29/11/2021
The Supreme Court has observed that illegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27 of the Arms Act, 1959 ("Act"), without proving the misdemeanour u/s 5 or 7 of the Act.
The Court also observed that at best, it could be a 'misconduct' under the service rules.
The bench of CJI NV NV Ramana, Justices Surya Kant and AS Bopanna in the present matter was considering a criminal appeal against Punjab and Haryana High Court's order dated May 19, 2010 ("impugned order").
As per the impugned order, the High Court had confirmed the order of conviction and sentence dated July 25, 2006 passed by Additional Sessions Judge, Chandigarh of the appellant who was convicted under Section 307 of the Indian Penal Code, 1860 ('IPC') and Section 27 of the Act and sentenced to rigorous imprisonment of 3 years for both the offences, with a direction that sentences will run concurrently.
While partly allowing the appeal by setting aside conviction and sentence u/s 27 of the Act but maintaining conviction u/s 307 IPC, the bench in observed,
"The Appellant was admittedly a police official at the time of the incident and the arms and ammunition used for the commission of the offence, were placed in his possession under the sanction accorded by the Competent Authority. The Appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed weapon, as prohibited under Section 5 of the Arms Act. It appears that the Trial Court was swayed by irrelevant considerations such as illegal use of the weapon, and lost track of the objective of the Statute, which has been enacted to provide a licensing/regulatory regime, to enable law abiding citizens to carry arms, and also to prohibit the possession, acquisition, manufacture, etc. of certain categories of fi****ms, unless authorized by the Central Government."
"...the llegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27, without proving the misdemeanour under Section 5 or 7 of the Arms Act. At best, it could be a 'misconduct' under the service rules, the determination of which was not the subject of the trial", the Court held.
Factual Background
On July 10, 1999, the appellant entered Complainant's residential office in an inebriated condition and stating that he was a beat officer of the lane, asked for a glass of water. After consuming the water served to him, the Appellant threatened the Complainant by pointing the pistol at him and asked him to stand and raise his hands. He thereafter moved around the table towards the Complainant, pulled the lever and made himself ready to fire. Sensing the seriousness of the situation, Complainant lunged at the Appellant and pushed his hand towards the ceiling, which resulted in the bullet, fired from the pistol, hitting the ceiling of the office.
The Appellant then attempted to fire a second time, however, he was unable to and in the said exercise a bullet fell from his pistol. While the ladies of the office entered the office and raised a holler, panic-stricken, the Appellant rushed out of the office, left behind his wireless set on the Complainant's table and his scooter outside the house.
The Trial Court convicted the Appellant under Section 307 IPC and Section 27 of the Act and awarded a sentence of rigorous imprisonment for 3 years.
Discontented with his conviction, the Appellant preferred an appeal before the High Court of Punjab & Haryana. The High Court upon reappraisal of the evidence, sustained conviction and the consequential sentence imposed by the Trial Court and dismissed the appeal.
Aggrieved, the Appellant approached the Top Court.
Contention Of The Counsels
The appellant's counsel raised four principal contentions, First, that there was an absence of 'motive' on behalf of the Appellant to kill the Complainant. Second, there was an absence of intent, which could not be imputed from the Appellant's conduct. Third, doubts were sought to be created through re appreciation of evidence once again, including, by depicting that the statements of the eye witnesses suffered from material contradictions, fatal to the prosecution's case. Fourthly that conviction u/s 27 of the Arms Act was not sustainable as the weapon used by the Appellant was licensed and misuse of a licensed weapon was not a mischief under Section 5 of the Arms Act.
Supreme Court's Analysis
One of the issues that arose for consideration was whether Appellant's conviction under Section 27 of the Arms Act was sustainable.
In this regards, the bench in the judgement authored by Justice Surya Kant observed that there was no gainsay that in order to prove a charge u/s 27 of the Act, the prosecution must necessarily demonstrate contravention of either Section 5 or Section 7 of the Act.
The bench further opined that it appeared that the Trial Court had held the case to be a breach of Section 5 of the Act, which stipulated that no person shall use, possess, manufacture, etc. any fi****ms, unless such person holds a license in this behalf, and prescribes a minimum punishment of 3 years of imprisonment.
Thereafter while setting aside the conviction u/s 27 of the Act, the bench said, "True it is that prior to the amendment of Section 27 of the Arms Act, vide Arms (Amendment) Act 1988, the said provision penalized the use of any arms and ammunitions for any 'unlawful purpose'. However, post its amendment, Section 27 of the Arms Act is strictly confined to violation of conditions mentioned either under Section 5 or 7 of the Arms Act and the 'unlawful purpose' of using arms and ammunition is no longer an inseparable component of the delinquency."
Case Title: Surinder Singh v State (Union Territory Of Chandigarh)| Criminal Appeal No. 2373 Of 2010
Coram: CJI NV Ramana, Justices Surya Kant and AS Bopanna
Citation : LL 2021 SC 687
