[Cites 8, Cited by 0]
Gujarat High Court
Umar Ali Kumbhar vs State Of Gujarat on 17 April, 2026
NEUTRAL CITATION
R/CR.RA/1149/2023 JUDGMENT DATED: 17/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO. 1149 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting No Yes
✔
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UMAR ALI KUMBHAR
Versus
STATE OF GUJARAT
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Applicant(s) No. 1
MR ROHAN RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 17/04/2026
JUDGMENT
1. By way of present revision application under Sections 397
read with 401 of the Code of Criminal Procedure, 1973, the
applicant has prayed for quashing and setting aside the
judgment and order of conviction and sentence dated
18.06.2021 passed by the learned JMFC, Naliya, District
Kachchh, in Criminal Case No.422 of 2013, whereby, the trial
Court has been pleased to hold the applicant guilty for the
offence punishable under Section 25(1-B) 1 of the Arms Act and
sentenced to undergo rigorous imprisonment of three years and
also directed to pay fine of Rs.10,000/-, which is confirmed by
learned 9th Additional District Judge, Bhuj-Kachchh, in
Criminal Appeal No.35 of 2021 vide order dated 28.06.2023.
2. Heard Mr.Kirtidev R. Dave, learned counsel for the
applicant - accused and Mr. Rohan Raval, ld. APP for the
respondent - State.
3. The brief facts of the prosecution case are that, on
NEUTRAL CITATION
R/CR.RA/1149/2023 JUDGMENT DATED: 17/04/2026
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20.11.2012, the complainant, while on duty along with his staff,
intercepted the accused at Ghoda Circle, Naliya, who was found
in possession of a country-made semi-automatic pistol along
with two live cartridges without having any valid license for such
possession. Consequently, an FIR came to be registered at Naliya
Police Station, West Kachchh, for the offences punishable under
Sections 25(1-B)(A) of the Arms Act and Section 135 of the
Gujarat Police Act. Thereafter, a charge-sheet came to be filed
before the learned JMFC Court, and upon conclusion of the trial,
the learned Magistrate passed an order of conviction, which
came to be confirmed by the learned District Court, Bhuj, as
referred to in paragraph 1 of this order.
4. Learned counsel for the applicant has submitted that the
learned Trial Court failed to appreciate the fact that neither any
ballistic expert report was called for nor was the weapon
examined scientifically, and merely on the basis of the statement
of a police official, the conviction order has been recorded. It is
further submitted that there were two panch witnesses, however,
the first panch did not support the case of the prosecution, and
it was obligatory on the part of the prosecution to examine the
second panch witness. No reason has been assigned for non-
examination of the said independent witness. It is also
contended that the raid had already been concluded prior to the
drawing of the panchnama, and therefore, such panchnama
cannot be relied upon as a corroborative piece of evidence.
Moreover, neither any ballistic report has been produced nor
were any fingerprints of the applicant found on the alleged
weapon.
NEUTRAL CITATION
R/CR.RA/1149/2023 JUDGMENT DATED: 17/04/2026
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5. Learned APP for the respondent-State has opposed the
present revision application and contended that when the
complainant police official was on patrolling duty, the applicant
was found in a suspicious condition. Upon checking, one pistol
and four live cartridges were recovered from his possession. A
panchnama to that effect was prepared and statements of the
panch witnesses were recorded. It is, therefore, submitted that
the learned Trial Court has properly appreciated the evidence on
record and has rightly recorded the conviction. Hence, it is
prayed that the present revision application be dismissed.
6. Having heard learned counsel for the respective parties and
upon perusal of the material placed on record, it appears that
though there are concurrent findings recorded by the ld. Courts
below, the applicant was prosecuted under Section 25(1)(a-B) of
the Arms Act. The prosecution has examined six witnesses and
produced only two documentary evidence i.e., FIR and
panchnama. Except these, no other evidence has been brought
on record. At the outset, it is pertinent to note that the
prosecution has failed to prove the existence of a firearm by any
cogent evidence. No ballistic or scientific report has been
produced to establish that the alleged weapon was a firearm
within the meaning of the Act. In absence of such foundational
evidence, the prosecution has failed to prove that the accused
was in possession of a firearm. Consequently, the applicability of
Section 25(1)(a-B) of the Arms Act itself becomes doubtful.
Furthermore, Section 2(e) of the Arms Act defines "ammunition."
Not only that, but as per the mandatory provisions of Section 39
of the Arms Act, 1959, no prosecution can be instituted against
any person for an offence under Section 3 without previous
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R/CR.RA/1149/2023 JUDGMENT DATED: 17/04/2026
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sanction of the District Magistrate.
7. In view of the above, the learned Trial Court has committed
an error in taking cognizance of the aforesaid offence and has
failed to establish that the accused was in possession of a single-
barrel country-made pistol without any valid authority or
license. The issue of sanction goes to the root of the matter and
is a substantial question of law. Therefore, interference by this
Court is warranted, as the findings recorded by the Courts below
are perverse. In absence of proof of possession and the
foundational fact of existence of a firearm, the conviction of the
accused cannot be sustained.
8. For the foregoing reasons and observations, present
revision application deserves to be allowed and is accordingly
allowed. The judgment and order of conviction and sentence
dated 18.06.2021 passed by the learned JMFC, Naliya, District
Kachchh, in Criminal Case No.422 of 2013, as well as the order
dated 28.06.2023 passed by the the learned 9 th Additional
District Judge, Bhuj-Kachchh, in Criminal Appeal No.35 of 2021
confirming the same, are hereby quashed and set aside. The
applicant is acquitted of all the charges levelled against him.
Rule is made absolute. As the applicant accused is on bail, he
need not surrender. The applicant is ordered to be set at liberty
forthwith if he is not required in any other case. The bail and
bail bond stands cancelled and surety, if any, stands discharged.
Record and proceedings be sent back to the concerned Court
forthwith.
(HASMUKH D. SUTHAR,J)
ALI I
