((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.388 OF 1996 Chunnu @ Sunil Gokarn Dubey and another Appellants versus The State of Maharashtra Respondent Mr.S.V.Marwadi for Mr.A.P.Mundargi for the appellants. Mr.J.P.Yagnik, APP for the State. CORAM : A.S.OKA, J. DATE : 22nd January 2009 JUDGEMENT : 1. It is pointed out the second appellant (second accused) has since expired. Hence, the appeal stands abated as far as second accused is concerned. 2. By this appeal, the appellants (original accused) have taken an exception to the judgement and order dated 29th March 1996 by which the appellants have been convicted for the offences punishable under section 25(1-B)(a) of the Arms Act, 1959 (hereinafter referred to as "the said Act of 1959"). By the ((-2-)) impugned judgement and order, the appellants were acquitted of the offences punishable under sections 395, 397, 353 read with section 34 of the Indian Penal Code. 3. The case of the prosecution is that on 26th September 1992 the complainant Mr.Shyam Gajbiye, Senior Police Inspector of Palghar Police Station received an anonymous phone call that the appellants and their four to five colleagues armed with revolvers and swords have created terror in Bidco Industrial Area. He received the information that all these persons were threatening the security guards of companies and their labourers to kill them. An information was also received that they had assaulted the security guards and passers by and have robbed them of their belongings. Further information received by the Senior Police Inspector was that the said persons have gone towards Nevali-Vevur to commit a dacoity. On receiving the said information, the Police party proceeded to the house of the first appellant-accused at Nevali-Vevur. At that time three persons were standing in front of the house of the first appellant but on noticing the Police jeep, they ran away. The ((-3-)) complainant and other members of the Police party conducted the raid at the den of the appellants. They found that both the culprits were armed with country revolvers and they were about to fire from the room towards the complainant and CPI Pawar. However, the said two police officers overpowered the two culprits and disarmed them and with the help of other police personnel who came to the scene apprehended them. The allegation is that in presence of two Panch witnesses the personal search of the accused persons was taken. The first appellant was found in possession of 12 bore country revolver having one live cartridge and two live cartridges of 12 bore country revolver along with cash of Rs.1,400/-. The second appellant was found in possession of a country revolver containing 6 live cartridges, one live cartridge in his trouser and a cash of Rs.600/-. The said articles were seized. The FIR was registered. The sanction was obtained from the District Magistrate to prosecute the accused for the offence under the said Act of 1959. The sanction was also sought to launch prosecution against the accused under sections 3 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter ((-4-)) referred to as "the TADA Act"). Charge sheet was filed in the Designated Court under the TADA Act. An order was passed by the learned Designated Judge discharging the appellants for the offences under the TADA Act and the case was returned to the Court of Sessions. Charge was framed against the appellants for the offences punishable under section 395 read with section 397, 353 read with section 34 of the Indian Penal Code as well as Section 25(1-B)(a) of the said Act of 1959. The learned Trial Judge held that the prosecution has failed to establish the charges, save and except the charges for commission of offence under the said Act of 1959. It must be stated here that the substantive sentence was of rigorous imprisonment for one year. It appears that the appellants have undergone the sentence. 4. The main submission made by the counsel for the appellants is that the alleged sanction of the District Magistrate under section 39 of the said Act of 1959 was not even exhibited and admitted in evidence. The second submission was that assuming that the sanction was admissible in evidence, the same shows complete non application of mind. He submitted that ((-5-)) according to the prosecution, the seizure of one revolver each was made from the custody of the first and second appellants respectively. But the order of sanction refers to five other accused along with the appellants and it vaguely records that the said seven accused persons were found in unauthorised possession of one single barrel loading country made hand-gun, one six chamber country made revolver and certain cartridges. He pointed out that the order of sanction does not state that the first and second appellants were found to be in possession of the one revolver each with five cartridges. He pointed out that the order of sanction even does not refer to the date on which the accused persons were found in unauthorised possession of the arms. He placed reliance on the decision of the Apex Court in the case of Gunwantlal vs. The State of Madhya Pradesh (AIR-1972-SC-1756). He submitted that on the failure of the sanctioning authority to mention the date on which the appellants were found in possession of the fire arms without valid license, the order of sanction is vitiated. He also placed reliance on Bapu vs. State of madhya Pradesh (2004[2]-Crimes-609). He submitted that the prosecution of the ((-6-)) appellants-accused is vitiated on these counts. 