Click the Play button to listen to article

The Bombay High Court has held that a country-made pistol cannot be classified as a 'prohibited arm' under Section 7 of the Arms Act, 1959, merely because it is dangerous or unlicensed. While granting bail to an accused allegedly found in possession of an unlicensed country-made pistol and live cartridges, the Court clarified that the statutory definition of prohibited arms requires the weapon to possess specified characteristics or fall within a category notified by the Central Government.

Justice Hiten S. Venegavkar, was hearing a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in connection with an FIR registered for offences under Sections 3 and 7 read with Section 25 of the Arms Act, 1959. The FIR came to be registered after a police team apprehended the applicant and a co-accused, allegedly recovering a country-made pistol, two live cartridges and a mobile phone from the applicant. A separate magazine containing two live cartridges and an iPhone were recovered from the co-accused.

The applicant contended that he had been falsely implicated and that the weapon had neither been fired nor used to cause any injury. He argued that a country-made pistol did not automatically fall within the definition of prohibited arms, relying on the Bombay High Court Division Bench judgment in Sunderlal Tuhiram Parashar v. The National Investigation Agency & Anr.

The Court noted that the prosecution need not establish that the weapon was actually fired before an accusation of unlawful possession can be considered. The absence of firing or injury was held to be relevant to the circumstances of this occurrence, but did not render unlawful possession innocuous.

Examining the applicability of Section 7, the Court observed that the earlier bail order had treated the country-made pistol as a prohibited arm merely because it was dangerous. It held that this reasoning did not adequately address the definition under Section 2(1)(i) of the Arms Act.

“The description of a weapon as dangerous or unlicensed does not by itself satisfy that definition. Nor do ordinary live cartridges become prohibited ammunition merely because their possession is unlawful. The description in the papers presently available does not establish the particular characteristics or notification necessary to sustain that classification,” the Court remarked.

The Court clarified that this was a prima facie assessment and that the effect of any technical evidence would remain open for consideration at trial.

The Court, however, cautioned that the applicant's argument that unlawful possession attracted a maximum punishment of five years required qualification. While Section 25(1B)(a) prescribes imprisonment of two to five years for possession in contravention of Section 3, the prosecution had also alleged possession for sale, which could attract the distinct and more severe punishment under Section 25(1) for contravention of Section 5.

“… the prosecution here also alleges possession for sale. Contravention of Section 5 attracts a distinct and substantially more severe punishment under Section 25(1). It would therefore be incorrect to decide this application by treating five years as the ceiling for every allegation concerning this weapon,” the Court observed.

The Court noted that the charge sheet had since been filed and the weapon, ammunition and mobile phones had already been seized. It observed that the reasons for continued detention during investigation could not, without more, justify custody after filing of the charge sheet. The applicant's lack of identified criminal antecedents, along with the possibility of securing his attendance and protecting witnesses through appropriate conditions, also weighed in favour of bail.

Accordingly, the Court allowed the bail application.

Case Title: Vikas Kamal Yadav v. The State of Maharashtra [Bail Application No. 2070 of 2026]

Full View
Tags: