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iahwarappa Vs. the District Magistrate and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1977CriLJ306
Appellantiahwarappa
RespondentThe District Magistrate and anr.
Excerpt:
.....of section 21 which was admittedly made within the time prescribed under sub-rule (4) of rule 46 of the arms rules, on the ground that the second respondent the person authorised by the petitioner to receive the firearm had not become entitled to possess firearm before the expiry of one year from the date of deposit of the firearm in question though the second respondent had by virtue of the licence granted on the 19th may, 1975, by the licensing authority by the time the district magistrate made the order, became entitled to possess the firearm. 1975 -exhibit-a as well as the consequential order forfeiting the firearm dated 25th october, 1975, exhibit-b have to be quashed......or(b) to dispose, or authorise the disposal, of anything so deposited by sale or otherwise to any person entitled by virtue of this act or any other law for the time being in force to have, or not prohibited by this act or such other law from having, the same in his possession and to receive the proceeds of any such disposal:provided that nothing in this subsection shall be deemed to authorise the return or disposal of anything of which confiscation has been directed under section 32.the period contemplated by sub-section (2) of section 21 has been prescribed by rule 46(4) of the arms rules, 1962 which reads as follows:(4) the period within which a depositor or his legal representative may exercise his rights under sub-section (2) of section 21 shall be-(a) six months from the date of.....
Judgment:
ORDER

V.S. Malimath, J.

1. The petitioner has, in this writ petition challenged the order of the District Magistrate, Bijapur, the licensing authority, dated 1-10-1975 Exhibit-A and the subsequent order dated 25-10-1975 Exhibit-B filed along with I, A. No. 1.

2. The undisputed facts of the case are as follows:

The petitioner's father held a licence under the Arms Act. 1959, which entitled him to possess a revolver bearing No. 64196. The petitioner's father died on 22nd Nov. 1972, on which date the licence granted to him was in force. After his death, his son the petitioner deposited the revolver with the concerned police authorities on the 20th December, 1972. Thereafter, the petitioner made an application on the 8th October, 1973, to the District Magistrate, Bijapur and prayed that the revolver may be handed over to his uncle the second respondent as the same has been transferred in his favour. The request of the petitioner was turned down by the District Magistrate by his order dated 1-10-1975 Exhibit-A. The District Magistrate has taken the view that as the petitioner did not become eligible to receive the firearm under the Arms Act and Rules within a period of one year from the date of deposit he has forfeited his right. He also took the view that res-pondent-2 was also not eligible to receive the firearm within the period of one year from the date of deposit. The District Magistrate refused the prayer of the petitioner and directed that the firearm be deposited in the police armoury. Thereafter, he made a final order on the 25th October, 1975, forfeiting the firearm under Sub-sections (3) and (5) of Section 21 of the Indian Arms Act.

3. Sri S. Vijaya Shankar, learned Counsel for the petitioner, contended that the District Magistrate committed an obvious error of law in refusing the permission sought for by the petitioner and in forfeiting the firearm in question solely on the ground that neither the petitioner nor his uncle, the second respondent, had become entitled to receive, the firearm in question by obtaining an appropriate licence to hold such firearm within a period of one year from the date of deposit.

4. Section 3 of the Arms Act provides that no person shall acquire, have in his possession or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of the Act and the. rules made thereunder. It is clear from Section 3 of the Act that the revolver which is admittedly a firearm under the Act cannot be possessed by any person unless he holds an appropriate licence issued in accordance with the provisions of the Arms Act and the rules made thereunder. It is not disputed that the petitioner's father did possess an appropriate licence to possess the firearm in question. After the death of the petitioner's father, as the petitioner did not hold any licence in his favour, he could not lawfully possess the firearm in question having regard to the prohibition imposed by Section 3 of the Act, Section 21 of the Arms Act makes provision for deposit of arms etc., on the possession of firearm ceasing to be lawful. Sub-section (1) of Section 21 provides that 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 or by any reason whatever, ceased to be lawful, shall without unnecessary delay deposit the same either with the officer in charge of the nearest police station or subject to such conditions as may be prescribed, with a licensed dealer or where such person is a member of the armed forces of the Union, in a unit armoury. It is in accordance with this section the petitioner deposited the firearm in question along with cartridges in the nearest police station.

