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High Court Of Delhi
RADHEY SHAYAM - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 458 of 1971
Decided On : 01/06/1972
ARMS ACT, 1959 - SECTION 39 - SANCTION FOR PROSECUTION - ADDITIONAL DISTRICT MAGISTRATE - POWER TO GRANT - SEARCH AND SEIZURE - LEGALITY - SECTION 165, CR. P. C. - INVESTIGATION - COMMENCEMENT.
Fact of the Case:
The petitioner was charged under Section 39 of the Arms Act, 1959, for possessing a revolver and three live cartridges without a license. The sanction for prosecution was granted by an Additional District Magistrate (ADM). The petitioner challenged the legality of the sanction and the search conducted by a Sub-Inspector.
Finding of the Court:
The court held that the ADM had the power to grant the sanction under Section 10(2) of the Code of Criminal Procedure, which empowered the State Government to appoint an Additional District Magistrate and confer upon him the powers of a District Magistrate. The court also held that the search conducted by the Sub-Inspector was legal even though he did not record the grounds of belief and did not specify the thing sought to be recovered as required by Section 165(1) of the Code of Criminal Procedure.
Issues: 1. Whether the Additional District Magistrate had the power to grant sanction for prosecution under Section 39 of the Arms Act, 1959? 2. Whether the search conducted by the Sub-Inspector was legal?
Ratio Decidendi: 1. The court relied on the provisions of Section 10(2) of the Code of Criminal Procedure, which empowered the State Government to appoint an Additional District Magistrate and confer upon him the powers of a District Magistrate. The court also relied on the decision of the Supreme Court in Central Talkies Ltd. v. Dwarka Prasad, which held that an Additional District Magistrate, who had been empowered under Section 10(2) of the Code of Criminal Procedure, must be regarded as possessing the powers of the District Magistrate not only under the Code but also under any other law for the time being in force. 2. The court held that the provisions of Section 165 of the Code of Criminal Procedure are directory and not mandatory. A substantial compliance is enough. The court also relied on the decision of the Supreme Court in H. N. Rishbud v. State of Delhi, which held that a defect or illegality in investigation has no direct bearing on the competence or the procedure relating to cognizance or trial.
Final Decision: The revision petition was dismissed. The court held that the sanction granted by the Additional District Magistrate was valid and the search conducted by the Sub-Inspector was legal.
( 1 ) THIS revision is dirceted against the charge made against the petitioner under Section 39 of the Arms Act, 1959 (No. 54 of 1959 ).
( 2 ) PISHORI Lal Bhatia, Inspector Customs (Preventive) Central Revenue Building, raided the house of the petitioner and recovered smuggled goods. He also noticed a revolver and three live cartridges during the course of his search. He informed the police, and Subinspector Kasturi Lal, who was on the beat, searched the petitioner s house and took: possessian of the same. Sanction for prosecution was granted by Shri A A. Khawja, Additional Distrrict Magistrate (North), Delhi. After completing the investigations, Chalan was put in Court and the petitioner was charged.
( 3 ) MR. R P. Kathuria, learned counsel for the petitioner, contends that Shri A. A. Khawja had no power to grant the sanction in question.
( 4 ) MR. D. R. Sethi, learned counsel for the State, has produced before me notification No F 2 (45)/65 Home (2 ). dated December 27, 1965, issued under Section 10 of the Code of Criminal Procedure, appointing Shri A. A. Khawja, Additional District Magistrate, and conferring upon him the powers of a District Magistrate under the Code or under any other law for the time being in force.
( 5 ) MR. Kathuria, however, submits that the sanction should have been granted by the District Magistrate himself and could not he granted by an Additional Magistrate. Merdies on. Ajaib Singh v. Gurbachan Singh, Hari Chand Aggarwal v. The Batala Engineering Co. Ltd. , and Jawahar v. State
( 6 ) IN Ajgib Singh s case (supra), the Supreme Court was concerned with the provisions of the Defence of India Act, 1962, and its Rules. It was found that the authority empowered to act under those Rules "shall not be lower in rank than that of a District Magistrate. The Additional District Magistrate is admittedly lower in rank to that of District Magistrate In view of the provisions of Section 10 (3) of the Cole of Criminal Procedure. In these circumstances it was held that the Additional District Magistrate had no power to act under that Act in spite of his having been delegated the powers of the District Magistrate under Section 10 (2) of the Code of Criminal Procedure.
( 7 ) IN Hari Chand Aggarwal s case (supra), the Supreme Court was concerned with Section 29 (1) of the Defence of India Act in respect of the requisition of a property. Ajaib Singh s case was followed and the same conclusion was reached.
( 8 ) IN Jawahar s case (supra), admittedly the Additional District Magistrate had not been given the powers. The petitioner cannot, therefore. draw any support from these decisions.
( 9 ) THERE Lordships of the. Supreme Court in Central Talkies Ltd. , v. Dwarka Prasad, considered the fact of permission granted by Additional District Magistrate when under Section 2 of the U. P (Temporary) Control of Rent and Eviction Act the District Magistrate had been empowered to grant permission. It was held that the Additional District Magistrate, who had been empowered under Section 10 (2) of the Code of Criminal Procedue, must be regarded as possessing the powers of the District Magistrate not only under the Code hut also under any other law for the time being in force which included the U. P. Art. A Bench decision of the Punjab High Court in State v. b der Singh, while considering the sanction given by the Additional District Magistrate under Section 39 of the Arms Act and after considering Ajaib Singh as well as Central Talkies Ltd. cases held that "for purpose of according sanction the provisions undoubtedly have the District Magistrate in view, but the Slate Government under Section 10, sub-section (2) of the Code of Criminal Procedure, is competent to appoint, firstly any Magistrate of the First Class to be an Additional District Magistrate, and secondly to invest that Additional District Magistrate with the powers of District Magistrate under the Code as well as for any other law in operation. " This decision was
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