ORDER
E. Dharma Rao, J.
1. This Criminal Revision arises out of an order in Cri A No. 173/96, dated 4-6-1999 on the file of the Court of First Additional Sessions Judge, Kurnool, confirming the conviction and sentence inflicted by the Judicial Magistrate of First Class. Banaganpalle, in C.C. No. 192/95 dated 10-10-1996 wherein A1 was found guilty of the offence punishable under Section 25(1B)(a) of Arms Act and is sentenced is to undergo Rigorous imprisonment for a period of one year for the said offence.
2. The learned counsel for the petitioner contenced that under Section 37(b) of the Arms Act (for brevity the Act) the accused was arrested on 15-3-1994. According to the prosecution one country made SBL gun was seized from the possession of accused on 14-3-1994 but he was not produced. As per the Judgment of the Sessions Court he was arrested on 14-3-1994 and the weapon was seized. On 14-3-1994, the gun was not produced along with the accused but the SBL gun was received in the Court on 11-5-1994. Therefore, the prosecution has not complied with the provisions as contemplated under Section 37(b) of the Arms Act.
3. To appreciate the contention raised by the counsel appearing for the petitioner. I have gone through the Judgment of both the Courts below.
4. According to the prosecution that on 11-4-1994 at about 10.00 a.m. at Sunkulamma Temple 21/2 kms south to Gorumanpalli village, the police personnel arrested the accused and seized one country made SBL gun from the possession of A.1 and eight country made bombs from the possession of A2 under cover of pancha-nama in the presence of PWs. 1 to 6. Subsequently the fire arms was sent to FSL Hyderabad by the Court below and the Court below received the opinion of the Assistant Director, FSL Hyderabad stating that the weapon is a country made SBBL gun and the same is in working order and comes under the purview of Arms Act. As A2 died the case against him stand abated. After obtaining sanction from the District Collector Al was charge-sheeted under Section 25(B)(a) of Arms Act, 1959.
5. To substantiate its case the prosecution has examined PWs. 1 to 3 and 6 marked Exs. P1 to P11 and MO 1 country made SBBL gun MO. 2 Plastic bucket.
6. The learned Magistrate convicted and sentenced Al for the offence referred supra. There is a speci5c stand taken by the learned counsel for the petitioner that the prosecution story cannot be believed on the ground that MO. 1 country made SBL gun was not deposited before the Court below immediately after seizure and the prosecution failed to comply the provisions contemplated under Section 37(b)(a) of the Act. The learned Magistrate has considered that as seen from the CPR No. 56/94, it is clear that MO. 1 was produced on 29-3-1994 i.e. 15 days after seizure. The descriptive particulars of MO. 1 was given under Ex. P1 and the same was received by the Court on 15-3-1994. When that being the case the entire prosecution case cannot be rejected on the ground that MO. 1 was produced 15 days after the seizure.
7. Whereas the learned Additional Ses-sions Judge in his Judgment observed that the evidence of PW. 4 shows that SBL gun was received in the Court on 11-5-1994 and the date of offence was 14-3-1994. There is a delay of two months in depositing SBBL gun in the Court below. But the evidence of PW. 6 lends support to the prosecution case that the gun was seized from the petitioner on 14-3-1994. The evidence of PW. 1 also lends support to the fact that the gun was seized and panchanama was drafted on 14-3-1994. P.W. 1, does not depose that he attested Ex. P1 on a later day. Therefore, Ex. P1 panchanama for seizure of gun from the appellant is proved beyond all reasonable doubt. I am not convinced from the foregoing reasoning of both the Courts below, as the reasons assigned has no answers to the legal imperative. Moral convictions cannot overwhelm or outweigh the mandatory legal requirement.
8. It is an admitted case of the prosecution that the accused was arrested on 14-3-1994, MO. 1 was seized on the same day after conducting seizure panchanama and he was produced before the concerned Magistrate on 19-3-1994 and released on bail. Both the Courts below have admitted that there is inordinate delay in production of MO. 1 along with A1.
9. The provision germane in this context for consideration is Section 37 (b) of the Arms Act, 1959, which reads as under –
37. Arrest and Searches.- Save as otherwise provided in this Act –
(a) all arrests and searches made under this Act or under any rules made thereunder shall be carried out in accordance with the provisions of the (Code of Criminal Procedure 1973 (2 of 1974), relating respectively to arrests and searches made under that Code.
