Samir Ahmed Rafiqahmed Ansari vs The State Of Gujarat

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 992-993 OF 2016

SAMIR AHMED RAFIQAHMED ANSARI ...APPELLANT(S)

VERSUS

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 Signature Not Verified Section 399 read with 120B IPC and under Section 25(1AA) of Digitally signed by MADHU BALA Date: 2018.10.09 17:44:36 IST Reason: Arms Act.

3. The Trial Court acquitted the appellant-accused of the

offences under Indian Penal Code; but convicted him under 2 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

aforesaid.

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. 3

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 4

shall stand discharged.

10. The appeals are partly allowed.

….......................J. [R. BANUMATHI]

…......................J. [INDIRA BANERJEE] NEW DELHI 4TH OCTOBER, 2018