It is extremely significant to note that the Apex Court just recently on November 26, 2021 in a learned, laudable, landmark and latest judgment titled Surinder Singh vs State (Union Territory of Chandigarh) in Criminal Appeal No. 2373 of 2010 has made it absolutely clear 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). The Apex Court also observed that at best, it could be a 'misconduct' under the service rules. It must be also mentioned here that the Bench of Apex Court comprising of CJI NV Ramana, Justice Surya Kant and Justice AS Bopanna in this present matter was considering a criminal appeal against Punjab and Haryana High Court's order dated May 19, 2010 (impugned order).
To start with, this notable judgment authored by Justice Surya Kant for CJI NV Ramana, himself and Justice AS Bopanna sets the ball rolling by first and foremost observing in para 1 that:
Appellant-Surinder Singh has laid challenge to the judgement dated 19th May 2010 of the High Court of Punjab and Haryana, whereby, the order of his conviction and sentence dated 25th July 2006 passed by Learned Additional Sessions Judge, Chandigarh was confirmed. The Appellant has been convicted under Section 307 of the Indian Penal Code, 1860 (hereinafter 'IPC') and Section 27 of the Arms Act, 1959 (hereinafter, 'Arms Act'), and sentenced to rigorous imprisonment of 3 years for both the offences, with a direction that sentences will run concurrently.
While elaborating on the facts of the case, the Bench then envisages in para 2 that:
The prosecution case in brief is that, on 10th July, 1999, Mansur Ali, Advocate (Complainant) was sitting at his residential office alongwith his clerk Maler Singh (PW-3), giving dictation to his steno, R.K. Sood (PW4). At about 5:30 PM, the Appellant, who was then a Head Constable in Chandigarh Police, entered the residential office of the Complainant in an inebriated condition and stating that he was a beat officer of the lane, asked for a glass of water. He thereafter sat across the Complainant and after consuming the water served to him by Balbir Singh (PW5), pulled out his service pistol and threatened the Complainant by pointing the pistol at him and stated that there are 10 bullets in this gun and I will kill 20 people today. Appellant also asked the Complainant to stand and raise his hands. At the same time, he directed Maler Singh and R.K. Sood to step outside the office, to which they complied. In the meantime, the Appellant 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.
While continuing in a similar vein, the Bench then enunciates in para 3 that, 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. By that time, the ladies of the house had entered the office and raised a holler. Panicstricken, Appellant rushed out of the office, leaving behind his wireless set on the table of the Complainant and his scooter outside the house. No injury was caused to the Complainant. The incident was then reported to the police. Upon receiving the information, about 10-15 minutes later, police officials arrived at the house of the Complainant and F.I.R. was lodged against the Appellant, whereafter, the police officials sprang into action and the Appellant was arrested by SI Ramesh Chand (PW6), who found the Appellant near the Masjid of Sector 20A, with the pistol still in his hand. Appellant was then taken for medical examination where he refused to give his urine or blood samples.
Furthermore, the Bench then states in para 4 that:
The investigation ensued in light of the above-stated facts, and upon collection of substantial evidence, the charge sheet was filed against the Appellant. The case was committed to the Additional Sessions Judge, Chandigarh, and charges under Section 307 IPC and Section 27 of the Arms Act were framed. The Appellant abjured his culpability and claimed trial.
Simply put, the Bench then lays bare in para 9 that:
Since there is no dispute regarding the presence of the Appellant at the residential office of the Complainant at the time of the incidence, or that the bullet was fired from his service pistol, the pivotal question before the Trial Court was, whether the Appellant fired the pistol, and if so, was the weapon used with the intent to kill the Complainant. The Trial Court observed that the prosecution witnesses had, by and large, supported the prosecution version and that no reason was adduced to depict why the Complainant would want to falsely implicate the Appellant. Although the Trial Court noted that there were some inconsistencies in the statement put forth by the prosecution witnesses, however, the same were held to be minor contradictions brought about naturally due to the passage of time. The Court found version of the Defense to be a patch of lies and figment of imagination, and rejected the same in its entirety.
