1. The applicant has challenged the order passed by the learned Sessions Court, Manendragarh, Place Baikunthpur, District Korea in Cr.A. No. 49/2008 on 17.08.2010, whereby he has been convicted under Section 25 (1) (B) of the Arms Act and sentenced to undergo R.I. for one year and fine of Rs.100/- for carrying arms which is prohibited under Section 4 of the Arms Act, 1959. The applicant was tried by learned J.M.F.C. Baikuntpur, District Korea in Cr.A. No. 327/07 dated 28.06.2008 whereby he was convicted under Section 25 of the Arms Act and sentenced to undergo R.I. for three years and fine of Rs.100/-.

2. The applicant has challenged the order passed by the learned Sessions Court, Manendragarh, Place Baikunthpur, District Korea in the instant revision under Section 397/401 of Cr.P.C.

3. The case of the prosecution is that on 25.10.2007 one Dasrath Rajwade (PW-3) informed the police that when he was in his agricultural field and he was irrigating his agricultural field, the present applicant came there and stopped him by cutting boundaries of the field, abused him and tried to assault by means of battle-axe. On such complainant, the police registered an offence punishable under Section 25 of the Arms Act. Police recorded the statements of Santlal (PW-1) and Mahendra Prasad (PW-2) and seized the battle-axe from the possession of the applicant.

4. The trial Court framed the charge under Section 25 of the Arms Act. The applicant absurd the said charge and pleaded non-guilty. The prosecution examined as many as 09 witnesses in support of the case and exhibited 08 documents. The statement of the applicant under Section 313 Cr.P.C was recorded.

5. The learned trial Court after appreciation of evidence, convicted the applicant under Section 25 of the Arms Act and sentenced him as mentioned above. Thereafter, the applicant preferred an appeal before the learned Sessions Court and vide judgment dated 17.08.2010 in Cr.A. No. 49/2008, the Sessions Court convicted the applicant by modifying the section from 25 to 25 (1) (B) of the Arms Act and sentence was also modified from three years to one year.

6. Learned counsel for the applicant submits that the applicant is resident of rural area where usually the agriculturists and the cow-grazers carry the battle-axe or axe alongwith them. He further submits that according to Section 4 of the Arms Act, there must be a notification specifying arms of specified description in certain cases either issued by the Central Government or State Government but no notification has been produced before the learned trial Court which vitiates the entire trial. He also submits that during trial the applicant has remained in jail for a period of 15 days and at that time he was aged about 23 years.

7. On the other hand, learned counsel for the State opposes the contention raised by learned counsel for the applicant.

8. I have heard learned counsel for the parties and perused the records.

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

10. Coming 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 Section 3 of the. However, there is no such complete embargo in respect of arms, for which, Section 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”.

11. 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 Section 2 of the Act, 1959. The contravention of Section 3 in respect of firearm and of Section 4 in respect of arm, both have been made punishable under Section 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 section 3; or

(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 ….......

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.”

12. Section 43 of the Act, 1959 confers power to the Central Government to direct by notification in the Official Gazette that any power or function exercisable or performable by it under the other than the power under Section 41 (power to exempt) or power under Section 44 (power to make rules) may be exercised or performed by the State Government. It was under this delegate power, the State Government has issued Notification No. 6312-6552-II-B(i) dated 22.11.1974, which is set out under :

“Where as the State Government is of the opinion that having regard to the prevailing conditions in the State of Madhya Pradesh, it is necessary and expedient in the public interest that the acquisition possession and carrying of sharp edged weapons with a blade more than 6 inches long 2 inches wide and spring actuated knives with a blade of any size in public places should also be regulated.

Now therefore in exercise of the powers conferred by section 4 of the Arms Act, 1959 (No.54 of 1959) read with the Government of India, Ministry of Home Affairs, Notification No. G.S.R. 1309, dated the 1st October, 1962, the State Government hereby directs that the said section shall apply with effect from the date of publication of this Notification in the “Madhya Pradesh Gazette” to the whole of the State of Madhya Pradesh in respect of acquisition, possession or carrying of sharp edged weapons with a blade more than 6 inches long or 2 inches wide and spring actuated knives with a blade of any size in public places only.”

13. In view of the Notification, in order to attract conviction for the offence under Section 25 (1B) (b) of the Act, 1959, it is prerequisite for the prosecution to submit evidence and prove the same that the person charged for the offfence was carrying a sharp edged weapon of the same measurement or above, as is mentioned in the Notification issued by the State Government. However, there is no evidence to the effect that any injury was caused by that seized weapon by the applicant to Dasrath Rajwade (PW-3) and it is also not in dispute that most of the villagers carry such type of battle-axe alongwith them. The prosecution has not filed any notification issued by either Central Government or by State Government in accordance with Section 4 of the Arms Act, 1959 and it has also not been proved by the prosecution that the applicant was in his possession or was carrying arms of such class or description, as has been specified in the Notification issued by the State Government, the facts and requisites constituting an offence punishable under Section 25 (1B) (b) of the Act, 1959, has not been established to be committed by the applicant.

14. Taking into consideration in absence of notification and also considering the fact that such type of weapon which was seized from the possession of the applicant was being carried by many villagers in rural area at that time, therefore, offence punishable under Section 25 (1) (B) of the Arms Act, 1959 is not made out against the applicant.

15. Accordingly, the revision is allowed. Judgment impugned is set aside and applicant is acquitted of the charge levelled against him. As the applicant is already on bail, no further order to set him free etc, is necessary. Bail bonds so furnished stand discharged.