1. Heard learned advocates for the parties and perused the papers.
2. The short question involved in both these revision applications is common and, therefore, they are heard and decided together.
3. The petitioners have been chargesheeted, interalia, for the offences punishable under Section 25(1AA) of the Arms Act i.e. prohibited arms as defined Under Section 2(1)(i) of Arms Act (hereinafter referred to as “the Act”). The petitioners submitted an application before the Court below for discharge contending that, the weapons allegedly recovered from them, does not fall within the category as defined under Section 2(1)(i) of the Act, as those are not prohibited arms and, therefore, the petitioners are not triable for such offence. This submission, however, did not weigh with the learned trial Judge, who, by impugned order rejected the application for discharge of the petitioners after holding that a huge quantity of arms had been recovered from the petitioners and that they are automatic and semiautomatic arms and would fall within the definition of Section 2(1)(i) of the Act.
4. Learned counsel for the petitioners has taken this Court through the Record & Proceedings, and submitted that, since none of the arms allegedly recovered from the petitioners fall within the said definition, the application for discharge from the trial in respect of said offences should have been accepted by the Court below.
5. Having heard learned advocates for the parties and perused the papers, it appears that there is no dispute that the arms which have been recovered from the petitioners does not fall within the definition of Section 2(1)(i) of the Act, as they are not such arms as would not require triggering more than once, for firing of the bullets until either the magazine is empty or pressure is released. The argument advanced by learned APP is, however, that as per the second report of Forensic Science Laboratory, as sought for by this Court by its order dated 8th November, 2006, the arms recovered from the petitioners are `prohibited arms’ within the meaning of Schedule – I, Item No.1(a) of the Arms Rules, 1962. He further submitted that therefore this Court may not go into the factual aspects as to whether such arms are not prohibited arms and the petitioners must be asked to face the trial.
6. In my considered opinion, in view of the fact that the arms are not of the nature defined under Section 2(1)(i) of the Act, the petitioners cannot be exposed to the trial for such offence. It is true that, in the second FSL report, after opining that the trigger has to be pressed again if the arm is to be operated, stated in the last line that the weapons are defined as prohibited bore in Indian Arms Rules, 1962. However, the reliance placed upon ScheduleI Item (1)(a) of the Arms Rules by learned APP is misconceived inasmuch as the said provisions requires notification mentioning the arms in order that those arms to be treated as prohibited arms. Admittedly, there is no such notification on the record of the case.
7. Under the aforesaid circumstances, this Court is inclined to allow these revision applications with a clarification that the petitioners would face trial in respect of the possession of the arm except for the offence punishable under Section 25(1)(AA) of the Arms Act.
8. In the result, both these petitions succeed. The impugned orders dated 20.2.2006 passed by learned Additional Sessions Judge, Fast Track Court, Veraval below application Exh.8 in Sessions Case No.324 of 1999 and below application Exh.7 in Sessions Case No.325 of 1999 respectively are hereby quashed and set aside, and it is directed that the papers insofar as they relate to the offences against the petitioners herein are concerned, if form the record of this case as Record & Proceedings, be transmitted to the court below, which, in turn will transmit the same to the Court of competent jurisdiction. Rule is made absolute accordingly. Direct service is permitted.
(G.R.UDHWANI, J.) syed/