Himachal Pradesh High Court
Harpreet Singh vs State Of H.P on 11 January, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MMO No. 207 of 2012-G
Reserved on : 29.12.2016
Decided on : 11.1.2017
of
Harpreet Singh .....Petitioner.
Versus
State of H.P. .....Respondent.
Coram
rt
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. R.K Bawa, Senior Advocate with S/Shri Vinod Kumar Thakur and Mr. Amit Dhumal, Advocate.
For the Respondent: Mr. Vivek Singh Attri, Deputy Advocate General alongwith Mr. Mukesh Kumar, HPS, ACP (HQ), Panchkula.
_______________________________________________________ Sureshwar Thakur, Judge Through the instant petition, the petitioner seeks quashing of FIR bearing No. 47/2011 of 29.4.2011 borne on Annexure P-1 lodged with Police Station East, Shimla also he 1 Whether reporters of the local papers may be allowed to see the judgment?
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seeks quashing of the apposite sanction granted for his .
prosecution by the competent sanctioning authority, sanction whereof stands embodied in Annexure P-9, besides he seeks quashing of consequential proceedings pending before the of learned Judicial Magistrate Ist Class Court, No.1, Shimla.
2. The genesis of the prosecution case rests upon rt FIR No. 47/2011 borne on Annexure P-1 wherein unfoldments occur qua the Inspector concerned, on receiving information qua eruption of a dispute amongst Gurpraveen Kaur, Gurpreet Singh, Gurinder Singh, Kavita Chaudhary, Virender Kumar and Shiv Kumar, his proceeding to the relevant site of its eruption, on arrival whereat he noticed qua hot altercations standing exchanged between the aforesaid. The Inspector concerned interceded for pacifying the warring groups, yet the petitioner wielding a rifle in his hands arrived at the relevant site, whereupon others persons present thereat, stood constrained to beseech the Inspector ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...3...
concerned, to notice the factum of the petitioner wielding a .
weapon, with user whereof there emanating an imminent harm to their lives whereupon the Inspector concerned snatched the rifle from the hands of the petitioner, in sequel of whereof he discovered qua in its magazine, its holding five live cartridges. The Inspector concerned took the rifle along rt with the live cartridges borne in its magazine in his possession, for its safe keeping in the Police Station concerned. Since the petitioner did not at the relevant time hold a valid license qua the rifle, evidently its license expiring on 23.9.2010, in sequel whereto he did not from the licensing authority concerned obtain its renewal therefrom, thereupon the petitioner stood booked for committing offences constituted under Sections 25/30-54-1959 of the Arms Act.
3. On conclusion of investigations into the offences allegedly committed by the petitioner, the Superintendent of ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...4...
Police, Shimla made a communication to the District .
Magistrate, Shimla for the latter according sanction for prosecuting the accused qua the offences embodied in the FIR. The competent sanctioning authority, on applying its of mind to the relevant material placed before it, it proceeded to under Annexure P-8 accord the statutory sanction under rt Section 39 of the Act, for prosecuting the accused. In aftermath, the Investigating Officer concerned under Annexure P-6 submitted a report under Section 173 of the Code of Criminal Procedure before the Magistrate concerned in consequence whereof, the apposite proceedings for holding the petitioner to trial for his committing offences Punishable under Section 25/30-54-1959 stood initiated thereat against him wherefrom the petitioner stands aggrieved, thereupon he stands constrained to institute the instant petition before this Court.
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4. This Court had under its orders rendered on .
