# STATE OF PUNJAB v. DALBIR SINGH

- **Citation:** [2012] 4 S.C.R. 608
- **Court:** Supreme Court of India
- **Decided:** 2012-02-01
- **Case number:** Criminal Appeal No. 117 of 2006
- **Bench:** Asok Kumar Ganguly, Jagdish Singh Khehar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-punjab-v-dalbir-singh-28417
- **Pages:** 53

## Headnote

Arms Act, 1959 - s.27(3) - Vires of - Mandatory death
c penalty as imposed u/s.27(3) - If justified - Held: Mandatory
death penalty has been found to be constitutionally invalid in
various jurisdictions where there is an independent judiciary
and the rights of the citizens are protected in a Constitution -
In s.27(3), the provision of mandatory death penalty is more
0
unreasonable inasmuch it provides whoever uses any
prohibited arms or prohibited ammunition or acts in
contravention of s. 7 and if such use or act results in the death
of any other person then that person guilty of such use or
acting in contravention of s. 7 shall be punishable with death
E - The word 'use' has not been defined in the Act - Therefore,
the word 'use' has to be viewed in its common meaning - In
view of such very wide meaning of the word 'use' even an
unintentional or an accidental use resulting in death of any
other person shall subject the person so using to a death
penalty - Both the words 'use' and 'result' are very wide - Such
F a law is neither just, reasonable nor is it fair and falls out of
the 'due process' test - The concepts of 'due process' and the
concept of a just, fair and reasonable law has been read by
this Court into the guarantee u!Articles 14 and 21 of the
Constitution - s.27(3) is thus violative of Articles 14 and 21 of
G the Constitution - Principles of Eighth Amendment of the U.S.
Constitution (which provides for guarantee against cruel and
harsh punishment) have a/so been incorporated in our laws -
Direct mandate of the Constitution under Article 13 is that the
State shall not make any law which takes away or abridges
H
608
STATE OF PUNJAB v. DALBIR SINGH
609
the right conferred by Part Ill of the Constitution and any law A
made in contravention of the same is, to the extent of
contravention, void - s.27(3) is in clear contravention of Part
Ill rights - It also deprives the judiciary from discharging its
Constitutional duties of judicial review whereby it has the power
of using discretion in the sentencing procedure - s.27(3) is B
against the fundamental tenets of our Constitutional law as
developed by this Court - It is ultra vires the Constitution and
is void - Constitution of India, 1950 - Articles 13, 14 and 21.
Penal Code, 1860 - ss. 302 and 307 - Acquittal of
accused on ground of benefit of doubt - Justification - Accused C
CRPF constable, who had been warned by his officer for nonperformance of duty, opened fire from a self-loading rifle
(SLR) whereupon the officer was hit on the back and another
officer sustained multiple bullet injuries causing his death -
Conviction of accused-respondent by trial court inter alia u/ . D
ss. 302 and 307 /PC - High Court found irreconcilable
inconsistencies in the prosecution case relating to a)
deposition of witnesses and b) number of cartridges fired and
recovered, and acquitted respondent by giving him benefit of
doubt - On appeal, held: In the facts and circumstances of the E
case, it cannot be said that the order of the High Court was
either perverse or not based on proper appreciation of
evidence - No interference called for u!Article 136 of the
Constitution.
The prosecution case was that respondent, a CRPF
F
constable, who had been warned by the Deputy
Commandant Quarter Master for his refusal to carry out
fatigue duty as assigned to him, opened fire towards the
Deputy Commandant's office from a Self Loading Rifle
(SLR) whereupon the Deputy Commandant was hit in his G
back while the Battalion Havaldar Major (B.H.M.), who was
also inside the office at the relevant time, sustained
multiple bullet injuries in his shoulders which ultimately
caused his death. The trial court convicted the
respondent under Section 302 IPC, sentencing him to
H
610
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A
rigorous imprisonment for life and fine of Rs.2,000/-,
under Section 307 IPC, sentencing him to rigorous
imprisonment for 5 years and fine of Rs.2,000/-, and under
Section 27 of the Arms Act, sentenc

## Text

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A
B
[2012] 4 S.C.R. 608
STATE OF PUNJAB
v.
DALBIR SINGH
(Criminal Appeal No. 117 of 2006)
FEBRUARY 01, 2012
[ASOK KUMAR GANGULY AND JAGDISH SINGH
KHEHAR, JJ.]
Arms Act, 1959 - s.27(3) - Vires of - Mandatory death
c penalty as imposed u/s.27(3) - If justified - Held: Mandatory
death penalty has been found to be constitutionally invalid in
various jurisdictions where there is an independent judiciary
and the rights of the citizens are protected in a Constitution -
In s.27(3), the provision of mandatory death penalty is more
0
unreasonable inasmuch it provides whoever uses any
prohibited arms or prohibited ammunition or acts in
contravention of s. 7 and if such use or act results in the death
of any other person then that person guilty of such use or
acting in contravention of s. 7 shall be punishable with death
E - The word 'use' has not been defined in the Act - Therefore,
the word 'use' has to be viewed in its common meaning - In
view of such very wide meaning of the word 'use' even an
unintentional or an accidental use resulting in death of any
other person shall subject the person so using to a death
penalty - Both the words 'use' and 'result' are very wide - Such
F a law is neither just, reasonable nor is it fair and falls out of
the 'due process' test - The concepts of 'due process' and the
concept of a just, fair and reasonable law has been read by
this Court into the guarantee u!Articles 14 and 21 of the
Constitution - s.27(3) is thus violative of Articles 14 and 21 of
G the Constitution - Principles of Eighth Amendment of the U.S.
