JUDGMENT : [Ram Manohar Narayan Mishra, J.] 1. Instant misc. petition under Article 227 of the Constitution has been filed by the petitioner with a prayer to set aside the impugned order dated 01.07.2022 passed by learned District and Sessions Judge, Aligarh in Criminal Revision 106 of 2022 (Santosh Shukla Vs. State of U.P. ) whereby the order dated 24.02.2022 and 04.04.2022 passed by C.J.M., Aligarh in release application regarding a pistol moved by the petitioner in Crime No. 688 of 2021 under Sections 379, 411 I.P.C., has been affirmed. The petitioner has also prayed for setting aside the impugned orders of learned C.J.M. dated 24.02.2022 and 04.04.2022 also. 2. Heard learned counsel for the petitioner, learned A.G.A. for the State and perused the material placed on record. 3. Brief facts of the case are that petitioner is a licensed owner of pistol No. RP 206261. A theft report was lodged by the petitioner at P.S. Banna Devi, District-Aligarh vide crime No. 688/21 under Section 379 I.P.C. against an unknown person, wherein he stated that on 14.11.2021 he had gone to attend a marriage ceremony along with his brothers Krishanveer Singh and friend Pushpendra Singh at Raju Angel Garden, Sarsau. During singing and dancing activities on D.J., his pistol which was kept in his waist, had been stolen by some unknown person and he could not trace out the same. The police investigated the case, during investigation the said pistol was recovered from accused Vipin s/o Rohtas by police and Section 411 of I.P.C. was added in penal sections and charge-sheet was filed against said Vipin under Sections 379 and 411 I.P.C. before the Court. However, during investigation police gathered some new facts regarding which another F.I.R. under Section 27/30 Arms Act was lodged against the applicant, at the instance of S.I. Ravichandrawal regarding same incident on 26.11.2021 at 11:26 hours with allegation that during investigation of case under Section 379 I.P.C., this fact surfaced on the basis of C.C.T.V. footage of the place of incident where alleged theft occured and statement of witnesses, that the informant Santosh Singh had flashed his licensed pistol while dancing on D.J. and many times he handed over the said pistol to his cousin Pushpendra during the event of dancing. This was unlawful use of fire arm, so after recovery of the pistol from accused Vipin Kumar on 23.12.2021, it was kept along with a black magazine at Malkhana of P.S. concerned. 4. Learned counsel for the petitioner submitted that he had moved an application for release of said pistol on basis of being its licensed owner before learned Chief Judical Magistrate in crime No. 688/2021 under Sections 379 and 411 I.P.C. but same was rejected by learned Magistrate on ground that the applicant had violated conditions of the license and a case under Section 30 Arms Act was registered against him and proceedings for cancellation of said license, issued to the applicant, were moved before District Magistrate which is under procedure. Another application for release of said pistol was moved by the applicant before learned C.J.M. on 16.03.2022 on ground that no offence under Section 27/30 Arms Act is made out against him and he is the informant in said criminal case registered by crime No. 688/21. He has not committed any offence by said pistol and said pistol is kept in police custody/Malkhana and only on basis of second F.I.R. registered by crime No. 717/21 under Section 30 Arms Act against applicant, his pistol is not being released. The said application was also rejected by learned C.J.M. on ground that a release application moved by the applicant was already rejected by order dated 24.02.2022. Therefore, second application for release of same pistol before this Court was not maintainable. Thus, the application was dismissed by order dated 04.04.2022. Feeling aggrieved by the impugned orders of learned C.J.M., the applicant preferred a criminal revision before the Court of Sessions which was registered as criminal revision 106 of 2022 (Santosh Kumar Vs. State of U.P. and Another), on ground that learned Chief Judicial Magistrate rejected his release application vide order dated 24.02.2022 and on 04.04.2022 on ground that a case under Section 27/30 Arms Act has been registered against him on charge of misuse of said licensed pistol against the applicant and a proceedings regarding cancellation of armed license regarding said pistol is initiated before learned District Magistrate. However, when he gathered information from office of District Magistrate, Aligarh, no such proceedings regarding cancellation of his Arms license has been found pending with the office of District Magistrate and he had moved an application for divulging information thereon, before this District Magistrate/Collector on 16.03.2022 but no information was given to him. The petitioner is posted in CDO Unit of Indian Army, he never misused his licensed pistol, he neither flashed said pistol nor handed over the same to his cousin Pushpender on the date of incident. No offence is made out against the applicant under Section 27/30 Arms Act. 5. The above criminal revision was dismissed by learned Sessions Judge, Aligarh vide order dated 01.07.2022 on ground that Chief Judicial Magistrate has committed no jurisdictional error or irregularities are found in impugned order passed by learned Chief Judicial Magistrate. The said case under Section 30 Arms Act has been lodged against the revisionist on charge of violation of terms of license and proceedings regarding cancellation of the Arms license issued to the applicant with regard to said pistol is already initiated before the District Magistrate with pending consideration. 