Tula Ram vs State Of Uttarakhand

Ravindra Maithani, J

The instant revision is directed against the judgment and order dated 18.08.2012, passed in Criminal Appeal No. 14 of 2012, Tula Ram Vs. State by

the court of learned Additional District and Sessions Judge, Nainital. By this impugned order, the appeal preferred by the revisionist against the

judgment and order dated 13.01.2012, passed in Criminal Case No. 358 of 2011, State Vs. Tula Ram, passed by the court of learned Judicial

Magistrate, Ram Nagar, District Nainital (for short “the Caseâ€) was dismissed. Vide impugned judgment and order dated 13.01.2012, passed in

the Case, the revisionist has been convicted under Section 25 of the Arms Act, 1959 (hereinafter referred to as “the Actâ€) and sentenced to one

year rigorous imprisonment and a fine of Rs.100/-.

Heard learned counsel for the parties and perused the record.

Facts necessary for disposal of this case, briefly stated are that on 24.03.2007, when the police party was on patrolling duty, at 5.30 A.M., they

intercepted the revisionist and from his possession one 12 bore S.B.B.L gun, which was in three parts, one 12 bore gun and one country-made pistol

and 25 cartridges were recovered. A case was registered against the revisionist. After investigation, charge sheet was submitted and the trial

proceeded. Finally, as stated, vide judgment and order dated 13.01.2012, passed in the Case, the revisionist has been convicted and sentenced as

stated hereinbefore. Aggrieved, an appeal was preferred, which has also been dismissed vide judgment and order dated 18.08.2012, passed in the

appeal. Hence, the revision.

Learned counsel for the revisionist has raised two points for consideration, they are:-

The arms which have been recovered from the possession of the revisionist were not in working condition, therefore, conviction cannot be upheld

under Section 25 of the Act.

In the instant case, sanction under Section 39 of the Act, has not been proved. This is a case, which proceeded without sanction as required under

Section 39 of the Act.

Learned State counsel would simply state that if sanction to prosecute the revisionist is not proved, let the matter be remanded for that purpose. No

argument, as such, has been advanced on behalf of the State with regard to the working condition of the recovered arms and applicability of Section

25 of the Act.

Facts need not much elaboration but yes they need to be seen to the extent of appreciation of evidence. In the present case, prosecution has

examined in all six witnesses. They are namely, PW1 Harish Chandra Panda, PW2 Sub Inspector, Rajveer Singh, PW3, Constable, Indra Bhandari,

PW4 Constable, Devki Nandan Joshi, PW5 Sub Inspector, Salauddin and PW6 Ranjeet Singh. Except PW2 Sub Inspector, Rajveer Singh, others are

witnesses of recovery. They all have stated about, as to how arms are recovered from the possession of the revisionist. All these witnesses have

stated that the arms were in working condition but the basis, as to how, they were in working condition has not been stated by the witnesses because

according to all of them, except PW5 Sub Inspector Salauddin, the arms were not fired through. PW5 Salauddin in his cross examination stated that

they had assembled S.B.B.L. gun and had fired through. This is one part.

7 Admittedly, the recovered arms have never been examined through any forensic expert. Neither is there any report of any armourer with regard to

condition of arms recovered. All the witnesses have stated that the recovered arms were in working condition. Now, the question is whether report of

the ballistic expert and the forensic expert and some other person having special knowledge in the field is required to be adduced by the prosecution or

the evidence of such police officer, who generally handles such firearm would be enough to prove that the firearm was in a working condition?

The arms, which have been recovered from the revisionist are such arms, which are generally handled by the prosecution witnesses. These are not

sophisticated weapons, which may not have come across to the prosecution witnesses.

In the case of Swaroop Singh and another Vs. State of Uttarakhand, MANU/UC/1848/2010, the conviction of the appellant was not upheld in a

case of 25 Arms Act because neither any witness has stated that the recovered firearms were in working condition nor was there any expert’s

report to show that the firearms were in working condition.

In the case of State of Punjab Vs. Jagga Singh (1998) 7 SCC 21,4 one .12 DBBL gun and four live cartridges were recovered from the

possession of the accused. Neither the gun nor the cartridges were sent to Forensic Science Laboratory. There was no evidence to prove that such

gun was in a working condition or the cartridges were live cartridges. Under those circumstances, it was held that in absence of any evidence to show

that recovered firearms were in working condition, conviction cannot be secured.

