Dismissed

Abdul Salam v. the State of Kerala

Kerala HC19 Dec 2014WP(C)/9952/2011

Case brief

AI extract

What is this about?

This writ petition challenged State and Central Government Circulars requiring police enquiry on threat to life before granting arms licences for self-protection. The Court held the Circulars valid as they clarify statutory requirements. Rejection based on lack of documented threat is lawful. Petition dismissed; applicants directed to avail statutory appeal or licensingAuthority to complete pendin

What did the court decide?

Circulars upheld. Petition dismissed. Applicants directed to prefer appeal under S. 18 Arms Act or licensing authority to conduct proper enquiry.

Abdul Salam Vs the State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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FRIDAY, THE 19TH DAY OF DECEMBER 2014/28TH AGRAHAYANA, 1936

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WP(C).No. 9952 of 2011 (T)

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PETITIONER(S):

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1. A.ABDUL SALAM, RAJAH MANSION, PUTHENPALLY, GURUVAYOOR, THRISSUR.

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2. A.ABDUL SHAFEEQ, RAJAH MAHAL,

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PUTHENPALLY, GURUVAYOOR, THRISSUR

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BY SRI.ABRAHAM VAKKANAL,SENIOR ADVOCATE ADVS. SRI.AUGUSTINE JOSEPH SRI.SAJI KURIACHAN SRI.K.S.ROCKEY SRI.PAUL ABRAHAM VAKKANAL SRI.DIJO SEBASTIAN SMT.VINEETHA SUSAN THOMAS SRI.ABY ABRAHAM

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. PIN-695 001

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2. THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, THRISSUR. PIN-686 001

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3. THE SUPERINTENDENT OF POLICE, THRISSUR. PIN-686 001

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R1 TO R3 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).NO.9952/2011

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APPENDIX

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P1 COPY OF THE APPLICATION DATED 1/12/09 FROM THE 1ST PETITIONER TO THE 2ND RESPONDENT.

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P2 COPY OF THE APPLICATION DATED 2/12/09 FROM THE 2ND PETITIONER TO THE 2ND RESPONDENT.

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P3 COPY OF THE INCOME TAX ASSESSMENT FOR THE YEAR 2010-2011 OF THE 1ST PETITIONER.

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P4 COPY OF THE INCOME TAX RETURN FOR THE YEAR 2010-2011 OF THE 2ND PETITIONER.

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P5 COPY OF THE APPLICATION DATED 31/12/2010 FORM THE 2ND PETITIONER TO THE 2ND RESPONDENT.

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P6 COPY OF THE LETTER DATED 31/01/2011 FROM THE OFFICE OF THE 2ND RESPONDENT ADDRESSED TO THE 2ND PETITIONER.

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P7 COPY OF THE CIRCULAR DATED 14/9/2010 FROM THE 1ST RESPONDENT

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P8 COPY OF THE CIRCULAR DATED 31/3/2010 FROM THE UNION OF INDIA

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P9 COPY OF THE ORDER NO.G.O.(RT).NO.3738/2011/HOME DATED 19/12/2011

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P10 COPY OF THE ORDER NO.C5-65023/2009/K.DIS DATED 12/07/2011

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RESPONDENT'S EXHIBITS: NIL

/TRUE COPY/

P.S.TO.JUDGE

sts

A.M.SHAFFIQUE, J.

W.P.(C) Nos.9952, 10064, 11717, 13456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621, 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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Dated this the 12^th April, 2013

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J U D G M E N T

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W.P.(C) No. 9952/2011 is filed challenging

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Ext.P7 Circular, issued by the Government by which a general direction had been given in the matter relating to the reports to be obtained before issuing Arms licence. It is stated in Ext.P7, that it has come to the notice of the Government that large number of licences were being issued on the ground

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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of self protection over a period of time and that such licences were issued without obtaining necessary report. Hence the Government had issued the guidelines to be observed before issuing the Arms licence. It provides that the licence for self protection should be issued only if a person has serious threat to his life, in which event the police has to enquire into such threat and forward a report to the District Magistrate. It is also stated that the police while making the enquiry shall report on the antecedents of the applicant, the nature of threat to his life, the police records relating to the same, his expertise in handling arms and various other particulars that are required for the grant of licence. Further it is stated that the District Magistrate

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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(District Collector) shall consider the application for Arms licence only after getting a detailed report from the police. In respect of applications for renewal also, report should be obtained to ascertain whether there is a serious threat to the life of the applicant.

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The 1^st petitioner's application for renewal

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of arms licence was rejected as per Ext.P9 and that of the 2^nd petitioner's by Ext.P10. Hence the petitioners seeks to quash Exts.P9 and P10 order by way of an amendment.

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The main contention raised by the petitioner is that the Circular issued by the Government by way of Ext.P7 is contrary to the provisions of Arms Act, 1959. It is the contention of

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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the petitioner that the District Collector who is the licensing authority as provided under section 13(2A) of the Arms Act is the competent authority to consider the application and that too even without a police report.