4.11.2016 requisitioned the apposite record(s) qua renewal of license qua the apposite rifle from the relevant licensing authority. The official concerned deputed by the licensing of authority concerned to produce herebefore the records vis-à-
vis renewal of the license qua the rifle aforesaid wielded at rt the relevant site of occurrence by the petitioner, appeared before this Court on 16.12.2016 whereupon he placed herebefore the apposite original record also placed on record an attested copy qua the orders pronounced by the licensing authority concerned whereupon it renewed the license qua the apposite rifle. A perusal of an attested copy whereof underscores the factum of the licensing authority concerned on 26.3.2014 accepting the prayer made in the apposite application qua renewal of arms license qua rifle aforesaid besides it also condoned the occurrence of a delay of 3 years 10 months since its expiry upto its renewal. On anvil of the ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...6...
licensing authority concerned condoning the delay of 3 years .
and 10 months since the expiry of the apposite licence upto the concert of its holder to beget its renewal therefrom, the learned counsel for the petitioner strives to obtain succor of from the provisions of Sub Rule (4) of Rule 54 of Arms Rule 1954, provisions whereof stand extracted hereinafter, qua the rt renewal of arms licence vis-à-vis the rifle owned by the petitioner, by the competent authority especially when the delay of 3 years 10 months, as has evidently extantly occurred, since its expiry upto its renewal stands hereat condoned, for his making an espousal herebefore qua thereupon the apposite renewal rendered it to hold retrospective validity whereupon it encompasses the date whereat the weapon/rifle stood wielded at the site of occurrence by the petitioner herein also concomitantly nullifying the apposite statutory infraction attracted vis-à-vis the petitioner .
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"(4) The licensing authority may consider an .
application for renewal of a licence, if the period between the date of its expiry and the date of application is not, in his opinion, unduly long with due regard to the circumstances of the case, and all renewal fee for the intervening period are paid; otherwise of the application may be treated as one for grant of a fresh licence."
5. The aforesaid submission addressed herebefore rt by the learned counsel for the petitioner warrants its standing countenanced, as a circumspect analysis of the apposite sub rule (4) of Rule 54 of the Arms Rules, unravels a communication qua the licensing authority concerned, on application of mind upon the apposite application qua renewal of an expired arms licence besides its thereupon holding a view qua the delay inter-se its expiry vis-à-vis the applicant preferring therebefore an application for its renewal being not inordinately procrastinated also with the attending circumstances purveying a sound and tangible explanation qua the relevant omission of the arm holder in ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...8...
seeking its prompt renewal therefrom, its concomitantly .
holding a statutory empowerment to condone the apposite delay inter-se its expiry vis-à-vis the concert of the applicant to beget its renewal therefrom, whereupon it stands entailed of with an obligation to command the applicant, to deposit the apposite renewal fee, thereupon the renewal of the expired rt arms license holding validation with retrospectivity, contrarily when the delay in the expiry of the relevant arms licence vis-à-vis the apposite concert for its renewal remains un-condoned, thereupon the apposite renewal of the arms licence being construable to be holding prospective effect or its validity commencing from the date of its renewal.
6. Pointedly hereat when as afore-stated the licencing authority concerned within the mandate of sub rule (4) of rule 54 of the Arms Rules has condoned the delay as evidently has occurred hereat comprised in the petitioner herein belatedly seeking therefrom renewal of an expired ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...9...
licence vis-à-vis his rifle, imperatively aroused the ensuing .
imminent statutory consequence of its apposite renewal holding retrospective validity, in sequel whereto its renewal is to stand construed to hold validity from the date whereat of it stood expired.
7. Moreover, on the afore-stated statutory anchor, rt the learned counsel for the petitioner makes a fervent espousal herebefore qua the failure on the part of the petitioner to within the ambit of Section 21 of the Arms Act, 1959, provisions whereof stand extracted hereinafter, not make deposit of the relevant arm/weapon before the officer incharge of the police Station concerned located in immediate proximity to the place whereat it stood possessed by him also not attracting qua him the penal consequences encapsulated therein, conspicuously with renewal by the licensing authority concerned of the arms licence qua the apposite rifle wielded at the relevant site of occurrence by ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...10...
the petitioner, for reasons afore-stated foisting retrospective .
validation qua it besides the concomitant derivative qua retrospectivity of its validation also enjoining erection of an inference qua the inculpatory ascription imputed to him by of the prosecution standing subsumed also thereupon the rigor of section 21 of the Act standing both relaxed besides rt whittled down.
