Sawan Singh vs State

The appellant has been convicted under Section 19F of the Indian Arms Act, and sentenced to six months' rigorous imprisonment and a fine of Rs.

100 and in default one month's rigorous imprisonment as modified by the Sessions Judge, Jammu.

The prosecution case was that on 2011958 the Custom Officer P. W. 1 Bakshi Prithvi Raj on getting some information stopped bus No. 6090 J

& PC and searched the accused as a result of which a 32 Bore revolver without a licence was recovered from his person besides other articles

like currency notes and pieces of goods like Shefoon. These articles were seized from his possession and a sort of seizure list is said to have been

prepared by the officer concerned on that date. As the driver of the bus wanted to proceed to his destination he was allowed to do so and one of

the passengers of the bus Jagu by name was asked to get down from the bus in order to be a witness to the said seizure list. On the next day that is

2111958 the Custom Officer sent a letter to the police station Ranbirsinghpura for registering a case against the accused. This letter was received

on 21158 and the first information report was drawn up on the basis of this letter on the same date at about 230 P. M. The accused was also

produced at the Police station by the custom officer. The alleged seizure list Ex. Pl was not sent to the police station until 1721958. There is no

dispute with respect to this fact.

The police after holding the usual investigation submitted a charge sheet against the appellant as a result of which he was tried and convicted as

indicated above.

The first point taken by Mr. Sharma, appearing for the appellant is that the sanction produced by the prosecution in this case was not a valid

sanction and, therefore, the entire proceedings taken against the appellant were without jurisdiction. In my opinion the contention of the learned

counsel for the appellant is well founded and must prevail. The learned Judge seems to have brushed aside this contention merely on the ground

that the sanction produced by the prosecution shows that the necessary materials were placed before the sanctioning authority. I am, however

unable to agree with the view taken by the learned Judge. The sanction produced in this case runs thus :

''Sanction is hereby accorded for the prosecution of S. Swarnsingh son of Diwan Singh resident of Trewa Tehsil R. S. Pura in case F. I. R. No. 13

of ]958 under Section 19 (f) Indian Arms Act P/S R. S. Pura. x x x x

A perusal of this sanction clearly shows that it neither mentions the facts constituting the offence nor the circumstances under which the accused

was arrested. It also does not mention as what materials or papers were produced before the Sanctioning Authority. It is now well settled that

before a sanction can be valid it must be established that all the facts constituting the offence have been placed before the sanctioning authority so

that it may be in a position to apply its mind. This can be proved in two ways. Either by producing the sanction which on the face of it shows the

materials which were produced before the sanctioning authority or by evidence aliunde to show the materials that were placed before the

sanctioning authority. In the instant case, the sanction itself does not show the facts constituting the offence and there is no extraneous evidence to

show what were the materials that were placed before the sanctioning authority. The learned Assistant Advocate General, however, drew my

attention to a chit of paper which is said to be a copy of a letter from the District Magistrate to the Superintendent of Police from which it appears

that the sanction was being forwarded to the Superintendent of Police with the connected papers. This document, however, does not show at all

what were the connected papers and throws no light as to whether those connected papers were actually placed before the sanctioning authority,

before the District Magistrate could decide to sanction the prosecution of the appellant. In this connection I might point out that an important lacuna

in the prosecution case was that the seizure list was nt sent to the police station along with the report but was sent more than a month later and if

this fact would have been brought to the notice of the sanctioning authority, we do not know to what extent it would have altered the decision of

the sanctioning authority. The fact that the facts constituting the offence must be placed before the sanctioning authority is well settled both by the

Privy Council and the Supreme Court authorities. In A. I. R. (35) 1943 Privy Council, 82; their Lordships of the Privy Council observed as

follows :

''In their Lordships' view, in order to comply with the provisions of Cl. 23, it must be proved that the sanction was given in respect of facts

constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential since

Cl 23 does not require the sanction to be in any particular form nor to be in writing. But if the facts constituting the offence charged are not shown

on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The

sanction to prosecute is an important matter ; it constitutes a condition precedent to the institution of the prosecution and the Government have an

absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have thought concerned merely to see that the

evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself

to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Looked at as a matter of substance it is plain

that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the

facts of the case. Nor in their Lordships' view, is a sanction given without reference to the facts, constituting the offence a compliance with the

actual terms of Cl. 23. Under that clause sanction has to be given to a prosecution for the contravention of any of the provisions of the order. A

person could not be charged merely with the breach of a particular provision of the order ; he must be charged with the commission of certain acts

which constitute a breach, and it is to that prosecutionthat is, for having done acts which constitute a breach of the orderthat the sanction is

required. In the present case, there is nothing on the face of the sanction and no extraneous evidence to show that the sanctioning authority knew

the facts alleged to constitute a breach of the order, and the sanction is invalid.

These observations were reiterated by the Supreme Court in A. I R 1954 Supreme Court, 63

In the instant case, I am satisfied that such a routine and ready made sanction as has been produced in the case and which does not show that the

facts constituting an offence were placed before the District Magistrate, is clearly invalid and vitiates the entire trial. On this ground alone the

conviction of the appellant cannot be maintained.

Moreover, even on merits, I find that the case is not free from suspicion. In the first place, if according to the prosecution the accused was

apprehended on 20158, at about 3 P. M. by the Custom Officer, and the police station was only 5 miles from the place of occurrence, there was

absolutely no justification for the custom officer to have detained the accused in his personal custody for more than 24 hours, instead of producing

him before the police station. The Custom Officer has not given any explanation whatsoever, for this somewhat unusual conduct on his part. The

Custom officer knew full well that an offence had been committed in his presence and a firearm without license was recovered from the accused. It

was his duty to have produced the accused before the police station within a reasonable time instead of waiting for full one day. The learned

Assistant Advocate General tried to afford an ingenious explanation for this lacunaan explanation which neither the prosecution nor the Custom

Officer chose to give at the trial. Mr. Karim suggested that as certain smuggled goods had been found with the accused the Custom Officer wanted

to complete his report before handing him over to the police. Even if this be so, it would not have taken the Custom Officer such a long time so as

to justify the detention of the accused for full one day. As the recoveries had already been effected the interrogation of the accused would not have

taken much time. The report could have been made on 20th an accused could have been produced towards the evening. The explanation given by

Mr. Karim, therefore, does not appeal to me and is not really an explanation which perhaps even the Custom Officer would have thought

Another suspicious circumstance is that the seizure list although alleged to have been prepared on 201^ not despatched to the police station until

L/43 explanation for this also has been given. In these circum stances, the recovery of the revolver from the person the accused becomes

extremely suspicious. It is also all that the seizure list is attested by the so called independent witness Jagu but even that witness admits was fully

known to the Custom authorities and the reason why he was asked to attest the seizure The witness, however, clearly states in his evidence he had

signed a paper but he did not know the thereof nor ware the contents read over and explain the witness. In these circumstances, the evidence the

witness does not inspire much confidence. A peru of the seizure list also shows that it is an extremely suspicious document. According to the

evidence of Prithvi Raj Custom Officer, the copy which has bee produced before the court is a carbon copy the original not having been

produced. But a mere look at the seizure list Ex. Pl would convince anybody that not be a carbon copy but appears to be the original in pencil and

it contains a number of additions and alterations. In these circumstances, in my opinion, recovery of the revolver from the person of the having

regard to these circumstances becomes ex doubtful and it cannot be said to have been proved again the accused beyond reasonable doubt.

For the reasons given above, the appeal is allowed, the conviction and the sentence passed on the appellant are set aside and he is acquitted of the

charges f ram ;d against him. Fine if paid, shall be refunded to the appellant.