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IN THE HIGH COURT OF ORISSA
V. Gopalaswamy, J.
SUBHAN - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
Criminal Appeal No. 212 of 1983
Decided On : 08-05-1990
ARMS ACT - SANCTION - SECTION 39 - VALIDITY - ADDITIONAL DISTRICT MAGISTRATE - POWER TO ACCORD SANCTION - SECTION 20(2), CODE OF CRIMINAL PROCEDURE - ARMS RULES, 1962, RULE 2(F) - OFFENCE UNDER SECTION 27 - SANCTION NOT REQUIRED - SAME TRANSACTION - SPLITTING UP OF OFFENCES - SECTION 195(1)(B), CODE OF CRIMINAL PROCEDURE - DISTINCTION - CONVICTION UNDER SECTION 27 UPHELD.
Fact of the Case:
The appellant was convicted under Sections 25 and 27 of the Arms Act, 1959 for possessing a loaded revolver and a knife without a valid license and for pointing the revolver at a police officer with the intent to prevent arrest. The appellant challenged the conviction on the ground that the sanction for prosecution under Section 39 of the Act was not valid as it was accorded by the Additional District Magistrate instead of the District Magistrate.
Finding of the Court:
The court held that the Additional District Magistrate did not have the authority to accord sanction under Section 39 of the Act as there was no notification from the State Government empowering him to do so. However, the court held that sanction was not required for prosecution under Section 27 of the Act, which deals with the possession of arms with intent to use them for an unlawful purpose. The court found that the appellant had used the revolver for an unlawful purpose by pointing it at the police officer and upheld the conviction under Section 27.
Issues: 1. Whether the Additional District Magistrate had the authority to accord sanction under Section 39 of the Arms Act, 1959? 2. Whether sanction was required for prosecution under Section 27 of the Arms Act, 1959? 3. Whether the appellant had used the revolver for an unlawful purpose?
Ratio Decidendi: 1. The court held that the Additional District Magistrate did not have the authority to accord sanction under Section 39 of the Act as there was no notification from the State Government empowering him to do so. The court relied on Section 39 of the Act, which requires sanction from the District Magistrate, and Section 20(2) of the Code of Criminal Procedure, which allows the State Government to appoint Additional District Magistrates with the powers of a District Magistrate. The court found that there was no evidence that the Additional District Magistrate had been empowered to accord sanction under Section 39 of the Act. 2. The court held that sanction was not required for prosecution under Section 27 of the Act, which deals with the possession of arms with intent to use them for an unlawful purpose. The court distinguished Section 27 from Section 25 of the Act, which deals with the possession of arms without a license. The court held that a person could be guilty of an offence under Section 27 even if they had a valid license for the firearm, and that sanction was not required for prosecution under this section. 3. The court found that the appellant had used the revolver for an unlawful purpose by pointing it at the police officer. The court relied on the evidence of the police officers who witnessed the incident, as well as the ballistic report which confirmed that the revolver was loaded with live cartridges.
Final Decision: The court set aside the conviction and sentence under Section 25 of the Arms Act, but upheld the conviction and sentence under Section 27 of the Act. The appeal was dismissed.
JUDGMENT :
V. Gopalaswamy, J. - This appeal is prefered against the judgment of the learned Additional Sessions Judge, Sambalpur, convicting the accused Appellant under Sections 25 and 27 of the Arms Act, 1959 (hereinafter referred to as 'the Act') and sentenging him there under to undergo rigorous imprisonment for three years under each of the counts, with a direction that the sentence so imposed on him should run concurrently.
2. The prosecution case, briefly stated, is that on 21-08-1982 at about 9 p.m. in Sambalpur town, the Circle Inspector of Police, Sambalpur, on getting information that the accused persons wanted in connection with town P.S. Case No; 501 of 1982 were present near the Municipal Office, proceeded with A.P.R. Force and on seeing them the associates of the Appellant managed to escape, while the Appellant failed in his attempt to escape and at that timed Appellant pointed a loaded revolver and a knife at the C.I. (P.W. 1.) standing close to him and, as the C.I. (P.W. 1) struck him with a lathi, he fell down and thereafter the Police arrested him and seized the loaded revolver and the knife, and a1so recovered some live cartridges from him.
The Circle Inspector of Sadar P.S. Iodged the F.I.R. against the Appellant and after due investigation charge-sheet was filed against him u/s 307, I.P.C. and 25 and 27 of the Act. The trial Court acquitted the Appellant of the charge u/s 307, I.P.C. and convicted him only under Sections 25 and 27 of the Act.
3. The plea of the accused is that he was in no way connected with the culprits in the said P.S. Case No. 501 of 1982, but all the same the Police had arrested him and interrogated him regarding the whereabouts of one Md. Hussain and as he was unable to say anything about him, he was assaulted and arrested by that Police and as he threatened to file a case against them regarding the assault on him and his illegal arrest the foisted this false case against him. No witness was examined on behalf of the defence.
4. At the outset the learned Counsel for the Appellant raised a preliminary point that the trial Court acted illegally in taking cognizance against the Appellant under Sections 25 and 27 of the Act without valid sanction as required u/s 39 of the Act. As the preliminary point urged by the learned Counsel for the Appellant goes to the root of the matter; it is proper that the same should be decided in the first instance, before considering, the case on merits.
5. Section 39 of the Act provides:
39. Previous sanction of the Disrict Magistrate necessary in certain cases.-No, prosecution shall be instituted against any person in respect of any offence u/s 3 without the previous sanction of the District Magistrate.
The accused was charged u/s 25 of the Act on the ground that without having a valid licence he was illegally possessing a loaded revolver and thereby violated the provisions of Section 3 of the Act. So it is not disputed that valid sanction is required for instituting a Prosecution against the Appellant u/s 25 of the Act Ext. 5 is the sanction order. From Ext. 5 it is seen that the sanction was accorded by the Additional District Magistrate, sambalpur. The learned Counsel for the Appellant contended that sanction u/s 39 of the Act must be accorded by the Magistrate and so the sanction accorded by the additional District Magistrate was vested with such power by the State Government under section20(2), Code of Criminal Procedure (which corresponds to Section 10(2) of the Code ). Section 20(2), Code of Criminal Procedure provides;
The State Govermnent may appoint any executive Magistrate to be an Additional District Magistrate and such Magistrate shall have such of the powers of a District Magistrate under this Code or under any other law for the time being in force as may be directed by the State Government.
6. The burden of proving the validity of sanction lies on the prosecution. (See Madan Mohan Singh Vs. State of Uttar Pradesh, and Mohd. Iqbal Ahmed Vs. State of An
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