Chattisgarh High Court

Subhash Gupta vs State Of Chhattisgarh on 12 August, 2022

                                         1


                                                                              NAFR
                   HIGH COURT OF CHHATTISGARH, BILASPUR
                            Criminal Revision No. 438 of 2010
      Subhash Gupta, S/o Shri Ram Lakhan Gupta, aged about 23 years, R/o
       Village- Chhindia, Police Station- Patna, District Korea (C.G.)

                                                                       ---- Applicant
                                     Versus
      State of Chhattisgarh, Through : P.S. Patna, District Korea (C.G.)
                                                          ---- Non-Applicant/State
  For Applicant                   :     Shri Shakti Raj Sinha, Advocate
  For Non-Applicant/State         :     Smt. Pushpalata Khalko, Panel Lawyer
                   Hon'ble Shri Justice Rakesh Mohan Pandey
                                 Order on Board
12.08.2022
   1.

The applicant has challenged the order passed by the learned Sessions

Court, Manendragarh, Place Baikunthpur, District Korea in Cr.A. No. 49/2008

on 17.08.2010, whereby he has been convicted under Section 25 (1) (B) of

the Arms Act and sentenced to undergo R.I. for one year and fine of Rs.100/-

for carrying arms which is prohibited under Section 4 of the Arms Act, 1959.

The applicant was tried by learned J.M.F.C. Baikuntpur, District Korea in

Cr.A. No. 327/07 dated 28.06.2008 whereby he was convicted under Section

25 of the Arms Act and sentenced to undergo R.I. for three years and fine of

Rs.100/-.

2. The applicant has challenged the order passed by the learned Sessions

Court, Manendragarh, Place Baikunthpur, District Korea in the instant

revision under Section 397/401 of Cr.P.C.

3. The case of the prosecution is that on 25.10.2007 one Dasrath Rajwade

(PW-3) informed the police that when he was in his agricultural field and he

was irrigating his agricultural field, the present applicant came there and

stopped him by cutting boundaries of the field, abused him and tried to

assault by means of battle-axe. On such complainant, the police registered

an offence punishable under Section 25 of the Arms Act. Police recorded the

statements of Santlal (PW-1) and Mahendra Prasad (PW-2) and seized the

battle-axe from the possession of the applicant.

4. The trial Court framed the charge under Section 25 of the Arms Act. The

applicant absurd the said charge and pleaded non-guilty. The prosecution

examined as many as 09 witnesses in support of the case and exhibited 08

documents. The statement of the applicant under Section 313 Cr.P.C was

recorded.

5. The learned trial Court after appreciation of evidence, convicted the

applicant under Section 25 of the Arms Act and sentenced him as mentioned

above. Thereafter, the applicant preferred an appeal before the learned

Sessions Court and vide judgment dated 17.08.2010 in Cr.A. No. 49/2008,

the Sessions Court convicted the applicant by modifying the section from 25

to 25 (1) (B) of the Arms Act and sentence was also modified from three

years to one year. .

6. Learned counsel for the applicant submits that the applicant is resident of

rural area where usually the agriculturists and the cow-grazers carry the

battle-axe or axe alongwith them. He further submits that according to

Section 4 of the Arms Act, there must be a notification specifying arms of

specified description in certain cases either issued by the Central

Government or State Government but no notification has been produced

before the learned trial Court which vitiates the entire trial. He also submits

that during trial the applicant has remained in jail for a period of 15 days and

at that time he was aged about 23 years.

7. On the other hand, learned counsel for the State opposes the contention

raised by learned counsel for the applicant.

8. I have heard learned counsel for the parties and perused the records.

9. The short legal question, arising in this criminal revision for consideration, is

"whether conviction under Section 25 (1) (B) of the Act, 1959 is sustainable

in absence of any evidence that the battle-axe carried by the applicant was

in the category of 'prohibited arms' as has been specified in the Notification

issued by the State Government under Section 4 read with Section 25 (1B)

(b) of the Act 1959?"

10. Coming to the legal issue, it may be apt to notice the basic difference

between a firearm and an arm in the scheme of the Act, 1959. A firearm of

any description cannot be acquired, possessed or carried, except under a

license, as provided under Section 3 of the Act. However, there is no such

complete embargo in respect of arms, for which, Section 4 of the Act, 1959

provides that "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 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 license issued in accordance

with the provisions of this Act and the rules made thereunder".

11. It is evident that a firearm has necessarily to be an arm but an arm is not

necessarily a firearm. An arm designed or adapted to discharge a projectile

or projectiles of any kind by the action of explosive or other forms of energy,

is a firearm vide clause (e) of Section 2 of the Act, 1959. The contravention

of Section 3 in respect of firearm and of Section 4 in respect of arm, both

have been made punishable under Section 25 (1B) of the Act, 1959. Both

the provisions are reproduced hereunder :

"25...---(1B) whoever-

(a) acquires, has in his possession or carries any firearm 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 has been specified in that notification in contravention of that section; or ..........

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."

12. Section 43 of the Act, 1959 confers power to the Central Government to

direct by notification in the Official Gazette that any power or function

exercisable or performable by it under the Act other than the power under

Section 41 (power to exempt) or power under Section 44 (power to make

rules) may be exercised or performed by the State Government. It was

under this delegate power, the State Government has issued Notification No.

6312-6552-II-B(i) dated 22.11.1974, which is set out under :

"Where as the State Government is of the opinion that having regard to the prevailing conditions in the State of Madhya Pradesh, it is necessary and expedient in the public interest that the acquisition possession and carrying of sharp edged weapons with a blade more than 6 inches long 2 inches wide and spring actuated knives with a blade of any size in public places should also be regulated.

Now therefore in exercise of the powers conferred by section 4 of the Arms Act, 1959 (No.54 of 1959) read with the Government of India, Ministry of Home Affairs, Notification No. G.S.R. 1309, dated the 1st October, 1962, the State Government hereby directs that the said section shall apply with effect from the date of publication of this Notification in the "Madhya Pradesh Gazette" to the whole of the State of Madhya Pradesh in respect of acquisition, possession or carrying of sharp edged weapons with a blade more than 6 inches long or 2 inches wide and spring actuated knives with a blade of any size in public places only."

13. In view of the Notification, in order to attract conviction for the offence under

Section 25 (1B) (b) of the Act, 1959, it is prerequisite for the prosecution to

submit evidence and prove the same that the person charged for the

offfence was carrying a sharp edged weapon of the same measurement or

above, as is mentioned in the Notification issued by the State Government.

However, there is no evidence to the effect that any injury was caused by

that seized weapon by the applicant to Dasrath Rajwade (PW-3) and it is

also not in dispute that most of the villagers carry such type of battle-axe

alongwith them. The prosecution has not filed any notification issued by

either Central Government or by State Government in accordance with

Section 4 of the Arms Act, 1959 and it has also not been proved by the

prosecution that the applicant was in his possession or was carrying arms of