1. The Koothuparamba police registered Crime No.498 of 2014 for the offence punishable under Sec.25(1)(a) of the Indian Arms Act, 1959, Act 54 of 1959 (for short, "the Act of 1959") against the petitioners for alleged possession of two swords and a knife without license. The petitioners apprehend arrest and have filed this application under Sec.438 of the Code of Criminal Procedure (for short, "the Code").

2. Following questions are urged for a decision:

(i) Whether, in the absence of a notification issued under Sec.4 of the Act of 1959, possession of arms of the category involved in this case is punishable under any provision of the said Act?.

(ii) Whether, notification No.222 issued by the (then) Madras Government and published in the Fort St.George Gazatte on September 14, 1922 holds good even after repeal of the Indian Arms Act, 1878 (for short, "the Act of 1878") by Sec.46 of the Act of 1959?.

3. Before going into the above questions, it is to be considered whether the offence attributable to the petitioners is Sec.25(1)(a) of the Act of 1959 or it is under Sec.25(IB)(b) of the said Act?.

4. Sri.T.Asif Ali, the learned State Public Prosecutor has argued that the offence attributable to the petitioners on the facts of the case is Sec.25(1)(a) of the Act of 1959 as the petitioners had in their possession arms in contravention of Sec.4 of the said Act. Sri.V.V.H Gokul Das, the learned counsel for the petitioners in response argued that on the facts alleged the provision that is attracted is only Sec.25(1B)(b) of the Act of 1959. In view of the complexity of the matter involved and the consequence that might follow, I sought the assistance of Adv. Sri.S Rajeev in the matter. The learned counsel has highlighted before me various aspects of the matter referring to the notification referred supra, relevant provisions of the General Clauses Act, 1897 and various decisions on the point.

5. I proceed for the time being on the basis that two swords and a knife were seized from the possession of the petitioners on the relevant day and time. The Act of 1959 (which came into force on the first day of October, 1962 in view of GSR 992 dated 13.07.1962) classifies arms dealt with therein differently as "arms", "fire arms" and "prohibited arms". Sec.2 (1)(c) of the Act of 1959 defines 'arms' as meaning articles of any description designed or adapted as weapons for offences, or defence, and including firearms, sharp-edged and other deadly weapons, and parts of, and machinery for manufacturing arms and excluding the class of weapons referred to therein.

6. Sec.4 of the Act of 1959 deals with prohibition of arms of the nature defined in Sec.2(1)(c). The said provision says that, 'if the Central Government is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette direct that Sec.4 shall apply to the area specified in the notification and thereupon, no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in that behalf a license issued in accordance with the provisions of the Act of 1959 and the rules made thereunder'. Sec.25(1B)(b) of the Act of 1959 provides punishment for possession of 'arms' in contravention of Sec.4 referred supra. The said provision says that 'whoever acquires, has in his possession or carries in any place specified by notification under Sec.4 any arms of such class or description as has been specified in that notification in contravention of that section' shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine'.

7. Another class of arms dealt with by the Act of 1959 is "firearms" which is defin