Allowed

Vinod C.K., v. State of Kerala

Kerala HC12 Mar 2021WP(C)/5622/2021

Case brief

AI extract

What is this about?

This writ petition challenged the respondents' order requiring the deposit of licensed arms for the April 2021 elections without a Screening Committee report. The Court held that deviating from the Election Commission's mandatory procedure renders such collection illegal. It ordered the return of deposited guns within two days.

What did the court decide?

Direction to respondents 5 to 8 to return the licensed guns deposited by the petitioners within 2 days.

Vinod C.K., Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2021)

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W.P(c).No.5622/2021-C

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942

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WP(C).No.5622 OF 2021(C)

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PETITIONERS:

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1 VINOD C.K., AGED 50 YEARS S/O. VIJAYAN, HARINAMAM, P.O, KADIROOR, KANNUR DISTRICT, KERALA - 670642.

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2 SHIJO K.J AGED 38 YEARS S/O. JOSEPH, KALATHIL PARAMBIL HOUSE, KAKKARA POST, M.M. BAZAR, PEDENA, KANNUR DISTRICT,

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KERALA - 670306.

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3 KOLLIKKUNNEL THANKAPPAN, AGED 66 YEARS, S/O. KUNHAN, KOLLIKKUNNEL HOUSE, POTTENPLAVUR P.O, PONADUVILVIA, KANNUR DISTRICT, KERALA - 670582.

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4 PUTHANKANDATHIL PHILIP AGED 67 YEARS S/O. JOSEPH, PUTHANKANDATHIL HOUSE, PULIKKURUMBAARANG P.O, KANNUR DISTRICT, KERALA - 670582.

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5 RAJESH T.C. AGED 52 YEARS S/O.T.C. RAJAGOPALAN NAMBIAR, K.P HOUSE, MAYYIL P.O, KANNUR DISTRICT, KERALA – 670602.

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BY ADV. SRI.SAJI KURIACHAN

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM - 695036.

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2 THE CHIEF ELECTORAL OFFICER VIKAS BHAVAN, LEGISLATIVE COMPLEX, THIRUVANANTHAPURAM DISTRICT, KERALA – 695033.

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W.P(c).No.5622/2021-C

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3 THE DISTRICT COLLECTOR, KANNUR P.O, KANNUR - 670001.

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4 THE SUPERINTENDENT OF POLICE(RURAL) KANNUR P.O, KANNUR - 670001.

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5 THE STATION HOUSE OFFICER, KADIRUR P.O, KANNUR - 670642

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6 THE STATION HOUSE OFFICER, PERINGOME P.O, KANNUR - 670353.

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7 THE STATION HOUSE OFFICER KUDIYANMALA P.O, KANNUR - 670582.

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8 THE STATION HOUSE OFFICER, MAYYIL P.O, KANNUR - 670602.

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SMT.VINITHA.B, GOVERNMENT PLEADER SRI.KODOTH SREEDHARAN, STANDING COUNSEL

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P(c).No.5622/2021-C

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P.V.ASHA, J .

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W.P(c) No.5622 of 2021-C

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Dated this the 12^th day of March, 2021

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J U D G M E N T

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The petitioners are holders of arms licence. Their grievance is over the action of respondents 5 to 8 in getting their licenced arms deposited with the respective Police Stations under the guise of the election to legislative assembly being held in April 2021, even in the absence of any decision by the screening committee. In the case of petitioners 1 to 4, the respondents 5 to 7 issued receipts dated 17.02.2021, 10.02.2021, 02.02.2021 and 03.02.2021 on getting their fire arms deposited. In the case of the 5^th petitioner, the 7^th respondent got it deposited on 19.11.2020 as can be seen from Ext.P6 receipt, ahead of the election to the local bodies and it is not returned so far.

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Heard the learned Counsel for the petitioner as well as the learned Government Pleader.

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I have already considered similar cases where the respondents 3 and 4 were parties. This Court has time and again cautioned that the Police officers do not have any authority to require deposit of licensed arms and that a decision regarding the requirement of deposit of licensed arms in view of upcoming elections can only be taken by the screening committee constituted as per the

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W.P(c).No.5622/2021-C

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provisions contained in the circular issued by the Election Commission on 01.09.2009. As per the said circular a screening committee has to be constituted

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for review and assessment of all license holders. Clause 3.10 and 3.11 of the circular reads as follows:

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“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:

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(a) Arms licenses of persons released on bail,

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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.

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

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(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.).

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(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.

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

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(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).

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W.P(c).No.5622/2021-C

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(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.

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

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(g) Any licence holder who fails to deposit arms within the period specified

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above shall be liable for prosecution under Section 188 of the Indian Penal Code.”

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From the circular it is clear that the screening committee is expected to

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commence its screening work from the date on which election is announced; screening work is to be completed before the issuance of notification for election. On receipt of a report of the said screening committee that the impounding of the licensed arm of a particular licenseholder is essential for ensuring the maintenance of law and order and for ensuring a free and fair election, the licensing authority can issue a notice to the licenseholder directing him to deposit the licensed arm within one week.

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In the present case the respondents do not have a case that the petitioners are involved in any of the parameters coming under clauses (a) to (c) of Clause 3.10. There is no report from the screening committee which relates to the petitioners enabling any direction to deposit licensed arms and if at all it was received for any such reason for retaining the same with them till all the elections are over, as in the case of the 5^th petitioner, from whom it was obtained on 19.11.2020, no notice is issued to the petitioners by the licensing authority. The only reason for directing deposit of the licensed arms appears to be to ensure a serene atmosphere for the election.

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When a specific procedure is laid down in Ext.P1, which should

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W.P(c).No.5622/2021-C

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precede the direction for deposit of licensed arms, there is no reason for deviating from the said procedure and collect the licensed arms well before election without

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authority and also to retain the guns even months after the election. It is unfortunate that the authorities concerned continue to adopt such an illegal procedure even after a series of judgments from this Court starting from Saji Kuriachan v. District Collector, Ernakulam : 2011 (1) KLT 484 and reiterated in Binesh G. Vadath v. District Collector [2011 (1) KHC 214] , Joseph v. District Collector [2019 (1) KLT 1034] , etc.

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In the judgment dated 18.02.2021, I had already directed respondents 3 and 4 to see that the Police officers under them are not resorting to such short cut methods. Even thereafter the position continues to be the same. Respondents 5 to 7 are also under the very same respondents. It would appear that the respondents are adopting short cut methods and directing all the licenseholders to deposit their firearms so that those who are aggrieved and vigilant would approach this Court.

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Therefore, there will be a direction to respondents 5 to 8 to return the

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licensed guns deposited by the petitioners within 2 days from the date of receipt of a copy of the judgment.

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The Writ Petition is allowed accordingly.

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Sd/- (P.V.ASHA, JUDGE)

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rtr/

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W.P(c).No.5622/2021-C

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE CIRCULAR DATED 01.09.2009 FROM THE ELECTION COMMISSION. EXHIBIT P2 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY THE 5TH RESPONDENT DATED 17.02.2021. EXHIBIT P3 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY THE 6TH RESPONDENT DATED 10.02.2021. EXHIBIT P4 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY THE 7TH RESPONDENT DATED 02.02.2021. EXHIBIT P5 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY THE 7TH RESPONDENT DATED 03.02.2021. EXHIBIT P6 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY THE 8TH RESPONDENT DATED 19.11.2020. EXHIBIT P7 JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO. 3525 OF 2021 DATED 18.02.2021.

Vinod C.K., v. State of Kerala

Case brief

What is this about?

What did the court decide?

Vinod C.K., v. State of Kerala

Case brief

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