IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 1134 of 2005 Date of decision: October 15, 2010 Gurjant Singh .. Petitioner Vs. State of Punjab .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. H.S. Rakhra, Advocate for the petitioner. Mr. Amit Chaudhary, AAG, Punjab for the respondent. A.N. Jindal, J Assailed in this petition is the judgment dated 27.5.2005 passed by the Additional Sessions Judge, Bathinda, dismissing the appeal filed by the accused-petitioner (herein referred as, 'the accused') against the judgment dated 28.4.2004 passed by the Judicial Magistrate Ist Class, Bathinda, convicting and sentencing him to undergo rigorous imprisonment for one year and to pay fine of Rs.500/- under Section 25 of the Arms Act (herein referred as, 'the Act'). In nutshell, the allegations are that on 20.8.2001, SI Dinesh Kumar along with other police officials was going from Amarpura Basti towards Naruana on a Government Gypsy. The accused was coming on foot and was apprehended on suspicion. On personal search of the accused, he was found in possession of one country made pistol of .12 bore along with two live cartridges, the statements of he witnesses were recorded; report of the Armour and order for sanction for prosecution of the accused was received from the District Magistrate. On submission of the charge report under Section 173 Cr.P.C. the accused was charged under Section 25 of the Act, to which he pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined Ajit Singh, Jr. Asstt. D.C. Office Bathinda (PW1), SI Dinesh Kumar (PW2), HC Ashok Kumar (PW3) and ASI Jagrup Singh (PW4). When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his Criminal Revision No. 1134 of 2005 -2- *** false implication in the case. In defence, he examined Pira Singh (DW1). The trial ended in conviction. His appeal also failed. Arguments heard. Record perused. The armour did not appear in the witness box to say if he had checked the pistol in question. Even if report Ex.PE is examined, it does not reveal if the weapon so sent for checking was in working condition. In the absence of any report made by the armour, the pistol so recovered from the accused could not be said to be an arm as covered by the Act. The learned State counsel has urged that ASI Jagrup Singh (PW3) had stated that the pistol so recovered from the accused was in working condition, but that part of his statement does not appear to be correct. First of all he did not explain as to how the pistol was in working condition. He did not test pistol, rather he left it to be examined by the armour. Had he been so sure about the working of the pistol, then he would not have sent the same to the armour. The Hon'ble Division Bench of this Court in case Mahavir son of Milla Ram v. State of Haryana 2009 (2) AICLR 738 observed as under :- 17. Shiv Parkash alias Shiba was also allegedly found in possession of a country made pistol .315 bore along with one live cartridge of the same bore. Bhim Singh, Head Constable, ( PW-6 ) was posted as Armourer in Police Line Kaithal. He mechanically tested the pistol, and gave his report Ex.PF. However, during the course of cross-examination, it was stated by him, that the pistol was only mechanically examined by him, but it was not tested by way of firing the shots therefrom. He further stated, during the course of cross-examination, that he could not tell whether the firearm was ever used or not. Bhim Singh, Head Constable, ( PW-6 ) could only come to the conclusion, as to whether, the pistol which he allegedly mechanically tested, could be used as a weapon of offence or defence, after test firing the cartridges therefrom. He admittedly did not make any test fire and, as such, he could not Criminal Revision No. 1134 of 2005 -3- *** say, as to whether, the object was ever used. Under these circumstances, it could not be said, as to whether, the pistol like object, which was allegedly recovered from Shiv Parkash alias Shiba, accused, could be used as a weapon of offence or defence. Only after due proof that the pistol allegedly recovered from Shiv Parkash alias Shiba, accused, could be used, as a weapon of offence, or defence, that the same could fall within the purview of Section 25 of the Arms Act. It may be a toy pistol, which was allegedly recovered from Shiv Parkash.” In the instant case also, the pistol so recovered was not test fired, therefore, the same cannot be termed as a weapon in the terms of the Act. In view of the above, I am of the considered opinion that both the courts below have not considered the aforementioned aspect of the case resulting into miscarriage of justice. As such, interference at my end has become inevitable. For the foregoing reasons, I accept this petition, set aside the impugned judgment, acquit the accused of the charges framed against him and direct that he be set at liberty forthwith. Bail bond and surety bond furnished by him stand discharged. Fine, if any deposited by him, be refunded. October 15, 2010 (A.N. Jindal) deepak Judge