BIKALANANDA BEURA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS application under Section 482. Cr.P.C. has been filed challenging the order dated 23.7.1998 passed by the learned S.D.J.M. (Sadar), Cuttack in G.R. Case No. 739/1994 framing charge for commission of offence under Section 9 B of the Indian Explosives Act as well as under Sections 25/27 of the Arms Act.

(2.) THE case of the prosecution is that on 10.5.1994 from the house of the petitioner one gupti, one gun, one small knife, three numbers of parsuram farsa, two numbers of tenta, two iron rods, one sword, some live bombs, white powder, red powder, fishing net, etc. were recovered and seized. Pursuant to such seizure, the aforesaid G. R. Case was registered for commission of offence under Section 9 B of the Indian Explosives Act as well as under Sections 25/27 of the Arms Act. On 5.5.1997 when the matter was taken up for framing of charge, an application was filed by the petitioner to discharge him on the ground that no offence is made out even the seizure of the articles stated above is accepted. Refusing the prayer to discharge the petitioner, the learned Magistrate framed charge in respect of the aforesaid offences. Challenging the said order, the petitioner approached this Court in Crl. Misc. Case No. 1982/1997. While disposing of the application on 28.5.1997, this Court directed the learned Magistrate to reconsider the matter and pass necessary orders recalling the order framing charge in the event it is found that no offence is made out. On re consideration, the learned Magistrate by order dated 23.7.1998 confirmed the earlier order dated 5.5.1997 and the order dated 23.7.1998 is under challenge before this Court in this application.

(3.) HE further submitted that so far as Section 25 of the Arms Act is concerned there being no allegation that the petitioner was manufacturing or selling, transferring etc. any arms or ammunition in contravention of Section 5, no offence is committed. The only offence that can be said to have been committed by the petitioner is under Section 25(IB) for being in possession of such ammunition in contravention of Section 3. This provision will also not be applicable in absence of a sanction under Section 39 of the Act. In this connection, a decision of this Court reported in 1990 (1) OLR 574 Md. Subhan v. State of Orissa is relied upon. This Court in the aforesaid decision has clearly held that, for instituting a prosecution under Section 25 of the Arms Act, no sanction is necessary but for prosecution of Section 27 of the Act sanction is necessary. So far as Section 26 of the Arms Act is concerned, it is submitted by the learned counsel for the petitioner that there being no material to show that the petitioner ever used the arms and ammunition seized from his house, offence under Section 27 is not attracted.