IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 992-993 OF 2016
SAMIR AHMED RAFIQAHMED ANSARI …APPELLANT(S)
THE STATE OF GUJARAT …RESPONDENT(S)
J U D G M E N T
R. BANUMATHI, J.
1. These appeals arise out of the conviction of the
appellant-accused under Section 25(1AA) of the Arms Act, 1959
and the High Court enhancing the sentence of imprisonment from
two years to seven years.
2. The case of the prosecution is that on 18.10.2002 at
about 8.00 p.m. when the police personnel were on patrolling
duty the appellant-accused and others were found to be
travelling in scooter carrying country made pistol loaded with
live cartridges and were in possession of two other live
cartridges. After completion of the investigation, charge
sheet was filed against the accused and two others under
Section 399 read with 120B IPC and under Section 25(1AA) of
3. The Trial Court acquitted the appellant-accused of the
offences under Indian Penal Code; but convicted him under
Section 25(1AA) of the Arms Act and sentenced him to undergo
R.I. for two years. The Trial Court acquitted the accused
nos. 2 and 3 from all the charges.
4. Being aggrieved, the appellant-accused preferred the
appeal before the High Court and the State has also preferred
the appeal for enhancement of the sentence. The High Court
dismissed the appeal preferred by the appellant-accused and
allowed the appeal preferred by the State thereby enhancing the
sentence of imprisonment from two years to seven years as
5. We have heard Ms. Kamini Jaiswal, learned counsel
appearing for the appellant as well as Ms. Jesal Wahi, learned
counsel appearing for the respondent-State.
6. Ms. Kamini Jaiswal, learned counsel appearing for the
appellant, inter alia, submitted that the conviction of the
appellant is not maintainable in view of want of sanction under
Section 39 of the Arms Act. Since we are mainly concerned with
the correctness of the conviction under Section 25(1AA), we do
not propose to go into the question on want of sanction.
7. Section 25(1AA) of the Arms Act deals with manufacture,
sale, transfer etc. of the prohibited arms. In this case, the
prosecution has not adduced any evidence to show that the
appellant-accused had indulged in manufacturing of arms or
prohibited ammunition in contravention of section 7. Since the
prosecution has not adduced any evidence to substantiate the
allegation of manufacture, in our view, the conviction of the
appellant-accused under Section 25(1AA) cannot be sustained.
8. The question falling for consideration is that what is
the offence for which the appellant is to be convicted for the
possession of the country made pistol loaded with live
cartridges and for possession of two other live cartridges.
Section 3 deals with licence for acquisition and possession of
firearms and ammunition. As per Section 3(1) no person shall
acquire, have in his possession, or carry any firearm or
ammunition unless he holds a licence issued in accordance with
the provisions of the Arms Act and the Rules made thereunder.
Contravention of Section 3 is punishable under Section 25(1B)
(a) with imprisonment for a term which shall not be less than
one year but which may extend to three years and also be liable
to fine. Both the Courts recorded concurrent findings that the
appellant was found in possession of country made pistol loaded
with live cartridges and in possession of two other live
cartridges which act is clearly in violation of Section 3 of
the Act. It is not the case of the appellant that he has a
licence for possession of country made pistol. The possession
of the country made pistol without licence is punishable under
Section 25(1B)(a) of the Arms Act. The appellant is said to
have undergone the sentence of imprisonment for 1 ½ years (vide
this Court order dated 17.10.2016).
9. In the result, the conviction of the appellant under
Section 25(1AA) of the Arms Act is modified to Section 25(1B)
(a) and the sentence of imprisonment is modified to the period
already undergone. The appellant is on bail. His bail bonds
shall stand discharged.
10. The appeals are partly allowed.
4TH OCTOBER, 2018