Crl.A. 173/2003 BEFORE THE HON’BLE MR. JUSTICE H. BARUAH Heard Mr. A.M. Mazumdar, learned Sr. counsel assisted by Mrs. N. Saikia, learned counsel appearing for and on behalf of the appellant. Also heard Mr. B.B. Gogoi , learned Addl. P.P representing the State of Assam. 2. This instant appeal is directed against the judgment and order o f conviction and sentence dated 23-4-2003 passed by the learned Sessions Judge, Darrang, Mangaldoi in Sessions Case No. 118(DM) of 2001 corresponding to G. R. C ase No. 30 of 1999 whereby and whereunder appellant herein was convicted under S ection 25(1)(A) of the Arms Act and sentenced to under go rigorous imprisonment for five years and to pay fine of Rs. 5000/- in default to suffer rigorous impri sonment for one year. However, the trial court failed to record a conviction und er Section 27 of the Arms Act and accordingly he was acquitted and set at libert y. 3. The brief facts as unfolded are as follows:- Sub Inspector of police Shri Sunanda Thakuria at the relevant po int of time was serving in Dhula police station. Upon receipt of a secret infor mation that the appellant herein had been possessing illegal arms and ammunition s he raided the house of the appellant on 15-1-1999 at about 2.15 pm. However, n othing could be recovered on search from inside the house of the appellant. Duri ng search appellant was, however, present and on questioning him accused admitte d keeping of a pistol with him which was kept concealed under the ground near th e coconut tree on the back side of the house. Accused accordingly produced the s ame before the police officer Sri Sunanda Thakuria who accordingly seized the sa me and arrested the appellant. Mr. Thakuria lodged an FIR himself with the Dhula police station, which was registered and investigated into. The recovered pisto l was sent to expert for opinion and after receiving the opinion from the expert a charge sheet was laid against the appellant under section 25(1)(A) and 27 of the Arms Act of course with prosecution sanction. 4. The offence being exclusively triable by the court of Session, t he case was committed to the Sessions Court for trial of the appellant. Charges under Section 25(1A) and 27 of the Arms Act were framed against the appellant. O n being read over and explained the charges appellant pleaded not guilty and cla imed trial. Prosecution in all examined 6(six) witnesses to prove the charges le veled against the appellant. Defence also examined one witness. After recording the statement of the accused under section 313 of the Cr. P.C, the trial court d elivered the impugned judgment whereby and whereunder appellant was alone convic ted under Section 25(1A) of the Arms Act and sentenced as indicated above. Hence this present appeal. 5. From the records it appears that Mr. Thakuria was serving as Sub Inspector of police in the year 1999 at Dhula police station. At about 11 am he received a secret information that the appellant Mozamil Hoque was in possessio n of the illegal arms which were kept in his residence. Accordingly he proceeded to the house of the appellant and searched the house at 2.15 pm, but did find n othing inside. At that time appellant was present. He divulged to him that he co uld produce one pistol before him. Accordingly, the appellant produced one pisto l wrapped in plastic paper from the backside of the house kept concealed under t he ground near the Coconut tree. The pistol was seized in presence of the witnes s vide Ext.1., the seizure memo wherein Ext.1(4) stated to be his signature. He also obtained the signature of the appellant which has been marked as Ext. 1(5) in the seizure memo. Thereafter, he came to the police station along with accuse d and the seized pistol. He lodged the FIR, Ext.-2 with the Officer-in-Charge of the said police station. A case was registered and he took up investigation him self. On 10-5-1999 the said pistol was sent to the Armourer of 12-APBn at Jamugu rihat. After receipt of the expert report, he obtained prosecution sanction from the Deputy Commissioner-cum-District Magistrate, Darrang and submitted charge s heet, Ext-3 against the appellant. It is also noticed from the cross examination of this witness that at the time of search Nur Mahammad, Habibur Rahman, Sahidu l Islam and Ajgarh Ali were present who were, however not called by the I.O, Mr. Sunanda Thakuria( PW-4). PW-1, PW-2, PW-3 and PW-6 appear to be the seizure wit nesses in connection with seizure of the pistol from the possession of the appel lant. However, these witnesses failed to support the case of the prosecution in respect of seizure. But the facts remain that the pistol which was examined by t he Armourer had been produced before the PW-4 by the appellant himself which was