IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 CRL.REV.PET.NO. 655 OF 2008() -------------------------------------------- AGAINST THE ORDER DATED 06/06/2007 IN CRA.190/06 ADDITIONAL SESSIONS JUDGE, (ADHOC - ii) ERNAKULAM CC.167/2003 OF JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): APPELLANT --------------------------------------------------- KOYA @ BIRIYANI KOYA, C.NO.6452, CENTRAL PRISON, VIYYUR. BY ADV. SRI.D.AJITHKUMAR RESPONDENT(S) & STATE: ------------------------------------------ STATE OF KERALA BY PUBLIC PROSECUTOR SHRI C.S. HRIWTHIK. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.655 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 24th day of June, 2009 O R D E R -------------- This revision is in challenge of conviction and sentence imposed on the petitioner for offence punishable under Section 25 read with 5 (1)(a) of the Arms Act (for short, “the Act”) for the alleged use of sword stick, knife, iron pipe and toy gun. Case is that on 2.12.2002 at about 4.55 p.m. petitioner along with 2 others was seen by P.Ws.1 and 2, police officials at Thoppumpady carrying sword stick, knife, iron pipe, and a toy gun. Feeling suspicious about their conduct, P.W.1 arrested them and seized the weapons and toy gun. Case was registered against the petitioner and others and after investigation they were charge sheeted for offences punishable under Section 401 of the Indian Penal Code and Sec.27 of the Act as stated above. P.Ws.1 and 2 gave evidence regarding the alleged incident. They identified M.Os.1 and 2 allegedly seized from petitioner and two others. Exhibit P1 is the report submitted by P.W1 to the Station House Officer. Learned magistrate acquitted them of the charge under Sec.401 of the Code. Petitioner and others were convicted of the offence under Sec.27 read with 5(1)(a) of the Act. Petitioner was sentenced to undergo imprisonment for three years for the said CRL. R.P. No.655 of 2008 -: 2 :- offence. His appeal was dismissed by the learned Additional Sessions Judge. Hence this revision. 2. Petitioner is undergoing imprisonment. He is represented by counsel appointed on state brief. Learned counsel pointed out that for conviction for the offence under Sec.27 read with 5(1)(a) of the Act prosecution has to prove that the area where the petitioners and others were allegedly seen was covered by a Notification issued by the Central Government under Sec.4 of the Act. In this case there is no evidence to show that any such Notification was issued and at any rate, that Notification is not produced in the case. Learned Public Prosecutor submitted that records do not show that any such Notification was issued or produced. 3. Section 27 of the Act penalises use of any arms or ammunition in contravention of Sec.5 of the Act. As per Sec.5(1) (a) of the Act use, manufacture, sale, transfer, etc., of fire arms or any other arms of such class or prescription as may be prescribed is prohibited. Section 4 of the Act states that Central Government may issue appropriate Notification directing that the Section shall apply to such arms as may be notified. Therefore existence of Notification covering the area where the incident allegedly occurred is a pre- requisite under Sec.5(1)(a) of the Act. A Division Bench of the CRL. R.P. No.655 of 2008 -: 3 :- Bombay High Court in Vilas Vasantrao Patil v. State of Maharashtra (1996 Crl.LJ. 1854) has held that in the absence of proof of such Notification a conviction for the offence under Sec.27 of the Act cannot be sustained. 4. On going through the records it is seen that the Notification referred to in Sec.4 of the Act is neither produced nor referred to in the case records. There is no reference to the Notification in the evidence of P.Ws.1 and 2. Hence conviction of petitioner and sentence under Sec.27 read with 5(1)(a) of the Act cannot be sustained. Resultantly, revision succeeds. Conviction and sentence entered on the petitioner for the offence punishable under Section 27 read with 5(1)(a) of the Arms Act are set aside and he is acquitted of the charges against him. It is directed that petitioner shall be released from jail forthwith if not required to be detained otherwise. Issue intimation to the Superintendent of Central Prison, Viyyur, immediately. THOMAS P.JOSEPH, JUDGE. vsv