IMPORTANT POINT
Arms--Prohibited Arm--.303 rifle is not prohibited arm.

T.S. Thakur (C.J.).:-A Division Bench of this Court has while hearing two murder appeals and an accompanying reference expressed doubts about the correctness of a decision rendered by another Division Bench in Santokh Singh Vs. State of Punjab, 2000(3) Recent Criminal Reports 637 and referred to a larger bench, the following two questions for an authoritative pronouncement:-

1. Whether the judgment of Division Bench is correct in law?

2. Whether section 27(3) of the Arms Act is unconstitutional being violative of Article 14 and 21 of Constitution of India?

2. The reference arises in the following backdrop:-

3. Appellants Swaran Singh and Balwinder Singh, who were at the relevant point of time working as Special Police Officers in Punjab State Police Department, were both tried for commission of an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and Section 27(3) of the Arms Act. The trial Court found both the appellants guilty of murder and sentenced them to undergo imprisonment for life and payment of fine of Rs.1000/- each. Appellant Swaran Singh was also convicted under Section 27(3) of the Arms Act for committing murder with a prohibited fire arm and sentenced to death. Aggrieved, the appellants preferred Criminal Appeal Nos. 273-DB and 296-DB of 2000, which were taken up for hearing by a Division Bench of this Court together with Murder Reference No.5 of 2000 under Section 366 of the Cr.P.C. for confirmation of the death sentence.

4. By its order dated 13.02.2001 the Division Bench confirmed the finding recorded by the Trial Court to the extent the same held appellant Swaran Singh guilty of committing the murder of deceased Sat Pal. Appellant Balwinder Singh was however acquitted of the charges and his appeal allowed and disposed of accordingly. Disposal of the reference for confirmation of death sentence awarded to appellant Swaran Singh was postponed as the Court prima facie held the view that the decision in Santokh Singh’s case (supra) required reconsideration to the extent the same declared that a .303" rifle was not a prohibited arm within the meaning of Arms Act. The Division Bench observed:-

“It is true that the observations of the Division Bench do support the argument of the learned counsel but we are of the opinion that the said judgment ignores the basic fact that the method of loading or unloading a weapon is not the only determining factor leading to its classification as a prohibited arm as Section 2(1)(i) of the Act must be read along with Schedule-I to the Arm Rules, 1962. We are prima-facie of the opinion that entry I(c) of the Schedule deals with the present situation and not entry I(a).”

5. The Court also relied upon the decision of Supreme Court in Mithu Vs. State of Punjab, 1983 SCC (Crl.) 405 whereby Section 303 of the Indian Penal Code was struck down by their Lordships as unconstitutional and held that Constitutional validity of Section 27(3) of the Arms Act required to be examined inasmuch as the said provision excluded judicial assessment and discussion visualised in Mithu’s case (supra).

6. We have heard the learned counsel for the parties at considerable length.

7. In Santokh Singh’s case (supra), one of the questions that fell for consideration was whether a 7.62 mm bore bolt action rifle was a prohibited arm within the meaning of Section 2(1)(i) of the Arms Act so as to attract the provision of Section 27(3) thereof and justify the award of death sentence to the accused, who had committed murder with the help of such a weapon. The Court answered the question in the negative and held that an arm can be construed as ‘prohibited’ only when it answered the description given in Section 2(1)(i) or is an arm which has been specifically notified by the Central Government in the official gazette to be a ‘prohibited arm.’ The use or possession of any other weapon did not fall within the mischief of Sections 7 and Section 27(3) of the Act declared the Court. S