"21. Deposit of arms, etc., on possession ceasing to be lawful.-(1) Any person having in his possession any arms or ammunition the possession whereof has, in consequence of the expiration of the duration of a licence or of the suspension or revocation of a licence or by the issue of a notification under Section 4 or by any reason whatever, ceased to be lawful, shall without unnecessary delay deposit the same either with the officer incharge of the nearest police station or subject to such conditions as may be prescribed, with a licensed dealer or where such person is a member of the armed forces of the Union, in a unit armoury.
Explanation.- In this sub-section "unit armoury" includes an armoury in a ship or establishment of the Indian Navy.
(2) Where arms or ammunition have or has been deposited under sub-section (1) the depositor or in the ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...11...
case of his death, his legal representative, shall, at any .
time before the expiry of such period as may be prescribed, be entitled-
(a) to receive back anything so deposited on his becoming entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, or of
(b) to dispose, or authorize the disposal, of anything so deposited by sale or otherwise to any person entitled by virtue of this Act or any other law rt for the time being in force to have, or not prohibited by this Act or such other law from having, the same in his possession and to receive the proceeds of any such disposal:
Provided that nothing in this sub-section shall be deemed to authorize the return or disposal of anything of which confiscation has been directed under Section 32.
(3) All things deposited and not received back or disposed of under sub-section (2) within the period therein referred to shall be forfeited to Government by order of the district magistrate:
Provided that in the case of suspension of a licence no such forfeiture shall be ordered in respect of a thing covered by the licence during the period of suspension.
(4) Before making an order under sub-section (3) the district magistrate shall by notice in writing to be served upon the depositor or in the case of his death, upon his legal representative, in the prescribed manner, ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...12...
require him to show cause within thirty days from the .
service of the notice why the things specified in the notice should not be forfeited.
(5) After considering the cause, if any, shown by the depositor or as the case may be, his legal representative, the district magistrate shall pass such order as he thinks fit.
of (6) The Government may at any time return to the depositor or his legal representative things forfeited rt to it or the proceeds of disposal thereof wholly or in part."
8. However the legal vigor of the aforesaid argument for the reasons ascribed hereinafter omnibusly wanes:-
(a) sub rule (4) of Rule 54 of the Arms Rules therein with statutory specificity besides explicity though does render the renewal of an expired arms licence to hold retrospective validation whereupon its renewal renders the apposite arms licence to acquire validation from the date of its expiry, conspicuously when for ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...13...
good and sufficient reasons, the licensing .
authority condones the delay in the applicant belatedly seeking its renewal therefrom yet the mandate of sub Rule 4 of Rule 54 of the Arms of Rules does not with explicitly take within its ambit, the factum qua the retrospective renewal of rt the arms licence, of the relevant arms holder also begetting the consequence(s) of its relieving besides relaxing any omission on the part of the arms holder to on its expiry promptly make deposit of the weapon/arm before the Officer incharge of the police station concerned, located in proximity whereat its seizure occurred. Unless the rigor of the mandate of Section 21 stood relaxed by sub rule (4) of Rule 54 of the Arms Rules, thereupon any omission on the part of the arms holder to immediately on expiry of licence ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...14...
qua the relevant firearm make deposit of the .
relevant weapon before the Officer incharge of the police station concerned located in immediate proximity wherefrom its seizure occurred of necessarily would visit upon him the concomitant consequences delineated in Section 21 of the Act. rt Nowat, for reiteration when sub rule (4) of Rule 54 of the Arms Rules, omits to with vividity make bespeakings therein qua on the licencing authority concerned within its ambit retrospectively validating the arms license(s) of the licence holder concerned, concomitantly thereupon the rigor of the mandate of Section 21 of the Act standing denuded or whittled down, thereupon the relevant aforestated statutory omission(s) on the part of the petitioner significantly at the stage contemporaneous to expiry of the arms license ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...15...
