M.C.Sundaran vs State Of Kerala
2025 Latest Caselaw 3621 Ker

Kerala High Court

M.C.Sundaran vs State Of Kerala on 4 February, 2025

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Crl.R.P No.178 of 2015
                                                          2025:KER:8603
               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

              THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.

     TUESDAY, THE 4TH DAY OF FEBRUARY 2025 / 15TH MAGHA, 1946

                         CRL.REV.PET NO. 178 OF 2015

      CRIME NO.127/2007 OF Rajapuram Police Station, Kasargod

       AGAINST THE JUDGMENT DATED 19.01.2015 IN Crl.A NO.28 OF 2014

OF THE SESSIONS COURT, KASARAGOD ARISING OUT OF THE JUDGMENT DATED

21.01.2014 IN CC NO.440 OF 2009 OF JUDICIAL MAGISTRATE OF FIRST

CLASS -I,HOSDRUG


REVISION PETITIONERS/APPELLANTS/ACCUSED:

                1. M.C.SUNDARAN,AGED 47 YEARS
                   S/O.CHEMIYA NAIK, DODDACHERI, MADIKERI TALUK,
                   KODUGU DISTRICT, KARNATAKA STATE.

                2. B.N.VENKITTARAMA, AGED 61 YEARS
                   S/O.NARAYANA, DODDACHERI, CHETHUKAYAM, KARIKKE
                   GRAMAM, MADIKERI TALUK, KUDUGU DISTRICT,
                   KARNATAKA STATE


              BY ADVS.
              SRI.M.RAMESH CHANDER (SR.)
              SRI.ANEESH JOSEPH
              SMT.DENNIS VARGHESE


RESPONDENT/RESPONDENT/COMPLAINANT:

              STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR
              HIGH COURT OF KERALA, ERNAKULAM.

SRI.SANAL P. RAJ, PUBLIC PROSECUTOR
       THIS    CRIMINAL    REVISION   PETITION   WAS   FINALLY   HEARD   ON
31.01.2025, THE COURT ON 4.2.2025 PASSED THE FOLLOWING:
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Crl.R.P No.178 of 2015
                                                     2025:KER:8603
                                ORDER

This revision petition is filed under Section 397 read with

Section 401 of the Code of Criminal Procedure ('Cr.P.C', for short)

by the revision petitioners challenging their conviction and

sentence, for the offence under Section 3 read with Section 25

(1B) (a) and Section 30 of the Arms Act, 1959 ('Arms Act' for

short), by the Court of the Judicial First Class Magistrate-I (JFCM-

I), Hosdurg as per the judgment dated 21.01.2014 in C.C. No.440

of 2009, which is confirmed in appeal by the Sessions Court,

Kasargod, as per the judgment dated 19.01.2015 in Crl.A. No.28

of 2014. For convenience, the parties are hereinafter referred in

this order as they were before the trial court.

2. As per the prosecution case, on 10.08.2007 at 11.30

hours, while PWs 2 and 3 - Forest Beat Guards attached to

Panathur Bit, Panathady Section were conducting a routine

inspection inside the forest at Kottoor coup area, they found

accused No.1 hiding behind a bush aiming at something with a

gun. Though the accused attempted to escape, the Beat Guards

along with other forest officials successfully apprehended him and

2025:KER:8603 seized a loaded gun from his possession. They emptied the gun

by firing it into the air. On conducting body search of accused

No.1, they could seize used and unused cartridges of the

gun. After arresting accused No.1, they returned to the Forest

Range Office and entrusted him to PW1, the Forest Range

Officer. Ext.P4 confession statement of accused No.1 was

recorded by PW1 and on the next day he was entrusted to the Sub

Inspector of Rajapuram Police Station and crime No.127 of 2007

for the offences under Section 3 read with Section 25(1B)(a) and

Section 30 of the Arms Act was registered in that Police Station.

As per Ext.P4 disclosure Statement made by accused No.1, the

gun was obtained by him from another person. Accordingly, that

person was also arrayed as accused No.2 in the crime. On

completion of the investigation, final report was laid before the

JFCM-I, Hosdurg, and it was taken cognizance. Meanwhile, the

accused were enlarged on bail.

