[ad_1]
Rajasthan High Court – Jodhpur
Nirmal @ Mota vs State Of Rajasthan (2025:Rj-Jd:18010) on 8 April, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:18010]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal (Sb) No. 116/2024
Nirmal @ Mota S/o Baldeo Singh, Aged About 43 Years, R/o
Tenant At Ward No. 18, Near Khaterpal Temple, Sethiya Colony,
Sriganganagar. (Presently Lodged In Central Jail, Sriganganagar)
----Appellant
Versus
State Of Rajasthan, Through Pp
----Respondent
For Appellant(s) : Mr. Umesh Kant Vyas
For Respondent(s) : Mr. V.S. Rajpurohit, Dy.G.A.
HON'BLE MR. JUSTICE FARJAND ALI
Order
Reportable
08/04/2025
1. This criminal appeal is preferred against the judgment dated
31.10.2023 passed by the Additional District & Sessions Judge
No.1, Sriganganagar, in Sessions Case No.17/2017 (CIS
No.52/2016), whereby the appellant was convicted under Section
7/25 of the Arms Act and sentenced to undergo seven years of
simple imprisonment along with a fine of Rs.10,000/-, and in
default of payment of fine, to further undergo an additional three
months of simple imprisonment.
2. Briefly stated, the facts of the case are that on 03.03.2016,
one Sub-Inspector Bhoop Singh of Police Station Kotwali, District
Sri Ganganagar, is alleged to have received secret information
about a boy in possession of a country-made revolver, who was
(Downloaded on 18/04/2025 at 10:28:23 PM)
[2025:RJ-JD:18010] (2 of 9) [CRLAS-116/2024]
standing near a pipal tree and Shiv Mandir. Acting on the
information, he reached the spot where it was alleged that the
appellant was standing. Upon conducting a search, a country-made
revolver was found in the right pocket of the appellant’s pants.
Based on the above, FIR No.99/2016 was registered under Section
5/25 of the Arms Act, and the appellant was arrested. After the
usual investigation, a charge sheet was filed against the appellant
for commission of an offence under Section 3/25 of the Arms Act.
3. After taking cognizance of the offence, the learned Magistrate
heard the parties on the question of framing of charges and
thereafter framed charges under Section 7 read with Section 25 of
the Arms Act. It is pertinent to mention that, as per the
investigation report, the police were of the opinion that the
recovered arm fell under the definition of an offence under Section
3 of the Arms Act, which is why the charge sheet was submitted
under Section 3 read with Section 25 of the Act. The basis for
invoking Section 7 instead of Section 3 appears to be a report of
the District Magistrate, Sri Ganganagar, which stated that the
seized ammunition fell under the prohibited category.
4. The trial commenced, during which as many as 10 witnesses
were examined and reliance was placed on 11 documents to
substantiate the charge. The pistol (Article 1) was tendered in
evidence. Thereafter, an explanation was sought from the
appellant under Section 313 of the Cr.P.C., in which he denied the
allegations and claimed innocence; however, no defence evidence
(Downloaded on 18/04/2025 at 10:28:23 PM)
[2025:RJ-JD:18010] (3 of 9) [CRLAS-116/2024]
was produced. After hearing counsel for the parties, the learned
Judge found the appellant guilty and convicted and sentenced him
as mentioned above. The judgment of conviction and the order of
sentence are under challenge before this Court.
5. I have heard Shri Umesh Srimali, learned counsel for the
appellant, and Shri V.S. Rajpurohit, learned counsel for the State,
and have minutely examined the record of the case. My
observations are as under:
5.1. PW-7 Sub-Inspector Bhoop Singh, was examined during the
trial and reiterated the facts as mentioned in the report Exhibit P6.
His deposition regarding the search of the appellant and the
recovery of the country-made pistol from the right pocket of the
appellant’s pants appears to be reliable. The fact of recovery is
corroborated by prosecution witnesses Narpat Singh and Jogendra
Singh. They were thoroughly cross-examined, but nothing came
on record to create any doubt or suspicion to disbelieve their
testimony.
