Punjab-Haryana High Court
Pritam Singh vs State Of Punjab on 22 December, 2023
CRR-1126-2008(O&M) -1- 2023:PHHC:165865
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CRR-1126-2008(O&M)
Reserved on: 15.12.2023
Pronounced on: 22.12.2023
PRITAM SINGH
... Petitioner
Versus
STATE OF PUNJAB
... Respondent
CORAM:- HON'BLE MR. JUSTICE SANJIV BERRY.
Present:- Mr. Abhaysher Singh, Legal Aid Counsel, for the petitioner.
Mr. Anmol Singh Sandhu, AAG, Punjab.
.....
SANJIV BERRY, J. (ORAL)
By way of the criminal revision, the petitioner has assailed the
judgment dated 24.05.2008 vide which learned Sessions Judge, Bathinda,
upheld the judgment dated 04.07.2007, passed by learned Judicial
Magistrate Ist Class, Phul, whereby the petitioner was convicted under
Section 25 of Arms Act and sentenced to undergo rigorous imprisonment for
one year and pay fine of ₹1,000/- and in default thereof, further Rigorous
Imprisonment of 15 days.
authenticity of this order/judgment
CRR-1126-2008(O&M) -2- 2023:PHHC:165865
2. The brief facts of the case are that on 26.09.1999, at about 9:00
A.M., Pritiam Singh (the present revisionist) was apprehended on suspicion
and from the right DUB of his pyjama .12 bore country made pistol along
with a live cartridge inside it, was recovered and was found to be without
any licence or permit. Further, three currency notes of the denomination of
₹50/- each were also found. Challan was filed and proceedings under
Section 25 of Arms Act were initiated. Learned Judicial Magistrate Ist Class,
Phul, vide judgment dated 04.07.2007 titled "State vs. Pritam Singh @
Amarjit Singh" convicted the revisionist under Section 25 of Arms Act to
undergo rigorous imprisonment for one year and a fine of ₹1,000/- and in
default of payment of fine, to further undergo rigorous imprisonment for
15 days.
3. Aggrieved by the said judgment, the revisionist filed an appeal
before the Sessions Judge, Bathinda, which was dismissed vide order dated
24.05.2008. Hence, the present revision petition.
4. Learned counsel for the petitioner has assailed the judgment of
learned Courts below by submitting that they have failed to appreciate
evidence in correct preposition and have not considered the aspect that from
the evidence adduced by the prosecution no case is made out against the
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CRR-1126-2008(O&M) -3- 2023:PHHC:165865
petitioner for having committed the alleged offence under Section 25 of the
Arms Act. He submitted that apart from the discrepancies in the statement of
the prosecution witnesses there are other material irregularities in the trial
which have skip the observations of learned Courts below. He contended
that the Armourer who had allegedly tested the weapon has not been
examined by the prosecution nor his alleged report has been proved on
record in accordance with law. He submitted that even the sanction to
prosecute given by the District Magistrate in this case is defective as the
weapon was not produced at the time of obtaining sanction. He further
contends that that the petitioner has been falsely implicated in this case and
this fact is evident from the fact that no independent corroboration of the
police witness is there qua the alleged recovery and even the sole
independent witnesses has been given up by the prosecution. He further
referred to the evidence to say that the weapon after being allegedly sealed,
the seal, after use, was not handed over to independent witnesses but was
kept with the investigating officer which also create doubt regarding the
genuineness of the prosecution version. He further submit that the petitioner
has no criminal antecedents and has been facing the trauma of the instant
falsely planted case since 1999 and as such prayed for acceptance of the
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CRR-1126-2008(O&M) -4- 2023:PHHC:165865
petition.
5. These arguments have been controverted by learned counsel for
the State by arguing that the petitioner was found keeping in his possession
country made pistol along two cartridges which he was carrying without any
licence or permit, when apprehended by the police and after thorough
investigation the challan was presented in Court. He submits that the
prosecution has examined the witnesses who have duly proved the case of
the prosecution beyond shadow of doubt and the petitioner was rightly
convicted by learned Magistrate and his appeal has also been lawfully
rejected vide the impugned order. So far as non examination of independent
witnesses are concerned he submits that these witnesses were not examined
having been won over as such he prayed for dismissal of the present petition.
6. After considering the rival contentions and perusing the record
with the assistance of learned counsel for the parties, it transpires that the
instant FIR was registered against the petitioner on 26.09.1999 when on
suspicion the police party apprehended him and from his possession one
country made pistol and two live cartridges are said to be recovered. As per
the prosecution case, since, the petitioner could not produce any licence or
permit, the weapon along with cartridges were taken into police possession
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CRR-1126-2008(O&M) -5- 2023:PHHC:165865
duly sealed vide recover memo Exhibit P-3 and on the basis of Ruka Exhibit
P-6, FIR was registered.
7. After completion of investigation, challan has been presented in
Court, charges framed, which the petitioner pleaded not guilty and claimed
trial.
8. The prosecution in order to prove its case has examined PW1
HC Darshan Singh, ASI Gurjit Singh PW-2, PW-3 HC Surjit Singh, PW-4
ASI Om Parkash and PW-5 Ajit Singh, Junior Assistant. The independent
witnesses Balbir Singh was given up being won over. No defence evidence
was lead.
9. The learned Magistrate on the basis of the evidence proceeded
to pass judgment dated 04.07.2007 thereby convicting the petitioner for
having committed offence under Section 25 of Arms Act and sentencing him
to under go rigorous imprisonment for one year and fine of ₹1000/- and in
default thereon further rigorous imprisonment for 15 days.