Constitution (which provides for guarantee against cruel and
harsh punishment) have a/so been incorporated in our laws -
Direct mandate of the Constitution under Article 13 is that the
State shall not make any law which takes away or abridges
H
608
STATE OF PUNJAB v. DALBIR SINGH
609
the right conferred by Part Ill of the Constitution and any law A
made in contravention of the same is, to the extent of
contravention, void - s.27(3) is in clear contravention of Part
Ill rights - It also deprives the judiciary from discharging its
Constitutional duties of judicial review whereby it has the power
of using discretion in the sentencing procedure - s.27(3) is B
against the fundamental tenets of our Constitutional law as
developed by this Court - It is ultra vires the Constitution and
is void - Constitution of India, 1950 - Articles 13, 14 and 21.
Penal Code, 1860 - ss. 302 and 307 - Acquittal of
accused on ground of benefit of doubt - Justification - Accused C
CRPF constable, who had been warned by his officer for nonperformance of duty, opened fire from a self-loading rifle
(SLR) whereupon the officer was hit on the back and another
officer sustained multiple bullet injuries causing his death -
Conviction of accused-respondent by trial court inter alia u/ . D
ss. 302 and 307 /PC - High Court found irreconcilable
inconsistencies in the prosecution case relating to a)
deposition of witnesses and b) number of cartridges fired and
recovered, and acquitted respondent by giving him benefit of
doubt - On appeal, held: In the facts and circumstances of the E
case, it cannot be said that the order of the High Court was
either perverse or not based on proper appreciation of
evidence - No interference called for u!Article 136 of the
Constitution.
The prosecution case was that respondent, a CRPF
F
constable, who had been warned by the Deputy
Commandant Quarter Master for his refusal to carry out
fatigue duty as assigned to him, opened fire towards the
Deputy Commandant's office from a Self Loading Rifle
(SLR) whereupon the Deputy Commandant was hit in his G
back while the Battalion Havaldar Major (B.H.M.), who was
also inside the office at the relevant time, sustained
multiple bullet injuries in his shoulders which ultimately
caused his death. The trial court convicted the
respondent under Section 302 IPC, sentencing him to
H
610
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A
rigorous imprisonment for life and fine of Rs.2,000/-,
under Section 307 IPC, sentencing him to rigorous
imprisonment for 5 years and fine of Rs.2,000/-, and under
Section 27 of the Arms Act, sentencing him to rigorous
imprisonment for 3 years and fine of Rs.1,000/-. The
B substantive sentences were ordered to run concurrently.
The High Court, however, reversed the order of
conviction on the grou'nd that there were irreconcilable
inconsistency in the prosecution case.
The High Court found that while PW.9 the alleged eye
C witness had deposed that respondent was apprehended
at the spot, disarmed handed over to the Court, however,
according to the Investigating Officer (10) PW.12, the
respondent was handed over to him outside the CRPF
headquarters three days after the incident and then on
D his disclosure statement the SLR was recovered. The
High Court further found that even though the
prosecution allegation was that 20 cartridges were fired,
only 7 empties were recovered and none of the bullets
were recovered. The High Court gave benefit of doubt to
E the respondent and acquitted him, and therefore the
instant appeal.
However, since the accused-respondent had been
charged under Section 27(3) of the Arms Act, 1959 as well
F and since the vires of Section 27(3) of the said Act had
been questioned, the instant appeal was heard both on
merits of the High Court order and also on the question
of vires of Section 27(3) of the Arms Act, 1959.
G
Dismissing the appeal, the Court
HELD:
On merits
1. There is no reason to interfere with the order of
H acquittal given by the High Court under Article 136 of the
STATE OF PUNJAB v. DALBIR SINGH
611
Constitution. It cannot be said that the order of the High
A
Court is either perverse or not based on proper
appreciation of evidence. Therefore, on the merits of the
order of acquittal granted by the High Court there is no
reason to interfere. [Para 8) [621-F]
Vires of Section 27(3) of the Arms Act, 1959
B
2.1. A perusal of Section 27, sub-section (3) of the
Arms Act, 1959, the vires of which has been challenged,
shows that if by mere use of any prohibited arms or
prohibited ammunitions or if any act is done by any C
person in contravention of Section 7, he shall be
punishable with death. Section 7 of the said Act prohibits
acquisition or possession, or manufacture or sale of
prohibited arms or prohibited ammunitions. [Paras 14, 15)
~~&~
D
2.2. Section 7 imposes a prohibition on certain acts
in respect of prohibited arms and ammunitions but
Section 7 does not spell out the penalty. The penalty for
contravention of Section 7 is provided under Section
E
27(3) of the Act. [Para 18) [626-C]
2.3. Section 27 is divided into three sub-sections.
Sub-section 1 prescribes that if any person who uses any
arms or ammunition in contravention of section 5 he shall
be punishable with imprisonment for a term which shall
F
not be not less than three years but which may extend
to seven years and he shall also be liable to fine. Section
5 prohibits manufacture, sale of arms and ammunition.