6. Learned counsel for the petitioner submitted that the learned Magistrate lost over sight while rejecting release application of the applicant that release application moved with regard to release of said pistol that the applicant is licensed owner and no offence under Section 27/30 Arms Act is made out against him, no second F.I.R. is permissible with regard to same offence. The first F.I.R. was lodged by the petitioner himself regarding theft of his licensed pistol on 15.11.2021 and same was recovered by police from possession of accused Vipin Kumar. During investigation a chargesheet has been filed against that person for charge under Sections 379 and 411 I.P.C. The petitioner is a Constable in Indian Army and presently, he is posted in civil unit. He had acquired said pistol No. RP 206261 for his protection and due to rejection of his release application by courts below, the purpose for acquiring said fire arm is being defeated. He has no allegation that said pistol is involved in commission of any offence by the applicant. He is himself an aggrieved person whose pistol was stolen in a marriage ceremony by a relative of the host. He has no allegation that said pistol is involved in commission of any offence by the applicant. He is himself an aggrieved person whose pistol was stolen in a marriage ceremony by a relative of the host. No purpose of law appears to be served by keeping the said pistol in custody of police for a long time against the purpose for which said fire arm has been acquired by the petitioner. 7. Learned counsel for the revisionist placed reliance on a decision of Hon'ble Apex Court in Sunderbhai Ambalal Desai vs State Of Gujarat AIR 2003 SC 638 wherein Hon'ble Apex Court issued guidelines for release of case property by the Magistrate/ Criminal Court in exercise of power under Section 451 Cr.P.C. In para 7 of the judgment Hon'ble Apex Court observed that powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:- "1. Owner of the article would not suffer because of its remaining unused or by its misappropriation. 2. Court or the police would not be required to keep the article in safe custody; 3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and 4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles." 8. In Sunderbhai Ambalal Desai vs State Of Gujarat, Hon'ble Apex Court considered the necessity of releasing certain goods, live valuable articles and Currency Notes, vehicles, golden or sliver ornaments etc. and observed that it is of no use to keep such articles in police custody for years till the trial is over. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest. Learned counsel also placed reliance on a recent judgment of Hon'ble Apex Court in Surinder Singh Vs. State of U.T. of Chandigarh 2022 1 Crimes (SC) 133, wherein Hon'ble Apex Court considered the provisions of Sections 27 and Section 5 of Arms Act, in Case under Section 307 I.P.C. in which the accused appellant has challenged the judgment of conviction and sentence passed by High Court of Punjab and Haryana High Court. State of U.T. of Chandigarh 2022 1 Crimes (SC) 133, wherein Hon'ble Apex Court considered the provisions of Sections 27 and Section 5 of Arms Act, in Case under Section 307 I.P.C. in which the accused appellant has challenged the judgment of conviction and sentence passed by High Court of Punjab and Haryana High Court. Hon'ble Apex Court observed in para 28 and 29 of the judgment as under: "28. Adverting to the conviction of the Appellant under Section 27 of the Arms Act, it appears to us that the Trial Court has erred in arriving at his culpability. There is no gainsay that in order to prove a charge under Section 27of the Arms Act, the prosecution must necessarily demonstrate contravention of either Section 5 or Section 7 of the Act. In the instant case, although not explicitly stated, it appears that the Trial Court has held it to be a case of breach of Section 5 of the Arms Act, which stipulates that no person shall use, possess, manufacture, etc. any firearms, unless such person holds a license in this behalf, and prescribes a minimum punishment of 3 years of imprisonment. The relevant extracts of unamended Sections 5 and 27 of the Arms Act which were in force at the relevant time, read as follows: “5. Licence for manufacture, sale, etc., of arms and ammunition.?[(1)] No person shall— (a) use, manufacture, sell, transfer, convert, repair, test or prove, or (b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearm or any other arms of such class or description as may be prescribed or any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder. [(2)] xxxx 27. Punishment for using arms, etc.?(1) Whoever uses any arms or ammunition in contravention of section 5 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. (2) Whoever uses 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 seven years but which may extend to imprisonment for life and shall also be liable to fine. (2) Whoever uses 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 seven years but which may extend to imprisonment for life and shall also be liable to fine. (3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of Section 7 and such use or act results in the death of any other person, shall be punishable with death.” 29. True it is that prior to the amendment of Section 27 of the Arms Act, vide Arms (Amendment) Act 1988, the said provision penalized the use of any arms and ammunitions for any ‘unlawful purpose’. However, post its amendment, Section 27 of the Arms Act is strictly confined to violation of conditions mentioned either under Section 5 or 7 of the Arms Act and the ‘unlawful purpose’ of using arms and ammunitions is no longer an inseparable component of the delinquency." 