vis-à-vis his rifle, when concomitantly visibly .
begets infraction vis-à-vis its mandate, corollary whereof is qua the concomitant consequences statutorily spelt in Section 21 of the Arms Act of standing enjoined tobe inevitably visited upon the petitioner herein.
rt
(b) Section 21 of the Arms Act, imposes a rigorous statutory fiat upon the arms holder, to immediately on expiry of the apposite arms licence thereupon make a prompt deposit of the relevant arm/weapon before the Officer incharge of the police station concerned, located in immediate proximity to the place wherefrom it stood seized. The imposition of a rigorous statutory fiat upon the holder, of an expired arms licence to immediately on its expiry makes an expeditious deposit of the relevant firearm before ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...16...
the Officer Incharge of the police Station .
concerned, did imperatively entail upon the petitioner to on expiry of the apposite arms licence, in tandem therewith make therebefore an of expeditious deposit of the relevant firearm/weapon, yet the petitioner omitted to rt beget compliance therewith rendering thereupon the mandate of Section 21 of the Arms Act to stand thereat awakened vis-à-vis him dehors any retrospective validation standing accorded by the licencing authority vis-à-vis his relevant rifle also dehors any renewal of the licence qua his rifle by the licencing authority concerned though subsuming besides rendering unbereft of any sinew any penal ascription made vis-à-vis him by the prosecution nonetheless the effect, if any, qua the license held by the petitioner qua his apposite ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...17...
rifle standing expired on 23.9.2010 though stands .
subsumed yet would not subsume the effect of the aforesaid statutory omission of the petitioner, to, within the ambit of the mandate of Section 21 of of the Arms Act, on expiry of the apposite arms licence, rt with prompt immediacy therefrom deposit the relevant weapon before the Officer Incharge of the police station concerned, significantly when the salutary purpose behind the engraftment of relevant Section 21 in the Arms Act, is to preempt besides is to prohibit the holder of an expired arms licence, to thereafter make its personal use or facilitate its untoward user by any other person. Consequently when the underlying purpose qua its issuance stands grooved in its facilitating the licence holder of the relevant weapon/arm, to ward away any ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...18...
imminent threat qua his property besides qua his .
body standing mounted by an equally empowered aggressor, purpose whereof remains statutorily alive only during the subsistence of a of licence qua the relevant weapon/firearm whereas it may not remain alive on its expiry, contrarily rt thereafter its user may prima-facie acquire a blemish or tinge qua its wielding besides brandishing or user standing unaroused by any imminent threat to his property besides to his body, standing mounted by an equally empowered aggressor rather its wielding /brandishing being construable to be its untoward user also its unauthorized user also it befittingly rendering erection of an inference qua its untoward user being a ploy on his part to intimidate persons. The aforesaid inferences are ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...19...
inherently inbuilt in the petitioner infracting the .
mandate of Section 21 of the Arms Act.
9. The learned counsel for the petitioner also submits qua with the petitioner standing not unraveled in of the FIR to commit an offence within the ambit of Section 21 of the Arms Act, would render the trial Magistrate concerned rt to unbefittingly hold him to trial qua his transgressing the mandate of Section 21 of the Act. However, the aforesaid mishap in the prosecution case, may stand remedied besides may stand cured, by the APP concerned, on his making a motion before the learned trial Magistrate for permission to obtain sanction for prosecuting the accused for his committing an offence punishable under Section 21 of the Arms Act whereafter on his obtaining thereupon an affirmative pronouncement from the learned trial Magistrate concerned, the Investigating Officer concerned may on obtaining from the competent authority, sanction for ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...20...
prosecuting the petitioner for his committing the afore-
.
referred offence thereupon proceed to file a supplementary challan therebefore embodying therewithin the factum of the petitioner infracting the aforesaid provisions of law of whereupon the learned Magistrate concerned may proceed to frame a charge against the petitioner herein qua his rt committing an offence punishable under Section 21 of the Arms Act, whereupon the omission of the learned Trial Magistrate to initially charge the accused for his committing an offence thereunder may stand remedied besides redeemed.