Sub-section (2) of Section 27 provides for higher
punishment, inter alia, on the ground that whoever uses G
any prohibited arms or prohibited ammunition in
contravention of Section 7, he shall be punishable with
imprisonment for a term which shall not be less than
seven years but which may extend to imprisonment for
life and he shall also be liable to fine. [Para 19) [626-D-F]
H
612
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A
2.4. Between Section 5 and Section 7 of the Act a
distinction has been made since manufacture and sale
of arms and ammunition is dealt with in Section 5 but
Section 7 deals with prohibition of acquisition or
possession, or of manufacture or sale, of prohibited arms
B and ammunition. Therefore, there is a reasonable
classification between Section 5 and Section 7 of the Act.
Consequently, there is valid classification between
Sections 27(1) and 27(2) on the severity of the
punishment. [Para 20) [626-G-H; 627-A]
c
2.5. But so far as sub-section (3) of Section 27 is
concerned, the same stands apart in as much as it
imposes a mandatory death penalty. The difference
between sub-section (2) and sub-section (3) of Section
27 is that under sub-section (2) of Section 27 if a person
D uses any prohibited arms or ammunition in contravention
of Section 7, he shall be punished with imprisonment for
a term of less than seven years which may extend to
imprisonment for life and also with fine. But if the said
use or act prohibited under Section 7 results in the death
E of any other person he shall be punishable with death
penalty. Therefore, Section 27(3) is very wide in the sense
anything done in contravention of Section 7 of the Act and
with the use of a prohibited arms and ammunition
resulting in death will attract mandatory death penalty.
F Even if any act done in contravention of Section 7,
namely, acquisition or possession, or manufacture or
sale, of prohibited arms results in death of any person,
the person in contravention of Section 7 shall be
punished with death. This is thus a very drastic provision
G for many reasons. Apart from the fact that this imposes
a mandatory death penalty the Section is so widely
worded to the extent that if as a result of any accidental
or unintentional use or any accident arising out of any
act in contravention of Section 7, death results, the only
H punishment, which has to be mandatorily imposed on
STATE OF PUNJAB v. DALBIR SINGH
613
the person in contravention is, death. Notably, the A
language used is 'results' which is wider than the
expression 'causes'. The word 'results' means the
outcome and is wider than the expression 'causes'.
Therefore, very wide expression has been used in
Section 27(3) of the Act and without any guideline leading B
to mandatory punishment of death penalty. [Paras 21, 22)
[627-B-G]
3. In Section 302 of IPC death penalty is not
mandatory but it is optional. Apart from that the word
'murder' has been very elaborately defined in Section 300 C
of IPC with various exceptions and explanations. But in
the case of Section 27(3) law is totally devoid of any
guidelines and no exceptions have been carved out.
[Paras 24 and 25) [628-B; 629-D]
D
4. The Parliament while making law has to function
under the specific mandates of the Constitution. Apart
from the restrictions imposed on distribution of legislative
powers under Part XI of the Constitution by Article 245
onwards, the direct mandate of the Constitution under E
Article 13 is that the State shall not make any law which
takes away or abridges the right conferred by Part Ill of
the Constitution and any law made in contravention of the
same is, to the extent of contravention, void. Article 13(2)
clearly prohibits the making of any law by the State which
F
takes away or abridges rights, conferred by Part Ill of the
Constitution. In the event of such a law being made the
same shall be void to the extent of contravention. Only
the judiciary can give the declaration that a law being in
contravention of the mandate of Part-Ill of the Constitution G
is void. Therefore, power of judicial review is inherent in
our Constitution. Article 13 of the Constitution is,
therefore, a unique feature in our Constitution. [Paras 26,
27 and 28) [629-E-F; 630-E-F]
5.1. Mandatory death penalty has been found to be
H
614
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A constitutionally invalid in various jurisdictions where
there is an independent judiciary and the rights of the
citizens are protected in a Constitution. In our
Constitution the concept of 'due process' was
incorporated in view of the judgment of this Court in
B Maneka Gandhi. The principles of Eighth Amendment of
the U.S. Constitution (which provides for guarantee
against cruel and harsh punishment) have also been
incorporated in our laws. This has been acknowledged
by the Constitution Bench of this Court in Sunil Batra.