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In addition to the Circular issued by the 1^st respondent as Ext.P7, the Ministry of Home Affairs, Union of India has also issued a Circular to the 1^st respondent, State Government and all licensing authorities under the Arms Act imposing stringent conditions in issuing new licence. Ext.P8 is the said Circular.

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According to the petitioner the authorities cannot go beyond the statute and the reason for rejecting the licence of the petitioners is bad in law

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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and hence they are impugning Exts.P7, P9 and P10.

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Other writ petitions are filed challenging the

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validity of the aforesaid State and Central Government Circulars and calling upon the authorities concerned to consider their renewal application in accordance with the provisions of the Act and not on the basis of the Circulars issued.

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Counter affidavit is filed by the State

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Government supporting the stand taken in the Circulars issued. According to them, the Circular had been issued on the direction issued by the Central Government with the intention is to curb proliferation of arms and to prevent misuse of arms by anti-social elements and terrorist organisations.

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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The first question to be considered in the writ petition is the validity of Circular issued by the State Government and the Central Government.

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Heard the learned counsel appearing for the petitioners and the learned Government Pleader appearing for the State.

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While considering the contentions urged by the petitioners it will be useful to refer to the following provisions of the Arms Act:

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Section 2(c) defines 'arms' and 2(f) defines licensing authority as under:

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( c ) “arms” means articles of any description designed or adapted as weapons for offence or defence, and includes firearms, sharp-edged and other deadly weapons, and parts of, and machinery for manufacturing, arms, but does not include articles designed solely for domestic or agricultural uses such as a lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or of

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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being converted into serviceable weapons;

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( f ) “licensing authority” means an officer or authority empowered to grant or renew licences under rules made under this Act, and includes the Government;

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Section 13 and 14 which deals with processing of an application for licence, the grant and refusal reads as under:

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Grant of licences.—(1) An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed.

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1 [ (2) On receipt of an application, the licensing authority shall call for the report of the officer-incharge of the nearest police station on that application, and such officer shall send his report within the prescribed time.

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(2-A) The licensing authority, after such inquiry, if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same:

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Provided that where the officer-in-charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.]

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(3) The licensing authority shall grant—

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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( a ) a licence under Section 3 where the licence is required—

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( i ) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection:

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Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection, or

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( ii ) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government;

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( b ) a licence under Section 3 in any other case or a licence under Section 4, Section 5, Section 6, Section 10 or Section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same.

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Refusal of licences.—(1) Notwithstanding anything in Section 13, the licensing authority shall refuse to grant—

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( a ) a licence under Section 3, Section 4 or Section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition;

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( b ) a licence in any other case under Chapter II,—

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( i ) where such licence is required by a person whom the licensing authority has reason to believe—

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(1) to be prohibited by this Act or by any other law for the time being in force from acquiring, having in his

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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possession or carrying any arms or ammunition, or

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(2) to be of unsound mind, or

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(3) to be for any reason unfit for a licence under this Act; or

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( ii ) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence.

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(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.

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(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.

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On receiving an application, the licensing

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authority has to call for a report from the police

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station as provided under sub-section (2) of S.13. It

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is thereafter that the licensing authority conducts

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enquiry as it deems necessary and decides to grant

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or refuse licence. The licensing authority could also

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grant a licence for a smooth bore gun having a

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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barrel of not less than twenty inches in length to be used for protection or sport or in respect of muzzle loading gun to be used for bona fide crop protection. While granting licence the licensing authority should satisfy itself that the applicant has a good reason for obtaining the license as provided under sub-section 3(b) of section 13.

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Section 14 deals with refusal of licence. It

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is a non-obstante clause. It is open for the licensing authority to refuse licence under Ss. 3, 4 and 5 in respect of any prohibited arms or prohibited ammunition and in any other case under Chapter II, if the authority has reason to believe that the person is unfit for a licence under the Act and the licensing authority deems it necessary for the

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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security of public peace or for public safety to refuse grant of such a licence. The order passed by the licensing authority is appealable under S. 18 of the Act.

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Now coming to the Circulars, I do not find any provision in the Circulars either issued by State Government or Central Government which is inconsistent with the provisions of the Arms Act. The Act contains general provisions relating to the grant or refusal of the licence. The nature of enquiry that is to be conducted by the District Collector and the nature of police report that should made available for conducting appropriate enquiry in the matter of grant of licence had been dealt in the Circular issued by the State Government. The

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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Circular issued by the Central Government imposes various restrictions taking into

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consideration the nature of the arms as well.

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These Circulars had been issued in public interest especially for the purpose curbing proliferation of arms into the country. These are all general instructions to be considered by the appropriate authorities in the light of the policy of the Government to prevent proliferation of arms into the country. But having regard to the licensing provision, the thrust is to find out whether there is an imminent threat to life of the citizen or a grave danger which could be abated by issuing an arms licence. If the Arms licence is for self protection, necessarily threat to life should be in existence.