9. This fact is not denied that the petitioner is a defence personnel and he acquired a fire arm license of the category of which the pistol in question belongs. He is a licensed owner of the said pistol which was stolen in a marriage ceremony from possession of the petitioner and thereafter it was seized by police, when it was recovered by the person Vipin Kumar who is projected as an accused in the case and chargesheet is also filed against him for charge under Sections 379 and 411 I.P.C. The only charge against the petitioner is that prior to theft of said pistol on the date of incident on 14.11.2021, the petitioner was engaged in dancing on D.J. along with his cousin and he flashed the pistol and during dancing many times he handed over the same to his cousin Pushpendra Singh, there is no allegation that the petitioner has committed any offence by said pistol. The main allegation against him is that he has violated the terms of license of the pistol and for that reason he has been made an accused subsequently, for charge under Sections 27/30 Arms Act. However, in view of judgment of Hon'ble Apex Court in Surinder Singh Vs. The main allegation against him is that he has violated the terms of license of the pistol and for that reason he has been made an accused subsequently, for charge under Sections 27/30 Arms Act. However, in view of judgment of Hon'ble Apex Court in Surinder Singh Vs. State (Union Territory of Chandigarh), it can be held that post amendment of Section 27 Arms Act Vide Arms Amendment Act, 1988 Section 27 of the Arms Act is strictly confined to violation of conditions mentioned either under Section 5 or 7 of the Arms Act and the; use of arm or ammunition for unlawful purpose, is no longer inseparable component of the delinquency in Section 5 of the Arms Act. A person will be liable for violations shown in Clause A and Clause B only when he does not hold in this behalf a license issued under the Act and rules made thereunder. 10. Section 13 Arms Act provides that whoever contravenes any condition of a license, or any provision of this Act or any rule made thereunder, for which no punishment is provided elsewhere in this Act, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to Rs. 2,000/-or both. Section 7 of Arms Act is in no manner is applicable in the present case as same is concerned with prohibited arms and ammunitions. There is no doubt that the District Magistrate and the Commissioner, the administrative authorities are bound to take appropriate action in the matter of grant of license and also its cancellation for the purpose of maintaining peace and harmony in the society. However, it is well settled that mere involvement in a criminal case, is no ground for cancelling armed license under Section 17 of the Act as the provision for variation, suspension and revocation of arms license are provided under Section 17 of the Act. 11. The Magistrate or any Criminal Court is empowered to make such order as it thinks fit for the proper custody of any property produced before it during any enquiry or trial in the exercise of powers under Section 451 Cr.P.C. or general powers provided under the law regarding proper custody and disposal of property. 11. The Magistrate or any Criminal Court is empowered to make such order as it thinks fit for the proper custody of any property produced before it during any enquiry or trial in the exercise of powers under Section 451 Cr.P.C. or general powers provided under the law regarding proper custody and disposal of property. Similarly, under Section 457 Cr.P.C. whenever the seized property by any police officer is reported to a Magistrate under the provisions of the Court, and such property is not produced before a Criminal Court during an enquiry or trial, the Magistrate may make such order as he thinks fit under Section 457 Cr.P.C. respecting the disposal of such property or the delivery of such property to the person entitled to the possession there of. 12. On facts of the present case, no authority could be brought to the notice of this Court by State respondent that only due to fact that as the proceedings regarding the cancellation of license are initiated before licensing authority i.e. District Magistrate regarding seized fire arm license, the seized fire arm cannot be released by learned Magistrate in exercise of power Section 451/457 Cr.P.C. in appropriate case. However, if the license is suspended or revoked by licensing authority, the license owner will be bound to deposit the said fire arm to proper place as directed by licencing authority. 13. Therefore, in present case, learned Judicial Magistrate as well as learned Revisional Court has not considered the facts involved in the case and the law applicable to the facts of the case while rejecting the release application moved by the licensed owner and the learned Magistrate rejected the release application on technical ground that said fire arm is seized by police in case under Section 30 Arms Act lodged against the petitioner at the instance of police and Revisional Court also committed an error of law while dismissing the criminal revision preferred by the petitioner and affirming the impugned order passed by learned Magistrate. The license of said fire arm has been issued and the said fire arm has been procured by the petitioner for lawful purpose, for his protection and the purpose of acquiring said fire arm is jeoparadized while keeping the same in police custody on some technical charges levelled against the petitioner or on ground that the proceedings of cancellation of armed license isinitiated and pending before the competent authority therefore, the impugned order passed by learned Revisional Court/ Sessions court in criminal revision as well as the rejection of release application moved by the petitioner by learned Chief Judicial Magistrate are not sustainable under law and is liable to be set aside. 14. The matter is remitted back to the Chief Judicial Magistrate, Auraiya to pass reasoned and speaking order afresh on release application moved by the petitioner, who is a licensed owner of the said fire arm and his license appears to be renewed up to 15.02.2023, in accordance with law and preferably, within a period of two months from production of certified copy of this order. 15. In the light of above observations made by this Court in present writ petition and learned Magistrate is well within his right to pass orders subject to appropriate conditions for release/entrustment of said fire arm in favour of the petitioner, provided the license issued to fire arm has not been suspended or revoked on the date of hearing of the disposal of the application. 16. Accordingly, the petition stands disposed of.