c Almost on identical principles mandatory death penalty
provided under Section 303 IPC has been held ultra vires
by the Constitution Bench of this Court in Mithu. Apart
from that it appears that in Section 27(3) of the Act the
provision of mandatory death penalty is more
0
unreasonable inasmuch it provides whoever uses any
prohibited arms or prohibited ammunition or acts in
contravention of Section 7 and if such use or act results
in the death of any other person then that person guilty
of such use or acting in contravention of Section 7 shall
be punishable with death. The word 'use' has not been
E defined in the Act. Therefore, the word 'use' has to be
viewed in its common meaning. In view of such very wide
meaning of the word 'use' even an unintentional or an
accidental use resulting in death of any other person shall
subject the person so using to a death penalty. Both the
F words 'use' and 'result' are very wide. Such a law is
neither just, reasonable nor is it fair and falls out of the
'due process' test. A law which is not consistent with
notions of fairness while it imposes an irreversible
penalty like death penalty is repugnant to the concept of
G right and reason. [Paras 87, 88, 89, 90] [656-G-H; 657-A;,
D-H; 658-A]
5.2. The principle of 'due process' is an emanation
from the Magna Carta doctrine. This was accepted in
H American jurisprudence. All these concepts of 'due
STATE OF PUNJAB v. DALBIR SINGH
615
process' and the concept of a just, fair and reasonable A
law has been read by this Court into the guarantee under
Articles 14 and 21 of the Constitution. Therefore, the
provision of Section 27(3) of the Act is violative of Article
14 and 21 of the Constitution. [Paras 92, 94] [658-C, F]
5.3. Apart from that the said Section 27 (3) is a post 8
Constitutional law and has to obey the injunction of
Article 13 which is clear and explicit. In view of the
mandate of Article 13 of the Constitution which is an
Article within Part-Ill of our Constitution, Section 27(3)
having been enacted in clear contravention of Part-Ill C
rights, Section 27(3) of the Act is repugnant to Articles 14
and 21 and is void. [Paras 95, 96] (658-G; 659-B)
5.4. Section 27(3) of the Act also deprives the
judiciary from discharging its Constitutional duties of o
judicial review whereby it has the power of using
discretion in the sentencing procedure. This power has
been acknowledged in Section 302 IPC and in Bachan
Singh case it has been held that the sentencing power
has to be exercised in accordance with the statutory E
sentencing structure under Section 235(2) and also under
Section 354(3) of the Code of Criminal Procedure. [Paras
97, 98) (659-C, D]
5.5. Section 27(3) of the said Act while purporting to
impose mandatory death penalty seeks to nullify those F
salutary provisions in the Code. This is contrary to the
law laid down in Bachan Singh. [Para 99) [659-E]
5.6. In fact the challenge to the constitutional validity
of death penalty under Section 302 IPC has been G
negatived in Bachan Singh in view of the sentencing
structure in Sections 235(2) and 354 (3) of the Criminal
Procedure Code. By imposing mandatory death penalty,
Section 27(3) of the Act runs contrary to those statutory
safeguards which give judiciary the discretion in the H
616
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A matter imposing death penalty. Section 27(3) of the Act
is thus ultra vires the concept of judicial review which is
one of the basic features of our Constitution. [Para 100]
[659-F, G]
8
5.7. The ratio in both Bachan Singh and Mithu has
been universally acknowledged in several jurisdictions
across the world and has been accepted as correct
articulation of Article 21 guarantee. Therefore, the ratio in
Mithu and Bachan Singh represents the concept of Jus
cogens meaning thereby the peremptory non derogable
C norm in international law for protection of life and liberty.
That is why it has been provided by the 44th Amendment
Act of 1978 of the Constitution, that Article 21 cannot be
suspended even during proclamation of emergency
under Article 359(vide Article 359(1 )(a) of the Constitution.
D Therefore Section 27(3) of the Arms Act is against the
fundamental tenets of our Constitutional law as
developed by this Court. Section 27(3) of Arms Act, 1959
is ultra vi res the Constitution and is void. [Paras 100, 101,
E
102, 103 and 104] [659-H; 660-A-D]
Mithu vs. State of Punjab (1983) 2 SCC 277: 1983 (2)
SCR 690; Maneka Gandhi vs. Union of India (1978) 1 SCC
248 : 1978 (2) SCR 621 ; Bachan Singh v. State of Punjab
(1980) 2 SCC 684 and Sunil Batra vs. Delhi Administration
F
and Others (1978) 4 sec 494 : 1979 (1) SCR 392 - relied
on.
Subhash Ramkumar Bind Alias Vakil and another vs.
State of Maharashtra (2003) 1 SCC 506 : 2002 (4) Suppl.
SCR 65; Surendra Singh Rautela vs. State of Bihar (now
G State of Jharkhand) (2002) 1 SCC 266 : 2001 (5) Suppl.
SCR 340; State of Punjab vs. Swaran Singh Murder
Reference No. 5 of 2000 decided by Full Bench of Punjab
& Haryana High Court on 26.5.2009; Santokh Singh vs.
State of Punjab, 2000(3) Recent Criminal Reports 637 -
H referred to.
