Balbir Singh vs State Of J&K

The instant revision petition is directed against the judgment dated 03.09.2010 passed by the learned Principal Sessions Judge, Kathua (hereinafter

referred to as „the Appellate Court‟), whereby the judgment of conviction and sentence dated 05.04.2007 passed by the Chief Judicial Magistrate,

Kathua (hereinafter referred to as „the Trial Court‟) against the petitioner herein, has been upheld. Before coming to the instant revision petition, let

me give a brief background of the facts leading to the filing of this petition.

Police Station, Kathua registered FIR bearing No.29/1994 for offence under Sections 4/25 Arms Act on the basis of a report submitted by the

police party that was on patrolling duty on the said date. As per the FIR, on the said date while the police party was on patrolling duty, they found

petitioner herein moving in suspicious circumstances and upon his personal search he was found to be in possession of a „khokhri‟, a sharp edged

weapon. The weapon in question was seized by the police and the petitioner was taken into custody. The investigation was set into motion and after

completion of the investigation, challan came to be filed against the petitioner herein before the Trial Court.

Charge for offence under Sections 4/25 Arms Act was framed against the petitioner and he was put to trial. After trial of the case and after

hearing the accused and the prosecution, learned Trial Court, on the basis of the evidence on record, found that the charge for offence under Sections

4/25 Arms Act stands established against the petitioner and he was, accordingly, in terms of judgment dated 05.04.2007 passed by the learned Trial

Court, convicted for offence under Sections 4/25 Arms Act and sentenced to undergo simple imprisonment for a period two years and to pay a fine of

Rs.2000/-.

The aforesaid judgment of conviction and sentence came to be assailed by the petitioner/accused before the Appellate Court. The appeal filed by

the petitioner came to be dismissed by the learned Appellate Court vide its judgment dated 30.09.2010. It is this judgment, which is under challenge by

way of instant revision petition before this Court.

The petitioner has primarily challenged the judgment of conviction and sentence passed by the learned Trial Court, as upheld by the learned

Appellate Court, on the ground that the prosecution had not placed on record the notification issued by the Government in terms of Section 4 of the

Arms Act thereby prohibiting possession of and carrying of khokhri in the area of Kathua, where the offence is alleged to have been committed. It has

been contended that without issuance of notification, in terms of Section 4 of the Arms Act and placing a copy thereof on record of the challan, it was

not open to the learned Trial Court or to the Appellate Court to conclude that the petitioner had committed offence under Sections 4/25 Arms Act.

The respondent-State, on the other hand, has contended that once it was established from the evidence on record that the petitioner was carrying a

khokhri, offence under Sections 4/25 Arms Act stood established against him even without placing on record a copy of the notification issued under

Section 4 of the Arms Act. Learned Additional Advocate General appearing for the State has vehemently contended that it is a fact of common

knowledge that possession of khokhri has been prohibited in whole of the Union Territory of J&K including Kathua and, therefore, mere non-

production of copy of the notification would not make any difference. It is contended that any notification issued under Section 4 of the Arms Act has

the force of law and it is not necessary to place on record the said notification.

I have heard learned counsel for the parties and perused the record of the Trial Court as well as record of the Appellate Court.

The short controversy involved in this petition is as to whether. in the absence of production of notification prohibiting possession of khokhri in the

relevant area at the relevant time, it can be stated that the petitioner had committed offence under Section 4/25 of the Arms Act merely because he

was found to be in possession of the “khokhriâ€​?

For finding answer to this issue, it would be apt to take note of the provisions contained in Section 4 and Section 25 (1-B)(b) of the Arms Act.

Section 4 of the Arms Act reads as under:-

“4. Licence for acquisition and possession of arms of specified description in certain cases.―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 his 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 licence issued in accordance

with the provisions of this Act and the rules made thereunder.â€​

Section 25 (1-B) (b) of the Arms Act reads thus:-

“25. Punishment for certain offences.―

(1) xxxxxxxxxxxxxxxxxxxxxxx (1-B) Whoeverâ€

(a) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

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

has been specified in that notification in contravention of that section; or

(c) xxxxxxxxxxxxxxxx

(d) xxxxxxxxxxxxxxxxx

(e) xxxxxxxxxxxxxxxxx

(f) xxxxxxxxxxxxxxxxx

(g) xxxxxxxxxxxxxxxxx

(i) xxxxxxxxxxxxxxxxx

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:

Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a

term of less than one year.â€​

Thus, according to Section 4 of the Arms Act, if the Central Government is of the opinion, having regard to the circumstances prevailing in the

particular area, that it is necessary in public interest that possession or carrying of any arms other than fire arms should also be regulated, it may issue

a notification in the official Gazette and once any such notification is issued, carrying of arm of such class or description in that area, as may be

notified in the notification, without license, is not permissible. Clause (b) of Section 25(1-B) of the Arms Act makes possession of any weapon in

contravention to notification issued under Section 4 punishable as an offence.

