JASRAJ CHOPRA, J. - (1.) THE State has filed an appeal, against the judgment of the learned Judicial Magistrate, 1st class Jodhpur dated 30 -8 -77 whereby the learned lower court has acquitted accused Beharilal and, Mishrilal of the offence u/s. 25(i)(a) of the Arms Act, 1959. The facts necessary to be noticed for the disposal of this appeal briefly stated are that on 12 -10 -1974 the Station House Officer of Police Thana Sadar, Jodhpur, received a telephonic message from S.H.O. Jaisalmer that one Beharilal and Mishrilal are carrying ammunition in Truck No. RJF 2423. The ammunition is contained of empty cartridges, copper and lead etc. which is used by Army. The police party headed by S.H.O Police Station Sadar, Jodhpur laid ambuish in the night. At about 5.30 a m. in the early morning they found truck RJF 2423 coming from the side of Jaisalmer near Kailana; They stopped the truck and found that accused Beharilal was, carrying 5 bags of ammunition where as accused Mishrilal was carrying 4 bags of ammunition. The ammunition was in the shape of empty cartridges, lead and brass etc. It was a scrap of the Army for which these two accused persons did not possess any license. The accused persons took the plea that actually this condemned store was sold by the B.S.F. to one Chetan Ram vide receipts Ex. D. 2 and D. 3. The accused persons purchased this condemned store of B.S.F. from Chetanram. Chetan Ram has been produced as D.W. 1 and he has proved the receipts Ex. D. 2 and D. 3. Relying on the testimony of Chetanram the learned lower court has held that it is actually a, condemned store which cannot be used as ammunition. It relied on an authority of the Allahabad High Court in the State v. Mohammed Ali1 wherein it has been held that if the ammunition has not lost its character as an ammunition then it was necessary for the prosecution to have proved that fact and in absence of such an evidence the unserviceable store does not remain an ammunition and therefore the accused is entitled to acquittal.
(2.) LEARNED Public Prosecutor appearing for the State submitted that they wanted to produce an expert to prove, this fact but the learned lower court rejected their application. The entire case of the prosecution is based on the fact that these empty cartridges lead and brass pieces could be used as ammunition and therefore it is an ammunition. When this was the case which they had to prove before the learned lower court it was incumbent upon them to have examined an expert at the investigation stage and to have cited him as a witness in the challan itself because this formed the very basis of their case. The courts are not meant for filling up the lacunas left by the prosecution. The Government Agency itself bas condemned this store and has sold it by public auction. If that be so the purchasers who were not experts in the subject are not expected to know that such a condemned store can also be used as an ammunition. Mr. Bhansali appearing for the State draw my attention to a decision of the Allahadad High Court in Emperor v. Bhopal Singh2 wherein a Division Bench of the Allahabad High Court held as under: - "A cartridge case is a part of ammunition within the meaning of S. 4 Arms Act, and it is an offence under the Act to have an empty cartridge case in one's possession. In normal circumstances, however, it is not suspected that the empty cartridge case is to be re -loaded or to be used in future as ammunition; the matter is of such slight importance that it would be ignored under S. 95 Penal Code, or under the maximum di minimis noncurat lax. So also a piece of lead in the shape of a bullet or in the shape of a shot is ammunition or a part of ammunition. Lead as such, which is not in such a shape is, excluded, from the term, although lead can be made up into cartridges."
(3.) EVEN if we place implicit reliance on this ruling then too the Division Bench has been pleased to lay down that the matter is very slight in importance and has to be ignored u/s. 95 of the Penal Code. There should be very exceptional circumstances to interfere with an acquittal recorded by the trial court. In this case such exceptional circumstances are not there. The reading of the evidence is not perverse and the conclusion arrived at is based on certain rulings of Madras and Allahabad High Courts and therefore I find no force in this appeal and hereby dismiss it. Appeal dismissed;