(2011) 185 KLR 873

IN THE HIGH COURT OF KERALA AT ERNAKULAM

The Hon'ble MR. Justice ANTONY DOMINIC 

W.P.(C) Nos.9933 and 10598 of 2009 (J) 

Dated this the 10th day of January, 2011

1. BINESH.G.VADATH, AGED 39 YEARS, ... Petitioner 

Vs 

1. THE DISTRICT COLLECTOR, ... Respondent 

2. SUPERINTENDENT OF POLICE, 

3. THE SUB INSPECTOR OF POLICE, 

For Petitioner :SRI.SAJI KURIACHAN 

For Respondent :GOVERNMENT PLEADER 

 J U D G M E N T 

Petitioner in W.P.(C) No.9933/2009 was granted licence to hold one 12 bore SBBL Gun No.P 8437 and revolver No.0651 00080. The petitioner in W.P.(C) No.10598/2009 has been granted licence to hold one 12 bore SBBL Gun No.M/4 - 4635 and one SBML Gun No.5071. Petitioners state that the licences have been renewed periodically and are still valid. 

2. They approached this Court complaining that during the second week of March, 2009, the Sub Inspector of Police, within whose jurisdiction they reside, directed them to deposit their weapons in the police station and accordingly, they deposited the weapons. In these writ petitions, the contention raised is that there is no provision either in the Arms Act or Rules, enabling the third respondent or the licencing authority to require deposit of the licenced weapons either as a temporary or permanent measure, during the subsistence of the licence issued. It is on this basis, prayer is sought, requiring the respondents to return the weapons deposited by them. 

3. Although the petitioners were directed to deposit the weapons on account of the Election to the Parliament which was announced on 02-03-2009 and the weapons deposited were returned to them, the writ petitions were retained and considered on account of the fact that the grievance raised is of a recurring nature. 

4. In the statement filed on behalf of respondents 2 and 3, contention raised is that in connection with the Lok Sabha Election 2009, the Directer General of Police, vide message dated 12-03-2009, directed the subordinates to ensure deposit of licenced arms within the police station limits. It is stated that it was in pursuance to the said instruction that the third respondent directed the licence holders to deposit the licenced arms. According to them, for conducting a free and fair election, it was necessary to order deposit of licenced arms. 

5. In this writ petition, the Election Commission, which was impleaded as additional 6th respondent, has filed a statement, producing Annexures-A and B. Annexure-A is a judgment of the Bombay High Court rendered in identical circumstances and which laid down guidelines for ordering deposit of licenced arms. It is stated that incorporating the guidelines issued by the Bombay High Court, the Commission has issued Annexure-B circular dated 01-09-2009 addressed to the Chief Secretaries of all States and the Chief Electoral Officers of all States. The Circular, in so far as deposit of licenced arms is concerned, reads as under:- 

"Deposit of Licensed Arms 

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. 

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." 

6. The statement filed on behalf of respondents 2 and 3 shows that it was on account of the declaration of Lok Sabha Election and the instructions issued by the DGP that the petitioners were called upon to deposit their licenced arms. Now that the Election Commission has issued the aforesaid circular, relevant portion of which has been extracted above, which regulates deposit of licenced arms, it is imperative that respondents 1 to 3 should be guided by the circular referred to above. Clarifying that the position as above and directing that the henceforth deposit of the licenced arms shall be as per the circular issued by the sixth respondent, these writ petitions are disposed of. It is also clarified that the election to the local bodies which are conducted by the fifth respondent will also be governed by the circular issued by the sixth respondent and extracted above. 

Sd/- (ANTONY DOMINIC, JUDGE) 

aks // True Copy // P.A. To Judge