5. The learned APP firstly submitted that sanction under section 39 of the said Act of 1959 is not required where the offence alleged is under section 25 of the said Act of 1959. His second contention is that as the sanction granted under TADA Act against the appellants refers to the offences under the said Act of 1959, a separate sanction under section 39 of the said Act of 1959 is not required. He submitted that in any case, the sanction is not vitiated because the date on which the appellants were found to be in unauthorised possession of the revolvers is not mentioned. He submitted that the appellants have admitted the seizure Panchanama and the same has been exhibited under section 294 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code of 1973"). He, therefore, submitted that as the unauthorised possession of the revolvers by the appellants was an admitted position, the sanction is not vitiated. 6. I have carefully considered the submissions. Section 3 of the said Act of 1959 ((-7-)) reads thus :- "3. Licence for acquisition and possession of firearms and ammunition.- (1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder : Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder. (2) Notwithstanding anything contained in sub-section (1), no person, other than a person referred to in sub-section (3), shall acquire, have in his possession or carry, at any time, more than three firearms : Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement, the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed for the purposes of sub-section (1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub-section. (3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice. (4) The provisions of sub-sections (2) to ((-8-)) (6) (both inclusive) of section 21 shall apply in relation to any deposit of firearms under the proviso to sub-section (2) as they apply in relation to the deposit of any arm or ammunition under sub-section (1) of that section." On plain reading of Section 3 of the said Act of 1959 it is apparent that the said section by itself does not create any offence, however, under clause (a) of sub section 1-B of section 25 of the said Act of 1959, possessing or carrying any fire arm in contravention of section 3 has been made an offence punishable under the said section. Thus, possessing or carrying any fire arm in contravention of section 3 of the said Act of 1959 is made an offence. As pointed out earlier, in the present case the charge is of commission of an offence punishable under clause (a) of sub section 1-B of section 25 of the said Act of 1959. Therefore, the offence is in fact under section 25(1-B)(a) read with section 3 of the said Act of 1959. Therefore, section 39 of the said Act of 1959 would certainly apply to the prosecution of the offence alleged against the appellants. Section 39 contemplates a previous sanction of the District Magistrate. In case of Kamalsingh s/o Matasingh Shiv vs. State of ((-9-)) Maharashtra (2005(1)-Mh.L.J.-218) this Court has held that previous sanction under section 39 of the said Act of 1959 for an offence punishable under section 25 read with section 3 of the said Act of 1959 is mandatory. Therefore, the first submission of the learned APP that the previous sanction under section 39 is not mandatory deserves to be rejected. 7. The second contention of the learned APP is that as the sanction has been granted by the Deputy Director General of Police under the provisions of TADA Act, a separate sanction under section 39 of the said Act of 1959 would not be required. Section 39 of the said Act of 1959 contemplates sanction by a District Magistrate. The District Magistrate is specifically appointed under sub section (1) of section 20 of the said Code of 1973. Therefore, the sanction contemplated under section 39 of the said Act of 1959 is by a District Magistrate specifically appointed under sub section 1 of section 20 of the said Code of 1973. Therefore, the sanction under the TADA Act by the Deputy Director General of Police can by no stretch of imagination be treated as a sanction under section 39 of the ((-10-)) said Act of 1959. 