What's more, the Bench then reveals in para 10 that:
As far as the charge under Section 27 of the Arms Act was concerned, the Trial Court observed that the Appellant had used his service pistol without any prior permission and for an illegal purpose. The act of firing by the Appellant was thus held to be in contravention of Section 27 of the Arms Act. The Trial Court therefore convicted the Appellant under Section 307 IPC and Section 27 of the Arms Act and awarded a sentence of rigorous imprisonment for 3 years.
Needless to say, the Bench then states in para 11 that:
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.
Be it noted, the Bench then observes in para 30 that:
The Appellant was admittedly a police official at the time of the incidence and the arms and ammunitions 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 firearms, unless authorized by the Central Government. In other words, illegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27, without proving the misdemeanor 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.
As a corollary, the Bench then observes in para 31 that:
In light of the afore-stated discussion, we find that the order of the Trial Court in convicting the Appellant or of the High Court in maintaining such conviction under Section 27 of the Arms Act, is unwarranted and unjust. Accordingly, the Appellant is acquitted of the charge under Section 27 of the Arms Act.
Most significantly, the Bench then holds succinctly in para 35 what forms the cornerstone of this brief, brilliant and balanced judgment that:
Adverting to the facts of the case in hand, we are of the considered view that at this stage, the sentence awarded to the appellant is no longer in degree to the crime which he has committed.
Remitting the Appellant to the rigors of imprisonment at this juncture of his life would not serve the ends of justice due to following mitigating factors:
- No motive or element of planning has been proved by the Prosecution in the present case which indicates the possibility that the offense could have been committed on impulse by the Appellant. Hence, the culpability of the offender in such situations is less than that which is ascribed in premeditated offenses as the commission of planned illegal acts denotes an attack on societal values with greater commitment and continuity in comparison to spontaneous illegal acts.
- Even though the factum of injury may not have a direct bearing on a conviction under Section 307 IPC, the same may be considered by a Court at the time of sentencing. No doubt, the offence committed by the Appellant squarely falls within the four corners of Section 307 IPC, but fortunately neither the complainant nor any other person was hurt by the untoward act of the Appellant.
- Appellant has already undergone a sentence of 3 months and 19 days. Additionally, despite the occurrence taking place in 1999, there is no indication that Appellant has been involved in any untoward activity before or after the incident. This highlights the Appellant's good character and indicates that the incident can be interpreted as an isolated lapse of judgment. Further, the Appellant's clean post-incident behaviour suggests that he is rational individual who is capable of responding to the social censure associated with the offence. Hence, the passage of a long time period coupled with a clean record, both before and after the incident is definitely a factor that calls for mitigation of sentence.
- Barring this particular incident wherein he was under the influence of alcohol, the Appellant had an unblemished service record with sixteen good citations in his favour. This indicates that he was a valuable member of society than the present criminal incident might lead one to assume. This is not to say that courts should draw up a social balance sheet when sentencing, but only to take these positive social contributions as a factor for mitigation of sentence.
- Lastly, it is to be noted that the Appellant was suspended in the year 1999 and has also been subsequently dismissed from service in the year 2007. Hence, this should also be considered as a reasonable factor for mitigation because the dismissal and the consequent loss of social security benefits such as pension, also construes as a form of social sanction.
Finally, the Bench then aptly holds in para 36 that:
Consequently and for the afore-stated reasons, the criminal appeal is partly allowed. While the conviction and sentence awarded to the Appellant under Section 27 of the Arms Act is set aside, his conviction under Section 307 IPC is maintained. The sentence under Section 307 IPC is however reduced to the period already undergone. Since, Appellant is on bail, his bail bonds are discharged.
To sum it up, the Apex Court thus makes it distinctly clear in this leading case that the illegal use of licensed weapon is per se not an offence under Section 27 of the Arms Act unless misdemeanor under Section 5 or 7 of the Act is proved. Of course, all the Courts whether they are Trial Courts or High Courts must always abide by what the three Judge Bench of the Apex Court comprising of CJI NV Ramana, Justice Surya Kant and Justice AS Bopanna have held so clearly, categorically and convincingly also in this noteworthy case! There can be just no denying it!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