10. The learned counsel for the petitioner, has with vigor contended before this Court qua the purported penal misdemeanor committed by the petitioner comprised in his brandishing or wielding, the apposite rifle without his at the relevant time holding a valid arms licence qua it, it expiring thereat, purported wielding whereof by the petitioner in the ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...21...
presence of the Investigating Officer concerned, stood .
actuated by his concert to purportedly intimidate the persons with whom he was holding a wrangle at the site of occurrence not constituting any offence under Section 5 of of the Arms Act, provisions whereof stand extracted hereinafter. He while making the aforesaid submission rt emphasizes upon the parlance borne by the words "expose or offer" occurring in clause (b) of Sub-Section (1) of Section 5 of the Arms Act whereto he qua the coinage "expose"
occurring therein ascribes a connotation qua on its standing imperatively read in coagulation with the phrase "offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof..." occurring subsequent thereto also with title thereof standing christened as "Licence for manufacture, sale, etc., of arms and ammunition" qua its warranting a concomitant ascription of a signification qua it provenly standing "exhibited" either in the relevant ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...22...
manufactory or in the retail outlet of a licenced arms dealer, .
contrarily its brandishing or wielding by the petitioner at the relevant site of occurrence not rendering it to befittingly constitute its standing "exhibited" thereat nor thereupon its of "exhibition" at the relevant site of occurrence by the petitioner falling within the ambit of the parlance borne by rt the statutory coinage "expose" whereupon he further proceeds to contend qua its provisions standing attracted only vis-à-vis manufacturers of arms and ammunition besides only qua sellers of arms and ammunition whereas contrarily its mandate remaining un-attracted vis-à-vis the petitioner significantly when he neither is a manufacturer of arms or ammunition nor a seller of arms and ammunition.
5. Licence for manufacture, sale, etc., of arms and ammunition.- (1) No person shall-
(a) use, manufacture, sell, transfer, convert, repair, test or prove, or
(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair test or proof, ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...23...
Any firearms or any other arms of such class or .
description as may be prescribed or any ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.
(2) Notwithstanding anything contained of in sub-section (1), a person may, without holding a licence in this behalf, sell or transfer any arms or ammunition which he lawfully possesses for his rt own private use to another person who is entitled by virtue of this Act, or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having in his possession such arms or ammunition:
Provided that no firearm or ammunition in respect of which a licence is required under Section 3 and no arms in respect of which a licence is required under Section 4 shall be sold or transferred by any person unless-
(a) he has informed in writing the district magistrate having jurisdiction or the officer in charge of the nearest police station of his intention to sell or transfer such firearms, ammunition or other arms and the name and address of the person to whom he intends to sell or ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...24...
transfer such firearms, ammunition or .
the other arms, and
(b) a period of not less than forty-five days has expired after the giving of such information."
11. The aforesaid submission looses its sheen of significantly when it palpably emanates qua in its espousal herebefore the learned counsel for the petitioner attributing rt unnecessary emphasis upon the title of section 5 of the Arms Act standing christened as "License for manufacture, sale etc., of arms and ammunition" wherefrom he reads the coinage "expose" occurring preceding the words "Offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof..."" to convey qua its standing read as "exposure" or "exhibition" for its sale at the relevant authorized manufactory or at the authorized retail outlet also he therefrom concerts to espouse qua its wielding or brandishing by the petitioner not falling within the innate parlance borne by the statutory coinage "expose", ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...25...
whereas on a deep analysis of the title qua Section 5 of the .