STATE OF PUNJAB v. DALBIR SINGH
617
James Tyrone Woodson and Luby Waxton vs. State of A
North Carolina, 428 US 280 = 49 L Ed 2d 944; Stanislaus
Roberts vs. State of Louisiana, 428 US 325 = 49 L Ed 2d
974; Harry Roberts vs. State of Louisiana, 431 US 633 = 52
L Ed 2d 637; George Summer vs. Raymond Wallace
Shuman, 483 US 66 = 97 L Ed 2d 56; Reyes vs. The Queen,
B
(2002) 2 AC 235 = (2002) UKPC 11; Regina v. Hughes,
(2002) 2 AC 259 = (2002) UKPC 12; Fox v. The Queen (2002
(2) AC 284); Bowe & Anr. vs. The Queen -(2006) 1 WLR
1623; Bernard Coard and Others vs. The Attorney General
(Criminal Appeal No. 10/2006- unreported judgment of c
privy council); Francis Kafantayeni and Others vs. Attorney
General [High Court of Malawi- Constitutional Case No.12
of 2005 [2007] M.W.H.C.1]; Attorney General vs. Susan
Kigula and 417 others (Supreme Court of UgandaConstitution Appeal No.03/2006); Godfrey Ngotho Mutiso
0
vs. Republic (Kenyan Court of Appeal- Criminal Appeal
No.1712008); Ong Ah Chuan vs. Public Prosecutor and
Another, (1981) A.C. 648; Munn vs. Illinois, 24 L Ed. 77 : 94
US 113, 142 (1876) and Planned Parenthood of
Southeastern Pennsylvania vs. Casey, 120 L ED 2d 674 -
E
referred to.
Case Law Reference:
1983 (2) SCR 690
relied on
Para 30
2002 (4) Suppl. SCR 65
referred to
Para 34
F
2001 (5) Suppl. SCR 340
referred to
Para 35
2000(3) Recent Criminal
referred to
Para 38
Reports 637
G
1978 (2) SCR 621
relied on
Para 46
(1980) 2 sec 684
relied on
Para 46
1979 (1) SCR 392
relied on
Para 47
428 US 280 = 49 L Ed 2d 944 referred to
Para 49
H
618
SUPREME COURT REPORTS
[2012) 4 S.C.R.
A
428 US 325 = 49 L Ed 2d 97 4 referred to
Para 51
431 US 633 = 52 L Ed 2d 637 referred to
Para 53
483 US 66 = 97 L Ed 2d 56
referred to
Para 55
B
(2002) 2 AC 235 = (2002)
referred to
Para 58
UKPC 11
(2002) 2 AC 259 = (2002)
referred to
Para 62
UKPC 12
c
(2002 (2) AC 284)
referred to
Para 64
(2006) 1 WLR 1623
referred to
Para 66
[2007) M.W.H.C.1High Court of Malawi)
referred to
Para 75
D
(1981) A.C. 648
referred to
Para 83
24 L Ed. 77: 94 US 113,
referred to
Para 92
142 (1876)
E
120 L ED 2d 674
referred to
Para 93
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 117 of 2006.
From the Judgment & Order dated 27.07.2005 of the High
F Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 250-DB of 1996.
Gourab Banerji, ASG (for Ld. Attorney General for India),
S.A. Haseeb, Sahil Tagotra, B.K. Prasad Gautam Jha, Ajay
G Pal, Jagjit Singh Chhabra, Siddhartha Dave,. Senthil
Jagadeesan, Jentiben A.O., Harinder Mohan Singh for the
appearing parties.
The Judgment of the Court was delivered by
H
GANGULY, J. 1. This appeal at the instance of the State
STATE OF PUNJAB v. DALBIR SINGH
619
[ASOK KUMAR GANGULY, J.]
has been preferred from the judgment of the Division Bench of
A
the High Court of Punjab and Haryana at Chandigarh, dated
July 27, 2005 in Criminal Appeal No. 250/1996 whereby High
Court gave the appellant the benefit of doubt and acquitted him
of the charges framed against him.
2. Briefly, the facts of the case are that the respondent
B
Dalbir Singh, a constable in 36th Battalion Central Reserve
Police Force, at the relevant time was posted at Fatehabad,
District Amritsar, Punjab. On April 11th, 1993, Harish Chander,
the Battalion Havaldar Major (hereinafter 'B.H.M.') in 'Company
D' of the Battalion, reported to Hari Singh, the Deputy C
Commandant Quarter Master (hereinafter 'Deputy
Commandant'), that the accused had refused to carry out the
fatigue duty assigned to him. On such report being made, the
Deputy Commandant directed the B.H.M. and Sub Inspector
Kewal Singh to produce the accused before him. As per these
D
directions, the accused was produced before the Deputy
Commandant at 11 :15 a.m. Upon being warned verbally about
his non compliance of the orders for fatigue duty, the accused
requested the warning to be issued in writing. Upon such a
response, the Deputy Commandant ordered the B.H.M. and the
E
Sub Inspector to have the accused present before him the next
morning.
3. However, immediately after these talks, the Deputy
Commandant's office saw firing from a Self Loading Rifle
(SLR), even as the Deputy Commandant himself and the B.H.M.
were inside it. As the Deputy Commandant positioned himself
F
. underneath a table, he allegedly noted that it was the accused
who was firing from a rifle from a tent pitched outside. He was
allegedly hit in hi~ back. The B.H.M. sustained multiple bullet
G
injuries in his shoulders.
4. This entire incident was allegedly witnessed by
Constable Dalip Kumar Mishra and Sub Inspector Kewal Singh.
