Delhi HC: Whether accused is entitled to get default bail if chargesheet is filed without obtaining Sanction U/S 39 of Arms Act

 The maximum period of 180 days which is being granted to the investigating agency to complete the investigation in the case wherein the prosecution is for the offence under UAPA is not something in the form of a package that everything has to be completed including obtaining of sanction within this period of 180 days. As observed above, the investigating agency has nothing to do with sanction. Sanction is altogether a different process. Sanction is accorded, based on the materials collected by the investigating agency which forms the part of the final report under Section 173CrPC. The investigating agency gets full 180 days to complete the investigation. To say that obtaining of sanction and placing the same along with the charge-sheet should be done within the period of 180 days is something which is not only contrary to the provisions of law discussed above, but is inconceivable." {Para 53}

37. In view of the above judgments of the Supreme Court and this Court, the filing of the chargesheet against the Applicant in the present case, without sanction under Section 39 of the Arms Act, does not render the said chargesheet incomplete under Section 193(3) of the BNSS. Consequently, the case of the Applicant that it is entitled to default bail under Section 187(3) of the BNSS, is without any merit as obtaining sanction is not contemplated under the said provision.

 IN THE HIGH COURT OF DELHI

Bail Appln. 1713/2025

Decided On: 25.06.2025

Suraj Kanojia Vs. State Govt of Nct of Delhi

Hon'ble Judges/Coram:

Tejas Karia, J.

Citation: MANU/DE/4621/2025.

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Delhi HC: Chargesheet Filed under S.187(3) BNSS Without Obtaining Sanction To Prosecute Under Arms Act Not Incomplete, No Default Bail

 Further, the Supreme Court in the case of Judgebir Singh v. NIA, MANU/SC/0501/2023 : 2023:INSC:472 : (2023) 17 SCC 48 referred to the judgment in Suresh Kumar (supra) and held that a chargesheet filed without sanction cannot be treated as an incomplete chargesheet and does not entitle an accused to a default bail as contemplated under Section 167(2) of the CrPC [now Section 187(3) of the BNSS]. 

"45. We find no merit in the principal argument canvassed on behalf of the appellants that a charge-sheet filed without sanction is an incomplete charge-sheet which could be termed as not in consonance with sub- section (5) of Section 173CrPC. It was conceded by the learned counsel appearing for the appellants that the charge-sheet was filed well within the statutory time period i.e. 180 days, however, the court concerned could not have taken cognizance of such charge-sheet in the absence of the orders of sanction not being a part of such charge-sheet. Whether the sanction is required or not under a statute, is a question that has to be considered at the time of taking cognizance of the offence and not during inquiry or investigation. There is a marked distinction in the stage of investigation and prosecution. The prosecution starts when the cognizance of offence is taken. It is also to be kept in mind that cognizance is taken of the offence and not of the offender. It cannot be said that obtaining sanction from the competent authorities or the authorities concerned is part of investigation. Sanction is required only to enable the court to take cognizance of the offence. The court may take cognizance of the offence after the sanction order was produced before the court, but the moment, the final report is filed along with the documents that may be relied on by the prosecution, then the investigation will be deemed to have been completed. Taking cognizance is entirely different from completing the investigation. To complete the investigation and file a final report is a duty of the investigating agency, but taking cognizance of the offence is the power of the court. The court in a given case, may not take cognizance of the offence for a particular period of time even after filing of the final report. In such circumstance, the accused concerned cannot claim their indefeasible right under Section 167(2)CrPC for being released on default bail. What is contemplated under Section 167(2)CrPC is that the Magistrate or Designated Court (as the case may be) has no powers to order detention of the accused beyond the period of 180 days or 90 days or 60 days as the case may be. If the investigation is concluded within the prescribed period, no right accrues to the accused concerned to be released on bail under the proviso to Section 167(2)CrPC. {Para 36}

46. Once a final report has been filed with all the documents on which the prosecution proposes to rely, the investigation shall be deemed to have been completed. After completing investigation and submitting a final report to the court, the investigating officer can send a copy of the final report along with the evidence collected and other materials to the sanctioning authority to enable the sanctioning authority to apply his mind to accord sanction. According sanction is the duty of the sanctioning authority who is not connected with the investigation at all. In case the sanctioning authority takes some time to accord sanction, that does not vitiate the final report filed by the investigating agency before the court. Section 173CrPC does not speak about the sanction order at all. Section 167CrPC also speaks only about investigation and not about cognizance by the Magistrate. Therefore, once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order.

