JUDGMENT Dipak Misra, J. 1. In both the appeals challenge being to the decision rendered in ST. No. 152/83 by the Special Judge, Chhatarpur, they were heard analogously and disposed of by this common judgment. 2. The prosecution case, in brief, is that on 28.5.83 after getting some reliable information the Sub-Inspector (PW.5) and the Head-constable (PW.2) alongwith Pitare (PW.1) and Hardas (PW.4) went to Shyam Ke Khoda. There they saw the accused persons had hidden themselves being armed with weaspons. After due efforts the present accused persons and some others were apprehended. It is the further case of the prosecution that the accused persons were armed with weapons and preparing for committing dacoity in the house of one Mohan Lodhi. Taking advantage of the darkness accused-Rajau and Malik Singh escaped and, therefore, they could not be apprehended immediately. Later on, they were taken to custody. After their arrest in presence of Pitare (PW.1) and Hardas (PW.4) a 12 bore Katta and two live catridges from the Mutka and one pistol from the accused Chunta were seized. The said accused persons had no licence to possess the said arms. From Maiyadin one 'lathi' and from Lakhan one 'ballam' were seized. The concerned Sub-Inspector prepared 'Dehati Nalish' at the spot. On the next day i.e. on 29.5.83 he prepared the spot map in presence of the witnesses. After completing all other formalities the accused were sent up for trial under sections 399 and 402 read with sections 25 and 27 of the Arms Act, 1959 and section 11 of the M.P. Dacoity &Vyapharan Prabhavit Kshetra Adhiniyam, 1981. As the offences under sections 25 and 27 of the Arms Act were registered against the accused persons the prosecution obtained due sanction from the District Magistrate. 3. The accused persons abjured their guilt. Their further plea was that they had been falsely roped in the aforesaid crime due to previous animosity. 4. The prosecution, to substantiate the charge against the accused persons, examined five witnesses and brought number of documents on record. The defence chose not to adduce any evidence. 5. On consideration of oral and documentary evidence on record the learned trial Judge came to hold that the prosecution has brought home the charges against the present accused-appellants for the offences punishable under sections 25 and 27 of the Arms Act. The defence chose not to adduce any evidence. 5. On consideration of oral and documentary evidence on record the learned trial Judge came to hold that the prosecution has brought home the charges against the present accused-appellants for the offences punishable under sections 25 and 27 of the Arms Act. It sentenced each of them to suffer rigorous imprisonment for a period of one year and pay a fine of Rs. 500/-, in default, to suffer further rigorous imprisonment for two months under sections 25 of the Act, and to undergo R.I. for three years and to pay tine of Rs. 1000/-, in default, to suffer further R.I. for four months under section 27 of the Act. 6. I have heard Manish Datt, learned counsel for the appellant in Cr.A. No. 1038/88 and Mr. S.K. Tiwari, learned counsel for the appellant in Cr.A. No. 1046/88 and Mr. Verma, learned Panel Lawyer for the State. 7. Learned counsel for the appellants questioning the sustainability of judgment of conviction have contended that the weapons which were seized cannot be regarded as 'arms' as understood in the context of the Act in absence of any positive evidence that the seized fire arms satisfied the character and description of fire arms. It is also contended that the seized arms were not produced in the Court and no explanation had been offered for such non-production and where they were kept after seizure. Learned counsel have also submitted that mere seizure does not provide sufficient foundation to come to the conclusion that the weapons which were seized from the accused persons were fire arms because the possibility of manipulation cannot be totally brushed aside. The other ground of attack is that there has been non-compliance of Section 39 of the Act. Elaborating the same, it is canvassed that though the letter of sanction has been produced before the Court, it has been so done by the investigating officer without following the due procedure as envisaged in law. Mr. Verma, learned Panel Lawyer for the State, has supported the judgment for the reasons indicated therein. 8. To appreciate the rival submissions raised at the Bar, I have carefully perused the judgment. The learned counsel for the parties have taken me through the entire evidence on record to highlight that the weapons in question were not produced before the Court. Verma, learned Panel Lawyer for the State, has supported the judgment for the reasons indicated therein. 