Conviction under the Arms Act is unsustainable without scientific/ballistic evidence proving the weapon is a 'firearm' and without the mandatory prior sanction of the District Magistrate as required by Section 39 of the Act.

JUDGMENT

1. By way of present revision application under Sections 397 read with 401 of the Code of Criminal Procedure, 1973, the applicant has prayed for quashing and setting aside the judgment and order of conviction and sentence dated 18.06.2021 passed by the learned JMFC, Naliya, District Kachchh, in Criminal Case No.422 of 2013, whereby, the trial Court has been pleased to hold the applicant guilty for the offence punishable under Section 25(1-B) 1 of the Arms Act and sentenced to undergo rigorous imprisonment of three years and also directed to pay fine of Rs.10,000/-, which is confirmed by learned 9th Additional District Judge, Bhuj-Kachchh, in Criminal Appeal No.35 of 2021 vide order dated 28.06.2023.

2. Heard Mr.Kirtidev R. Dave, learned counsel for the applicant – accused and Mr. Rohan Raval, ld. APP for the respondent – State.

3. The brief facts of the prosecution case are that, on 20.11.2012, the complainant, while on duty along with his staff, intercepted the accused at Ghoda Circle, Naliya, who was found in possession of a country-made semi-automatic pistol along with two live cartridges without having any valid license for such possession. Consequently, an FIR came to be registered at Naliya Police Station, West Kachchh, for the offences punishable under Sections 25(1-B)(A) of the Arms Act and Section 135 of the Gujarat Police Act. Thereafter, a charge-sheet came to be filed before the learned JMFC Court, and upon conclusion of the trial, the learned Magistrate passed an order of conviction, which came to be confirmed by the learned District Court, Bhuj, as referred to in paragraph 1 of this order.

4. Learned counsel for the applicant has submitted that the learned Trial Court failed to appreciate the fact that neither any ballistic expert report was called for nor was the weapon examined scientifically, and merely on the basis of the statement of a police official, the conviction order has been recorded. It is further submitted that there were two panch witnesses, however, the first panch did not support the case of the prosecution, and it was obligatory on the part of the prosecution to examine the second panch witness. No reason has been assigned for non- examination of the said independent witness. It is also contended that the raid had already been concluded prior to the drawing of the panchnama, and therefore, such panchnama cannot be relied upon as a corroborative piece of evidence. Moreover, neither any ballistic report has been produced nor were any fingerprints of the applicant found on the alleged weapon.

5. Learned APP for the respondent–State has opposed the present revision application and contended that when the complainant police official was on patrolling duty, the applicant was found in a suspicious condition. Upon checking, one pistol and four live cartridges were recovered from his possession. A panchnama to that effect was prepared and statements of the panch witnesses were recorded. It is, therefore, submitted that the learned Trial Court has properly appreciated the evidence on record and has rightly recorded the conviction. Hence, it is prayed that the present revision application be dismissed.

6. Having heard learned counsel for the respective parties and upon perusal of the material placed on record, it appears that though there are concurrent findings recorded by the ld. Courts below, the applicant was prosecuted under Section 25(1)(a-B) of the Arms Act. The prosecutio