Arms Act, it is visible qua the word "Manufacturer"
standing succeeded by the coinage "etc". wherefrom it is apt to conclude qua the coinage "etc." succeeding "manufacturer of or sell" taking within its domain "any person" holding any arm or ammunition.
rt
12. Immense leverage to the aforesaid inference stands galvanized from the factum of the proviso to Section 5 of the Arms Act, casting an obligation upon "any person"
concerting to sell or transfer his firearm to beget compliance with the statutory requirements encapsulated therewithin wherefrom with hence the statutory coinage "etc" embodied in the title of Section 5 of the Arms Act standing read in coagulation therewith besides in coalescence with the statutory "coinages" preceding besides succeeding thereto, reiteratedly generates a momentous ensuing inference qua the underlying innate signification borne by the coinage ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...26...
"etc" is qua its taking within its mandate besides its gamut .
"any person" other than a manufacturer of arms and ammunitions or any seller of arms and ammunitions, thereupon an apt derivative is qua the word "expose"
of occurring in Section 5 (1)(b) of the Act, holding a parlance not as misunderstood besides mis-espoused by the counsel rt for the petitioner herein qua the relevant firearm warranting its standing "exposed" or "exhibited" in the authorised manufactory or the authorized retail outlet of the arms dealer concerned, for thereupon its provisions standing attracted rather even the brandishing or wielding of an un- licenced weapon/arm, rendering it amenable to stand construed to be "exposed" within the statutory gamut of the coinage "expose" occurring in clause (b) of sub Section (1) of Section 5 of the Arms Act. The restrictive abridged construction placed by the learned counsel for the petitioner upon the parlance borne by the statutory coinage "expose"
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occurring in clause (b) of sub Section (1) of Section 5 of the .
Arms Act, apposite coinage whereof exists in the apposite statutory provisions preceding the relevant proviso thereto, would hold vigor besides immense clout, only when the of proviso subsequent thereto stood unengrafted in the relevant Section 5 of the Arms Act, contrarily with the relevant rt proviso engrafted therewithin also its existence therewithin being subsequent to the existence besides embodying therein of clause (b) in sub Section (1) of Section 5 of the Arms Act wherewithin the statutory coinage "expose" stands engrafted renders the apposite proviso to hold clout besides strength whereupon it stands enjoined to be read in coagulation with the statutory provisions preceding thereto whereupon concomitantly the abridged restrictive parlance stands mis-
imputed to the statutory coinage "expose" by the counsel for the petitioner, contrarily it is to stand concluded qua its holding an enlarged besides an extended signification in the ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...28...
manner alluded hereinabove. Unless the aforesaid .
interpretation to the parlance "expose" occurring in clause
(b) of sub-Section (1) of Section 5 of the Arms Act, stands lent by this Court thereupon the salutary purpose behind the of relevant statutory enactment, prohibiting user of an unlicensed weapon or firearm would stand baulked also rt would facilitate absolute leeway besides latitude to not only unlicensed manufactories of arms and ammunitions besides to unlicensed arms dealers also to any person(s) to facilitate untoward user of firearm(s)/weapon(s) whereupon at times it may hold the ill consequence of spurring insurgencies besides militancy ultimately would open gateways for meteing of threats by its wielder despite his not facing an imminent threat to his person or body, for whose obviation besides protection alone license(s) qua the apposite rifle(s)/arm(s) stand(s) issued by the licensing authority concerned.
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13. Be that as it may, any validation with .
retrospectivity by the licensing authority concerned qua the apposite licence qua the rifle wielded by the petitioner at the site of occurrence would not exculpate its un-authorized of "exposure" by the petitioner herein significantly when he thereat did not hold a valid licence qua it. Conspicuously rt when its "exposure" has to hold a connotation qua its brandishing or wielding standing aroused for negating any imminent threat to his person or body whereas extantly the "exposure" of the apposite rifle by the petitioner herein comprised in his brandishing it, stands prima-facie unfolded by a revelation occurring in the apposite FIR, to contrarily stand aroused for purportedly intimidating persons aforesaid at the site of occurrence, for preemption of its lethal user upon other persons present at the site of occurrence, the investigating officer concerned stood constrained to snatch it from the petitioner also when thereat it carried live ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...30...