Eventually, when the firing had stopped and the accused was
trying to reload his gun, he was overpowered and disarmed by
H
620
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A Constable Mishra. The Deputy Commandant directed the Sub
Inspector Kewal Singh to hand over the accused to the police,
while he himself and B.H.M. Harish Chander were rushed to
Sri Guru Nanak Hospital. Unfortunately, B.H.M. Harish Chander
died en route and his body was identified in the hospital. The
8 Deputy Commandant recorded his statement (Ex. PH) and an
F.l.R. (Ex. PH/2) was registered at the hospital by Sub Inspector
Jaswant Singh.
5. During investigation, the Investigating Officer, in the
presence of SI Kewal Singh and Constable Mishra, found 20
C empty bullet-cartridges (Ex.P4-P23) at the Battalion
Headquarters at Khawaspur. These were taken into
possession after putting them in a sealed parcel through
recovery memo (Ex.PK). The empty cartridges were sent to the
Forensic Science Laboratory on 15.4.1993 and the SLR was
D forwarded on 23.4.1993.
6. After investigation a challan was put in the Court of the
llaqua Magistrate who found that the case was exclusively
triable by the Court of Session, committed the same to Court
E of Session. The accused was charged under Section 302 and
307 of IPC and under Section 27 of the Arms Act. The accused
pleaded not guilty and the Prosecution was called upon to
examine its witnesses including DCQM Hari Singh (PW.6), SI
Kewal Singh (PW.7), Constable Mishra (PW.9) and Sub
Inspector Jaswant Singh. The accused, upon examination,
F denied all circumstances and asserted that he was innocent
and had been falsely implicated. The Trial Court consequently
convicted the accused under Section 302 of IPC, sentencing
him to rigorous imprisonment for life and fine of Rs.2,000/-,
under Section 307 of IPC, sentencing him to rigorous
G imprisonment for 5 years and fine of Rs.2,000/-, and under
Section 27 of Arms Act, sentencing him to rigorous
imprisonment for 3 years and fine of Rs.1,000/-. The substantive
sentences were ordered to run concurrently.
H
7. In the impugned judgment the High Court while reversing
STATE OF PUNJAB v. DALBIR SINGH
621
[ASOK KUMAR GANGULY, J.]
the order of conviction found that there is some irreconcilable A
inconsistency in the prosecution case. The High Court found that
PW.9 the alleged eye witness deposed that the respondent was
, apprehended at the spot by him and he was disarmed by him
and the SLR which was being used by the accused was taken
in his possession and the accused was handed over to the
B
Court. But according to the Investigating Officer (10) PW.12, he
went to the place of occurrence on the date of occurrence i.e.
on 11.4.93, but neither the accused nor the SLR allegedly used
by the accused were handed over to him. The further evidence
of the 10 is that on 14.4.93, the accused was handed over to c
him outside the CRPF headquarters. Then on his disclosure
statement the SLR was recovered. In view of such irreconcilable
discrepancy in the evidence of the prosecution, the High Court
came to the finding that the prosecution was trying to suppress
a vital part of the case and the incident did not take place in
0
the manner presented by the prosecution. The High Court further
found that even though the prosecution allegation is that 20
cartridges were fired, only 7 empties were recovered and none
of the bullets were recovered. The High Court found that the
same is very surprising when the prosecution version is that 20 E
bullets were actually fired in a room towards the side where
there are no windows. It is, therefore, impossible that none of
the bullets had been recovered. In view of the aforesaid finding
of the High Court the accused was given the benefit of doubt.
8. We are of the opinion that there is no reason to interfere
F
with the order of acquittal given by the High Court sitting in our
jurisdiction under Article 136 of the Constitution. We do not think
that the order of the High Court is either perverse or not based
on proper appreciation of evidence. Therefore, on the merits
of the order of acquittal granted by the High Court we find no G
reason to interfere. But since in this case the accused was
charged under Section 27(3) of the Arms Act (hereinafter, 'the
Act') and since the vires of Section 27(3) of the said Act has
been questioned, we proceed to examine the said issue in
detail.
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A
9. In this matter leave was granted on 16.1.2006. On
31.8.2010, a Division Bench of this Court issued notice to the
Attorney General as vires of Section 27(3) of the Act was
challenged in the said proceeding.
B
10. Pursuant to such notice Mr. Gourab Banerjee, the
learned ASG initially submitted before this Court on 15th March,
2011 and again on 21st July, 2011 that a proposal to amend
Section 27(3) of the Act is under consideration of the
Government of India and as such matter was adjourned.
Thereafter the matter was heard on 1st December, 2011 and
C on subsequent dates both on merits of the High Court order
and also on the question of vires of Section 27(3) of the Act.
11. Since the Court is to examine the constitutional validity
of Section 27, sub-section (3) of the Act, for a proper
D appreciation of the questions invobJed, Section 27 of the Act
is set out below:-
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"27.Punishment for using arms, etc.-
(1) Whoever uses any arms or ammunition in contravention
of section 5 shall be punishable with imprisonment for a
term which shall not be less than three years but which may
extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited
ammunition in contravention of section 7 shall be
punishable with imprisonment for a term which shall not be
less than ·Seven years but which may extend to
imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited
ammunition or does any act in contravention of section 7
and such use or act results in the death of any other person,
shall be punishable with death."
