IMPORTANT POINT
When Sanction order under Section 39 of Arms Act though obtained from District Magistrate was not got proved during trial. conviction could not be sustained.

ORDER

Gopalakrishna Tamada, J. - This revision is filed against the judgment of the learned Judicial I Class Magistrate. Koilkuntla in CC. No.13 of 1997, confirmed by the I Additional Sessions Judge, Kurnool, in Criminal Appeal No. 72 of 1999 for the offence punishable under Section 25 (1-B) (a) of the Arms Act, convicting and sentencing the petitioner to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1.000/-in default to under go simple imprisonment for a period of one month.

2. The case of the prosecution is that on 30-8-1995 at about 9.30 a.m., when the S.I. of Police of Banaganapalli, alongwith his staff members went to Banaganapalli- Peepalli cross roads and surrounded the petitioner on suspicion that he was in possession of illicit firearms and country made bombs. When the accused ran away, S.I. of Police chased him and arrested him and found one country made six the chambered revolver from out of his possession and he seized the same. After investigation, the police filed chargesheet.

3. The only contention raised by the learned Counsel for the petitioner is that the prosecution launched against the petitioner without proving the order of sanction obtained from the District Magistrate, as required under Section 39 of the Arms Act is not maintainable.

Heard the learned Public Prosecutor

4. Section 39 of the Arms Act, reads as follows:

"39. Previous sanction of the District Magistrate necessary in certain cases: No prosecution shall be instituted against any person in respect of any offence under Section 3 without the previous sanction of the District Magistrate.

Thus, as per Section 39, no prosecution can be instituted without the previous sanction of the District Magistrate. The sanction as contemplated under Section 39 of the Act is not an empty formality and it is introduced to safeguard the persons against any false or frivolous prosecution. When once a sanction order is issued by the District Magistrate. somebody on behalf of the Department shall come before the Court and mark the same as an exhibit. In the instant case, on a reading of the Judgment of the trial Court, it is clear that the sanction order, though obtained from the District Magistrate concerned, has not been marked as an exhibit and the same cannot, therefore, be used as evidence. Without exhibiting the sanction order in court as per the provisions of sanction order which is there in the record. May be that the sanction order is inserted into the record. This point was however, not canvassed before the trial Court.

5. In appeal, though this point was argued, the learned Sessions Judge held that the sanction order is there in the record and observed that the Court can look into the same and take a note of it. The relevant portion of the judgment of the learned sessions judge is necessary to be extracted hereunder.

12. The District Collector issued sanction order for prosecuting the accused. But, it was not marked in the lower court. It is only a mistake.

The case can be remanded to lower court for marking the same. There cannot be any objection for marking the same in the lower court if the case is remanded. It is only a procedural aspect. If there is any benefit to the accused the case can be remanded. For marking the sanction order, the case need not be remanded to the lower court. Because, it is available in the record. It can be taken note of."

6. I do not think, the view adopted by the learned Sessions Judge in accepting the sanction order even though it is not marked in evidence, is correct. Unless and until it is marked and proved in accordance with the provisions of the Evidence Act, the learned Sessions Judge ought not have taken the same into consideration. Therefore, when the Sessions Judge instead of deciding the appeal ought to have remitted the case to the trial Court for further trial. When once the sanction order as required under Section 39 of the Act was not produced or proved by the prosecution, it must be con