Sukkha @ Santokh Singh vs State Of Uttarakhand
2023 Latest Caselaw 1449 UK

     IN THE HIGH COURT OF UTTARAKHAND AT
                    NAINITAL

              Criminal Revision No.61 of 2013
Sukkha @ Santokh Singh
& Another                                         .....Revisionists
                               Vs.

State of Uttarakhand                                ...Respondent

                          With
              Criminal Revision No.67 of 2013
Santa Singh @ Santa                                 .....Revisionist
                               Vs.

State of Uttarakhand                                ...Respondent

Mr. Vipul Sharma, Advocate with Mr. Maneesh Bisht, Advocate for the
revisionists.
Mr. G.S. Sandhu, Government Advocate with Mr. Kuldeep Singh Rawal,
AGA for the State.

Hon'ble Pankaj Purohit, J.

Both these revisions are arising out of the judgments and orders dated 27.07.2009 passed by the Judicial Magistrate Ist Class, Udham Singh Nagar in Criminal Case Nos.372 of 2008 and Criminal Case No.374 of 2008 whereby the revisionist- Sukkha @ Santokh Singh, Sukhdev Singh @ Dodi @ Manjeet Singh and Santa Singh @ Santa were convicted for an offence under Section 25 of Arms Act and sentenced for one year rigorous imprisonment each with a fine of Rs.500/- with default stipulation that further sentence of ten days shall be served by them in case of default of payment of fine.

2. The revisionists took the matter against the conviction and sentence in the court of IInd Additional Sessions Judge, Rudrapur, Udham Singh Nagar which was registered as Criminal Appeal

No.77 of 2009 and Criminal Appeal No.78 of 2009. The learned IInd Additional Sessions Judge vide its judgments and orders dated 08.03.2013 dismissed the appeals filed by the revisionists and affirmed the judgments of conviction rendered by learned trial court vide its judgments and orders dated 27.07.2009.

3. Feeling aggrieved, revisionists is before this Court.

4. The facts of the case as unfolded by the prosecution are that on 02.04.1999 at about 08:00 p.m. and on 10.04.1999 at 08:00 p.m. the complainant, In-charge Inspector, Kiccha Ram Lakhan Singh Yadav alongwith S.I. Madan Pal Singh and other employees were out in search of accused persons, wanted in Case Crime No.185 of 199 under Sections 364-A IPC. As soon as police party reached near Haldwani Bypass, the revisionists Santokh Singh and Sukhdev Singh were intercepted and arrested; on being searched a "Tamancha" (country made pistol) 315 bore was recovered from the trousers of the revisionists/accused and two live cartridges were also recovered. Similarly, as per the prosecution, revisionist Santa Singh was also intercepted and arrested on Bareilly Road, in front of Chauhan Dhaba and on being searched a Tamancha (country made pistol) 315 bore working condition, was recovered from him with two live cartridges. Revisionists/accused had no license to keep these weapons with them. The fard memo was prepared, the accused have taken into custody and the weapons were sealed. The revisionists/accused as well as the arms recovered from them were entered into police station and the separate case crime number was registered against them.

5. After investigation, the separate charge sheets were submitted against the revisionists. During the course of the investigation, as required under Section 39 of the Arms Act, the

sanction was sought from the District Magistrate, Udham Singh Nagar and a sanction letter was written under by the then District Magistrate, Udham Singh Nagar on 08.04.1999. The prosecution in order to prove its case examined P.W.1 S.I. Jaswant Singh, P.W.2 Constable Ganesh Kumar and P.W.3 S.I. Dev Singh and the statement of the revisionists/accused under Section 313 of IPC were recorded. Accordingly, the accused were convicted by the trial court as well as by the appellate court.

6. Heard Mr. Vipul Sharma, Advocate for the revisionists and Mr. Kuldeep Singh Rawal, AGA for the State.

7. This Court is aware of its power acting under the court of revisional capacity and while dealing with the revision there is a limited power with the Court only to look into the illegality, impropriety and correctness of the judgment under revision.