 IN THE HIGH COURT OF DELHI

Bail Appln. 1713/2025

Decided On: 25.06.2025

Suraj Kanojia Vs. State Govt of Nct of Delhi

Hon'ble Judges/Coram:

Tejas Karia, J.

Citation: MANU/DE/4621/2025.

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Main features of Arms Act (Amendment) 2019

 By amending Section 3, the Act reduces the number of permitted firearms from three to one.

As per the Act, those who own more than two firearms will have to deposit the third one with authorities or authorised gun dealers within 90 days for de-licensing once the amendment is approved by the Parliament.

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Is prosecution for an offence under Arms Act tenable if accused is not in conscious possession of arms?

The status report has been filed and it has been verified that the petitioner had borrowed the luggage from Ms Bindu Gupta. It has also been verified that at the material time Col. Prashant Gupta held a valid arms licence bearing no. 2515/9/2017 PS Sec-20, NOIDA, UP. He also admitted that the ammunition recovered from the petitioner belongs to him. During the course of investigation, the seized ammunition was sent to FSL for ballistic examination and opinion. The FSL report has since been received.

9. It is the petitioner's case that he was not conscious of the fact that there the luggage carried by him contained live ammunition. He states that  he was in a hurry and packed the luggage with his belongings oblivious of the fact that it also contained live ammunition.

10. In Gunwant Lal v. The State of Madhya Pradesh : (1972) 2 SCC 194, the Constitution Bench of the Supreme Court has held as under:-

“The possession of a firearm under the Arms Act in our view must have, firstly the element of consciousness or knowledge of that possession in the person charged with such offence and secondly where he has not the actual physical possession, he has none-the-less a power or control over that weapon so that his possession thereon continues despite physical possession being in someone else. If this were not so, then an owner of a house who leaves an unlicensed gun in that house but is not present when it was recovered by the police can plead that he was not in possession of it even though he had himself consciously kept it there when he went out. Similarly, if he goes out of the house during the day and in the meantime someone conceals a pistol in his house and during his absence, the police arrives and discovers the pistol he cannot be charged with the offence unless it can be shown that he had knowledge of the weapon being placed in his house. And yet again, if a gun or firearm is given to his servant in the house to clean it, though the physical possession is with him nonetheless possession of, it will be that of the owner. The concept of possession is not easy to comprehend as writers of (sic) have had occasions to point out. In some cases under Section 19(1)(f) of the Arms Act, 1878 it has been held that the word "possession" means exclusive possession and the word "control" means effective control but this does, not solve the problem. As we said earlier, the first precondition for an offence under Section 25(1)(a) is the element of intention, consciousness or knowledge with which a person possessed the firearm before it can be said to constitute an offence and secondly that possession need not be physical possession but can be constructive, having power and control over the gun, while 

the person to whom physical possession is given holds it subject to that power and control.”

11. In Sanjay Dutt v. State through CBI Bombay (II), Crimes 1994 (3) 344 (SC) the Supreme Court has observed as under:-

“20. The meaning of the first ingredient of "possession' of any such arms etc. is not disputed. Even though the word 'possession' is not preceded by any adjective like 'knowingly', yet it is common ground that in the context the word 'possession' must mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is a mental element in the concept of possession. Accordingly, the ingredient of 'possession' in Section 5 of the TADA Act means conscious possession. This is how the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an unauthorized substance has been understood.”

12. In view of the above, it is well settled that an offence under Section 25 of the Arms Act would not be made out in cases where the suspect was not conscious that he was in possession of live ammunition.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(CRL) 754/2020

ADHIRAJ SINGH YADAV  Vs STATE 

CORAM:

HON'BLE MR. JUSTICE VIBHU BAKHRU

Dated:  31.12.2020

[Hearing held through videoconferencing]

CRL.M.A. 5635/2020

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Whether the court can hold accused guilty for the offence under Arms Act if he had a country-made pistol, not in working condition?

  The next the question to be addressed is whether the appellant’s

conviction under Sections 25 and 27 of the Arms Act is maintainable.

It was contended on behalf of the appellant that the country made

pistol (katta) was in a state of disrepair and therefore, could not be used as a weapon. It was argued that in view of the same, the country made pistol could not be considered as a firearm and therefore, neither the offence under Section 25 nor the offence under Section 27 of the Arms Act was established.

23. The country made pistol (katta) recovered from the appellant

was sent to the Forensic Science Laboratory (FSL). The FSL report

has been brought in evidence. The said report indicates that the

country made pistol is of 315 bore, which was designed to fire a

standard eight MM/.315 cartridge. It is also reported that a cartridge

recovered is a live one and could be fired through .315 bore firearm.