cartridges in its magazine wherefrom it stands concluded .
qua the petitioner herein "exposing" it for facilitating its lethal use upon the persons present at the site of occurrence, obvious concert whereof besides negating the principle of underlying its purported lawful permitted user by a licenced arms holder also aggravatingly with the petitioner rt evidently thereat not holding a valid license qua the relevant arm/weapon whereupon though he immediately on expiry of the apposite licence qua the relevant weapon for hence obviating its prompt mis-user or its untoward user stood statutorily enjoined to make its prompt deposit before the Officer Incharge of the police station concerned located in immediate proximity to the site of occurrence whereas his transgressing the mandate of the relevant statutory provisions prima facie renders him amenable to face the relevant consequences.
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14. In aftermath, for carrying forward the salutary .
mission behind engraftment of Section 21 of the Arms Act thereupon the coinage "expose" occurring in Section 5(1) (b) of the Arms Act also cannot hold any signification, than its of exposure being only for a purpose holding consonance with the statutory purpose for which it stood sanctioned vis-à-vis rt the relevant arms holder also thereupon the relevant statute for obviating its untoward user by a manufacturer of arms and ammunition or an authorized dealer in arms and ammunition or by any "other persons" also statutorily injuncting the afore-referred entity(s)/person(s), to, on expiry of the relevant licence(s) qua the relevant arm(s)/ammunition(s), to, immediately on expiry thereof make deposit of the relevant firearm(s) before the Officer incharge of the police Station concerned located in immediate proximity whereat the manufactory or retail ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...32...
outlet stands located or the weapon stands kept by any .
person.
15. The learned counsel for the petitioner has submitted with force qua the according of an apposite of sanction by the learned Magistrate Shimla being bereft of the virtue qua his thoroughly applying his mind to the material rt which stood placed before him wherefrom he contends qua the principle engrafted in paragraph 4 of the judgment of the Hon'ble Apex Court reported in AIR 1958 SC 124 titled as Jaswant Singh versus State of Punjab, paragraph whereof stands extracted hereinafter also standing transgressed, in sequel whereto he proceeds to canvass qua with the sanction for launching prosecution against the accused/petitioner herein wanting in legal efficacy thereupon the instant petition warranting its standing allowed. However, the aforesaid espousal made by the learned counsel for the petitioner suffers enfeeblement, as a perusal of the order ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...33...
sanctioning the prosecution of the accused/petitioner herein, .
holds visible unfoldements therewithin tellingly bespeaking the trite factum qua the District Magistrate concerned,, in proceeding to pronounce an order sanctioning the of prosecution of the accused/petitioner herein, his thereat standing seized with the entire germane relevant material rt also his thoroughly applying his mind thereto, corollary whereof is qua the order of the District Magistrate concerned affirmatively approving the requisition made upon him by the authority concerned for sanction standing accorded for prosecuting the accused/petitioner herein, not, standing stained with any vice qua his neither standing seized with the relevant material nor it suffering from any blemish qua his not thoroughly applying his mind thereto.
"The sanction under the Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness; Basque Agarwala v. King Emperor (1). The object of the provision for sanctions is that the authority giving the sanction should be able to ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...34...
consider for itself tile evidence before it comes to a conclusion that .
the prosecution in the circumstances be sanctioned or forbidden. In Gokulchand Dwarkadas Morarka v. The King (2) the Judicial Committee of the Privy Council also took a similar view when it observed: " In their Lordships' view, to comply with the provisions of cl. 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable of that the facts should be referred to on the face of the Sanction, but this is not essential, since cl. 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts rt 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. (1)[1945] F.C.R. 93,98 (2) [1948] L.R. 75 I.A.30, 37 It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and therefore unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. In Yusofalli Mulla Noorbhoy v. The King (1) it was held that a valid sanction on separate charges of hoarding and profiteering was essential to give the court jurisdiction to try the charge. Without such sanction the prosecution would be a nullity and the trial without jurisdiction."::: Downloaded on - 15/04/2017 21:53:54 :::HCHP
...35...
