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K.A. Joseph v/s The District Collector, Kottayam & Others


Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

    WP(C). No. 5491 of 2019

    Decided On, 08 March 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE SHAJI P. CHALY

    For the Petitioner: G. Bhagavat Singh, Anwin Shaj, Advocates. For the Respondents: R1 to R3, K.M. Reshmi, Government Pleader, R4, Murali Purushothaman, SC.



Judgment Text


1. Petitioner is conferred with Ext.P1 arms licence valid up to 11.10.2021 by the Arms Licence Issuance Authority under the provisions of the Arms Act, and the Rules, whereby petitioner is holding a single barrel breach loading gun and .22 Bore Pistol. The grievance of the petitioner is in respect of Ext.P7 notice issued by the 3rd respondent, directing the petitioner to deposit the arms and secure necessary receipts from the Police Station. It is thus challenging Ext.P7, this writ petition is filed.

2. The case projected by the petitioner is that, petitioner is an active life member of Kottayam District Rifle Association, evident from Ext.P2 certificate issued. By Exts.P3 to P6, the competent statutory authorities have exempted the members of the Rifle Association of various levels from depositing arms and ammunition during the time of General Elections. However, the 3rd respondent has neglected those orders and circulars and has issued Ext.P7, directing to deposit the arms. Therefore, according to the petitioner, Ext.P7 notice issued by the 3rd respondent is arbitrary and illegal, liable to be interfered with by this Court by exercising the discretionary power conferred under Article 226 of the Constitution of India.

3. The 4th respondent i.e., the Chief Election Commissioner of India has filed a detailed statement, virtually supporting the contention advanced by the petitioner against Ext.P7, consequent to Ext.R4(a) notification issued by the Election Commission of India dated 01.09.2009, which is remaining in force. It is pointed out that, the deposit of licensed arms are taken care of under clauses 3.10 to 3.13 of Ext.R4(a) notification, which read thus:

“3.10 Immediately after the announcement of elections, District Magistrates shall make a detailed and individual review and assessment (in accordance with the prevalent State laws) of all licence holders so that licensed arms in those cases where they consider it essential are impounded in order to ensure maintenance of law and order so essential for ensuring free and fair elections. These arms should be deposited with the district authorities. Among cases which may need to be reviewed are the following:

a) Arms licenses of persons released on bail,

b) Arms licenses of persons having a history of criminal offences, and

c) Arms licenses of persons previously involved in rioting at any time but especially during the election period. The above categories are only illustrative and not exhaustive.

3.11 As per the above-referred guidelines laid down by the Bombay High Court, for such review and assessment of all licence holders;

(a) There shall be a Screening Committee in every District and in every Commissionerate area. In the District, the Screening Committee shall consist of the District Magistrate and the Superintendent of Police. In the Commissionerate area, it shall consist of the Commissioner of Police (Admn.) and Joint/Additional Commissioner of Police (Admn.).

(b) The Screening Committee shall commence the work of screening from the day of announcement of election by the Election Commission and it shall complete the exercise of screening in respect of licences placed before it as far as possible before the date of issue of notification of elections.

(c) Cases of all licence holders as mentioned in para 3.10 above shall be placed before the Screening Committee.

(d) On receipt of report from the Screening Committee, the licensing authority shall issue notice before the last date fixed for withdrawal of candidature to the individual licence holder for depositing his arms and inform the licence holder that failure to deposit the arms as directed would result in prosecution under Section 188 of the I.P.C as stated in clause 3.11(g).

(e) The licence holder thereafter shall deposit his arms forthwith and in any case within a period of seven days from the date of receipt of the notice. The Licensing Authority shall give proper receipt to the licence holder.

(f) The decision taken by the Screening Committee shall be final.

(g) Any licence holder who fails to deposit arms within the period specified above shall be liable for prosecution under Section 188 of the Indian Penal Code.

3.12 The District Administration shall ensure foolproof arrangements for keeping the deposited firearms in safe custody. Proper receipt must be given to the licence holders depositing the firearms. It shall be the bounden duty of the District Administration to ensure that all firearms deposited with the Administration are returned to the licence holders immediately after one week after the declaration of results.

3.13 The sportsmen who are the members of National Rifle Association, at different levels and have to participate in various sporting events in which they use their rifles, will be exempted from these restrictions. This ban shall, also not be applicable to those communities who are entitled to display weapons by long standing law, custom and usage. This shall, however, not prevent the District Administration to impound weapons of any person, even from such communities, if they are found to be indulging in violence or posing a threat to the maintenance of law and order and peaceful conduct of elections. In such cases too, the seized firearms shall remain impounded till one week after the declaration of results.”

4. Therefore, according to the learned Standing Counsel appearing for the 4th respondent, the issue with respect to deposit of licensed arms will have to be considered by the Screening Committee appointed after the declaration of election by the National Election Commission. Therefore, the action taken by the 3rd respondent cannot be sustained under law.

5. I have heard learned counsel for the petitioner, learned Government Pleader as well as the learned Standing Counsel appearing for the 4th respondent and perused the pleadings and the documents on record.

