Gulab Singh vs State of M. P.

K.L. Shrivastava, J.

This revision petition is directed against the appellate judgment and order dated 7-4-1984 passed by the Sessions Judge, West Nimar in Criminal Appeal No. 69 of 1983 whereby the petitioner''s conviction u/s 25 of the Arms Act 1959 and the sentence of six months R.I. passed thereunder by the learned trial Magistrate in Criminal Case No. 242/81 have been maintained.

Circumstances giving rise to the revision are these. On 16-6-1981 Head Constable, Subhash Patidar (P.W.2) along with some constable was on the round of village Pikhar. On reaching the village they found a fire burning near a nala. When they reached the nala two or three persons took to their heels but the petitioner was apprehended. On his search being taken, he was found having a Deshi Tamancha in his dhoti. He had no licence for it and it was seized from him. Implements and materials for distilling liquor were also found there and they too were seized.

At the conclusion of investigation the petitioner was separately prosecuted for the offence u/s 34 of the M.P. Excise Act 1915 (vide Criminal Case No. 241/81 decided on 23-2-1982) and for the offence u/s 25 of the Arms Act (vide Criminal Case No. 242/81). The ease under the Excise Act/ended in acquittal of the petitioner.

In the case under the Arms Act, the petitioner was convicted u/s 25 ibid and was sentenced to undergo rigorous imprisonment for six months. The petitioner''s appeal against the said conviction and sentence stands dismissed and hence this revision.

5 & 6. The contention of the petitioner''s learned counsel is that sanction for petitioners prosecution under the Arms Act is not according to the law. He further contends that the article seized from the petitioner''s possession does not fall within the definition of ''arms'' embodied in section 2(c) of the said Act. Lastly it has been urged that the uncorroborated testimony of the departmental witness, in the circumstances of the case, ought not to have been made the basis for the petitioner''s conviction more so when the evidence of the prosecution witnesses against the petitioner, was not relied upon in the case under the Excise Act.

In support of his contention that the sanction for prosecution under the Arms Act is not proper, the. petitioner''s learned counsel placed reliance on the decision in Satya Narayan Patidar''s case 1980 JLJ 367.

Learned counsel for the respondent contends that the Tamancha seized from the possession of the petitioner, on the evidence of the police constable Mehtab Singh (P.W.8) according to which the Tamancha was in working order, can be held to fall within the definition of ''arms'' given in the Act and further that the sanction is proper. It is also contended that there has been no miscarriage of justice and there is no occasion for reappreciating the evidence in exercise of the revisional jurisdiction. Relying on the Supreme Court decision in Akalu Ahir and Others Vs. Ramdeo Ram, it is urged that the scope of the revisional jurisdiction which is a discretionary one is limited and this supervisory jurisdiction is not to be exercised as if if is the power of appeal.

In the instant case, the concurrent conclusion of fact that the petitioner was found in possession of a Tamancha and that it was in working order is based on evidence on record. Evidence of witnesses may be believed in part and the conclusion can, by no stretch of imagination be characterised as perverse. Therefore, the finding that the petitioner was in possession of Deshi Tamancha which falls within the definition of ''arms'' as given in the Act, is not liable to be interfered with in exercise of the Court''s revisional jurisdiction.

This brings us as to the question of sanction u/s 39 of the Arms Act.

Section 39 of the Arms Act provides that no prosecution shall be initiated against any person in respect of any offence u/s 3 without the previous sanction of the District Magistrate.

The Arms Act 1959 has been amended by Act No. 25 of 1983. Thereafter section 3( 1) of the Arms Act prohibits possession of fire arms without licence. Section 25(1B)(a) of the Act embodies the penal provision for possession of fire arms in contravention of section 3.

From a combined reading of sections 2 and 25(1B)(a) and 39 of the Arms Act; the legal position that emerges is no prosecution can be instituted in respect of an offence of possession of unlicensed arms without the previous sanction of the District Magistrate. In this connection the decision in Satyanarayan''s case (supra) is pertinent. It relates to prosecution u/s 25 of the Arms Act.

Sanction u/s 39 of the Arms Act is not an empty formality. It is a wholesome safeguard against a false, frivolous and inexpedient prosecution and such sanction should be accorded if prosecution is reasonable and in public interest. As pointed out in the decision in Satyanarayan''s case (supra) it has to be established that sanction had been accorded after a proper application of his mind on the material placed before the sanctioning authority.

On the point of sanction the only evidence on record is that of Shamsuddin (P.W.5) a clerk. He merely states that the sanction on rrcord bears the signature of District Magistrate. He does not state that the facts constituting the offence under the Arms Act were placed before the District Magistrate, who accorded the impugned sanction.

As pointed out in the decision in Major Som Nath Vs. Union of India (UOI) and Another, for a sanction to be valid, it has to be established that it was given in respect of the facts constituting the offence with which the accused is proposed to be charged. According to the decision though it is desirable that the facts should be referred to in the sanction itself, nonetheless if they do not appear on the face of it, the prosecution must establish aliunde by evidence that those facts were placed before the sanctioning authority.

As pointed out in the decision in Madhusudan Prasad''s case 1981 JLJ 518 sanction is not valid where illusory satisfaction is recorded mechanically. Therein on the evidence of the sanctioning authority it was held that the validity of the sanction was considerably shaken.

In the decision in Mohammad Rustam Qureshi''s case 1986 C.Cr.J. (M. P.) 115 several other decisions on the subject of sanction have been referred to. It relates to sanction u/s 6 of the Prevention of Corruption Act 1947. Observing that the intention behind the provision is to safeguard the innocent and not to provide a shield for the guilty it has been pointed out that the substance of the matter is that it has to be proved that the sanction was the result of application of mind to the evidence and the circumstances of the case. Therefore, unless the matter can be proved by other evidence, in the sanction itself reference must be made to facts in order to indicate that the basic requirement of the application of mind by the sanctioning authority in the matter was met. Without a valid sanction the prosecution would be nullity and the trial without jurisdiction was liable to be quashed.

In the instant case neither the District Magistrate nor the person who placed before him the necessary papers for sanction has been examined. All that the prosecution has proved is that the sanction Ex.P.-4 bears the signature of the District Magistrate.

In the circumstance, as there is no other evidence, we have to examine the sanction (Ex.P.-4) itself in order to determine its validity. A perusal of the same shows that it states the facts necessary to constitute the offence. It also refers not only to the letter of the Superintendent of Police but also to the connected case diary as the source of information relating to the offence. It further recites that it was on a perusal of the relevant records that the signatory has come to the conclusion that the offence is in question has been committed and, therefore sanction is accorded.

It is pertinent to bear in mind that sanction must be subjected to test only with a view to ensure that the object behind the provision for the same is not frustrated otherwise, more often than not, failure of real justice may be occasioned if it is tested with a view to find fault with it. Tested on the touchstone of the subject, I find that no exception can be taken to the validity of the sanction which fulfills the basic requirement of the application of mind to the relevant matter.

In the light of the view 1 have taken above regarding the sanction, I hold that in the instant case sanction as required by law, stands proved.

This brings us to the question of sentence.

The contention of the appellant''s learned counsel is that the appellant is an old man and has already undergone rigorous imprisonment for about two months and in the circumstances it is not desirable to send him back to prison.

On a careful consideration of the facts and circumstances of the case, I find that there is force in the aforesaid contention of the appellant''s learned counsel. Therefore, the sentence of imprisonment is reduced to the period already undergone.

25A. In the result, the appeal is partly allowed. The appellant''s conviction is maintained but the sentence of imprisonment passed against him is reduced to the period already undergone. The bail bonds of the appellant shall stand discharged.