12. The present form of Section 27 including Section 27(3)
STATE OF PUNJAB v. DALBIR SINGH
623
[ASOK KUMAR GANGULY, J.]
has come by way of amendment, namely, by Amending Act 42
A
of 1988, the previous Section 27 was substituted. The Arms
Act was enacted in 1959. At the time when it was enacted,
Section 27 was in the following form:-
"27. Punishment for possessing arms, etc., with intent to
8
use them for unlawful purpose -
Whoever has in his possession any arms or
ammunition with intent to use the same for any unlawful
purpose or to enable any other person to use the same
for any unlawful purpose shall, whether such unlawful
C
purpose has been carried into effect or not, be punishable
with imprisonment for a term which may extend to seven
years, or with fine or with both."
13. The Statements of Objects and Reasons of Act 42 of o
1988 (the Amending Act) are as follows:-
"Act 42 of 1988. - The Arms Act, 1959 had been
amended to provide for enhanced punishments in respect
of offences under that Act in the context of escalating
terrorist and anti-national activities. However, it was
E
reported that terrorist and anti-national elements,
particularly in Punjab had in the recent past acquired
automatic firearms, machine guns of various types, rockets
and rocket launchers. Although the definitions of the
expressions "arms", "ammunitions", "prohibited arms" and
F
"prohibited ammunition" included in the Act are adequate
to cover the aforesaid lethal weapons in the matter of
punishments for offences relating to arms, the Act did not
make any distinction between offences involving ordinary
arms and the more lethal prohibited arms and prohibited
G
ammunition. Further while the Act provided for punishment
of persons in possession of arms and ammunition with
intent to use them for any unlawful purpose, it did not
provide for any penalties for the actual use of illegal arms.
To overcome these deficiencies, it was proposed to
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SUPREME COURT REPORTS
[2012] 4 S.C.R.
amend the Act by providing for deterrent punishment for
offences relating to prohibited arms and ammunition and
for the illegal use of firearms and ammunition so as to
effectively meet the challenges from the terrorist and antinational elements. Accordingly, the Arms (Amendment)
Ordinance, 1988 was promulgated by the President on the
27th May, 1988. The Ordinance amended the Act to
provide for the followings among other things namely:-
(i) The definitions of "ammunition" and "prohibited
ammunition" have been amended to include missiles so
as to put the matter beyond any doubt;
(ii) Deterrent punishments have been provided for offences
involving prohibited arms and prohibited ammunition;
0
(iii) Punishments have also been provided for the use of
illegal arms and ammunition and death penalty has been
provided if such use causes death."
14. A perusal of Section 27, sub-section (3), the vires of
which has been challenged, shows that if by mere use of any
E prohibited arms or prohibited ammunitions or if any act is done
by any person in contravention of Section 7, he shall be
punishable with death.
15. Section 7 of the said Act prohibits acquisition or
F possession, or manufacture or sale of prohibited arms or
G
H
prohibited ammunitions. The said Section 7 is set out below:-
"7. Prohibition of acquisition or possession, or of
manufacture or sale, of prohibited arms or prohibited
ammunition.-
No person shall--
(a) acquire, have in his possession or carry; or
(b) use, manufacture, sell, transfer, convert, repair, test or
STATE OF PUNJAB v. DALBIR SINGH
[ASOK KUMAR GANGULY, J.]
prove; or
625
(c) expose or offer for sale or transfer or have in his
possession for sale, transfer, conversion, repair, test or
proof;
A
any prohibited arms or prohibited ammunition unless he
B
has been specially authorised by the Central Government
in this behalf."
16. In the definition clause prohibited ammunitions and
prohibited arms have been defined respectively under Section c
2, sub-Sections (h) and (i) respectively of the said Act. Those
definitions are set out below:-
"(h) "Prohibited ammunition" means any ammunition,
containing, or designed or adapted to contain, any noxious 0
liquid, gas or other such thing, and includes rockets,
bombs, grenades, shells, missiles articles designed for
torpedo service and submarine mining and such other
articles as the Central Government may, by notification in
the Official Gazette, specify to be prohibited ammunition;"
E
"(i) "prohibited arms" means--
(i) firearms so designed or adapted that, if pressure
is applied to the trigger, missiles continue to be
discharged until pressure is removed from the
F
trigger or the magazine containing the missiles is
empty, or
(ii) weapons of any description designed or
adapted for the discharge of any noxious liquid, gas
or other such thing,
G
and includes artillery, anti-aircraft and anti-tank
firearms and such other arms as the Central
Government may, by notification in the Official
Gazette, specify to be prohibited arms;"
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SUPREME COURT REPORTS
[2012) 4 S.C.R.
17. The word 'acquire', 'possession' or 'carry' has not been
defined under the said Act nor the word 'used', 'manufacture',
'sale', 'convert', 'repair', 'test' or 'prove' have been defined in the
Act. The word 'transfer' has only been defined in Section 2(k)
to mean as follows:-
"(k) "transfer" with its grammatical variations and cognate
expressions, includes letting on hire, lending, giving and
parting with possession."