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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This has to be verified by the police authorities. When S. 13(2) clearly indicates that the report from police is required, the Circular only indicates the manner in which the police has to verify the requirement of arms projected by the applicant taking into consideration his requirement of self protection. In other words the whole purpose of the Circular is to emphasize the need for a proper enquiry by the police to enable the licensing authority to comply with the provisions of the Act rather than issuing license as a matter of course. Viewing the Circular in such an angle, I do not think that the Circulars are bad in law and it is well within the executive power of the respective governments to issue such circulars.

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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Reference is made to various judgments

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to support the stand taken by the petitioners.

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(i) Abdul Hameed v. District Magistrate (1994 Crl. L.J 530) is relied upon to contend that refusal to issue a licence on the ground that many licences were issued in the same village is improper and unreasonable. It is held that a licence cannot be refused on extraneous consideration. That was a case in which rejection of licence was on the ground that there are already five fire arms licences in the said village.

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(ii) Kesavan v. Board of Revenue (1990 (1) KLT 325) is relied upon to contend for the position that the right to hold a gun is not an unqualified property right and reasonable restrictions can be

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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imposed on the right to possess and use a gun.

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(iii) Ganesh Prasad v. Board of Revenue

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(2005 (2) KLT 645) is relied upon to contend that the District Collector has to independantly consider the grant of licence by independant application of mind and merely because the concerned police officer has not recommended to issue licence, that by itself cannot be a reason for refusing arms licence. That was a case where the District Collector refused the licence by stating the reason that the Superintendent of Police had not recommended the issue of licence.

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(iv) Commissioner of Police v. V.P. Kalairajan (2009) 3 MLJ 1295) is relied upon to contend that when the licence is refused by the

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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licensing authority under S.14(1)(b) of the Arms Act, the authority must have reason to believe that the applicant fell under any of the categories set out in the section namely, prohibited by law, unsound mind, for the security of the public peace, or public safety. It is also held in the said judgment that the satisfaction of authority can be questioned by the applicant since the satisfaction of the licensing authority cannot be a subjective satisfaction.

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(v) Mohammed Shafi v. District Collector (2012 (1) KHC 299) is relied upon to contend that the authority has to consider rejection of the application in accordance with the terms of the statute and an applicant is entitled to press for its grant on the basis of the criteria set forth in it.

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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The judgments cited above, no doubt proceeds on the basis that when a statute prescribes a method to grant licence or to refuse there cannot be any extraneous considerations.

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The cases on hand has to be viewed in the light of the recent trend of the society. One has to take note of the fact that on a day-to-day basis no person is under the threat of imminent danger. The situation in life has changed over a period of time. The security level in urban and sub-urban areas had increased, more police stations have started functioning, many methods are adopted by the State to secure the life and property of the citizen. The communication system had developed. Therefore the consideration of the application for arms licence

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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also has to be in the light of the present day socioeconomic conditions of the Society. Government had interfered by issuing Circulars which are impugned in these writ petitions, taking into account the threat of large number of arms for which licences are issued without proper enquiry. Hence when the statute prescribes an enquiry to be conducted by the police, necessarily the requirement is to find out whether the applicant actually requires the arms licence or not. To acquire an arms licence is not luxury. It is a requirement which has to come within the four corners of the statute. Such a requirement should be projected in an application for licence and also at the time of renewal of licence. That requirement is to be considered by the police and

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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the District Collector. The District Collector makes enquiry through the police as well as revenue officials. Such being the situation, if in exercising that power, the District Collector rejects an application, either a new or renewal application, by application of mind, I do not think that it will be proper of the part of this Court to interfere with such finding of fact. No doubt, there is an appellate remedy provided under S. 18 of the Act which could be availed of by the applicant. The judgments relied upon does not give any assistance to the petitioners to impugn the Circulars or the orders rejecting arms licence. In the above circumstances, I do not think that the petitioners are entitled to any relief in these writ petitions.

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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However, having regard to the fact that

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these matters were pending before this Court and in certain cases orders were not passed by the licensing authority in order to give an opportunity for the petitioners to avail the statutory right of appeal, the following orders are passed.

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(i) In instances where the licensing authority had already rejected the application, it shall open for the petitioners to prefer an appeal before the appellate authority under S. 18 of the Act within a period 30 days from the date of receipt of a copy of this judgment.

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(ii) In instances where the licensing authority had not disposed of the application for licence/ renewal of licence, the concerned licensing

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W.P.(C) Nos.9952, 10064, 11717, 3456, 14582, 20475, 21209,21356, 23654, 24373, 25033, 27621 and 28517, 31137, 31177 and 33522 of 2011 and 4227 and 4702 of 2012

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authority shall pass appropriate orders after conducting proper enquiry within three months from the date of receipt of a copy of this judgment.

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Sd/-

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A.M.SHAFFIQUE, JUDGE.

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rka

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/true copy/