The main legal point established in the judgment is that production of seized instrument/firearm/arm/arms is not mandatory for grant of sanction under Section 39 of the Indian Arms Act.

S.L. Kochar, J.

1. The Order of the Court was delivered by S.L. Kochar, J.: ON 4/4/2008, both the Criminal Revisions were listed before the learned Single Judge for final arguments. Learned Counsel for applicants argued before the learned Single Judge that for conviction of the applicants under Section 25(1)(b) of the Indian Arms Act (for short "the Act"), sanction for prosecution of the applicants as per provision under Section 39 of the Act was necessary and at the time of according sanction by the sanctioning authority, arm in question was not produced by the Investigating Officer before the sanctioning authority, and sanctioning authority must satisfy itself that the instrument is such which is covered within the definition given in the Act. Learned Counsel for applicants placed reliance on the following judgments:

1. Raju Dubey v. State of MP 1998 (1) JLJ 236

2. Smt Jaswant Kaur and Anr. v. State of UP State of MP 1999 Cr. L.R (MP) 80.

3. Prabhu Dayal and Anr. v. State of MP 2002 Cr.L.R (MP) 192.

2. On the contrary, learned Counsel for State relying on the wording of Section 39 of the Act, submitted before the learned Single Judge that Section does not require the prosecuting agency to produce the instrument/offending arm before the sanctioning authority and observations made by learned Single Judge in the above referred cases are contrary to the provisions of law and in fact are putting unnecessary fetters on the power and authority of the sanctioning authority. Learned Counsel for State submitted before the learned Single Judge for referring the matter to the larger bench so that an authoritative pronouncement by larger bench occupy the field and leaves no scope for doubt or ambiguity on the point in question.

The learned single Judge made the following reference:

After going through the judgments and language employed in Section 39 of the Indian Arms Act, I am of the considered opinion that the three judgments referred to above need reconsideration by larger bench.

3. The matter was placed before the Hon'ble Chief Justice and that is how this reference was listed before this Division Bench for decision.

4. We have heard the learned Counsel for parties and also perused the record.

5. For deciding the controversy, it would be appropriate to extract Section 39 of the Act herein.

39. 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.

6. Brief history of the Act No. XXI of 1869:

This Act was brought into existence by British Government. It was made because of Mutiny in Army in the year 1857 because of which British Rulers stood horrified with it and decided to disarm the whole nation. The possession and carrying of arms was, except by licence, totally banned. The Rulers feared and distrusted the people as a whole lest history repeats itself. Mahatma Gandhi characterized it as the blackest act of the British Rule. With this Act, definition of "Arms" and "Ammunition" was widened covering practically every weapon of defence and offence. Act II of 1878 was also framed and possession without licence of all the weapons were banned. After independence, the instant Act of 1959 was brought into existence with aims and objects to possess firearm and other arms for self defence by law abiding citizens especially when terrorists, dacoit gangs and other anti social or anti national elements were using not only civilian weapons but also dangerous firearms for erpetrating heinous crimes against society and the State.

7. The Act of 1959 was amended by the Arms (amendment) Act 1985 (Act 39 of 1985) with Statement of Objects and Reasons as under:

The Arms Act, 1959 regulates the acquisition, possession or carrying of and fire-arms ammunition and provides punishment for contravention of the provisions of the Act. There has been increased use of fire-arms, mostly unauthorised, by