M.C. Pathak, J.
1. This revision petition is directed against the order of conviction and sentence passed against the accused-petitioner Under Section 25(1)(a) of the Arms Act, 1959.
2. The prosecution case is that on 2-9-66 at about 8.30 P. M. the accused was found by the Assistant Sub-Inspector of Police of the Badarpur G. R. P. S. and some Excise constables, sitting on a bench in the third class waiting shed of the Badarpur Railway Station. On suspicion his luggages were searched and nothing was found. Then his person was searched and from the pocket of his trousers five live cartridges fitted to a charger of .303 rifle were recovered. The accused could not furnish any satisfactory explanation about the possession of the same. The Assistant Sub-Inspector of Police submitted an offence report to the Officer-in-charge of Badarpur G. R. P. S. After investigation charge sheet Under Section 25(1)(a) of the Arms Act was submitted against the accused-petitioner. Charge Under Section 25(1)(a) of the Arms Act was framed against him to which he pleaded not guilty.
3. The defence case was that the cartridges were not found with him. He alleged that the police personnel demanded sum of Rs. 500/- from him as he happened to he a Naga and when he refused to pay the same, the case had been instituted falsely against him. No defence witness was examined. The prosecution examined five witnesses including the Investigating Officer.
4. On consideration of the evidence on record the learned Magistrate found the charge proved against the accused-petitioner and convicted him Under Section 25(1)(a) of the Arms Act and sentenced him to suffer rigorous imprisonment for one year only. An appeal was preferred before the learned Sessions Judge who upheld the conviction but reduced the sentence to rigorous imprisonment for three months only. Hence this revision petition.
5. Mr. M. H. Choudhury, the learned Counsel appearing for the petitioner, challenges the order of the learned Sessions Judge on three grounds— (I) that there was no sanction Under Section 89 of the f Arms Act, 1959; (2) that the charge was illegal; and (3) that the sentence was severe.
6. It is found from the judgment of the learned Sessions Judge that no sanction was really proved and made an exhibit in the instant case. P.W. 5, the Investigating Officer, stated that sanction was obtained for prosecution of the accused. The learned Counsel appearing for the State submits that the order of sanction was filed along with the charge-sheet and the sanction order is in the record. The sanction found in the record is in the following terms:—
Sanction in hereby accorded for prosecution of Shri Lai Singh Kabui s/o. Khagithen Kabui of Sanguibron P. S. Imphal Manipur State Under Section. 25(1)A of the Arms Act, 1959 in connection with Badarpur G. R. Ps Case No. 1 (9) 66 as recommended by the S. R. P. Assam Haflong vide his No. E/19954/SR-37/66, dated, 27-10-66.
It is submitted at the bar that the letter of the S. R, P. is not in the case record. Mr. Chaudhury, the learned Counsel submits that the sanction in the instant case is bad on two grounds — firstly, that the sanction was not accorded by the District Magistrate as required Under Section 39 of the Arms Act, and secondly the alleged sanction is not a sanction for prosecution as required under the law.
7. The sanction has been accorded by the Additional District Magistrate (E), Cachar, No notification could be produced by the learned Counsel for the State to show that the Additional District Magistrate concerned was empowered by the State Government Under Section 10 (2) of the Criminal Procedure Code to have all or any of the powers of a District Magistrate under any other law for the time being in force. Even assuming that the Additional District Magistrate concerned was authorised Under Section 10 (2) of the Criminal Procedure Code for exercising powers of District Magistrate under any other law, we have to consider whether the sanction in the instant case is sufficient under the law. It does not appear on the face of the sanction order whether the facts of the case were placed before the sanctioning authority. On the other hand it is found that the learned Additional District Magistrate accorded sanction for prosecution of the accused as recommended by the S. R. P. Assam, Haflong. It is not at all clear from the sanction order that the sanctioning authority applied his mind to the facts of the case to come to a decision of his own whether sanction for prosecution in the instant case should be accorded or not. In the case of Gokulchand Dwarkadas Morarka v. The King A.I.R. 1948 PC 82 it has been observed as follows:—
A sanction which simply names the person to be prosecuted and specifies the provision of the Order which he is alleged to have contravened is not a sufficient compliance with Clause 23. In order to comply with the provisions of Clause 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential since Clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Where facts are not referred to on the face of the sanction nor is it proved by extraneous evidence that they were placed before the sanction- ing authority, the sanction is invalid, and the trial Court would not be a Court of competent jurisdiction. This being so the defect cannot be cured Under Section 537, Criminal P.C., as a defect in the jurisdiction of the Court can never be cured Under Section 537.
In Madan Mohan Singh v. State of Uttar Pradesh, reported in : AIR1954SC637 , the Supreme Court observed—
The burden of proving that the requisite sanction has been obtained rests on the prosecution, and such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based; and these facts might appear on the face of the sanction or might be proved by extraneous evidence. In the present case the facts constituting the offence do not appear on the face of the letter Ex. P-10. It was consequently incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority. This they did not attempt to do.
In the instant case curiously enough the sanction was not proved. It is found that the facts that were placed before the sanctioning authority do not appear on the face of the sanction order found in the record. No evidence has been produced by the prosecution that the material facts were placed before the sanctioning authority for giving sanction for prosecution Under Section 39 of the Arms Act, That being the position it is not known whether the .sanctioning authority at all considered the facts of the case before lie accorded the sanction. That apart, the sanction in the instant case appears to have been made as recommended by the S. R. P., which shows that it was simply a stereotyped order of the Additional District Magistrate without applying his mind to the facts of the case.
8. In the circumstances I hold that the sanction order, which appears in the record of the case, is not a sanction order as contemplated Under Section 39 of the Arms Act, and since there was no sanction in accordance with law the Court had no jurisdiction to try the accused at all and the conviction and sentence of the petitioner must be quashed.
9. In the result the petition is allowed and the conviction and sentence of the petitioner Under Section 25(1)(a) of the Arms Act, are quashed.
10. Since the petition is allowed on this important point, I do not think it necessary to discuss the other points raised by the learned Counsel.