16. The learned counsel for the petitioner submits qua .
the coinage(s) occurring in Section 2 (1) (d) of the Arms Act, provisions whereof stand extracted hereinafter conveying qua the commissioner of Police appointed with respect to a of particular area by the State Government also its echoing qua any Deputy Commissioner Police appointed by the State rt Government, standing statutorily construable to be "District Magistrate", thereupon with compliance vis-à-vis the mandate of Section 39 of the Arms Act, which stands extracted hereinafter, being both indispensable besides preemptory for thereupon the Court concerned holding an empowerment to take a valid cognizance upon the offences committed by the accused wherefrom he espouses qua the licensing authority/ the commissioner of police Panchkula who issued the apposite licence vis-à-vis the apposite rifle alone holding the apt statutory empowerment qua sanctioning the prosecution of the accused whereas the ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...36...
Commissioner of police, Panchkula not according sanction .
for prosecuting the accused, thereupon the prerequisite statutory requirement, for the Magistrate concerned to take a valid cognizance qua the offences committed by the of accused herein not begetting satiation thereupon rendering the cognizance taken by the Magistrate concerned to suffer rt enfeeblement. However, the aforesaid submission also holds no force for the simple reason qua the parlance ascribed thereunder to the coinage "District Magistrate" occurring in Section 2(1)(d) of the Arms Act, is limited to areas wherewithin the State Government appoints a Deputy Commissioner Police or a Commissioner Police also it would hold applicability hereat when in tandem therewith, the Government of Himachal Pradesh had appointed a Commissioner of Police or a Deputy Commissioner Police to hold the apposite territorial jurisdiction upon the area where the unlicensed arm/weapon stood exposed or wielded by ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...37...
the petitioner herein, yet with the aforesaid factum .
remaining unraveled by any material existing hereat, thereupon the District Magistrate concerned is to stand construed, to, within the mandate of section 39 of the Arms of Act, hold the requisite competence to grant sanction for prosecuting the accused, for the offences constituted in the rt FIR. Also the fulcrum of the offence(s) constituted in the FIR rests upon infraction by the petitioner with the mandate of Section 5 of the Arms Act, infraction whereof occurred within the territorial limits of the jurisdiction of the District Magistrate, Shimla also when at the relevant time dehors retrospective validation standing accorded on expiry of license qua the apposite rifle held at the relevant stage by the petitioner qua it significantly when it stood "exposed"
besides "brandished" within the territorial limits of the jurisdiction of District Magistrate, Shimla, the latter held the apposite jurisdiction to accord an apposite sanction for ::: Downloaded on - 15/04/2017 21:53:54 :::HCHP ...38...
prosecuting the accused for the offences alleged. Also any .
interpretation than the one which stands afforded hereinabove would also lead to the ill fate of any unauthorized exposure by the accused of unlicensed of arm/weapon warranting his prosecution not by the Court within whose rt territorial jurisdiction the relevant unauthorized exposure erupts rather warranting his standing tried by the Court within the territorial limits of whose jurisdiction the licensing authority concerned stands located.
(d) "district magistrate" in relation to any area for which a Commissioner of police has been appointed, means the Commissioner of Police thereof and includes any such Deputy Commissioner of police, exercising jurisdiction over the whole or any part of such area, as may be specified by the State Government in this behalf in relation to such area or parts."
"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."::: Downloaded on - 15/04/2017 21:53:54 :::HCHP
...39...
17. In view of the above, there is no merit in the petition, .
the same is accordingly dismissed. All pending applications stand disposed of accordingly.
18. Any observation made herein above shall not be of taken as an expression of opinion on the merits of the case and the learned trial Court shall decide the matter uninfluenced by rt any observation made herein above.
11th January, 2017 (Sureshwar Thakur)
(priti) Judge
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