3. After serving copies of all relevant prosecution records to

the accused under Section 207 Cr.P.C and after hearing both sides,

the learned Magistrate framed the charge for the offences under

2025:KER:8603 Section 3 read with Section 25(1B)(a) and Section 30 of the Arms

Act. The accused pleaded not guilty when the charge was read

over and explained to them. To substantiate the case of the

prosecution, PWs 1 to 10 were examined and Exts.P1 to P14

documents and MO1 to MO3 material objects were marked. The

remaining witnesses were given up by the prosecution. When

examining under Section 313 Cr.P.C, the accused maintained the

plea of innocence and denied all the incriminating evidence

brought out against them. Accused No.1 filed a statement that no

gun was seized from his possession. Accused No.2 in his written

statement stated that he had been asked by PW1 to produce his

licensed gun at the Range Office and accordingly he produced MO1

to MO3 before PW1. No defence evidence was adduced from the

side of the accused. After hearing both sides, the learned

Magistrate found that prosecution has proved the guilt of the

accused beyond reasonable doubt and accordingly convicted

accused No.1 for the offence under Section 3 read with Section 25

(1B) (a) of the Arms Act and sentenced him to undergo simple

imprisonment for one year and convicted accused No.2 for the

2025:KER:8603 offence under Section 30 of the Arms Act and sentenced him to

undergo simple imprisonment for three months.

4. Though the accused filed Crl.A No.28 of 2014 before the

Sessions Court Kasargod, after a brief analysis of the evidence on

record, the learned Sessions Judge dismissed the appeal,

confirming the judgment of conviction and sentence passed by the

learned Magistrate. Hence the accused are now before this Court.

5. Heard the learned counsel for the revision petitioners-

accused and the learned Public Prosecutor.

6. The learned counsel for the accused argued that

admittedly MO1 gun allegedly seized from the possession of

accused No.1 is a licensed gun of accused No.2. The accused are

natives of Karnataka State. It is from the border of Kerala and

Karnataka State the offence was detected. According to accused

No.2, MO1 gun was produced by him before PW1 as demanded by

him. Though the prosecution claims that MO1 to MO3 were seized

from the forest itself at the time of arresting accused No.1, it has

come in evidence that these material objects were packed and

sealed from the Forest Range Office. No labells were affixed on the

2025:KER:8603 material objects. In such circumstances, the seizure cannot be

said as effected in a tamper-proof manner. It is also highlighted

by the learned counsel that as per Section 39 of the Arms Act, no

prosecution shall be instituted against any person in respect of

any offence under Section 3 of the Act without the previous

sanction of the District Magistrate. Though Ext.P14 sanction order

was produced by the prosecution, it was not proved by examining

the person who issued the sanction order or by examining any

other officials through whom it can be proved. For all these

reasons the accused are entitled to be acquitted on the ground of

benefit of reasonable doubt.

7. To counter these arguments of the learned defence

counsel, the learned Public Prosecutor submitted that though the

material objects were not sealed and labelled from the place of

detection of the crime, it was found from Ext.P6 FSL report that

the weapon was intact and it was in a working condition. Moreover,

the accused have no case that MO1 to MO3 were tampered by the

forest officials or police. Therefore, the non-labelling or non-

packing and sealing of the material objection from the place of

2025:KER:8603 occurrence assumes no importance. It is also argued by the

learned Public Prosecutor that Ext.P14 sanction order was marked

during trial with the consent of the learned defence counsel and

therefore the accused cannot take advantage of the non-

examination of the author of that document.

8. As said above, the prosecution has examined altogether

10 witnesses to prove their case. Out of them, PWs 1 to 3 are the

material witnesses. PWs 2 and 3 are the Beat Forest Guards who

apprehended accused No.1 and seized MO1 to MO3 material

objects from the forest area. They gave consistent evidence

regarding the apprehension of accused No.1 and the seizure.