8. It will be necessary note here that the order of sanction has not been exhibited and it has been marked as "Article-A". No attempt has been made by the prosecution to prove the said sanction. The witness examined by the prosecution has specifically proved the sanction under the TADA Act. There are decisions of some High Courts holding that an order of sanction is a public document within the meaning of Section 77 of the Indian Evidence Act, 1872. If that is so, by production of a certified copy of the document, by virtue of section 77 of the said Act of 1872, the contents of the documents could have been proved. But here in this case what is purportedly produced is the original order of sanction which is not proved to be issued by the District Magistrate. The learned APP submitted that if necessary the State will apply under section 391 of the said Code for taking further evidence. Apart from the fact that no such application has been filed, in the facts of the case, it is too late in the day to take recourse to section 391 of the said Code. The incident is of the year 1992. The appeal ((-11-)) has been filed in the year 1996. 9. A submission was sought to be made that the seizure panchanama has been admitted by the appellants-accused. However, a perusal of the application under section 294 of the said Code of 1973 made by the Additional Public Prosecutor at Exhibit-15 shows that what was admitted was the Panchanama of the godown and attachment of motor-cycle and not the Panchanama under which the weapons were allegedly seized. In any case, this aspect has nothing to do with the legality and validity of the sanction. 10. Assuming that the sanction has been duly proved, it will be necessary to refer to the material part of the sanction which read thus:- "Where as the Police Supdt. Thane (R) Thane has reported that Shri Chunnu Alias Sunil Gokarna Dube 2. Gadu alias Ajay Chandrakant Dube 3. Pramod Chandrashekhar Dube 4. Rajan Mahadeo Dube 5. Indrajeet Narendra Pandit 6. Mukesh Mahadeo Dube 7. Munnasing S. Thakur residing of Vevoor Nawali Tal. Palghar found in unauthorised possession of the single barrel breech loading countrymade handgun 2. Two Intact K F 12 Bore shotgun cartridges of shotsize no.1,3. One intact KF 12 Bore shotgun cartridge shot size no.2,4. One six chambered countrymade revolver 5. Seven intact KP 0.32 Sdwl revolver cartridges ((-12-)) without any valid licence as required u/s.3 of the Arms Act, 1959. And I am satisfied from the documentary evidence brought before me that, said person thus committed an offence under the Arms Act. I, Madhukar Patil, District Magistrate Thane in exercise of the powers conferred upon me u/s.39 of the Arms Act, 1959 hereby accord sanction to launch prosecution against Shri Chunnu alias Sunil Gokarna Dube 2. Gudu alias Ajay Chandrashekhar Dube 3. Pramod Chandrashekhar Dube 4. Rajan Mahadeo Dube 5. Indrajeet Narendra Pandit 6. Mukesh M. Dube 7. Munnasing S. Thakur of Vevoor Nawali Tal. Palghar in the proper court of law." As stated earlier, the charge against the appellants that they were found in possession of one revolver each with live cartridges without possessing a valid licence under the said Act of 1959. The order of sanction even does not refer to the fact that the present appellants were carrying one revolver each. Moreover, the date on which the appellants were found to be in unauthorised possession of the arms has not been mentioned. The learned counsel for the appellants has placed reliance on the decision of the Apex Court in the case of Gunwantlal (supra). In paragraph 6 of the said decision the Apex Court held thus :- ... ... This Court held in Madan Mohan v. State of Uttar Pradesh, AIR-1954-SC-637, following the Privy Council case in Golak Chand that where ((-13-)) facts do not appear on the face of the letter sanctioning prosecution, it is incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority. Under the Arms Act all that is required for sanction under Section 39 is, that the person to be prosecuted was found to be in possession of the firearm, the date or dates on which he was so found in possession and the possession of the firearm was without a valid licence. As all the elements are contained in the sanction in this case, it is not an illegal sanction nor can it be said that the charge travels beyond that sanction." 11. As pointed out earlier, the order of sanction is very vague apart from the failure of the sanctioning authority to mention the fact that the appellants were found in possession of the fire arms. The sanction shows non application of mind and thus cannot be treated as a valid sanction under section 39 of the said Act of 1959 which is held to be a mandatory requirement of law. 12. In the circumstances, the appeal must succeed and hence I pass following order :- (a) The appeal stands abated as far as appellant-accused no.2 is concerned; (b) The conviction and sentence of the first ((-14-)) appellant-accused is quashed and set aside the he is acquitted of the offences alleged against him. (A.S.OKA, J.) ((-15-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.388 OF 1996 Chunnu @ Sunil Gokarn Dubey and another Appellants versus The State of Maharashtra Respondent Mr.S.V.Marwadi for Mr.A.P.Mundargi for the appellants. Mr.J.P.Yagnik, APP for the State. CORAM : A.S.OKA, J. DATE : 22nd January 2009 JUDGEMENT : 1. For the reasons stated separately, following order is passed :- (a) The appeal stands abated as far as appellant-accused no.2 is concerned; (b) The conviction and sentence of the first appellant-accused is quashed and set aside the he is acquitted of the offences alleged against him. (A.S.OKA, J.)