In the case of Chitwant Singh Vs. State of Punjab (1998) 9SCC 54,9 the police officer had stated that the firearm was in a working condition but

even they were not sure about the type of firearm recovered, specially, as to whether, it was AK-47 or AK 56. Under those circumstances, in the

absence of any expert’s evidence about the working condition of the gun, the conviction was not upheld.

In the case of Jarnail Singh Vs. State of Punjab (1998) 8SCC 12,6 the two police officers, who recovered the firearm had stated before the Court

that the gun was in a working condition. Hon’ble Court, inter alia, held that once it was found by the police officer that the mechanism was in

order, it could be reasonably inferred that it was in a working condition and even in the absence of any evidence of the armourer or an expert of that

type, evidence of a police is necessary, who is trained in handling the guns can be accepted.

In the case of Rakesh Vs. State of NCT of Delhi in Criminal Appeal No. 208 of 2003, the Delhi High Court, inter alia, held that the term “fire

arm†includes defective or unworkable firearm, otherwise, a person can keep a defective firearm which can be repaired and then used. It was held

that the defective firearm which can be used after repairs has not lost its character as a “firearm†within the meaning of Section 2 (e) of the

Arms Act, 1959. In that case, Delhi High Court has taken reference to the case of Swami Dayal Vs. State, AIR 1953 Allahabad 353, wherein in

paragraph no.5 the Court has held as hereunder:

“(5) the accused has come in revision to this Court and the learned counsel appearing for him has urged three points in his favour. The first point

argued by him is that the pistol itself was not quite fit for use and, therefore, it could not be an “arm†within the definition of that term in s.4, Arms

Act. He invited my attention to the statement in the recovery list that the handle of the pistol was partly rotten and both its triggers were out of order

and a string was tied to the barrel in two places. The finding of the trial Court regarding the condition of the pistol is that it was partly broken and

unworkable. Under the above circumstances, his argument was that admitting that the pistol was recovered, it had ceased to be an arm under the

Arms Act. The evidence indicates that the pistol had not lost its character as pistol. With a certain amount of repair it could easily be used as an arm.

Under these circumstances I am of opinion that the article recovered should be considered to be an article for which a licence was needed and the

possession of the same would be punishable under the Arms Act.

In this connection the learned counsel relied strongly on Queen v. Sidappa, 6 Mad. 60 (F.B.), a Full Bench decision of the Madras High Court, in

which it was laid down that a gun rendered unserviceable by the loss of the trigger does not fall within the definition of “arms†in s.4, Arms Act

1878, and that the possession of such a weapon without a license is no offence. This ruling would no doubt to a certain extent support his contention. I,

subsequently reconsidered by Full Bench of the Madras High Court reported in Queen-Empress v. Jayarani Reddi, 21 Mad.360 (F.B.) and the view

taken in the previous case was dissented from. According to the view taken in this case the test in such a case is not so much whether the particular

weapon is serviceable as a fire arm but whether it has lost its specific character and has ceased to be a fire arm. I respectfully agree with the view

expressed in this ruling. If a contrary view were to be held, it will enable any person wanting to circumvent the provisions of law to take out some

small part like a screw from an arm and keep the arm in his possession and it would not be possible to convict him merely on the ground that the

instrument itself was unworkable at the time. The first point raised by the learned counsel, therefore, appears to have no force.â€​

In view of the definition of “arms†as defined under Section 2 (e) of the Act and the principle as laid down hereinabove, this Court is of the

view that insofar as, the working condition of the recovered arms is concerned, prosecution has been able to prove that the recovered arms are arms

as defined under Section 2 (e) of the Act.