In the present case, the prosecution has not placed on record of the Trial Court or of the Appellate Court and not even of this Court any

notification prohibiting possession or carrying of khokhri in the area where the offence is alleged to have been committed. The contention with regard

to non-production of such notification was specifically raised by the defense before the learned Trial Court during the course of arguments. The same

has been noted by the learned Trial Court in its judgment dated 05.04.2007. The learned Trial Court while dealing with this contention did not refer to

any notification in its judgment but has simply rejected the contention of the defense by observing as under:-

“Keeping in view my above discussions, prosecution has been able to prove that accused was in possession of the khokhri which is a

sharp-edged weapon and is not used for agricultural or domestic purpose and possession thereof without the licence is illegal as per

section-4 of the Arms Act which has been made punishable under section 25 of the same Act.â€​

A perusal of the grounds of appeal reveals that the petitioner/accused had specifically taken a ground in the appeal with regard to non-production

of notification under Section 4 of the Arms Act. However, the said ground has not been dealt with by the learned Appellate Court at all in its judgment

dated 30.09.2010.

As already noted, a conjoint reading of Sections 4 and 25(1-B)(b) of the Arms Act clearly shows that for making out an offence under these

provisions there has to be a notification prohibiting possession or carrying of weapon of a particular description other than fire arms. No such

notification has been placed on record by the respondents in any of the Courts below. Once the defense had disputed the issuance of any such

notification by raising specific contention before the learned Trial Court as well as before the learned Appellate court, it was incumbent upon the

respondent to tender such notification in evidence. It is true that a notification issued under any provision of law is not required to be proved like any

other document, and that in terms of Section 81 of the Evidence Act, there is a presumption of genuineness attached to notification published in official

gazette but in the instant case no such notification has been placed on record. In order to raise the presumption under Section 81 of the Evidence Act,

atleast a copy of the notification was required to be tendered along with the charge-sheet, particularly, when issuance of such notification had been

disputed by the defense.

High Court of Bombay has in the case of Vilas Vasantrao Patil v. The State of Maharashtra, 1996 Crl.L.J, 185, while dealing with a similar issue,

observed as under:-

“9. Section 4 of the Arms Act says that the Central Government 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 his possession or carry in that area arms of

such class or specification as specified in that notification. Section 2(c) of the Act defines the terms „arms‟ which term means and include

a sharp-edged weapon. A sword is a weapon of that kind. The prosecution did not lead any evidence that a notification had been issued by

the Central Government as provided for in Section 4 of the Arms Act prohibiting possession or carrying of arms in the area where the

offence was committed. Unless the notification is issued, the possession or carrying of the arms is not prohibited. There is no proof on the

file that with reference to the area where the offence was committed, a notification under Section 4 of the Arms Act was issued.

Consequently, the conviction of original accused No.1 under Section 4 read with Section 27 of the Arms Act cannot be sustained.â€​

The High Court of Madhya Pradesh has in the cases of Shakir @ Govinda v. The State of Madhya Pradesh, 2008(2) MPHT 460 and Santosh

Choudhari v. The State of M.P. reported in legalcrystal.com/1043726 also taken a similar view of the matter.

In view of what has been discussed herein before, it is clear that without placing on record a copy of the notification issued under Section 4 of the

Arms Act prohibiting carrying of a weapon of a particular description in a particular area, the charge for violation of such notification cannot be

established.

The contention of the learned AAG that there is no requirement of production of a notification issued by the Government in exercise of powers

under a statute as the same has force of law, is misconceived. You cannot presume the existence of a notification without actually producing a copy

thereof or at least referring to its particulars and the contents. In the instant case the prosecution has not placed on record a copy of the notification of

which violation is being alleged. The charge-sheet does not even bear a reference to the particulars or contents of the alleged notification. In these

circumstances, this Court cannot presume the existence of any such notification as has been claimed by the respondent.

Thus, this Court has no hesitation in holding that the learned Trial Court as well as the learned Appellate Court have landed themselves into error

by not dealing with the contention regarding non-production of notification under Section 4 of the Arms Act in accordance with law. The conviction of

the petitioner recorded by the learned Trial Court, as upheld by the learned Appellate Court, is based on no evidence and the finding recorded in this

regard is grossly erroneous. Therefore, the instant case is fit for exercise of revisional jurisdiction by this Court, so as to correct the illegalities

committed by both the Courts below.

The Revision petition is, therefore, accepted and the impugned judgment of conviction passed by the learned Trial Court, as upheld by the learned

Appellate Court, is set aside and the petitioner is acquitted of the charge. His bail and surety bonds shall stand discharged. Registry to send back the

record of the Court below along a copy of this judgment.