The central legal point established in the judgment is that for a conviction under section 4 read with section 25 of the Arms Act, the prosecution must prove the existence of a notification issued by the Central Government under section 4 of the Arms Act for the specified area, and the accused must be found in possession of a weapon.

Heard Mr. Abhaykumar Apte, learned Advocate appointed for the appellant, who is in jail and Mrs. Gajre, learned A.P.P.

2. The present accused, who was accused No.4 along with accused Nos. I to 3 was convicted for the offence punishable under sections 399 and 402 Indian Penal Code and was sentenced to undergo R.I. for five years and to pay fine of Rs. 3,000/- and in default to undergo R.I. for six months on each count. He was also convicted for the offence punishable under section 4 read with section 25 of Arms Act and was sentenced to undergo S.I. for two years and to pay fine of Rs. 2,000/- and in default to pay fine to undergo further S.I. for six months. The substantive sentence of imprisonment on all counts was to run concurrently. The impugned judgment and conviction was passed on 28-11-2005. The accused/appellant preferred this appeal through jail challenging the conviction and sentence. According to him the trial Court had not scrutinized and appreciated the evidence properly and has committed error in convicting him. He also prayed that the sentence of fine may be reduced.

3. I have carefully gone through the whole evidence and the impugned judgment. I have also perused a report dated 15-4-2007 from the Superintendent, Kolhapur Central Jail, which shows that the accused is likely to be released from jail on 1-5-2007, after undergoing complete sentence, including the sentence of imprisonment in default to pay fine on all the three counts.

4. According to prosecution, on 28-3-2001 P.W. 1 Police Constable Rane was on patrolling duty in Zhaveri Bazar. At about 5.30 P.M. from some informant he got information that six unknown persons had assembled in Trimurti Market, Zhaveri Bazar with intention to commit dacoity. That informant also pointed out those six persons to Police Constable Rane. Constable Rane watched their activities and one of them indicated that "the dacoity was to be committed in the Zhaveri shop on the first floor of Trimurti Market, while another person uttered let rush of people reduce" but he advised his companion to keep the weapons ready. After this, police constable Rane contacted P.W. 5 Assistant Police Inspector Parab and informed him about this information. API Parab went to the spot along with staff members. At about 7 to 7.15 P.M. Police Constable Rane joined them and pointed out the said persons. When the police tried to nab them, two of them ran away but four persons were arrested, From the custody of accused Nos. 1 and 2, two small knives and from the custody of accused No.3 Ismail Shaikh, a chopper were recovered. These weapons were seized. No weapon was found with accused No.4, who is the present appellant. All these four persons were taken in custody. A case was registered. During the investigation, it was revealed that some of the accused persons were also involved in other criminal cases. After investigation charge sheet was filed against all four accused persons and charges were framed. Accused pleaded not guilty.

5. On behalf of prosecution in all six witnesses were examined. Relying on the testimony of these witnesses, the trial Court convicted and sentenced all the four accused persons for the offence punishable under sections 399, 402 of Indian Penal Code and for the offence punishable under section 4 read with section 25 of Arms Act.

6. Taking into consideration the evidence led by prosecution and the fact that the accused appellant is already in custody since 28-3-2001 and as per the report from the Superintendent, Central Jail Kolhapur, the appellant is going to be released shortly after undergoing the complete sentence, including the sentenced awarded for the offence including Arms Act, the learned Counsel for the appellant did not press the appeal to the extent of charges under section 399 and 402 of Indian Penal Code. However, he pointed out that the conviction under section 4 read with section 25 of the Arms Act cannot be sustained for two reasons. Firstly, the accused