NIZAR @ MULLAN NIZAR vs STATE OF KERALA

The revision petitioner herein is the first accused in C.C.No. 442 of 2000 of the Judicial First Class Magistrate Court-II, Kochi. He and some

others faced prosecution in the court below on the allegation that at about 12.25 p.m. on 01.03.2000, at Mattancherry, they, belonging to two

groups in the same community, assembled unlawfully at Mattancherry, armed with weapons like sword, as part of a criminal design for a fight

between the two groups, and they uttered some words there with the object of causing communal disharmony. The crime was suo motu registered

by the Police, and one among the many persons who assembled at the place of incident was arrested by the Police. A sword was also seized from

his possession as per a mahazar. During investigation, another accused was also arrested by the Police, and from his possession also, a sword was

seized as per a mahazar. After investigation, the Police submitted final report against eight persons under Section 153(A) of the Indian Penal Code,

and under Section 27 of the Arms Act.

The second accused absconded during the trial process. The others appeared before the learned Magistrate, and pleaded not guilty to the

charge framed against them. The prosecution examined 8 witnesses, and proved Exts. P1 to P4 documents. The swords produced in the court

were also identified as MO1 and MO2.

When examined under Section 313 Cr.P.C., all the accused denied the incriminating circumstances. They did not adduce any evidence in

defence.

On an appreciation of the evidence, the trial court found the accused Nos. 3 to 8 not guilty of any of the offences, and accordingly, they were

acquitted. The first accused was found not guilty under Section 153(A) IPC, but he was found guilty of the offence under Section 27 of the Arms

Act. On conviction he was sentenced to undergo simple imprisonment for three years.

Aggrieved by the judgment of conviction dated 17.07.2004, the first accused approached the Court of Session, Ernakulam, with Crl.A.No. 811

of 2004. In appeal, the learned VI Additional Sessions Judge, Ernakulam, confirmed the conviction and sentence, and accordingly, dismissed the

appeal. Now the first accused has come up in revision before this Court, challenging the legality and propriety of the conviction and sentence

against him.

On hearing both sides, and on a perusal of the materials, I find that the conviction in this case under Section 27 of the Arms Act is unsustainable.

According to the prosecution, some twenty persons forming two groups within one community unlawfully assembled at the place of incident with

the object of fighting each other, and they were armed with weapons like swords. When the Police intervened, all of them except one ran off and

escaped with the weapons in their hands. The one who remained there was arrested, and he is the first accused. According to the prosecution, a

sword was seized from his possession as per a mahazar. During investigation, the Police identified different persons, and accordingly, seven others

were arraigned as accused. From the possession of one among them, another sword was also seized as per a mahazar. Both the swords were

produced in court by the Police. Even according to the prosecution, the different persons who gathered at the scene of incident belonged to two

groups within the same community. The trial court rightly found against the prosecution under Section 153(A) IPC.

Now the question is whether a conviction is possible under Section 27 of the Arms Act on the given facts and allegations.

Possession of arms or ammunition in contravention of Section 5 of the Arms Act is punishable under Section 27 of the Arms Act. Possession or

use or sale or manufacture of firearms or other arms of such class or description as may be prescribed by the Government under Rules is

prohibited. Schedule-I to the Arms Rules framed by the Central Government under the Arms Act contains the description of various arms and

ammunition, the possession or use of which is prohibited. Rule 3 of the Rules provides that for the purposes of the Arms Act and the Rules there

under, arms or ammunition shall be of the categories specified in Columns 2 and 3 respectively of the Schedule-I to the Rules.

Now let me examine whether the weapons involved in this case will come under the definition of Arms as described in Schedule-I to the Arms

Rules.

The billhook seized on the spot from the possession of the first accused has a total length of 65 cms. The seizure mahazar shows that the length

of its handle is 12 cms, and the width at the centre is only 4 cms. The mahazar as per which the other sword was seized from the possession of the

other accused shows that the said billhook has a total length of 62 cms with the handle having 14 cms, and the central width of this billhook is also

4 cms. Of course, no witness has given evidence regarding the length or width of the blades of the billhooks involved in this case. Anyway, those

aspects can be gathered from the seizure mahazar.

A sword or billhook or other weapon categorized under the first column of the schedule-I to the Arms Rules must satisfy the requirements,

length wise and width wise. The item No. 5 in the Schedule deals with arms other than firearms, like swords, daggers etc., and for such weapons

to satisfy the definition of arms, the blade of weapon must have a length above 9 inches, and the width must be not less than two inches. Of course,

the two weapons produced in this case would satisfy the required length, but the width is only 4 cms. To bring it under the category No.5 of the

Schedule, the billhook must have a blade width of 4.95 cms at the centre (two inches). But in this case, the width of both the billhooks is only 4

cms. If so, it will not satisfy the definition of arms under the Schedule-I of the Arms Act. In such a situation, there cannot be a conviction under

Section 27 of the Arms Act. Possession of arms can be punished under Section 27 of the Arms act only if the arms in question satisfy the

requirements of the Rules, width wise and length wise.

In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offence under Section 27 of the Arms Act, and

accordingly, he is acquitted of the said offence in revision. The conviction and sentence against the revision petitioner in C.C.No. 442 of 2000 of

the trial court, confirmed in appeal by the Court of Session, Ernakulam, in Crl.A.No. 811 of 2004, will stand set aside.