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Kusha Chandra Sarna and ors. Vs. the District Magistrate and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantKusha Chandra Sarna and ors.
RespondentThe District Magistrate and ors.
Excerpt:
.....the second para of the impugned order, namely, that all licence holders are to deposit their arms and licences in the nearest police station within 48 hours, is not one contemplated under section 22. the other part of the para, namely, the authority given to the police officers may at best be construed as an authority to act in accordance with and not in derogation of section 22(2). 7. the power of search or seizure by a magistrate under section 22 of the act is already there as a statutory provision. the impugned order is, therefore, clearly not in terms of section 21. 13. section 24 of the act provides for seizure and detention under orders of the central government. choudhury clearly states that the impugned order was not passed by the district magistrate, darrang pursuant to..........the second para of the impugned order, namely, that all licence holders are to deposit their arms and licences in the nearest police station within 48 hours, is not one contemplated under section 22. the other part of the para, namely, the authority given to the police officers may at best be construed as an authority to act in accordance with and not in derogation of section 22(2).7. the power of search or seizure by a magistrate under section 22 of the act is already there as a statutory provision. it would be necessary for the district magistrate to pass an order recording reasons for conducting such search and seizure. even if the district magistrate is taken to be a magistrate who had reason to believe, ha could form the belief as required under the section and could cause a.....
Judgment:

K.N. Saikia, J.

1. This batch of analogous writ applications impugn the following order dated 23-2-i9S3 of the District Magistrate, Darrang, Tezpur:

Whereas it has been reported that large number of firearms are used in communal riots and arson in the district of Darrang by the miscreants and that many persons have been killed by gun shots, the arms and ammunitions are being used for unlawful purpose.

It is therefore ordered under Section 22 of the Arms Act, 19S9 that all Licence holders are to deposit their arms and ammunitions with the Licence in the nearest Police Station/Outpost within 48 hours of passing this order. The police officers are fully authorised and empowered to search/seize all arms and ammunitions and deposit in the respective Malkhana.

Any disregard of this order will render to prosecution as per law.

2. Mr. P.K. Barua, the learned Counsel for the petitioner in Civil Rule No. 104/83, submits, inter alia, that the impugned order is a general one which is not contemplated under Section 22, Arms Act, 1959 (hereinafter referred to as 'the Act'); that even if it is treated as an order addressed to individual licence holders it is not supportable under Section 22 of the Act; that it is not supportable under any other provisions of the Act or the Rules framed thereunder; and that as it seeks to deprive the petitioner of his property in his gun without authority of law, it is liable to be set aside. Mr. S N. Medhi also submits that the impugned order cannot be supported under Section 21 of the Act which deals with deposit of arms, etc.

3. Mr. D.N. Choudhury, the learned Senior Govt. Advocate, submits that the impugned order is one of search and seizure and precisely falls within the purview of Section 22 of the Act, its first para recording the reasons and the second para requiring the licence holders to deposit their arms and authorising search and seizure as contemplated under that section. He submits that the order nowhere states that search conducted will not be by or in presence of a Magistsate of authorized officer.

4. Section 22 of the Act reads:

22. Search and seizure by Magistrate.- (1) Whenever any Magistrate has reason to believe-

(a) that any person residing within the local limits of his jurisdiction has in his possession any arms or ammunition for any unlawful purpose; or

(b) that such person cannot be left in the possession of any arms or ammunition without danger to the public peace or safety, the Magistrate may, after having recorded the reasons for his belief, cause a search to be made of the house or premises occupied by such person or in which the Magistrate has reason to believe that such arms or ammunition are or is to be found and may have such arms or ammunition, if any, seized and detain the same in safe custody for such period as he thinks necessary, although that person may be entitled by virtue of this Act or any other law for the time being in force to have the same in his possession.

(2) Every search under this section shall be conducted by or in the presence of a. Magistrate or by or in the presence of some officer specially empowered in this behalf by the Central Government.

5. Under this section any Magistrate may cause a search to be made of the house or premises occupied by a person having in his possession arms or ammunition for any unlawful purpose or of a person who cannot be left in the possession of any arms or ammunition without danger to the public peace or safety whenever he has reason to believe that the arms or ammunitions were held for unlawful purpose or that he cannot be left in the possession of such arms or ammunition without danger to the public peace or safety. He can do so only after having recorded the reasons for his belief. He can seize and detain or cause to be detained the arms and ammunition found in the search in safe custody as stated in the section. Another requisite is that the search shall be conducted by or in the presence of a Magistrate or by or in the presence of an office specially empowered in this behalf by the Central Government

6. In the impugned order the first para contains only a statement of facts. The second para of the impugned order, namely, that all licence holders are to deposit their arms and licences in the nearest police station within 48 hours, is not one contemplated under Section 22. The other part of the para, namely, the authority given to the police officers may at best be construed as an authority to act in accordance with and not in derogation of Section 22(2).