8. The counsel for the revisionists has assailed the judgments impugned only on a legal ground that the sanction required under Section 39 of the Arms Act is not a mere formality. He submitted that the sanction by the District Magistrate is not a formality but it has got certain meaning and it goes to the root of the prosecution. He further submits that once the Court comes to this conclusion that the sanction is defective and it has not been given with the application of mind, the prosecution case would crumbled down completely. In order to substantiate his arguments, the counsel for the revisionists drawn the attention of this Court to the sanction letter dated 08.04.1999 Exhibit Ka-3, 4 & 5 given by the District Magistrate, Udham Singh Nagar.

9. I have perused the sanction given by the District Magistrate, Udham Singh Nagar-Shri Narendra Bhushan.

10. It has been stated in the sanction letter that the recovery memo, case diary, site plan and the weapon recovered in the sealed cover were produced before the District Magistrate and the same was perused by him. After the perusal of the documents as well as the weapons which were in a sealed cover, the District Magistrate recorded his satisfaction that the arms recovered from the possession of the revisionists/accused i.e. 315 bore "tamancha"(country made pistol) alongwith two cartridges were recovered from the illegal possession of the accused Santokh Singh and accordingly he granted a sanction under Section 39 of the Arms Act to prosecute the revisionists. This sanction letter is exhibited as Exhibit Ka-3 in the case of Santokh Singh. Likewise the sanction letter recorded the same condition in the case of Sukhdev Singh i.e. Exhibit Ka-4 in the trial court record. Similarly is the position with the sanction letter in respect of Santa Singh @ Santa which is Exhibit Ka-5 in his file.

11. Learned counsel for the revisionists submitted that in the sanction letter the District Magistrate should record his satisfaction only after unsealing the weapon recovered and thereafter the same should be put in a sealed cover. Here in the case in hand, none of the sanction letters on the record would suggest that the weapon recovered from the revisionists/accused has ever been unsealed by the District Magistrate before giving sanction. Thus, according to him from perusal of the sanction given under Section 39 of the Arms Act, it is reflected that the same is given without application of mind by the District Magistrate in a very casual and routine manner.

12. In order to buttress his argument learned counsel for the revisionists placed reliance upon the judgment reported in (2008) SCC Online MP 552 Raees Khan vs. State of M.P. Para 6 & 7 of the aforesaid judgments are quoted hereunder:-

"6. Placing his reliance on Raju Dube v. State of M.P. whereby it was held that the weapons recovered from the accused along with the records to the District Magistrate for obtaining his sanction under Section 39 of the Arms Act is mandatory and merely examining the clerk to prove the signature of the sanctioning authority would not be satisfactory to prove that the sanction was in accordance with law. The weapons must also be placed for his inspection which had not been done and the Court held that recovery of arms is doubtful since the sanction of the District Magistrate was not proved. The learned counsel for petitioner has stated that in the present case also sanction by the District Magistrate has been acquired however, learned counsel for the petitioner states that the recovery of arms is doubtful since the revolver was not placed before him and the sanction was not in accordance with Section 39 of the Act and that the accused could not be convicted under Section 25/21 of the Arms Act.

7. To bloster his submissions counsel for the petitioner also relied on Prabhudayal v. State of M.P. whereby this Court after going through several judgment and relying on Raju Dube v. State of M.P. has also relied on Cr. L.R. (M.P.) 80 Chunta S/o Kishori Lai v. State of M.P. wherein the revolver alleged to have been recovered from the possession of the appellant was not sent to the District Magistrate and District Magistrate without inspecting the weapon and without applying his mind, in routine course, gave sanction under Section 39 of the Arms Act for prosecution of the appellant then the sanction is bad. In the matter of Raju Dube (supra), the Court had held that the investigating office himself should take the instrument before the sanctioning authority for obtaining the sanction and sanctioning authority must give the sanction after applying its mind. The Court therefore, held that the sanction in the said case has not been proved and the document Ex, P-3 could not be said to be a proper sanction in the said circumstances."

13. From the perusal of the para 6 & 7 of the aforesaid judgment, it has been stated that the recovered weapon should be placed before the District Magistrate and the sanctioning

authority should inspect the same and only after applying his mind the sanction should be granted.