18. Section 7 imposes a prohibition on certain acts in
C respect of prohibited arms and ammunitions but Section 7 does
not spell out the penalty. The penalty for contravention of Section
7 is provided under Section 27(3) of the Act as mentioned
above.
0
19. lfwe look at Section 27, which has been set out above,
it is divided into three sub-sections. Sub-section 1 prescribes
that if any person who uses any arms or ammunition in
contravention of section 5 he shall be punishable with
imprisonment for a term which shall not be not less than three
E years but which may extend to seven years and he shall also
be liable to fine. Section 5 prohibits manufacture, sale of arms
and ammunition. Sub-section (2) of Section 27 provides for
higher punishment, inter alia, on the ground that whoever uses
any prohibited arms or prohibited ammunition in contravention
of Section 7, he shall be punishable with imprisonment for a
F term which shall not be less than seven years but which may
extend to imprisonment for life and he shall also be liable to fine.
20. Section 7 prohibits acquisition or possession, or of
manufacture or sale, of prohibited arms or prohibited
G ammunition. Therefore, between Section 5 and Section 7 of the
Act a distinction has been made since manufacture and sale
of arms and ammunition is dealt with in Section 5 but Section
7 deals with prohibition of acquisition or possession, or of
manufacture or sale, of prohibited arms and ammunition.
H Therefore, there is a reasonable classification between Section
STATE OF PUNJAB v. DALBIR SINGH
627
[ASOK KUMAR GANGULY, J.]
5 and Section 7 of the Act. Consequently, there is valid
A
classification between Sections 27(1) and 27(2) on the severity
of the punishment.
21. But so far as sub-section (3) of Section 27 is
concerned, the same stands apart in as much as it imposes a
8
mandatory death penalty. The difference between sub-section
(2) and sub-section (3) of Section 27 is that under sub-section
(2) of Section 27 if a person uses any prohibited arms or
ammunition in contravention of Section 7, he shall be punished
with imprisonment for a term of less than seven years which may
extend to imprisonment for life and also with fine. But if the said
C
use or act prohibited under Section 7 results in the death of any
other person he shall be punishable with death penalty.
Therefore, Section 27(3) is very wide in the sense anything
done in contravention of Section 7 of the Act and with the use
of a prohibited arms and ammunition resulting in death will D
attract mandatory death penalty. Even if any act done in
contravention of Section 7, namely, acquisition or possession,
or manufacture or sale, of prohibited arms results in death of
any person, the person in contravention of Section 7 shall be
punished with death. This is thus a very drastic provision for E
many reasons. Apart from the fact that this imposes a mandatory
death penalty the Section is so widely worded to the extent that
if as a result of any accidental or unintentional use or any
accident arising out of any act in contravention of Section 7,
death results, the only punishment, which has to be mandatorily
F
imposed on the person in contravention is, death. It may be also
noted in this connection that language used is 'results' which is
wider than the expression 'causes'. The word 'results' means
the outcome and is wider than the expression 'causes'.
G
22. Therefore, very wide expression has been used in
Section 27(3) of the Act and without any guideline leading to
mandatory punishment of death penalty.
23. In this connection we may compare Section 302 of the
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IPC with Section 27(3) of the Act. Section 302 is as follows:
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"302. Punishment for murder.- Whoever commits
murder shall be punished with death, or imprisonment for
life, and shall also be liable to fine."
24. In Section 302 of IPC death penalty is not mandatory
but it is optional. Apart from that the word 'murder' has been
very elaborately defined in Section 300 of IPC with various
exceptions and explanations. Section 300 of IPC is set out
below:
"300. Murder.-Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the death
is caused is done with the intention of causing death, orSecondly.-lf it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause
the death of the person to whom the harm is caused, or
Thirdly.-lf it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to
cause death, orFourthly.-lf the person committing the act knows that it is
so imminently dangerous that it must, in all probability,
cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.
Exception 1.-When culpable homicide is not murder.-
Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the
provocation or causes the death of any other person by
mistake or accident.
STATE OF PUNJAB v. DALBIR SINGH
629
[ASOK KUMAR GANGULY, J.]
The above exception is subject to the following provisos:-
A
First-That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing
harm to any person.
Secondly.-That the provocation is not given by anything
done in obedience to the law, or by a public servant in the
lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done
in the lawful exercise of the right of private defence.
Explanation.-Whether the provocation was grave and
sudden enough to prevent the offence from amounting to
murder is a question of fact."
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25. But in the case of Section 27(3) law is totally devoid
D
of any guidelines and no exceptions have been carved out. It
is common ground that the said amendment of Section 27 was
brought about in 1988 which was much after the Constitution
of India has come into operation.
26. The Parliament while making law has to function under
the specific mandates of the Constitution. Apart from the
restrictions imposed on distribution of legislative powers under
Part XI of the Constitution by Article 245 onwards, the direct
mandate of the Constitution under Article 13 is that the State
shall not make any law which takes away or abridges the right
conferred by Part Ill of the Constitution and any law made in
contravention of the same is, to the extent of contravention, void.
Article 13 is set out hereinbelow:
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"13.