According to them, accused No.1 was hiding behind a bush with a

gun aiming at something and attempted to run, on seeing the

forest officials. They gave evidence that they apprehended

accused No.1 by running behind him for a distance of about 15

meters. A loaded gun, which according to them is MO1 was seized

from his possession and it was then emptied by firing into the

air. MO2 and MO3 used and unused cartridges were also seized

from the possession of accused No.1. They prepared Ext.P3

2025:KER:8603 mahazar from the place of detection of the offence. Later, accused

No.1 was brought to the Forest Range Office and he was entrusted

to PW1 the Forest Range Officer. PW1 prepared Ext.P1 occurrence

report and recorded Ext.P4 confession statement of accused No.1.

On the next day, accused No.1 was produced at the Police Station

with Ext.P2 intimation, consequent to which Ext.P11 first

information report was registered by PW9 the Sub Inspector of

Police.

9. From the deposition of PWs 2 and 3 it is evident that MO1

to MO3 material objects were not sealed or labelled from the place

of occurrence. Though this contention was raised before the

learned Magistrate as well as before the Appellate Court, from the

impugned judgments it could be gathered that the said contention

was overruled by the courts below finding that even though the

material objects were not packed and sealed in a tamper proof

condition, Ext.P6 FSL report proves that there is no tampering of

the material objects after its seizure. While going through the facts

of this case, I am of the opinion that the courts below failed to

properly appreciate the contentions of the accused regarding non-

2025:KER:8603 packing, non-sealing and non-labelling of the material objects

from the place of detection in its right perspective.

10. In Amarjit Singh @ Babbu v. State of Punjab [1995

Crl LJ 3984] the Apex Court considered the effect of non-sealing

of a revolver seized by the Police from the place of occurrence and

held that the non-sealing of a revolver at the spot is a serious

infirmity because of the possibility of tampering with the weapon

cannot be ruled out. This judgment was followed by the Apex court

again in Sahib Singh v. State of Punjab [(1996) 11 SCC

685].

11. This Court in Damodaran v. State of Kerala [2016

(2) KHC SN 27] by relying on the judgment of the Apex Court in

Amarjit Singh [1995 Crl LJ 3984] held thus:

"Therefore the primary responsibility of the detecting officer is that, the weapons seized from the possession of the revision petitioner have to be sealed from the place of occurrence itself. When no specific sealing is made by the Seized Officer and no identification mark were noticed by the Detecting Officer, the prosecution failed to prove the identity of the weapon produced before the Court. When any doubt is raised by revision petitioner with regard to the sealing, that has to be accepted by the trial Court which was not done

2025:KER:8603 in this case."

12. The defence of the accused herein is that the weapon

was not seized from the possession of accused No.1 and instead

it was later directed to be produced before PW1 and accordingly

accused No.2 produced it at the Forest Range Office. It is true that

sealing and the labelling of a material object from the place of its

seizure is insisted in criminal cases mainly for the purpose of

avoiding tampering in a later stage. But that alone cannot be said

as the reason behind the same. Such a sealing and labelling with

the signature of the accused on it will give a built-in guarantee if

properly proved, that the material object was seized from the

place of detection itself. Such sealing and labelling are absent in

this case and it is fatal to the prosecution case that MO1 to MO3

material objects were seized from the possession of accused No.1

from a forest. Moreover, it is pertinent to note that in Ext.P4

mahazar prepared by PW2 there is no independent witness.

Hence, from the facts and circumstances, the evidence of PWs 2

and 3 regarding seizure of the weapon from the possession of

accused No.1 claimed as effected from a forest cannot be accepted

without corroborative evidence.

2025:KER:8603

13. According to the prosecution, accused No.1 gave Ext.P4

confession statement to PW1. It is based on that confession

statement accused No.2 was implicated in the crime by the

investigating office. But this claim of the prosecution is

unbelievable. In Ext.P4 confession statement it is recorded that

accused No.1 confessed to PW1 that the gun is a licensed gun of

accused No.2. According to PWs 2 and 3, at the time of seizure

they believed MO1 as an unlicensed gun. But, during evidence also

they maintained the stand that MO1 is an unlicensed gun.