7. The power of search or seizure by a Magistrate under Section 22 of the Act is already there as a statutory provision. It would be necessary for the District Magistrate to pass an order recording reasons for conducting such search and seizure. Even if the District Magistrate is taken to be a Magistrate who had reason to believe, ha could form the belief as required under the section and could cause a search to be conducted without addressing any order to the licence holders to deposit their arms within 48 hours

8. For the above reasons we find it difficult to hold that the impugned order is one passed under Section 22 of the Act. It is settled law that exercise of power under a wrong provision will not be vitiated if it is traceable to a legitimate source as was held in J. K. Steel Ltd. v. Union of India : 1978(2)ELT355(SC) . Similarly in the Vice Chan, cellor, Jammu University v. Dushiant Kumar Rampal it was ruled that mention of wrong legal provision will not vitiate a competent order not without jurisdiction.

9. If the impugned order is found to be one in contemplation of any other provisions of the Act or the Rules framed thereunder, it may still be sustained in law. We may conveniently refer to those relevant provisions at this stage. Section 17 of the Act deals with variation, suspension and revocation of licences and Sub-section (1) thereof authorises the licensing authority to require the licence holder by notice in writing to deliver up the licence to it withjn such time as may be specified in the notice. Under that section the licensing authority may, by order in writing, vary the conditions of the licence, suspend a licence for such period as it thinks fit or revoke a licence as per provisions of that section. Under Sub-section (6) of that section the authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a licence, and under Sub-section (9) thereof the Central Government may, by order in the official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licence granted under the Act throughout India or any part thereof, and under Sub-section (10) on the suspension or revocation of a licence under that section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation. We do not find any such purpose mentioned in the impugned order. It is not the case of the District Magistrate that all the licence holders were to deposit their arms and ammunitions with the licences for the purpose of variation, suspension or revocation of the licences. It is, therefore, difficult to hold that the impugned order, to the extent it orders deposit of the arms, is one contemplated under Section 17 of the Act

10. A person aggrieved by an order of the licensing authority or the authority to whom the licensing authority is subordinate, suspending or revoking a licence, may prefer an appeal under Section 18 of the Act. The impugned order cannot be held to be such an appealable order.

11. Under Section 19 of the Act any police officer or any other officer specially empowered in this behalf by the Central Government may demand the production of his licence from any person who is carrying any arms or ammunition; and if the person upon whom a demand is made refuses or fails to produce the licence or to show that he is entitled by virtue of the Act or any other law for the time being in force to carry such arms or ammunition without a licence, the officer concerned may require him to give his name and address and if such officer considers it necessary, seize from that person the arms or ammunition which he is carrying. This section contemplates a person who is carrying any arms or ammunition and requires production of his licence or giving of his name, and address. The instant order is not one contemplated under this section.

12. Section 21 of the Act provides for deposit of arms on possession thereof ceasing to be lawful. Under Sub-section (1) any person having in his possession any arms or ammunition, the possession whereof has, in consequence of the expiration of the duration of a licence or of the suspension or revocation of a licence or by the issue of a notification under Section 4 of the Act or by any reason whatever, ceased to be lawful, shall without unnecessary delay deposit the same either with Officer-in-charge of the nearest police station or subject to such conditions as may be prescribed with a licenced dealer or where such person is a member of forces of the Union, in a unit armoury. This section contemplates deposit of any arms of ammunition on one's possession ceasing to be lawful. In the instant cases admittedly the licences have neither expired nor suspended, not revoked. It has also not been shown that by any reason whatever the pos-session of the arms has ceased to be lawful. Disobedience to the impugned order of deposit itself cannot be said to have caused the lawfulness to cease. The impugned order is, therefore, clearly not in terms of Section 21.

13. Section 24 of the Act provides for seizure and detention under orders of the Central Government. The Central Government may at any time order the seizure of any arms or ammunition in possession of any person, notwithstanding that such person is entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, and may detain the same for such period as it thinks necessary for the public peace and safety. Mr. Choudhury clearly states that the impugned order was not passed by the District Magistrate, Darrang pursuant to any such order as contemplated under Section 24 of the Act.

14. The next question is whether the portion of the order that all licence holders are to deposit their arms and ammunition can be justified under the conditions of the licence. The licences in those cases are admitted to have been issued in Form III or IV of Schedule III to the Arms Rules, 1962(hereinafter referred to as 'the Rules'). The licences themselves contain the conditions to which they are subject. Condition 1 says that the licence is granted subject to all the provisions of the Rules. Condition 9 (a) of the licence in Form HI states:

The licensee shall-

(a) on demand by an authorised offices produce the arms possessed under this licence.

