N.L. Singhal, J.
1. Vide order dated 21-10-2000, Additional Sessions Judge, Amritsar convicted Kulwant Singh alias Kanta accused under Section 25 of the Arms Act and 4 & 5 of the Explosives Substances Act, 1908 and Section 6 of the Telegraph Act, 1985 and sentenced him as follows:--
Sr. No. Under Section Imprisonment and fine
1. 25 The Arms Act R.I. for five
years and to pay fine Rs. 1000/- In
default of payment of fine to undergo further RI
for six months.
2. 4 of the Explosive R.I. for five years and to pay fine Rs. 1000/- In
Substance Act, default of payment of fine to undergo further RI
1908 for six months.
3. 5 The Explosives R.I. for five years and to pay fine Rs. 1000/- In
Substances Act, default of payment of fine to undergo further RI
1908 for six months.
4. 6 read with Section 20 of the R.I. for one year and to pay fine Rs. 200/- In
Telegraph Act, 1985 default of payment of fine to undergo further RI
for 15 days.
2. Not satisfied with his conviction and sentence recorded against him by Additional Sessions Judge, Amritsar, he has come up in appeal to this Court.
3. Brief facts of the case are that on 16-11-1995, SI Sukhdev Raj was posted as SHO Police Station Patti when he was informed by SI Surinder Pal Singh, SHO, PS Sirhali that there was secret information against Kulwant Singh alias Kanta with him since 27-10-1995. On the basis of that information couched in ruqa Ex. PC case FIR No. 203 dated 27-10-95 was registered at PS Patti under Section 25 Arms Act and that he should be ready to conduct raid at his tubewell. SI Surinder Pal Singh accordingly reached Police Station, Patti. SI Sukhdev Raj, SI Surinder Pal Singh, SI Nirmal Singh and other police officials raided the tubewell/motor (kotha) of Kulwant Singh alias Kanta accused, where he was found sleeping. He was taken into custody and interrogated. On interrogation, he disclosed that he had kept concealed one walkie--talkie set, four bombs, fuse wires, one magazine and 30 rounds in his tubewell kotha and that he alone was aware about their concealment and that he could get the same recovered. His disclosure statement Ex. PE was recorded. It was signed by him and attested by the witnesses. He got recovered wireless set Ex. PI. antena Ex. P2, five metre wire Ex. P3, four bombs Ex. P4 to P7, 36 fuse wires Ex. P8 to P43, 30 cartridges Ex. P44 to P73, magazine Ex. P74, and one battery Ex. P75 and Gunny bag Ex. P76. These were taken into possession vide memo Ex. PF. These had been made into sealed parcel sealed with seal bearing impression 'SR'. Offences made out under Section 3 of the Official Secrets Act and 4 and 5 of the Explosives Substances Act, 1908 were added to the already registered FIR. Visual site plan was prepared as to the place of recovery.
4. Sh. L.D. Hans, District Magistrate, Amritsar accorded sanction Ex. PA for the prosecution of the accused under Section 25 of the Arms Act. Shri P.D. Rana Ammunition Examiner, Punjab opened the sealed parcel produced before him on 2-1-1996 by ASI Jatinderjit Singh. From that parcel, he took out 36 fuses, 30 cartridges of AK 47 assault rifle and four aluminium bombs. He mechanically tested the fuses, cartridges and aluminium bombs. On checking fuses, cartridges and aluminium bombs, he found them in serviceable condition. Material checked was sufficient to cause harm to human life and property if ignited. He was qualified ammunition examiner at Army Ordnance Corps, Jabalpur in the year 1978. He put the material checked again in the same bag which was sealed with the seal bearing impression 'SR' . Sealed parcel was handed over by him to ASI Jatinderjit Singh. Sanction Ex. PB was accorded by Sh. K.B. Singh Sidhu, District Magistrate Amritsar for prosecuting the accused under Sections 4, 5 of the Explosives Substances Act, 1908, as envisaged by Section 7 of the Act.
5. After investigation, Kulwant Singh alias Kanta was challaned.
6. Kulwant Singh alias Kanta was committed to the Court of Sessions by Judicial Magistrate 1st Class Pati vide order dated 17-1-1997.
7. Accused was charged-under Section 25 of the Arms Act, 4 and 5 of the Explosive Substances Act and 6 of the Telegraph Act. He pleaded not guilty to the charge and claim trial. At the conclusion of trial, the learned Additional Sessions Judge found the charges proved against him. He accordingly convicted and sentenced him thereunder as set out above.
8. I have heard the learned counsel for the appellant, learned DAG for the State of Punjab and have gone through the record.
