kerala, 2018 (3) KLT 920 . 8. Thus, after considering the materials placed on record as per Annexure A2 final report, the nature of arms allegedly seized from the possession of the petitioners and the statutory stipulations contained in the Arms Act and the Rules framed thereunder, the only irresistible conclusion possible is that the act allegedly committed by the petitioners would not attract any of the offences. Therefore the prosecution launched against the petitioners based on Annexure A2 is clearly an abuse of the process of the court. 9. In such circumstances, this Crl. M.C. is allowed, Annexure A2 final report in Crime No. 1301/2018 of Konni Police Station and all further proceedings pursuant thereto including the proceedings in C.C. No. 1237/2018 on the file of the Judicial First Class Magistrate Court- II, Pathanamthitta are hereby quashed.