Important is the other question i.e. sanction under Section 39 of the Act. Section 39 of the Act, requires that prosecution under the Act cannot be

launched unless sanction for the purpose is accorded by the District Magistrate. This Section reads as hereunder:

“39. Previous sanction of the district magistrate necessary in certain cases â€" No prosecution shall be instituted against any person in respect of

any offence under section 3 without the previous sanction of the district magistrate.â€​

There is a sanction letter dated 14.04.2007 on record, which purported to have been accorded by the District Magistrate, Nainital. Initially,

argument was advanced on behalf of the revisionist that it is mechanical because only in a typed format some blanks have been filled in and it cannot

be said that while according sanction, the material have been perused. Subsequently, what is argued is that the sanction has not been proved. It is for

that purpose, State requires that the matter may be remanded. This aspect has to be seen.

“Remand†means remand for retrial or to collect additional evidence. The question is whether in all such cases, matter has to be remanded for

retrial.

In the case of Bablu Kumar and others Vs. State of Bihar and another, (2015) 8 SCC 787, the Honble Supreme Court has held as hereunder:-

“…………….There can be no doubt that the prosecution may not examine all the material witnesses but that does not necessarily mean that

the prosecution can choose not to examine any witness and convey to the court that it does not intend to cite the witnesses. The Public Prosecutor

who conducts the trial has a statutory duty to perform. He cannot afford to take things in the light manner. The court also is not expected to accept

the version of the prosecution as if it is sacred. It has to apply its mind on every occasion. Non-application of mind by the trial court has the potentiality

to lead to the paralysis of the conception of fair trial………………..â€​

In the case of Satyajit Banerjee and others Vs. State of West Bengal and others, (2005) 1 SCC 115, Hon’ble Supreme Court, inter alia, held

that “ direction of retrial should not be made in all or every case where acquittal of accused is for want of adequate or reliable evidence.†(Para

26)

The question is whether prosecution in the case had an opportunity to adduce any evidence to prove sanction. Sanction letter, which has not been

proved is purported to have been signed by the District Magistrate, whose name has also been disclosed in it. But in the charge sheet that person has

not been named as a witness.

PW2 Sub Inspector, Rajveer Singh is the Investigating Officer. He has stated about the prosecution sanction. In his examination-in-chief, he states

that on 23.04.2007, he recorded the prosecution sanction. He has not proved that the prosecution sanction was accorded by the District Magistrate.

That document has not been proved. Now, even if, the matter is remanded for retrial, the State has not disclosed, as to which evidence, they would

like to adduce to prove the prosecution sanction. Who is that witness because there are ten witnesses named in the charge sheet and out of it, six have

been examined. Whether the remaining four are to be examined, the Court cannot make assessment on the basis of any assumption. In his cross-

examination PW2 Sub Inspector Rajveer Singh, the Investigating Officer states that he never took the recovered arms in his possession. He further

states that he applied for prosecution sanction on 14.04.2007 and the prosecution sanction was received on 23.04.2007.

Now what is interesting to note is that the alleged prosecution sanction is dated 14.04.2007 and it refers that sanctioning authority had perused the

recovered articles as well. The question is, if the Investigating Officer, PW2 Sub Inspector, Rajveer Singh had not taken the recovered arms in his

custody and had applied for prosecution sanction on 14.04.2007, how recovered articles could have been seen by the sanctioning authority on that day.

This is all in doubts. As stated, even for retrial, there is no such statement on behalf of the State as to what State would do, if the matter is send back

for retrial. Retrial cannot be a routine exercise.

Be that as it may, this Court is of the view that under the facts and circumstances of the case, order for retrial would not be in the interest of

justice.

Trial of the revisionist has proceeded without there being any prosecution sanction, as required under Section 39 of the Act. This is an illegality,

without previous sanction the trial under Section 25 of the Act could not have been instituted against the revisionist. Therefore, this Court is of the

view that the prosecution has not able to prove the charge under Section 25 of the Act against the revisionist. He ought to have been acquitted of the

charge. Therefore, the revision is liable to be allowed. The revisionist deserves to be acquitted of the charge leveled against him.

The revision is allowed.

The judgment and order dated 18.08.2012, passed in Criminal Appeal No. 14 of 2012, Tula Ram Vs. State by the court of learned Additional

District and Sessions Judge, Nainital as well as judgment and order dated 13.01.2012, passed in Criminal Case No.358 of 2011, State Vs. Tula Ram,

passed by the court of learned Judicial Magistrate, Ram Nagar, District Nainital are hereby set aside.

The revisionist is acquitted of the charge leveled against him.