8. To appreciate the rival submissions raised at the Bar, I have carefully perused the judgment. The learned counsel for the parties have taken me through the entire evidence on record to highlight that the weapons in question were not produced before the Court. It is also assiduously putforth that there is no evidence that the weapons were sent for ballistic examination. Mr. Verma, learned Panel Lawyer has fairly accepted the position that the seized arms were not produced in Court and no evidence had been brought on record to indicate where the arms were kept after the seizure. Thus, even if the seizure is accepted, in absence of any evidence on record that the arms were really fire arms it is difficult to accept the version of the prosecution that fire arms were seized from the custody of the accused persons, moreso, when they were not brought before the Court. In the case of Nand Kishore Vs. State of Haryana, 1998 SCC (Cri) 568 their Lordships came to hold that in absence of proof of the seized arms and ammunition being secured, sealed and deposited in 'malkhana' and in view of the armourer's evidence that the case-property when received by him was in loose condition, the possibility of tampering with the weapon while in police custody could not be ruled out. In the present case, there is no explanation that where the weapons were kept after the seizure. There is also no explanation as to why they were not produced in Court. In the case of Dauda Sana Majhi Vs. State 1 (1997) CCR 598 it was held as under- The prosecution has to prove beyond reasonable doubt by adducing cogent evidence that the accused was in possession of the fire arms without licence. The Court further proceeded to lay down as under - But it is not to be forgotten that the accused was challenging the very factum of possession and the prosecution in that case should have established by adducing cogent, credible and trustworthy evidence to substantiate its version that the accused was in possession of the gun, a fire arm without a licence. Copy of the seizure list having not been handed over to the petitioner, the gun having not been produced in Court, no explanation having been offered for such non-production, nothing having been stated with regard to the whereabouts of the seized gun, declining of cross examination of the seizure witness, PW.3 non-examination of the other seizure witness and absence of any explanation for the same, examination under Section 313 Cr.P.C. only with regard to possession but without mentioning recovery from the house, and the cryptic evidence on record I am obliged to reject the case of the prosecution. In view of the aforesaid, when the fact situation shows that there is no explanation as to where the seized weapons were kept after seizure, a grave dobut arises and the same cannot be allowed to remain in oblivion. Hence, it can unhesitatingly be concluded that the binding of the Trial Court that the fire arms were seized from the accused persons is untenable. 9. As far as the question of grant of sanction is concerned the learned counsel for the appellants have commended me to the decision rendered in the case of Raju Dubey Vs. State of M.P. 1998 (1) JLJ 236 wherein a learned Single Judge of this Court has held as under - It is important to mention that Section 39 of the Arms Act is not a mere formality. Under this section a person cannot be prosecuted without the previous sanction of the District Magistrate with respect to any offence under section 3 Arms Act. To my mind, the sanction must be given by the authority concerned after fully satisfying that an offence is prima facie made under section 3. In order to make up its mind the authority concerned must see the relevant documents as well as the instrument which must be produced before the sanctioning authority at the time of granting sanction. Unless the sanctioning authority looks itself the instrument in respect of which sanction is sought he cannot be said to have any idea as to whether the possession of the instrument was illegal or the instrument was actually recovered within the definition given in Section 2. Unless the sanctioning authority looks itself the instrument in respect of which sanction is sought he cannot be said to have any idea as to whether the possession of the instrument was illegal or the instrument was actually recovered within the definition given in Section 2. It is, therefore, emphasised that it is mandatory for the authorities seeking sanction to produce the instrument before the santioning authority and the santioning authority must itself satisfy that the instrument is such which is covered within the definition given in the Act. There is no material on record in the case in hand to show that the instrument was ever produced before the santioning authority. Mere statement of the Arms Clerk who has been produced as PW.5 can simply prove the signature of the Collector. He could not prove that the Collector had applied his mind while granting the said sanction. The person who had actually obtained the sanction must be produced. In this context, I may profitably refer to the decision rendered in the case of Satyanaran Patidar Vs. State of M.P. 1980 JLJ 367 wherein it has been held as follows - Mere filing of a document alongwith other papers at the time of police report was submitted, cannot be said to be a proper compliance of giving evidence to prove the requirement of Section 39 of the Arms Act. The Court further proceeded to register the view as under - It is necessary that prosecution should prove that the District Magistrate on a proper application of his mind to the facts and the material placed before him accorded the sanction for prosecution of an accused under the Arms Act. In the present case the investigating officer has only stated that he had asked for sanction which was given by the District Magistrate. Nothing-else has been brought on record to suggest that the weapons were made available to the sanctioning authority. In absence of any other supporting material, I am of the considered view that prosecution has to fail for lac' of sanction. 10. In view of the preceding analysis, the appeals are allowed and the judgment of conviction and order of sentence being vulnerable are hereby set aside. The accused appellants be discharged of the bail bonds. Appeal allowed