Full Judgment
K.P. Mohapatra, J.
1. This appeal is directed against the order passed by the learned Judicial Magistrate, First Class, Panposb, acquitting the respondent of the charge under Section 25(1)(a) of the Arm Act, 1959 ('Act' for short).
2. The prosecution case in short is that on 5-12-1979 a country made pistol (M. O. I) was seized from the possession of the respondent by seizure list (Ext. 1). The respondent denied that he Was in possession of M. O. I. The learned Judicial Magistrate held that in the absence of the report of the Ballistic Expert that the country made pistol (M. O. I) was a fire-arm within the definition of Section 2(1)(e) of the Act, benefit of doubt should be given to the accused. Accordingly, he acquitted the accused-respondent.
3. The only point for consideration is whether the country made pistol (M. O. I) or the article, which appeared to be a country made pistol and was seized from the possession of the respondent, came within the definition of 'fire-arm' under Section 2(1)(e) of the Act. Section 2(1)(e) is quoted below for easy reference:
' 'fire-arm' means arms of any description designed or adapted to discharge a projectile or projectiles of any kind by the action of any explosive or. other forms of energy, and includes -
(i) artillery, hand-grenades, riot-pistols or weapons of any kind designed or adapted for the discharge of any noxious liquid, gas or other such thing,
(ii) accessories for any such fire-arm designed or adopted to diminish the noise or flash caused by the firing thereof,
(iii) parts of and machinery for manufacturing fire-arms, and
(iv) carriages, platforms and appliances for mounting, transporting and serving artillery.
According to Section 3, no person shall acquire, have in his possession or carry any fire arm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder If any person is found to be in possession of a fire-arm without a valid licence, he is punishable under Section 25 of the Act.
4. In this case, the evidence discloses that M. O. I was sent to the Director of Forensic Scientific Laboratory, Rasulgarh, on 2-1-1981 for the opinion of the Ballistic Expert as to whether it was a fire-arm. But the report of the Ballistic Expert was not proved in the Court. In the absence of the report, it did not appear that M.O. I. or the article which looked like a country made pistol was really a fire-arm within the meaning of Section 2(1)(e) of the Act. May be, it was a toy pistol, not a country made pistol or an article which looked like a country made pistol, but not a fire-arm. In the absence of any positive evidence that M. O. I came within the definition of fire-arm, the learned Judicial Magistrate, in my view, was justified in entertaining doubt to the effect that M. O. I was a fire-arm. It is well known that when two reasonable views are possible, the one which supports the accused should be accepted and an order of acquittal cannot be reversed. For this proposition, reference may be made to A. I. R. 1975 S. C. 274, Mehtab Singh and others v. State of Madhya Pradesh.
5. It appears from the record that the respondent was arrested on 24-10-1963 and is still in fail, because he was unable to finish bail. It is a case in which the respondent should be released forthwith.
6. for the aforesaid reasons, the appeal is dismissed and the order of acquittal of the respondent is upheld. He be released forthwith.