Evidence must establish possession of prohibited arms for conviction under S.25 of Arms Act, 1959.

1. Heard.

2. The applicant's conviction under S.324 of IPC and S.25 of the Arms Act , 1959 (in short "the Act, 1959") and sentence of RI for one year for each of the offence and fine of Rs.1000/- and Rs.200/- respectively, for causing injuries by means of sword to injured Kannilal, as rendered by the trial Magistrate, has been affirmed by the Appellate Court.

3. The short legal question, arising in this criminal revision for consideration, is "whether conviction under S.25 of the Act, 1959 is sustainable in absence of any evidence that the sword carried by the applicant was in the category of 'prohibited arms' as has been specified in the Notification issued by the State Government under S.4 read with S.25(1B) (b) of the Act, 1959?"

4. Bare minimum facts necessary to dwell on the above issue is that on 17.6.1994, at about 7:30 p.m., injured Kannilal had gone towards the village pond and was in conversation with Chhatrapal and Samaylal. At that point of time, the accused persons reached there, raised altercation and Buddheshwar inflicted repeated blows on the person of Kannilal by means of sword, which he was carrying from the beginning. The other accused persons also assaulted Shatrughan and Bharat. Since the Appellate Court has acquitted accused Rangeela for the offence under S.323/34 of IPC and has modified the jail sentence of accused Harshram for the offence under S.323 of IPC from RI for 4 months to fine of Rs.1000/-, this revision application has been preferred by accused / applicant Buddheshwar only.

5. Applicant Buddheshwar has been convicted for carrying sword, a prohibited arm, and causing injuries to Kannilal. However, at the same time, the applicant has been acquitted of the charge under S.27 of the Act, 1959 on the ground that there is no mention of the ingredients for attracting offence under S.27 of the Act, 1989, therefore, the applicant is entitled to be acquitted for the said offence.

6. Reverting back to the legal issue, it may be apt to notice the basic difference between a firearm and an arm in the scheme of the Act, 1959. A firearm of any description cannot be acquired, possessed or carried, except under a license, as provided under S.3 of the Act. However, there is no such complete embargo in respect of arms, for which, S.4 of the Act, 1959 provides 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 this section shall apply to the area specified in the notification and thereupon no person shall acquire, have in possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a license issued in accordance with the provisions of this Act and the rules made thereunder".

7. It is evident that a firearm has necessarily to be an arm but an arm is not necessarily a firearm. An arm designed or adapted to discharge a projectile or projectiles of any kind by the action of explosive or other forms of energy, is a firearm vide clause (e) of S.2 of the Act, 1959. The contravention of S.3 in respect of firearm and of S.4 in respect of arm, both have been made punishable under S.25(1B) of the Act, 1959. Both the provisions are reproduced hereunder:

"25... - (1B) whoever -

(a) acquires, has in his possession or carries any firearm or ammunition in contravention of S.3; or

(b) acquires, has in his possession or carries in any place specified by notification under S.4 any arms of such class or description as has been specified in that notification in contravention of that section; or.....