Section 28: Punishment for use and possession of firearms or imitation firearms in certain cases

Arms Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1959

Legal Commentary & Landmark Judgments: Section 28

Section 28 penalizes the use or possession of firearms or imitation firearms with the specific criminal intention of resisting or preventing the lawful arrest or detention of oneself or any other person.

  • Dual Instrumentality: Firearms and Imitation Weapons: Punishes the use or possession of genuine firearms as well as 'imitation firearms' (replicas, blank guns, air guns looking identical to lethal weapons) when brandished to prevent arrest.
  • Specific Intent to Resist Lawful Arrest: Prosecution must prove beyond reasonable doubt that the accused possessed or used the weapon with the specific mens rea of resisting, obstructing, or preventing lawful arrest or detention.
  • Lawfulness of Arrest Attempt: The arrest or detention attempted by the police officer or private person must be strictly lawful; resistance against an unauthorized, illegal, or extrajudicial raid cannot sustain a Section 28 conviction.
Key Landmark Precedents:
  • State of U.P. v. Ram Swarup (1974) 4 SCC 764: The Supreme Court affirmed that where police officers act without lawful authority or conduct illegal raids, the right of private defense arises, negating the statutory charge of unlawful resistance to arrest.
  • Laljit Singh v. State of U.P., 2003 Cri LJ 1123: The Allahabad High Court held that a Section 28 conviction cannot stand where the prosecution fails to establish that the police party was executing a valid warrant or had disclosed their official identity and lawful grounds of arrest.
Courtroom Practice & Strategic Litigation Guidance:

To dismantle a Section 28 charge arising out of an alleged 'police encounter', cross-examine the arresting officers on whether they were in uniform, whether they produced a warrant, and whether they informed the accused of the grounds of arrest under Section 50 CrPC / Section 47 BNSS. If the police party fired without justification, plead private defense under Section 96-106 IPC / Section 34-44 BNS.