The said report (Ex.PW9/A) expressly records that the country made pistol recovered is a firearm and the cartridge is ammunition as designed under the Arms Act.

24. Sh. Puneet Puri, SSO (Ballistics), FSL was examined as PW9.

He had testified that the country made pistol was not in working order and required repair to bring it into working condition.

25. The contention that the country made pistol (katta) recovered

from the appellant is not a firearm, is unmerited. 

26. Undeniably, the country made pistol (katta) recovered from the appellant was designed to discharge a projectile and therefore, even though it may have fallen into disrepair it, nonetheless, falls within the definition of a ‘firearm’ within the meaning under Section 2(e) of the Arms Act.

27. It is also relevant to refer to Section 45 of the Arms Act, which

contains exclusionary clauses and inter alia, specifies that the Arms

Act would not apply to certain arms and ammunition in the given

circumstances. Clause (c) of Section 45 of the Arms Act is relevant and expressly provides that nothing in the Arms Act would apply to “any weapon of an obsolete pattern or of antiquarian value or in disrepair which is not capable of being used as a firearm either with or without repair”. Thus, a firearm, which is capable of being used as such with certain repairs is clearly not excluded from the scope of the Arms Act by virtue of Section 45(c) of the said Act.

28. In addition, a live cartridge was also recovered from the

appellant. A live cartridge falls within the definition of ‘ammunition’

as set out in Clause (b) of Section 2 of the Arms Act. Possession of

ammunition is a punishable offence under Section 25 of the Arms Act.

The use of such ammunition is punishable under Section 27 of the

Arms Act. Thus, there is little doubt that the appellant is guilty of

committing an offence punishable under Sections 25 and 27 of the

Arms Act.

IN THE HIGH COURT OF DELHI AT NEW DELHI

 Judgment delivered on: 15.09.2020

 CRL. A. 807/2017

SONU @ RAJA  Vs STATE 

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Whether the court can rely on evidence of the police officer if independent witnesses do not support it?

 The contention that the testimony of the police witnesses could

not be relied upon in absence of corroboration by any public witness, is unpersuasive. Merely because witnesses from the general public that had allegedly assembled at the spot, were not examined does not mean that the testimony of police officials is required to be discarded.

17. In the case of Kalpnath Rai Vs. State: (1998) AIR SC 201, the

Supreme Court observed as under:

“There can be no legal proposition that evidence of police

officers, unless supported by independent witnesses, is

unworthy of acceptance. Non-examination of independent

witness or even presence of such witness during police raid

would cast an added duty on the court to adopt greater care

while scrutinising the evidence of the police officers. If the

evidence of the police officer is found acceptable it would

be an erroneous proposition that the court must reject the

prosecution version solely on the ground that no

independent witness was examined.”

IN THE HIGH COURT OF DELHI AT NEW DELHI

 Judgment delivered on: 15.09.2020

 CRL. A. 807/2017

SONU @ RAJA  Vs STATE 

CORAM

HON’BLE MR JUSTICE VIBHU BAKHRU

Dated: 15-9- 2020

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Whether prosecution U/S 3 of Arms Act is tenable without sanction of district magistrate?

Shri   R.H.   Raolani,   advocate   for   the   appellant   No.1   has
submitted that the Sessions Court has committed an error in convicting the
appellant No.1 for the offence under Section 3 read with Section 25 of the
Arms Act, 1959, overlooking the provisions of Section 39 of the Arms Act
which lay down that no prosecution shall be instituted against any person in
respect of any offence under Section 3 without the previous sanction of the
District Magistrate.  In support of his submission, the learned advocate has
relied on the judgment given in the case of  Kamalsingh Vs. State of Mah.,
reported in 2005(1) Mh.L.J. 218.  

It is undisputed that the prosecution is launched against the
appellant No.1 for the offence under Section 3 read with Section 25 of the
Arms Act, 1959 without there being sanction of the District Magistrate.  The
learned A.P.P. has not been able to counter the submission made on behalf of
the appellant No.1  relying on the provisions of Section 39 of the Arms Act.
In the facts of the case, it has to be held that the conviction of the appellant
No.1 for the offence punishable under Section 3 read with Section 25 of the
Arms Act is unsustainable and it has to be set aside.  
  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 27  OF 2000
Viransingh @ Simansingh S/o.
Attarsingh Tomar,
 V
State of Maharashtra,

               CORAM : Z.A.HAQ, J.
               DATED   : MAY 11, 2016.
Citation:2016 ALLMR(CRI)2616

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