5.2. The evidence to this effect further gets corroborated by the
statements of PW-8 Jogendra Singh and PW-1 Satish. Exhibit P1 is
the recovery memo of the country-made revolver, and Exhibit P2
pertains to the structure of the arm. Interestingly, the arm was
not sent to a ballistic expert for verification or to ascertain its
description and quality. Although Exhibit P5, a letter, was
addressed to the armourer, PW-5 Rajendra Prasad but there is
nothing on record to show his expertise in the branch or subject of
(Downloaded on 18/04/2025 at 10:28:23 PM)
[2025:RJ-JD:18010] (4 of 9) [CRLAS-116/2024]
armory. He is merely an F.C. (Field Constable)deployed as an
armourer at the Reserved Police Line, Sri Ganganagar. He stated
that a packet was sent to him by Police Station Sri Ganganagar
containing a rusted 0.38 bore revolver. According to him, the
seized revolver qualifies as a firearm. However, he does not assert
that it falls under the definition of a prohibited firearm as it is
defined under the Arms Act. He admits that he did not give any
opinion that the seized article qualifies as a prohibited arm.
5.3. The prosecution has not produced any other evidence to
establish that the article falls under the definition of a prohibited
arm.
5.4 Section 2(1)(i) of the Arms Act, 1959 defines prohibited
arms. For reference, the provision reads:
“(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
or the magazine containing the missiles is empty, or
(ii) weapons of any description designed or adapted for
the discharge of 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 be prohibited arms;”
5.5. A bare perusal of the definition makes it clear that only
articles conforming to the criteria mentioned therein can be
classified as prohibited arms. It was incumbent upon the
(Downloaded on 18/04/2025 at 10:28:23 PM)
[2025:RJ-JD:18010] (5 of 9) [CRLAS-116/2024]
prosecution to adduce scientific, cogent, and reliable evidence to
prove that the seized article was of the type defined under
Section 2(1)(i) of the Arms Act. There is no such evidence to
indicate the specific nature of the article allegedly seized from the
appellant.
5.6. Section 3 of the Arms Act provides that no person shall
acquire, possess, or carry any firearm or ammunition unless he
holds a license under the provisions of the Act. A plain reading of
Section 3 indicates that possessing an arm without a valid license
constitutes an offence under the said provision, punishable under
Section 25 of the Act.
5.7. Before moving forward, it is necessary to first discuss
Section 7 of the Arms Act which is regarding prohibition of
acquisition or possession, or manufacture or sale of prohibited
arms or prohibited ammunition. For ease of reference, Section 7 of
the Arms Act is reproduced herein below:-
“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) 1[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 authorised by the Central Government
in this behalf.”
From bare perusal of the provision, it is evident that this
section applies specifically to “prohibited arms” and “prohibited
(Downloaded on 18/04/2025 at 10:28:23 PM)
[2025:RJ-JD:18010] (6 of 9) [CRLAS-116/2024]
ammunition” as defined in Section 2(1)(i) and 2(1)(h) of the Arms
Act, which usually includes automatic firearm, certain military-
grade weapons. They cannot deal with prohibited arms or
ammunition unless specifically authorised by the Central
Government.
5.8 Section 2(1)(i) of the Arms Act defines “prohibited arms” as
those designed in such a manner that, once the trigger is
activated, the weapon continues to discharge projectiles
automatically. Therefore, it is incumbent upon the prosecution to
adduce credible evidence to establish that the firearm in question
qualifies as a prohibited arm within the meaning of the Act.
However, in the present case, the prosecution has failed to
discharge this burden. No ballistic expert report has been brought
on record, nor have any technical specifications or documentation
regarding the nature of the recovered weapon been submitted.
The challan appears to have been filed without the necessary
foundational documents, and even such documents, if any, were
not tendered during trial. In such circumstances, it becomes
essential for the prosecution to prove beyond reasonable doubt
that the weapon allegedly recovered from the accused falls within
the ambit of “prohibited arms”. In the absence of such proof, the
charge under Section 7 of the Arms Act cannot be sustained.
