Advocates:
['SS MISHRA', 'VIRENDRA SHARMA', '', 'VIKAS KUMAR TIWARI', 'Y C SHARMA', 'VINOD LALCHANDANI', 'VIVEK RATHORE', 'H C SHUKLA', 'ANIL GULATI', 'M ASHA', 'AJAY CHANDRA', 'ANITA SURYAVANSHI', 'A G']

1

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRR No. 416 of 2004

Vikky @ Budh Singh, aged about 24 years, S/o. Vir Singh, R/o. Sector-

9, Street NO.12, Quarter NO. 4B, Bhilai, Tahsil and District Durg

(Chhattisgarh).

----Revisioner/applicant

Versus

The State of Chhattisgarh, through the Collector, District Durg

(Chhattisgarh).

---- Non Revisioner/Respondent

For Revisioner/applicant

: None

For Non-revisioner

: Shri Vivek Singhal, Penal Lawyer

Hon'ble Shri Justice

Ram Prasanna Sharma

Order On Board

13.12.2017

1.

This revision is preferred against the judgment dated 16.08.2004

passed by the First Additional Sessions Judge, Durg in Criminal

appeal No. 397/2003, wherein the said Court dismissed the appeal

filed by the revisioner against the judgment dated 19-08-2003

passed by Judicial Magistrate First Class Durg, in Criminal case No.

362/2002, wherein said Court convicted the accused/applicant under

Section 25 of the Arms Act, 1959 and sentenced him to rigorous

imprisonment for one year and fine of Rs. 300/- with default

stipulation.

2

2.

As per prosecution case, Police Station in-charge Bhilai, Nesti Kujur

(PW-6) conducted investigation in Crime No.551/2001 registered at

Police Station Bhilai and when he searched the house of the

revisioner wherein he found one country made 12 bore revolver

(katta). The matter was reported in the said police station.

3.

After completion of investigation, charge sheet was filed before the

trial Court wherein the trial Court framed charges as mentioned

above to which the applicant did not plead guilty. The trial Court

conducted the trial and after completion of evidence of the

prosecution side, statement of the revisioner under Section 313 of

the Cr.P.C. was recorded and after completion of trial, the trial Judge

considering the material available on record by the impugned

judgement convicted and sentenced the revisioner as mentioned

above.

4.

Legal issue involved for decision of this revision is whether sanction

under Section 39 of Arms Act, 1959 is legal and whether the said

firearm was seized as per law and kept it in safe custody.

5.

Section 39 of the Arms Act, 1959 may be read as under:-

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.

Section 39 of the Arms Act, commands that sanction must be

granted by District Magistrate. As per Section 21 of the Cr.P.C, The

State Government may appoint, as many person as it think fit,

Executive Magistrates, and one of them to be District Magistrate.

3

From the word of the provision, it is clear that only one Executive

Magistrate will be appointed as District Magistrate and no other

magistrate can be called as District Magistrate.

6.

In the present case as per evidence of L. R. Gayakward (PW-5) who

was Arms Clerk at the relevant time, the Additional District

Magistragte has granted sanction in this case.

7.

As per Section 21 of the Cr.P.C. Additional District Magistrate is not

the District Magistrate, therefore, any sanction granted by him is not

in accordance with law. Again, this witness not disposed that while

granting sanction firearms like (Katta) was produced before the said

Magistrate. Unless the sanctioning authority looks itself the

instrument in respect of which sanction is sought, he cannot be said

to have any idea regarding firearms. When the instrument was not

produced before the said Magistrate it cannot be said that the said

Magistrate has applied his mind while granting sanction. As

additional Magistrate was not competent to grant sanction and as

the firearms was not produced before the authority, sanction is not

proved in peculiar circumstance of the case. Section 39 of the Arms

Act is barring p