9. Learned counsel for the appellant submitted that the disclosure statement said to have been made by the accused should not be believed as it has no ring of truth about it. It was supported by none other an SI Nirmal Singh and SI Sukhdev Raj, PWs. It was submitted that when raid was conducted at the tubewell of the accused on the information supplied to Sukhdev Raj SI by SI Nirmal Singh, there was no occasion for SI Sukhdev Raj not to have joined independent witness in the raiding party. It was submitted that he ought to have joined some independent witness in the raiding party, so that colour of genuineness/assurance could be lent to this raid. It was submitted that he remained admitted in Civil Hospital Gurdaspur till 3-8-1995 for fracture of right leg and left arm. He was admitted on 2-8-1995 and discharged on 3-8-1995. In support of this submission, he drew my attention to Ex. DB. It was submitted that on 3-8-1995 he was admitted in Research Centre, Amritsar with fracture of right Tibia. He was treated by Dr. Hardas Singh. He was operated upon and plating of Tibia was done by Dr. Hardas Singh on 4-8-1995. He was discharged from the hospital on 9-8-1995. He had been going to that hospital for follow up treatment after 9-8-1995 also. He drew my attention to the bed head ticket Ex. DA. It was submitted that Sh. Surlnder Singh Kairon belongs to the village of the accused. He was involved falsely due to election feud by his enemies. He was advised strict, rest and even after three months, he could walk only with crutches. It is true that the disclosure statement is not witnessed by any independent witness. It is witnessed only by SI. Surinder Pal Singh, SHO Police Station Sirhali, SI Nirmal Singh, Incharge Police Post Naushera Panuan. It is equally true that there was no occasion for SI Sukhdev Raj to plant explosives and ammunition on him. As per SI Sukhdev Raj etc. he was found in possession of 30 live cartridges of A.K. 47 rifle along with one magazine, one foreign made wireless set bearing the words made in Japan Kenwood T.Section 440 $ along with mike having the word Dynamic Microphone Impedance 600 made in Japan inscribed on it and antennas. There is no animus so far as SI Sukhdev Raj is concerned to plant such a big haul of ammunition etc. on him. It was submitted by the learned counsel for the appellant that the District Magistrate's sanction would not avail so far as the recovery of explosives is concerned. It was submitted that for prosecuting accused under Section 4 and 5. of the Explosives Substances Act, sanction of the Central Government was required under Section 7 of the Explosives Substances Act. Sanction of the State Government would also do if there were delegation by the Central Government in favour of the State Government. It was submitted that there is delegation by the Central Government in favour of the State Government, so far as the grant of sanction under Section 7 of the Explosives Substances Act is concerned. It was submitted that there is no delegation in favour of the District Magistrate. Assuming that there was any delegation, there could be no delegation by the State Government in his favour as the State Government was itself a delegatee of the Central Government. A delegatee cannot delegate its authority still further. In support of this submission he drew my attention to Shingara Singh v. State of Punjab, AIR 1971 Punjab and Har 246 : 1971 Cri LJ 966 where it was held that 'according of sanction for prosecution under Section 5 of the Explosives Substances Act is the function of the Central Govt. but this function of the Central Govt. can be delegated to the State Govt. and if this function is delegated by the Central Govt. to the State Govt. that function becomes the function of the Central Govt. It was held that a statutory function of the State Govt. becomes the function of the Governor and the business of the State Govt. under Article 166(3) of the Constitution such statutory business. It is, therefore, competent for the Governor to allocate such statutory function to the Ministers by making rules under Article 166(3). The State Govt. while according sanction under Section 7 of the Explosives Substances Act would no doubt be discharging the function of the Central Government and not of the State Government, but the performance of this function would be the business of the State Government, for the convenient transaction of which the Governor can make rules of business under Article 166(3). While making rules under Article 166(3) the Governor is not legislating in respect of the matters included in List I of the Seventh Schedule of the Constitution and is only regulating the manner in which the business of the State Government is to be performed.'
10. In this case sanction to prosecute the accused under Sections 5, 6 of the Explosives Substances Act, 1908 was given by Sh. KBS Sidhu, District Magistrate Amritsar which is a valid sanction. In para 4 of the sanction order Ex. PB, the District Magistrate has mentioned that by virtue of notification No. SC 1359 dated 30-4-1977, the Central Government has delegated its powers to the District Magistrates for the said function of the Central Government.
11. In my opinion the accused was thus justifiably convicted and sentenced under Section 25 of the Arms Act, 4 and 5 of the Explosive Substances Act and 6 of the Telegraph Act. This appeal fails and is dismissed.