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NON-REPORTABLE

    IN THE SUPREME COURT OF INDIA     CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 992-993 OF 2016

SAMIR AHMED RAFIQAHMED ANSARI                      ...APPELLANT(S)

                               VERSUS

THE STATE OF GUJARAT                ...RESPONDENT(S)                                                 

J U D G M E N T

R. BANUMATHI, J.

1. These  appeals  arise  out  of  the  conviction  of  the

appellant-accused under Section 25(1AA) of the Arms Act, 1959

and the High Court enhancing the sentence of imprisonment from

two years to seven years.

2. The case of the prosecution is that on 18.10.2002 at

about 8.00 p.m. when the police personnel were on patrolling

duty  the  appellant-accused  and  others  were  found  to  be

travelling in scooter carrying country made pistol loaded with

live  cartridges  and  were  in  possession  of  two  other  live

cartridges.   After  completion  of  the  investigation,  charge

sheet  was  filed  against  the  accused  and  two  others  under

Section 399 read with 120B IPC and under Section 25(1AA) of

Arms Act.

3. The Trial Court acquitted the appellant-accused of the

offences  under  Indian  Penal  Code;  but  convicted  him  under

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Section 25(1AA) of the Arms Act and sentenced him to undergo

R.I. for two years.  The Trial Court acquitted the accused

nos. 2 and 3 from all the charges.

4. Being  aggrieved,  the  appellant-accused  preferred  the

appeal before the High Court and the State has also preferred

the  appeal  for  enhancement  of  the  sentence.  The  High  Court

dismissed  the  appeal  preferred  by  the  appellant-accused  and

allowed the appeal preferred by the State thereby enhancing the

sentence  of  imprisonment  from  two  years  to  seven  years  as

aforesaid.

5. We  have  heard  Ms.  Kamini  Jaiswal,  learned  counsel

appearing for the appellant as well as Ms. Jesal Wahi, learned

counsel appearing for the respondent-State.

6. Ms.  Kamini  Jaiswal,  learned  counsel  appearing  for  the

appellant, inter alia,  submitted that the conviction of the

appellant is not maintainable in view of want of sanction under

Section 39 of the Arms Act. Since we are mainly concerned with

the correctness of the conviction under Section 25(1AA), we do

not propose to go into the question on want of sanction.

7. Section 25(1AA) of the Arms Act deals with manufacture,

sale, transfer etc. of the prohibited arms. In this case, the

prosecution  has  not  adduced  any  evidence  to  show  that  the

appellant-accused  had  indulged  in  manufacturing  of  arms  or

prohibited  ammunition in contravention of section 7. Since the

prosecution has not adduced any evidence to substantiate  the

allegation of manufacture, in our view, the conviction of the

appellant-accused under Section 25(1AA) cannot be sustained.

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8. The question falling for consideration is that what is

the offence for which the appellant is to be convicted for the

possession  of  the  country  made  pistol  loaded  with  live

cartridges and for possession of two other live cartridges.

Section 3 deals with licence for acquisition and possession of

firearms and ammunition. As per Section 3(1)  no person shall

acquire,  have  in  his  possession,  or  carry  any  firearm  or

ammunition unless he holds a licence issued in accordance with

the provisions of the Arms Act and the Rules made thereunder.

Contravention of Section 3 is punishable under Section 25(1B)

(a) with imprisonment for a term which shall not be less than

one year but which may extend to three years and also be liable

to fine. Both the Courts recorded concurrent findings that the

appellant was found in possession of country made pistol loaded

with  live  cartridges  and  in  possession  of  two  other  live

cartridges which act is clearly in violation of Section 3 of

the Act. It is not the case of the appellant that he has a

licence for possession of country made pistol. The possession

of the country made pistol without licence is punishable under

Section 25(1B)(a) of the Arms Act.  The appellant is said to

have undergone the sentence of imprisonment for 1 ½ years (vide

this Court order dated 17.10.2016).

9. In  the  result,  the  conviction  of  the  appellant  under

Section 25(1AA) of the Arms Act is modified to Section 25(1B)

(a) and the sentence of imprisonment is modified to the period

already undergone.  The appellant is on bail. His bail bonds

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shall stand discharged.

10. The appeals are partly allowed.

….......................J. [R. BANUMATHI]

…......................J. [INDIRA BANERJEE]

NEW DELHI 4TH OCTOBER, 2018