14. Per contra, learned State counsel has submitted that the prosecution has discharged his duty in proving its case beyond all reasonable doubt. In answer to the argument advanced on behalf of the revisionists regarding the veracity of the sanction granted by the District Magistrate under Section 39 of the Arms Act, it is submitted by him that P.W.3 the Investigating Officer Dev Singh in his examination-in-chief has categorically stated that on 08.04.1999 he obtained the sanction from the District Magistrate- Shri Narendra Bhushan, and the sanction letter is signed by the District Magistrate thereafter he identified the signature on the sanction letter, which has been exhibited as Exhibit Ka-3 and Ka- 4 and in case of Santa Singh @ Santa as Exhibit-Ka-5.

15. He further took this Court to the cross-examination of P.W.3 wherein, he has stated that he has seen the weapon recovered from the accused during the sanction was given by the District Magistrate. On the strength of this statement recorded by the trial court, it is submitted that the weapon was seen and inspected by the District Magistrate and sanction thereafter was given by the District Magistrate; therefore, the arguments advanced on behalf of the revisionists do not hold any water.

16. Learned State Counsel also took this Court to the judgment of the appellate court wherein in para 15 a finding has been recorded by the learned appellate court that it is clear from the perusal of the sanction letter that the weapon was placed before him in the sealed cover and its only after the seal was opened same was examined by the District Magistrate and sanction was given.

17. I have considered the arguments advanced by both the parties and perused the record especially the sanction letters in both the cases. The findings recorded in para 15 of the judgment of the appellate court can only be appreciated from the perusal of the sanction letters issued in the cases. But in the sanction letters, there is no such averment, of unsealing and sealing of the weapon recovered from the revisionist/accused, recorded. The evidence of P.W.3 is also lacking and is not up to the mark. He has nowhere stated in his evidence that he had seen the District Magistrate writing and he identified the writing and the signature of the District Magistrate. The evidence recorded by P.W.3 is cryptic inasmuch as, it do not prove the sanction letter.

18. Section 39 of the Arms Act is quoted hereunder:-

"39. Previous sanction of the district magistrate necessary in certain cases.―No prosecution shall be instituted against any person in respect of any offence under section 3 without the previous sanction of the district magistrate."

19. Since the Arms Act 1959 is very stringent, in order to safeguard the interest of the people, a protection has been given by way of Section 39 of the Act that in order to launch the prosecution, a previous sanction of the District Magistrate is necessary. In the opinion of this Court a valid sanction is sine qua non, for prosecution. Unless until the sanction granted is valid and is given by application of mind, the prosecution would not sustain. In the absence of application of mind and the sanction granted in a routine manner, that too without inspecting the weapon recovered, it is no sanction in the eye of law.

20. In the case in hand, this Court finds that the sanction letter dated 08.04.1999 regarding prosecution of revisionists/accused is no sanction in the eyes of law because it is reflected on careful reading of the sanction letters that same has been granted in a

very routine manner and without application of mind. There is nothing sort of written in the sanction letters that the District Magistrate had got opened the seal and inspected the weapon and thereafter got it sealed again. In this view of the matter, the prosecution case cannot stand in the absence of a valid sanction. The valid sanction goes to the root of the prosecution and in the absence of a valid sanction, the prosecution cannot sustain.

21. There is no doubt in the mind of this Court that the finding recorded by the learned Court below are perverse regarding the sanction for the reason that the findings are against the material available on record. The sanction letters has wrongly been appreciated by the learned trial court as well as by the appellate court. There is nothing in the sanction letter to suggest that the requirements for granting sanction has been complied with by the District Magistrate.

22. The upshot of the aforesaid discussion results into the quashing of the impugned judgments and orders dated 27.07.2009 passed by the Judicial Magistrate Ist Class Udham Singh Nagar in Criminal Case No.372 of 2008 State vs. Sukkha @ Santokh Singh and Another and in Criminal Case No.374 of 2008 State vs. Santa Singh @ Santa and the appellate court's judgment and order dated 08.03.2013 passed in Criminal Appeal No.77 of 2009 Sukkha @ Santokh Singh and Another vs. State and in Criminal Appeal No.78 of 2009 Santa Singh @ Santa vs. State dismissing the appeals of the revisionists and affirming the judgments and orders passed by the learned trial court are hereby set aside.

23. Both the revisions are allowed. The revisionists are acquitted from the charges leveled against them. They are on bail.

Their bail bonds are hereby discharged. The fine, if deposited by the revisionists, is directed to be refunded to them.

24. Let the lower court record be sent back to the court concerned.

(Pankaj Purohit, J.) 23.05.2023 Arti