Surprisingly, PW1 the Forest Range Officer who claims as recorded

Ext.P4 confession statement of accused No.1 also deposed during

trial that MO1 is an unlicensed gun. If accused No.1 had really

given a confession statement to PW1 stating the name of accused

No.2 as the owner of MO1 gun, then there was no reason for PW1

to treat MO1 as an unlicensed gun. Moreover, PW1 did not depose

anything about Ext.P4. It was through PW3, the said document

was marked. Therefore, Ext.P4 confession statement of accused

No.1 cannot be said as proved.

14. As per Section 39 of the Arms Act, in order to institute

2025:KER:8603 prosecution against a person for an offence under Section 3 of the

Arms Act, sanction of the District Magistrate is necessary. It

appears from the judgment of the learned Magistrate that even

after issuing repeated summonses and warrants the presence of

the officer concerned could not be obtained to prove Ext.P14

prosecution sanction. Then the document was marked without

objection from the side of the defence.

15. It is trite that mere marking of a document is not

sufficient to prove its contents. In State of Kerala v. Rupesh

[2023 (1) KLT SN 41] this Court held that the Court cannot take

cognizance of the offence punishable under Section 3 read with

Section 25(1B) of the Arms Act, if no prior sanction, as prescribed

under the Act, has been obtained. What is mandated as per

Section 39 is previous sanction of the District Magistrate. Such

previous sanction should have been obtained prior to taking

cognizance.

16. In Savithri v. Dy. Superintendent, Vigilance and

Anti Corruption Bureau [2015 (3) KLT 909] with regard to

the sanction to be obtained under Section 19 of the Prevention of

2025:KER:8603 Corruption Act, 1988, the Apex Court held thus:

"Ext. P-16 is the prosecution sanction granted by the Deputy Director of Education, Kozhikode. This was marked during trial by the Investigating Officer. There is no explanation why the prosecution did not examine the Deputy Director of Education to prove the prosecution sanction. As regards the necessity of proof of sanction granted under section 19 of the P.C Act, this Court had settled the legal position, relying on various earlier decisions, that except in cases where the prosecution sanction will have sanctity or immunity under the law, the prosecution sanction will have to be proved by the person who granted the sanction. In Antony Cardoza v. State of Kerala 2011 1 KLT 946., this Court held that the essentials regarding prosecution sanction including independent application of mind in the process of granting sanction will have to be proved by the person who granted it, and this responsibility cannot be taken over by somebody else. This Court observed that when the prosecution sanction including independent application of mind is not proved, by the sanctioning authority, it cannot be said that the prosecution sanction is properly and legally proved. Ext. P-16 is not a sanction granted by the Government, or by order of the Governor of Kerala. This is not something issued or granted as part of the administrative business of the Government on the executive side, delegated under Rules of Business. Such a sanction will not have sanctity or immunity under the law, and it will have to be proved by the

2025:KER:8603 person who granted the sanction. In Antony Cardoza v. State of Kerala . 2011 1 KLT 946., the prosecution brought an under Secretary to the Government to prove the prosecution sanction granted by the Principal Secretary. The Investigating Officer is not the competent to person to prove a prosecution sanction issued by some other authority under section 19 of the P.C Act. section 19 of the P.C Act even bars cognizance in the absence of a proper prosecution sanction granted by the competent authority. Such sanction granted by the authority competent to remove the public servant from service must be proved by the said authority during the trial process. If not so proved, as prescribed under the Indian Evidence Act, such a sanction simply marked by the Investigating Officer cannot be accepted as a proper and legal sanction. In such a situation, the bar of cognizance under section 19 of the P.C Act would apply, and the accused will have to be acquitted on the ground that the whole prosecution is barred. In this case, I find that the 1st accused is entitled for acquittal on this legal ground, whatever be the evidence on facts."