kept concealed under the ground near a coconut tree behind the back of the resi dence of the appellant. It shows that the pistol had been seized by the PW-4, Su b-Inspector of Police who conducted the raid in the house of the appellant, alth ough the evidence of PW-1, PW-2, PW-3 and PW-6 are found not supportive the fact um of seizure. This court finds no grounds to dis-agree with the evidence of the PW-4 in respect of the seizure of the pistol, which had been produced by the ap pellant himself. PW-5 is Umesh Baruah, Nayak, 12-APBn, Jamugurihat. He in his ev idence categorically stated that he has been discharging his duties as Armourer of the 12APBn. He also stated that he has the training on this subject. On 19-6- 1999 he received the arms from the Superintendent of Police, Darrang, which was examined by him and thereafter submitted report, Ext.-5. After examination of th e arms sent to him, it was found as a hand made shotgun in an unserviceable cond ition. The evidence of PW-5 therefore, speaks about the kind of arms and accordi ng to him it was a hand made shotgun. There is no indication in his report that it was hand made pistol. We have already indicated herein before that the appell ant was charged under Section 25(1A) and Section 27 of the Arms Act, 1959. On ac count of unserviceable condition, the learned trial court refused to record conv iction under Section 27 of the Arms Act since the said hand made shot gun was no t used by the appellant at any point of time, although he had the possession of the same that too in a concealed condition. 6. Now, most important issue to be decided in this case whether in view of possession of hand made shot gun by the appellant, he can be convicted u nder Section 25(1A) of the Arms Act. Section 25(1A) is a penal provision where i t has been provided as under: 1A. Whoever acquires, has in his possession or carries any prohibited arms or p rohibited ammunition in contravention of section 7 shall be punishable with impr isonment for a term which shall not be less than five years, but which may exten d to ten years and shall also be liable to fine. Therefore, in order to punish an offender under this section there must be contr avention of section 7of the Act. Section 7 of the Arms Act, 1959 speaks of Prohi bition of acquisition or possession, or of manufacture or sale, of prohibited ar ms or prohibited ammunition, which reads as follows: Sec. 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; or (b) use, manufacture, sell, transfer, convert, repair, test or prove; or (c) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition unless he has been specially author ized by the Central Government in this behalf. In the expert report it is nowhere indicated that the pistol which was sent to him by the Superintendent of Police, Darrang falls within the definition of proh ibited arms as defined under Section 2 (h)(i) of the Act. 7. Section 2(h)(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 o r the magazine containing the missiles is empty, or (ii) weapons of any description designed or adapted for the discharge or any noxious liquid, gas or other such thing, and includes artillery, anti-aircraft and anti-tank firearms and such other arms as the Central Government may, by notification in the Official Gazette, Specify to the prohibited arms; When the report of the Armourer is silent in respect of the clas s/category of the arms and when it opined that it was a hand made shot gun, cert ainly such arms cannot fall within the definition of prohibited arms and, theref ore, conviction under Section 25(1A) of the Arms Act of the appellant cannot sus tain. The learned trial court failed to marshell the evidence of PW-5, Mr. Umesh Baruah, the Armourer of 12 APBn, Jamugurihat. The judgment which has been rende red by the trial court, in it nowhere, it is indicated that the pistol which had been sent for examination to the Armourer (PW-5) was a prohibited arms, which f alls within the definition of 2(h)(i) of the Arms Act, 1959. A hand made shot gu n though fall within the definition of arms possession thereof would be valid if license is obtained from the concerned District Magistrate under Section 3 of t he Arms Act, 1959. 8. Conviction awarded by the trial court to the appellant under Sec tion 25(1A) of the Arms Act is erroneous and illegal. The judgment and order of conviction and sentence, therefore, cannot sustain in law. It is accordingly set aside and quashed. It is apprised by Mrs. N. Saikia, learned counsel for the ap pellant that the appellant is at present on bail. In that view of the matter the re is no requirement to issue release order. The appellant is acquitted and set at liberty. Bail bond stands cancelled. 9. Appeal stands allowed.