Condition 10 (a) of the licence issued in Form IV similarly says:

The licensee shall-

(a) on demand by the licensing authority or an authorized officer produce the weapons covered by this licence;

Rule 63(a) of the Rules reads:

63. Production of arms - The authority by whom any licence in Form n, Form HI, Form IV, Form V or Form VI has been granted or renewed, may, for the purpose of satisfying itself that any arms covered by such licence are still in the. possession of the licensee, at any time while the licence is in force, by order in writing require the licensee-

(a) to produce the arms at such time and place for inspection of such officer at may be specified in the order

15. While Rule 63(a) envisages an order in writing requiring the licensee to produce for inspection, Condition 9 or 10 does not envisage any written order. Both the Rule and the conditions again used the expression produce' and not 'deposit' or 'surrender'. To produce, in this context, means to bring forward; to bring or offer to view or. notice; to show or exhibit. To deposit means to lay or to put down. Deposit (Latin 'depositum'), according to Mozley and Whiteley's, means a species of bailment by which a person entrusts another with a chattel to keep safely without reward. According to Black's deposit means 'bailment of goods to be kept by the bailee without reward, and delivered according to the object or purpose of the original trust. In general, an act by which a person receives the property of another, binding (himself to preserve it and return it in kind. The delivery of chattels by one person to another to keep for the use of the bailor. The giving of the possession of personal property by one person to another, with his consent, to keep for the use and benefit of the first or of a third person. Something entrusted to the care, of another either for a permanent or a temporary deposition'.

16. To deposit, therefore, is not the same as to produce, while the former implies the idea of custody, the latter does not necessarily imply such an idea. It cannot, therefore, be held that the order to deposit contained in the impugned order can be justified under Rule 63 or under Condition 9 (a)/10 (a) of the licenses. Besides under Rule 63 an order for production is for inspection for the purose of satisfying that the arms covered by such licences are still in the possession of the licensee, which is not the avowed purpose of the impugned order.

17. Production also differs from surrender. Surrender means to yield. According to Black's it means to give back, restore. Surrender is stated to be a contractual act and occurs only through consent of both the parties. Surrender is, therefore, not in contemplation of Rule 63 or Condition 9(a) or 10 (a) of the Conditions.

18. For the above reasons there is no escape from the conclusion that the portion In the second para of the impugned order, namely It is therefore ordered under Section 22 of the Arms Act, 1959 that all licence holders are to deposit their arms and ammunitions with the licence in the nearest police station/outpost within 48 hours of passing this order', cannot be held to have been passed under Section 22 or under Sections 17, 19, or 21 of the Act or under Rule 63 of the. Rules or under Condition 9(a) in case of licences in Form III or Condition 10 (a) in case of licences in Form IV. There is no doubt that it affects the petitioners' right to property which, though not absolute, is regulated by the licence. This part of the order has, therefore, to be declared illegal and quashed, which we hereby do, prospectively with effect from to-day.

19. On perusal of the remaining part of the order we are inclined to think that those are separable and can continue to operate.

20. As regards the first para of the impugned order this being a statement of facts ipso facto affecting no civil rights of the petitioners, it does not deserve interference from this Court.

21. As regards the portion, namely, 'The Police Officers are fully authorised and empowered to search/seize all arms and ammunitions and deposit in the respective Mal-khana', we find that it contains no order to conduct any search and seizure. Sub-section (2) of Section 22 provides that every search under that section shall be conducted by or In the presence of a Magistrate or by or in presence of some officer specially empowered in this behalf by the Central Government This portion of the impugned order does not show that any search, if and when ordered and conducted, will not be by or in presence of a Magistrate or by or in presence of an officer specially authorised in that behalf. When so understood, it is not in derogation of the requirement of the above Sub-section (2). This portion of the order may, therefore, be allowed to remain. We, however, want to make it clear that this portion will be understood as only an authority given to the Police Officers but will not amount to an order to conduct a search, which, if and when ordered, shall have to be conducted as provided in Sub-section (2) of Section 22 of the Act.

22. We would make it clear that this order of ours will in no way preclude the authorities from making any order on the same subject-matter according to law.

23. When the first application i.e. Civil Rule No. 104 of 1983 was moved, observing the apparent tenor of the order and its contemporary importance, Rule wag issued on 8-3-83 returnable by and to be beard on 14th instant on which date the hearing was deferred to 17th instant. While issuing the Rule the status quo as on that date, as regards the gun and licence of the petitioner was maintained. At the hearing on 17th instant, though the State filed an application for modification of the interim order, the learned Senior Government Advocate agreed to the bearing and so the cases were heard.

24. In the result these petitions are partly allowed to the extent stated above and the Rules to that extent are made absolute. We make no order as to costs.


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