The prosecution must prove the working condition of recovered arms and establish the necessary sanction under Section 39 of the Arms Act, 1959, to secure a conviction.

Ravindra Maithani, J.

1. The instant revision is directed against the judgment and order dated 18.08.2012, passed in Criminal Appeal No. 14 of 2012, Tula Ram Vs. State by the court of learned Additional District and Sessions Judge, Nainital. By this impugned order, the appeal preferred by the revisionist against the judgment and order dated 13.01.2012, passed in Criminal Case No. 358 of 2011, State Vs. Tula Ram, passed by the court of learned Judicial Magistrate, Ram Nagar, District Nainital (for short "the Case") was dismissed. Vide impugned judgment and order dated 13.01.2012, passed in the Case, the revisionist has been convicted under Section 25 of the Arms Act, 1959 (hereinafter referred to as "the Act") and sentenced to one year rigorous imprisonment and a fine of Rs. 100/-.

2. Heard learned counsel for the parties and perused the record.

3. Facts necessary for disposal of this case, briefly stated are that on 24.03.2007, when the police party was on patrolling duty, at 5.30 A.M., they intercepted the revisionist and from his possession one 12 bore S.B.B.L. gun, which was in three parts, one 12 bore gun and one country-made pistol and 25 cartridges were recovered. A case was registered against the revisionist. After investigation, charge sheet was submitted and the trial proceeded. Finally, as stated, vide judgment and order dated 13.01.2012, passed in the Case, the revisionist has been convicted and sentenced as stated hereinbefore. Aggrieved, an appeal was preferred, which has also been dismissed vide judgment and order dated 18.08.2012, passed in the appeal. Hence, the revision.

4. Learned counsel for the revisionist has raised two points for consideration, they are:-

1. The arms which have been recovered from the possession of the revisionist were not in working condition, therefore, conviction cannot be upheld under Section 25 of the Act.

2. In the instant case, sanction under Section 39 of the Act, has not been proved. This is a case, which proceeded without sanction as required under Section 39 of the Act.

5. Learned State counsel would simply state that if sanction to prosecute the revisionist is not proved, let the matter be remanded for that purpose. No argument, as such, has been advanced on behalf of the State with regard to the working condition of the recovered arms and applicability of Section 25 of the Act.

6. Facts need not much elaboration but yes they need to be seen to the extent of appreciation of evidence. In the present case, prosecution has examined in all six witnesses. They are namely, PW1 Harish Chandra Panda, PW2 Sub Inspector, Rajveer Singh, PW3, Constable, Indra Bhandari, PW4 Constable, Devki Nandan Joshi, PW5 Sub Inspector, Salauddin and PW6 Ranjeet Singh. Except PW2 Sub Inspector, Rajveer Singh, others are witnesses of recovery. They all have stated about, as to how arms are recovered from the possession of the revisionist. All these witnesses have stated that the arms were in working condition but the basis, as to how, they were in working condition has not been stated by the witnesses because according to all of them, except PW5 Sub Inspector Salauddin, the arms were not fired through. PW5 Salauddin in his cross examination stated that they had assembled S.B.B.L. gun and had fired through. This is one part.

7. Admittedly, the recovered arms have never been examined through any forensic expert. Neither is there any report of any armourer with regard to condition of arms recovered. All the witnesses have stated that the recovered arms were in working condition. Now, the question is whether report of the ballistic expert and the forensic expert and some other person having special knowledge in the field is required to be adduced by the prosecution or the evidence of such police officer, who generally handles such firearm would be enough to prove that the firearm was in a working condition?

8. The arms, which have been recovered from the revisionist are such arms, which are generally handled