6. The subject issue revolves around the provisions of Ext.R4(a) notification issued by the Election Commission of India in respect of deposit of firearms to ensure peaceful, free and fair elections during the general elections/bye-elections, to assist the State law and order machinery in prevention of prepoll and post-poll violence and inspire confidence in the impartiality of election machinery among the common electorate, along with other restrictions and prohibitions. As per clause 3.10 of the notification, immediately after the announcement of elections, the District Magistrates are empowered to make a detailed and individual review and assessment (in accordance with the prevalent State laws) of all licence holders so that licensed arms in those cases where they consider it essential are impounded in order to ensure maintenance of law and order for ensuring free and fair elections. The arms, on evaluation, should be deposited with the district authorities, and the cases which are to be reviewed are prescribed under clauses(a) to (c) thereunder.

7. Further, in order to evaluate the situation, a Screening Committee in every District and in every Commissionerate area is to be appointed, which shall be consisted of the District Magistrate and the Superintendent of Police. In the Commissionerate area, it shall consist of the Commissioner of Police (Admn.) and Joint/Additional Commissioner of Police (Admn.). As per sub-clause (b) of clause 3.11, the Screening Committee shall commence the work of screening from the day of announcement of election by the Election Commission and it shall complete the exercise of screening in respect of licences placed before it as far as possible before the date of issue of notification of elections. As per sub-clause (c), cases of all licence holders as mentioned in para 3.10 shall be placed before the Screening Committee, and on receipt of a report from the Screening Committee, the licensing authority shall issue notice before the last date fixed for withdrawal of candidature to the individual licence holder for depositing his arms and inform the licence holder that failure to deposit the arms as directed would result in prosecution under Sec.188 of the IPC, and as provided under clause 3.11(g). If such a direction is issued, the licence holder is duty bound to deposit his arms forthwith and in any case within a period of seven days from the date of receipt of the notice, and the Licensing Authority shall give proper receipt to the licence holder. The decision taken by the Screening Committee shall be final also.

8. As per clause 3.12 of the notification, the District Administration is vested with powers to ensure foolproof arrangements for keeping the deposited firearms in safe custody, and issue proper receipts to the licence holders depositing the firearms. It shall be the bounden duty of the District Administration to ensure that all firearms deposited with the Administration are returned to the licence holders, immediately after one week of the declaration of results.

9. Clause 3.13 deals with the licences held by sportsmen like the petitioner, whereby the sportsmen who are members of the National Rifle Association at different levels, i.e., District, State and National levels and have to participate in various sporting events in which they use their rifles, will be exempted from the restrictions. However, the ban shall also not be applicable to those communities who are entitled to display weapons by long standing law, custom and usage. But, such exemptions will not prevent the District Administration to impound weapons of any person, even from such communities, if they are found to be indulging in violence or posing a threat to the maintenance of law and order and peaceful conduct of elections. In such cases too, the seized firearms shall remain impounded till one week after the declaration of results.

10. On an analysis and evaluation of the provisions of the notification, it is quite clear and evident that the authority vested with powers to consider the issue with respect to the licence holders and deposit of firearms during any election is remaining with the Screening Committee and the District Administration of every District. Therefore, there can be no doubt that Ext.P7 notice issued by the 3rd respondent, i.e., the Sub Inspector of Police, Pallikkathode Police Station, Kottayam District cannot be sustained under law, and he is not vested with powers to issue any such direction to the petitioner to deposit the arms with the Police Station, in view of the mandatory stipulations contained under the notification issued by the 4th respondent, entrusting the said responsibility and duty with a superior authority. Therefore, whatever power conferred on a police officer, to order deposit of firearms under ordinary circumstances, will remain conceded to the authority under the notification, in so far as the issues dealt with thereunder. Which thus also means, under other circumstances, as part of investigation of crimes, and other situations interfering with normal life and liberty of the people, the police officers are vested with powers to issue necessary directions in accordance with law.

11. In that view of the matter, Ext.P7 is illega

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l and arbitrary, justifying interference of this Court under Article 226 of the Constitution of India. Moreover, 4th respondent has produced Annexure-R4(b) order issued by the State Government dated 19.02.2019, whereby the Chief Electoral Officer and Additional Chief Secretary to Government has issued orders to all District Election Officers and District Collectors, requesting to comply with the instructions issued by the 4th respondent, especially regarding setting up of Screening Committee for scrutiny of arms licence, and further directed to forward a compliance report at the earliest possible to the undersigned. 12. Taking into account all the above aspects, Ext.P7 issued by the 3rd respondent is quashed. However, I make it clear that the Screening Committee is vested with ample powers to review all the issues in respect of holders of arms licence in terms of Annexure-R4(a) notification dated 01.09.2009. To put it otherwise, quashing of Ext.P7 will not stand in the way of the Screening Committee constituted by the District Administration issuing appropriate directions to the licence holders in terms of the notification issued by the 4th respondent specified above. The writ petition is allowed to the above extent.
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