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GAUHATI HIGH COURT
C.Pathak, J.
Lal Singh Kabui -Appellant
Versus
State of Assam -Respondent
Criminal Revision No. 65 of 1969
Decided On : 27-11-1970
ARMS ACT, 1959 - SECTION 39 - SANCTION FOR PROSECUTION - ESSENTIALS - SANCTION ORDER MUST REFER TO FACTS CONSTITUTING OFFENCE CHARGED OR FACTS MUST BE PROVED BY EXTRANEOUS EVIDENCE - SANCTION ACCORDED AS RECOMMENDED BY S. R. P. WITHOUT APPLYING MIND TO FACTS OF CASE - NOT A VALID SANCTION.
Fact of the Case:
The petitioner was convicted under Section 25 (1) (a) of the Arms Act, 1959 for possession of live cartridges without a license. He challenged the conviction on the grounds that there was no sanction under Section 39 of the Arms Act, the charge was illegal, and the sentence was severe.
Finding of the Court:
The court found that the sanction order did not refer to the facts constituting the offence charged and that there was no evidence that the material facts were placed before the sanctioning authority. The court also found that the sanction was accorded as recommended by the S. R. P. without applying the mind to the facts of the case.
Issues: 1. Whether the sanction order was valid under Section 39 of the Arms Act? 2. Whether the charge was illegal? 3. Whether the sentence was severe?
Ratio Decidendi: The court held that the sanction order was not valid under Section 39 of the Arms Act because it did not refer to the facts constituting the offence charged and there was no evidence that the material facts were placed before the sanctioning authority. The court also held that the sanction was accorded as recommended by the S. R. P. without applying the mind to the facts of the case.
Final Decision: The court allowed the revision petition and quashed the conviction and sentence of the petitioner.
Key Points: - The sanction must refer to the facts constituting the offence or be supported by extraneous evidence showing those facts were placed before the sanctioning authority (!) (!) . - A sanction accorded solely as recommended by the S. R. P. without the sanctioning authority applying its own mind to the facts is invalid (!) (!) . - In this case, the court quashed the conviction and sentence due to invalid sanction under Section 39 of the Arms Act (!) (!) . - The prosecution bore the burden to prove that the sanction was given in reference to the facts, either on the face of the sanction or by extraneous evidence; this was not satisfied here (!) . - The sanctioning authority’s lack of documented consideration of the case facts rendered the sanction invalid and deprived the Court of jurisdiction to try the accused (!) (!) . - The sanction in question was issued by an Additional District Magistrate (E), Cachar, with questions raised about empowerment and whether the sanction was for prosecution or merely a formality (!) (!) . - The decision references precedents underscoring that a defective sanction cannot be cured under Section 537, Cr. P.C. (!) .
2. The prosecution case is that on 2-9-66 at about 8.30 P. M. the accused was found by the Assistant Sub-Inspector of Police of the Badarpur G. R. P. S. and some Excise constables, sitting on a bench in the third class waiting shed of the Badarpur Railway Station, On suspicion his luggages were searched and nothing was found. Then his person was searched and from the pocket of his trousers five live cartridges fitted to a charger of .303 rifle were recovered. The accused could not furnish any satisfactory explanation about the possession of the same. The Assistant Sub-Inspector of Police submitted an offence report to the Officer-in-charge of Badarpur G. R. P. S. After investigation charge sheet under Section 25 (1) (a) of the Arms Act was submitted against the accused-petitioner. Charge under Section 25 (1) (a) of the Arms Act was framed against him to which he pleaded not guilty.
3. The defence case was that the cartridges were not found with him. He alleged that the police personnel demanded a sum of Rs. 500/- from him as he happened to be a Naga and when he refused to pay the same, the case had been instituted falsely against him. No defence witness was examined. The prosecution examined five witnesses including the Investigating Officer.
4. On consideration of the evidence on record the learned Magistrate found the charge proved against the accused-petitioner and convicted him under Section 25 (1) (a) of the Arms Act and sentenced him to suffer rigorous imprisonment for one year only. An appeal was preferred before the learned Sessions Judge who upheld the conviction but reduced the sentence to rigorous imprisonment for three months only. Hence this revision petition.
5. Mr. M. H. Choudhury, the learned counsel appearing for the petitioner, challenges the order of the learned Sessions Judge on three grounds- (1) that there was no sanction under Section 39 of the Anns Act, 1959- (2) that the charge was illegal; and (3) that the sentence was severe.
6- It is found from the judgment of the learned Sessions Judge that no sanction was really proved and made an exhibit in the instant case. P. W. 5, the Investigating Officer, stated that sanction was obtained for prosecution of the accused. The learned counsel appearing for the State submits that the order of sanction was filed along with the charge-sheet and the sanction order is in the record. The sanction found in the record is in the following terms:--
"Sanction in hereby accorded for prosecution of Shri Lai Singh Kabui s/o. Khagi-then Kabui of Sanguibron P. S. Imphal Manipur State u/s. 25 (1) A of the Arms Act, 1959 in connection with Badarpur G. R. Ps Case No. 1 (9) 66 as recommended by the S. R. P. Assam Halfling vide his No. E/19954/SR-37/66, dated, 27-10-66." It is submitted at the bar that the letter of the S. R. P. is not in the case record. Mr. Chaudhury, the learned counsel submits that the sanction in the instant case is bad on two grounds - firstly, that the sanction was not accorded by the District Magistrate as required under Section 39 of the Arms Act, and secondly the alleged sanction is not a sanction for prosecution as required under the law.
7. The sanction has been accorded by the Additional District Magistrate (E), Cachar. No notification could be produced by the learned counsel for the State to show that the Additional District Magistrate concerned was empowered by the State Government under Section 10 (2) of trie Criminal Procedure Code to have all or any of the powers of a District Magistrate under any other law for the time being in force. Even assuming that the Additional District Magistrate concerned was authorised under Section 10 (2) of the Criminal Procedure Code for exercising powers of District Magistrate under any other law, we have to consider whether the sanction in the
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