On Friday, conviction of former IAS Officer and former Chief Secretary of the State of Nagaland S.S. Ahluwalia under Section 417 IPC read with Section 415 IPC, Section 471 IPC read with 467 IPC and under Section 25 of the Arms Act was set aside by Sh. Harish Kumar, Special Judge, CBI, Rouse Avenue Courts.
The Appellant had been convicted for having knowingly and dishonestly used forged license for purchasing two weapons and for having possessed more firearms than permissible limit of three as mentioned in Section 3 of the Arms Act. Possession of firearm in contravention of section 3 is punishable by way of Section 25 of the Arms Act. As per section 39 of the Arms Act, no prosecution can be instituted against any person in respect of any offence under section 3 without the previous sanction of the district magistrate.
The contentions raised by the Prosecution and the Appellant and the observations by the Court are as follows:
Was CBI competent to carry on investigation and file report under Section 173 CrPC when the sanction had been withdrawn by the State of Nagaland and the RC had been quashed by Hon'ble High Court of Delhi?
The Ld. Judge rejected these grounds for appeal and held that these issues were no more res integra and had already been dealt by the Hon'ble High Court of Delhi and the Apex Court.
The Ld. Judge held that permission/consent under Section 6 DSPE Act once granted cannot be revoked with retrospective effect.
The Ld. Judge further upheld that, "in law an FIR has only two fates that is to say it will either culminate into a report under Section 173 CrPC or it may be quashed by the Hon'ble High Court. There is no third fate of an FIR at investigation stage."
Lack of sanction under Section 197 CrPC
While declaring that there was no requirement of sanction under section 197 CrPC since 'act of acquiring firearms for self protection cannot be said to be part of his official duty'.
However, the Judge declared that, "it must be borne in mind that Section 197 CrPC bar jurisdiction of the Court to take cognizance and since it relates to competence of the court therefore it can be raised at any stage even if it was inadvertently not raised before the Trial Court."
Whether the appellant had dishonestly and fraudulently induced the authority to issue a fourth arm license and whether the appellant had manipulated/ added in the said license?
The LD. Judge held that the Trial Court had acquitted the appellant under section 420 and 467 IPC since the CBI had failed to prove the same. Thus, the said finding had attained finality since the acquittal had not been appealed against by CBI.
Once it has been proved on record that appellant had applied for fourth license then it is for the appellant to prove that he had applied for two firearms?
The Judge, rejecting the contention held, that it is not sustainable as it is always the prosecution who has the onus to prove its allegation beyond reasonable doubt against the accused person.
The Judge reiterated that it is settled law that case of the prosecution has to stand on its own legs and any weakness or failure to prove his defense by the accused, would not ipso facto prove the case of the prosecution.
Whether Arms rules do not permit more than one weapon under one license?
On the failure of the prosecution to prove by way of examination of witnesses whether the fourth license was issued for one arm only or not, the Ld. Judge upheld the arguments of the Counsels for the Appellant.
The Ld. Judge iterated that in the license itself was a heading requiring disclosing of description of each weapon with details. The Judge opined that if there had been a rule that only one firearm would be issued under one license then there was no need to have such disclosure of each weapons.
Whether the Ld. Trial Court committed error in holding the appellant guilty of offense under Section 417 IPC r/w Section 415 IPC and offense under Section 471 IPC r/w Section 467 IPC?
The Judge held that once prosecution failed to prove that the fourth license was in respect of only one firearm, appellant cannot be accused of having induced the arms dealer to sell him two weapons under the license as said license was in fact in respect of two weapons as has been held herein before and therefore appellant cannot be held guilty for having knowingly used forged/false license and induced the seller to sell him two weapons.
Whether the prosecution against the appellant was legally instituted in respect of the offense under Section 25 of Arms Act with valid sanction as required under Section 39 of the Arms Act?
The Judge stated that it has been held in numerous decision by the Hon'ble Supreme Court and High Court that want of sanction takes away the jurisdiction of the court and the defect is not curable.
The Judge further stated that it has been held that obtaining of sanction is not a mere formality, it has to be proved that it was granted by the competent authority after applying his mind.
The Judge proclaimed that it should be proved that firearms or the weapon pertaining to which sanction was prayed for was actually taken to the concerned authority and that the said authority after looking at all the relevant papers and applying his mind granted the necessary sanction.
The Judge declared that a defective sanction is no sanction in the eye law.
The Judge noted that in the present case chargesheet qua offense under Section 3(2) of the Arms Act punishable under Section 25 of the Arms Act was filed on 23.12.1992 that is to say prosecution was instituted on 23.12.1992 but sanction was obtained on 21.08.1996 and filed on 20.12.1996 after about 4 years of the filling of the chargesheet.
The Judge asserted that, "Sanction dt 21.08.1996, even if valid, cannot relate back to the date of institution dt. 23.12.1992. Hence, there was no compliance of Section 39 of the Arms Act which lays down requirement of previous sanction before institution of prosecution."
Relying on Smt. Javitri Devi v. State 1971 Crl.L.J 1340 (V 77 C 384), Om Prakash v. State 1980 RLR 649, Ashish Sinha & Ors v. State of Chhatishgarh 2009 Crl. L.J. 184 and Sukhlal & Anr. v. State of Madhya Pradesh 1998 Crl.L.J. 1366, the Ld. Judge further held that the Ld. Trial Court had no competence to take cognizance and try the appellant in respect of offense under Section 25 of the Arms Act without previous sanction. Laying down the grounds for a valid sanction, the Ld. Judge held the sanction obtained by CBI was vitiated by concealment of relevant material and thus invalid.
The judge held that the sanctioning authority must be informed of the fact of previous refusal of sanction or grant of defective previous sanction, weapons or firearms (alongwith with ballistic report in the event of doubt as to whether the arms is firearms or not) must be taken to the Competent Authority for his inspection along with other materials like FIR, seizure memo, statements of witnesses etc., in order to ensure proper application of mind on the part of the sanctioning authority.
Thus, conviction of the accused under Section 25 of the Arms Act cannot be sustained both for want of previous sanction and for want of valid sanction irrespective of it being post or previous to the institution of prosecution.
The appellate court then declared that the entire proceeding in respect of offence under Section 25 of Arms Act was void and acquitted the appellant.
The said appeal was filed by Advocates Akash Nagar and Ramisha Jain.