(b) any person arrested and any arms and ammunition seized under this Act by a person not being a Magistrate or a Police Officer shall be delivered without delay to the officer incharge of the nearest police station and that officer shall –
(i) either release that person on his executing a bond with or without sureties to appear before a Magistrate and keep the things seized in his custody till the appearance of that person before the Magistrate, or
(ii) should that person fail to execute the bond and to furnish, if so required, sufficient sureties, produce that person and those things without delay before the Magistrate.
10. The above Section 37 of the Arms Act contemplates that all arrests and searches which have to be made under the Arms Act or under any Rules made thereunder, shall be earned out in possession with the provisions of the Code of Criminal Procedure. Secondly, if once the arrest and search is made by a person not being Magistrate or Police Officer, it obligated them to deliver without delay to the Officer in charge of the nearst Police Station and that Officer either release the person his executing a bond with or without sureties to appear before a Magistrate and keep the things seized in his custody till the appearance of that person before the Magistrate or when the person fail to execute the bond and to furnish, if so required, sufficient sureties, produce that person and those things without delay before the Magistrate. The intent of the Legislature, in enacting the above said Section under the Arms Act, is to ensure that any arrest and searches, if required to be made under the Arms Act or Rules made thereunder, shall be in accordance with the Code of Criminal Procedure. If any person in possession of arms and ammunition is arrested by an individual, other than Police Officer or a Magistrate, he has to hand over, the said person and the arms and ammunition seized from the possession of that person, to the incharge of a nearest police station and the said police official is empowered either to release him on bail on his personal bond with or without sureties and if such sureties are not furnised, the Police Officer may retain the person and those articles which are seized and shall be produced before the Magistrate, without any delay. Thus, evidently, the intention of the Legislature in enacting this provisions to prevent unnecessary arrests and searches, when the right to freedom of the individuals are involved. Therefore, I hold that in view of Section 37 of the Arms Act if any searches and arrests are to be made, it has to be done according to the provisions of the Code of Criminal Procedure. If search of a persons of an individual is made by an official below the rank of a Magistrate or Police Officer, that individual, shall without delay, hand over those things and the person to the officer incharge of a nearest police station who in turn is empowered either to release him on bail on furnishing sureties or without surety. If the person so arrested fails to produce sureties, that person and those things shall be produced before a Magistrate without any delay.
11. Applying these provisions to the facts and circumstances of the case, as per the prosecution, though it is not made clear under what circumstances the police officer went to the temple where he found the accused in possession of country made SBL gun and country made bombs on 11-4-1994 (sic) and they were seized after conducting panchananma and produced the accused before the Magistrate on 19-3-1994, on which date the Magistrate has released him on bail. But the things seized from the possession of accused were not produced but subsequently MO-1 was produced before the Magistrate on 11-5-1994. Thus, there is much delay in production of MO-1 before the Court below and in flagrant violation of Section 37 of the Arms Act. The prosecution has not explained the delay in production of accused No. 1 before the concerned Magistrate from 14-3-1994 and also in pro-duction of MO-1 along with the accused No. 1. Thus, production has failed to comply the mandatory provision of law contemplated under Section 37 of the Arms Act, which is enacted to protect the rights of persons, be it accused, freedom of movement and right to liberty guaranteed under Article 21 of the Constitution.
12. It should be borne in mind that the intention of the Legislature is to avoid replacement of the articles seized from the possession of the accused or plaint certain other material objects. The prosecution has frustrated the very intent of the Section by delayed production of accused and MO-1. Therefore, the proaecution version cannot be believed in view of the fragrant violation of Section 37 of the Arms Act. Consequently, the Criminal Revision Case is liable to be allowed.
For the foregoing reasons, the Criminal Revision Case is allowed and the impugned order passed by the learned Additional Sessions Judge. Kurnool, in Cri. A. No. 173/96, dated 4-5-1999 confirming the conviction and sentence inflicted by the Judicial Magistrate of First Class, Banganpalle, in C.C. No. 192/95, dated 10-10-1996 stand set aside.