10. On appeal being preferred, the learned Sessions Judge also
upheld the same conviction and dismissed the appeal.
11. So far as the arguments raised by the petitioner qua non
examination of the Armourer is concerned the perusal of record reveals that
authenticity of this order/judgment
CRR-1126-2008(O&M) -6- 2023:PHHC:165865
he could not be examined on account of his death. Although the prosecution
has tendered the report given by the Armourer as Exhibit P-2 in the
statement of learned Additional Public Prosecutor for the State but the
courts below have erred in accepting the same as per se admissible. In this
context, it is worth mentioning that although reports of certain scientific
expert may be used as evidence as per Section 293 of Cr.P.C 1973 but it is to
be taken note of that the provisions of this Section applies only to the
Government Scientific Expert fully detailed in Section 293(4) of the Cr.P.C
which reads as under:-
"293. Reports of certain Government scientific experts.-- (4)
This section applies to the following Government scientific
experts, namely:--
(a) any Chemical Examiner or Assistant Chemical Examiner to
Government;
(b) the Chief Controller of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director [, Deputy Director or Assistant Director] of a
Central Forensic Science Laboratory or a State Forensic
Science Laboratory;
(f) the Serologist to the Government;
(g) any other Government scientific expert specified, by
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CRR-1126-2008(O&M) -7- 2023:PHHC:165865
notification, by the Central Government for this purpose."
12. The perusal of the aforesaid provision reveals that the
Armourer does not find mention in the list of the Government Scientific
Experts under Section 293(4) nor is there any notification issued by the
Government for this purpose as per Section 293(4)(g) of the Cr.P.C. Even
though the Armourer had expired, the prosecution was supposed to prove his
report Exhibit P-2 in accordance with law rather than tendering the same in
evidence in statement of Additional Public Prosecutor for the State which
could not be considered as due discharge of onus. Both the Courts below
have failed to consider this aspect and have relied upon the report Exhibit P-
2 as it per se admissible. It is the case of the prosecution solely resting on
Exhibit P-2 on the basis whereof it has been alleged that the country made
pistol allegedly recovered from the petitioner was in working condition but
for the reasons mentioned above this report has no evidentiary value.
13. Another factor raised by learned counsel for the petitioner is
regarding non production of the weapon before the District Magistrate at the
time of obtaining the sanction to prosecute and has referred to the judgment
1998(1) MPLJ 288 Sukhlal Banshi Lodhi and another Vs. State of M.P.
authenticity of this order/judgment
CRR-1126-2008(O&M) -8- 2023:PHHC:165865
14. In the present case the prosecution has examined PW-5, Ajit
Singh. who has proved the sanction by District Magistrate as Exhibit
PW-5/A by identifying his signature however he has not categorically
admitted that he is not aware of the receipt number or dispatch number when
the said file was received in the office nor the sanction was granted in his
presence and he has simply brought the file from the record to say that it is
sanction by the District Magistrate. A perusal of the sanction Exhibit PW-
5/A given by the District Magistrate on 16.02.2000 reveal that he had given
sanction after considering the documents on the police file and is silent as to
the fact that whether the weapon was ever produced before him by the police
before getting the sanction. Faced with the situation the judgment referred to
by the learned counsel for the petitioner applies to full force to the facts and
circumstances of the present case wherein it has been specifically held that
the sanction by the District Magistrate is not a mere formality and has to be
proved that it was granted after applying his mind and also the fact that the
weapon regarding which the sanction was required had infact been taken
actually to the concerned authority. In the present case nothing is on record
adduced by the prosecution that the weapon was ever taken to the District
Magistrate before getting sanction and even sanction Exhibit PW-5/A in this
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regard is also silent. At the cost of repetition it is worth mentioned that in the
sanction Exhibit PW-5/A the District Magistrate has categorically said that
the District Magistrate formed his opinion after going through the police file
and nothing is there that the weapon was ever produced before the authority
before obtaining sanction. As per Section 39 of the Arms Act prior sanction
of the competent authority i.e. District Magistrate is necessary for
launching prosecution in respect of any offence under the Act and
admittedly such sanction is not a mere formality but has to be proved to have
been accorded by the District Magistrate after applying his mind which
hopelessly is lacking in this case and even there is nothing brought on record
to suggest that the alleged weapon was ever produced before the sanctioning
authority before according the aforesaid sanction.
15. A perusal of evidence although reveals certain minor
discrepancies the same are not material enough to discard the case of the
prosecution, however, at the same time the aforesaid technical defects in the
case of the prosecution have skipped the observation of learned Courts
below. Therefore, considering the fact that the report of Armourer has not
been proved on record in accordance with law, no offence under Section 25
of the Arms Act could have been attracted to the facts of the present case.
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CRR-1126-2008(O&M) -10- 2023:PHHC:165865
16. As a consequent, in the light of the above discussion finding
merit in the present Revision and giving the benefit of doubt the petitioner
who is facing trial in the present case since 1999 is hereby acquitted by
accepting the present Criminal Revision.
17. Criminal Revision stand allowed accordingly.
18. Pending application(s) if any shall also stand disposed of.
(SANJIV BERRY)
JUDGE
22.12.2023
Gyan/preeti
i) Whether speaking/reasoned? Yes/No
ii) Whether reportable? Yes/No
authenticity of this order/judgment