There are provisions for other categories of arms defined under
the Arms Act, for which punishment may be imposed under
Section 3 of the Act, but not under Section 7 of the Act.
(Downloaded on 18/04/2025 at 10:28:23 PM)
[2025:RJ-JD:18010] (7 of 9) [CRLAS-116/2024]
5.9 This Court feels that the learned Judge has not provided any
reasoning as to why the case against the accused would fall under
Section 7 of the Arms Act instead of Section 3 of the Arms Act. I
am of the firm opinion that to convict an accused under Section 7,
concrete scientific evidence–such as report from a ballistic expert
or a certified laboratory–must be produced to establish that the
seized article meets the criteria of a prohibited arm as defined
under Section 2(1)(i). In the absence of any definite findings or a
special description of the ammunition, a conviction under Section
7 cannot be sustained. The learned Judge indeed has committed
an error of law and fact in convicting the appellant under Section 7
without having specific nature of the weapon, and therefore the
same is not legally sustainable. The appellant deserves to be
acquitted from charge of Section 7 of the Arms Act.
6. The next question pertains to the applicable provision for
penalizing the appellant. The recovery of ammunition has been
proved through sufficient material. I am of the view that the
appellant’s act of possessing a firearm without a valid license
constitutes an offence under Section 3, punishable under Section
25 of the Arms Act.
7. In view of the above, the appeal succeeds. The conviction of
the appellant under Section 7 of the Arms Act is set aside; and he
is convicted under Section 3 of the Arms Act instead.
8. Since the conviction under Section 7 has been set aside, the
corresponding part of the sentence under that section
(Downloaded on 18/04/2025 at 10:28:23 PM)
[2025:RJ-JD:18010] (8 of 9) [CRLAS-116/2024]
automatically lapses. The appellant now stands convicted under
Section 3 of the Arms Act.
9. I have heard learned counsel for the appellant and the State
on the question of sentence.
10. It is pleaded that the appellant has never been convicted in
any previous case. This Court has verified from Paragraph 27 of
the impugned judgment that he has been facing rigor trial since
the year 2016. He was a young man of about 21 years at the time
of the offence. Section 3 read with Section 25 of the Arms Act
does not prescribe a sentence exceeding three years. Therefore,
the provisions of Section 360 Cr.P.C. and Sections 4 and 5 of the
Probation of Offenders Act are squarely applicable. Section 361
Cr.P.C. imposes a duty on the court to explain why the benefit of
probation cannot be granted in cases where the punishment does
not exceed seven years. With the advent of reformative
sentencing principles and the enactment of the Probation of
Offenders Act, the trial court must consider the point of extending
the benefit of probation in the absence of overriding or
extraordinary reasons. Nine years have elapsed since the initiation
of the trial. Requiring the appellant to now furnish a bond for
maintaining peace and good behaviour for a limited period would
not serve the ends of justice. He has already undergone
approximately two years and four months in custody. Considering
his young age at the time of the offence, absence of criminal
antecedents, and the prolonged pendency of the trial, this Court
(Downloaded on 18/04/2025 at 10:28:23 PM)
[2025:RJ-JD:18010] (9 of 9) [CRLAS-116/2024]
feels that the sentence already undergone would be sufficient to
meet the ends of justice.
11. Accordingly, the appeal is partly allowed. The judgment of
conviction under Section 7 read with Section 25 of the Arms Act is
set aside. The appellant is convicted under Section 3 read with
Section 25 of the Arms Act and his sentence is reduced to the
period already undergone.
12. The appellant is reported to be in jail, therefore, it is ordered
that he shall be released forthwith in this case. A requisition to
this effect shall be sent to District Jail Shri Ganganagar/Central
Jail, Bikaner to ensure his immediate release.
13. Record be sent back.
(FARJAND ALI),J
5-Samvedana/-
(Downloaded on 18/04/2025 at 10:28:23 PM)
Powered by TCPDF (www.tcpdf.org)
[ad_2]
Source link