17. In Prakash Pai. H (Dr.) v. State of Kerala [2015

(3) KLT 989], the Apex Court considered the prosecution

sanction granted under Section 19 the Prevention of Corruption

Act, 1988, and held that since the sanction granted under that

provision is not the one issued in the normal official function and

it was issued by independent application of mind, it will not come

2025:KER:8603 under the category of public Document defined under Section 74

of the Evidence Act, which requires formal proof for acceptance in

evidence. In paragraph 21 of the said judgment, this Court held

thus:

"Following a Division Bench decision of the Culcutta High Court in S&R of Legal Affairs v. Moazzem Hossain, AIR 1947 Cal. 318, a learned Single Judge of the Andhra Pradesh High Court held in Central Bureau of Investigation SPE Hyderabad v. 20 P. Muthuraman reported in LAWS(APH) - 1996-3-13 that the signature in the prosecution sanction granted under S.19 of the PC Act should be proved either by the sanctioning authority, or by his subordinate officer, or the clerk who has seen the sanctioning authority signing the sanction order, or who is acquainted with the signature of the sanctioning authority, and that merely producing or marking the document, purported to be the sanction signed by the authority, will not discharge the burden of the prosecution in proving sanction, according to law. The Investigating Officer can never be the competent person to prove the prosecution sanction issued by some other authority, with whose signature the Investigating Officer cannot have familiarity or acquaintance in the discharge of his normal official functions. I am fully in agreement with the view of the Andhra Pradesh High Court on the subject. In Antony Cardoz v. State of Kerala, 2011 (1) KHC 377 : 2011 (1) KLT 946 : ILR 2011 (1) Ker. 530 : 2011 (1) KLJ 500 : 2011 CriLJ 2107, this Court

2025:KER:8603 held that independent application of mind and consequent satisfaction arrived at, for granting sanction under S.19 of the Prevention of Corruption Act, are matters which could be proved only by the sanctioning authority and nobody else. In the said case, the prosecution sanction was not proved by the person who granted sanction. This Court observed that when prosecution sanction including independent application of mind is not proved by the sanctioning authority, it cannot be said that the prosecution sanction is properly and legally proved. It is true that a document can be proved even by a person familiar with the handwriting of the person who issued the document. But when application of mind in the process of granting sanction itself is an issue somebody cannot come and prove the sanction claiming to be the person familiar with the handwriting or signature of the sanctioning authority. In such circumstances where application of mind itself is to be proved as part of proving a legal sanction granted under S.19 of the PC Act, the decision of this Court in Antony Cardoz v. State of Kerala will have application. Following the said decision, I find that the sanctioning authority himself will have to be examined to prove the sanction in a case where independent application of mind in the process of granting sanction itself is in issue".

18. Though the authority prescribed under Section 19 of the

Prevention of Corruption Act, 1988 to give sanction for prosecution

depends on the employer under whom the accused was employed

2025:KER:8603 at the time of the commission of the offence, the intention behind

the stipulation for sanction in that Act as well as in Section 39 of

the Arms Act is the same. A reading of the dictum laid down in the

decisions referred to above would make it clear that the sanction

to prosecute an accused in a criminal case is mandated not as an

empty formality. The purpose behind such a stipulation in the Act

is to protect the interest of the accused by directing the authority

concerned to independently apply its mind and convince that there

are sufficient materials to say that prima facie the accused has

committed the offence alleged. It is for the very same reason

evidence of the authority which gave sanction is insisted for

proving it before a Court of law. Merely for the reason that the

accused did not object marking of the document it cannot be said

that Ext.P14 sanction order produced by the prosecution is proved

in evidence. The non-proving of sanction is fatal to the prosecution

as far as the offence under Section 3 read with Section 25 (1B)

(a) of the Arms Act is concerned.

19. On re-appreciation of these material aspects it is clear

that the courts below failed to appreciate the evidence on record

2025:KER:8603 in its proper perspective. The findings of the Trial Court as well as

the Appellate Court are incorrect to the above extent and the

accused are therefore entitled for the benefit of reasonable doubt.

In the result, the revision petition is allowed, and the

impugned judgments of the courts below are set aside. The

accused are not found guilty of the offences under Section 3 read

with Section 25(1B)(a) and Section 30 of the Arms Act and are

acquitted of those charges. They are set at liberty cancelling their

bail bonds.

MO1, being a licensed gun of accused No.2, shall be released

to him, if not already released and MOs 2 and 3 shall be disposed

of as per Rule 185(4) of the Criminal Rules of Practice, Kerala,

1982.

Sd/-

MURALEE KRISHNA S. JUDGE

sks