Country-made pistol not automatically a prohibited arm under Arms Act, Bombay High Court grants bail

The Bombay High Court has granted bail to a man accused of possessing an unlicensed country-made pistol and live ammunition, ruling that such a weapon cannot automatically be categorised as a ‘prohibited arm’ under the Arms Act, 1959, simply because it is dangerous or unlicensed.

Justice Hiten S Venegavkar, while hearing a bail application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, said the classification under Section 7 of the Arms Act must be based on the statutory definition of prohibited arms. The weapon must possess the specific characteristics set out in the law or fall within a category notified by the Central Government.

The ruling came in the case of Vikas Kamal Yadav v. The State of Maharashtra, Bail Application No. 2070 of 2026. The court allowed the application after taking into account the nature of the allegations, the filing of the charge sheet and the circumstances surrounding the applicant's continued detention.

Court questions classification of the seized weapon

The FIR was registered under Sections 3 and 7, read with Section 25 of the Arms Act, after a police team apprehended the applicant and another accused. According to the prosecution, a country-made pistol, two live cartridges and a mobile phone were recovered from the applicant. A separate magazine containing two live cartridges and an iPhone were allegedly recovered from the co-accused.

The applicant claimed that he had been falsely implicated and pointed out that the weapon had neither been fired nor used to cause any injury. He also argued that a country-made pistol could not automatically be treated as a prohibited arm under the legislation.

In support of his contention, he relied on the Bombay High Court Division Bench ruling in Sunderlal Tuhiram Parashar v. The National Investigation Agency and another.

The court, however, clarified that the prosecution was not required to establish that the weapon had actually been fired before alleging unlawful possession. The absence of firing or injury was relevant to the circumstances of the particular case, but did not make the alleged possession lawful or harmless.

Examining the provisions of the Arms Act, Justice Venegavkar observed that an earlier bail order had classified the country-made pistol as a prohibited arm simply because it was dangerous. The court said this reasoning did not adequately account for the definition under Section 2(1)(i) of the 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 court observed.

It added that the material available in the case did not establish the specific characteristics of the weapon, or the existence of a relevant Central Government notification, necessary to support its classification as a prohibited arm.

The court made clear that its finding was only a prima facie assessment at the bail stage. The prosecution would remain free to rely on technical evidence concerning the weapon during the trial.

Court distinguishes unlawful possession from possession for sale

The court also addressed the applicant's argument that the alleged unlawful possession carried a maximum punishment of five years.

It noted that Section 25(1B)(a) of the Arms Act provides for imprisonment ranging from two to five years for possession of a firearm in contravention of Section 3.

However, the prosecution had additionally alleged that the weapon was possessed for sale. The court pointed out that this allegation could attract a separate and more severe provision, Section 25(1), which deals with contraventions 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,” it said.

The court thus cautioned against assessing the possible punishment solely on the basis of the allegation of unlawful possession, without taking the separate allegation of possession for sale into account.

Charge sheet filed, seized material already in police custody

In considering the bail application, the court noted that the investigation had been completed and the charge sheet had been filed. The pistol, ammunition and mobile phones allegedly connected with the case had also been seized.

It observed that grounds which might have justified the applicant's continued detention during the investigation could not, by themselves, be sufficient to justify his custody after the charge sheet had been submitted.

The court also took note of the fact that the applicant had no identified criminal antecedents. It held that his attendance during the proceedings could be secured and witnesses protected through appropriate bail conditions.

These circumstances weighed in favour of granting bail, and the court accordingly allowed the application.

The ruling also follows the legal position discussed by a Bombay High Court Division Bench in the 2021 case of Sunderlal Tuhiram Parashar. That judgment had questioned the application of Section 7 to a country-made pistol, observing that such a weapon would ordinarily not meet the statutory description of prohibited arms. The latest order reiterates that the classification must be tested against the specific requirements of the Arms Act rather than inferred merely from the weapon's dangerous or unlicensed nature.