5. It is in accordance with subsection (2) of Section 21 that the petitioner made an application on the 8th of October, 1973, praying that the firearm in question be given to the possession of the second respondent the uncle of the petitioner as the petitioner has transferred his right in the firearm in question in favour of the second respondent. On the date on which the petitioner made the application to the District Magistrate neither the petitioner nor the second respondent held any licence to possess firearm in question. But, it is not disputed that on the 8th of March, 1973, the second respondent made an application to the District Magistrate, Bijapur, for the grant of licence to possess the firearm in question under the provisions of the Arms Act and the rules made thereunder. It is also not disputed by Sri B.B. Mandappa, learned High Court Government Pleader, that the licence has been granted in favour of the second respondent on 19-5-1975. The learned Government pleader submitted that it appears that the application for the grant of the licence by the second respondent on the 8th of March, 1973, was not granted and that when a fresh application was made once again by him on 21-2-1975 the licence was granted on the 19th May, 1975, by the District Magistrate, Bijapur. The impugned orders were made by the District Magistrate long after the licence was granted in favour of the second respondent.

6. The question for consideration is as to whether the District Magistrate was right in taking the view that though the second respondent had become eligible to receive the firearm in question on the date on which the District Magistrate made the orders in question he could have refused permission for transferring the firearm in question in favour of the second respondent solely on the ground that the second respondent was not the holder of a licence before the expiry of one year from the date of deposit. The provision of Sub-section (2) of Section 21 which is relevant for this purpose may be extracted as follows:

(2), Where arms or ammunition have or has been deposited under Sub-section (1), the depositor or in the case of his death, his legal representative, shall, at any time before the expiry of such period as may be prescribed, be entitled -

(a) to receive back anything so deposited on his becoming entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, or

(b) to dispose, or authorise the disposal, of anything so deposited by sale or otherwise to any person entitled by virtue of this Act or any other law for the time being in force to have, or not prohibited by this Act or such other law from having, the same in his possession and to receive the proceeds of any such disposal:

Provided that nothing in this subsection shall be deemed to authorise the return or disposal of anything of which confiscation has been directed under Section 32.

The period contemplated by Sub-section (2) of Section 21 has been prescribed by Rule 46(4) of the Arms Rules, 1962 which reads as follows:

(4) The period within which a depositor or his legal representative may exercise his rights under Sub-section (2) of Section 21 shall be-

(a) six months from the date of deposit, if the arms or ammunition are deposited as a consequence of contravention by its owner of any provision of the Act or these rules or any condition of the licence;

(b) one year-

(i) From the date of deposit, if the arms or ammunition are deposited as a consequence of its possession becoming unlawful under Section 21(1) otherwise than as under Clause (a), or

(ii) if it is already in deposit, from the date of communication to the owner, of the order revoking, suspending, or refusing to renew the licence, or

(iii) from the date of notification issued under Section 4....

Admittedly, in this case, the deposit of firearm was not made in the circumstances falling under Clause (a) of Rule 46(4) of the Arms Rules, As admittedly the deposit was made in the circumstances falling under Clause (b) of Rule 46(4) of the Arms Rules, it is not disputed that the period within which the petitioner could exercise his rights under Sub-section (2) of Section 21 of the Arms Act is one year from the date of deposit. As the petitioner was not seeking to receive back the firearm deposited by him, Clause (a) of Sub-section (2) of Section 21 is not applicable. As the petitioner sought permission of the District Magistrate to transfer the firearm in favour of the second respondent what is applicable is Clause (b) of Sub-section (2) of Section 21 of the Arms Act, Having regard to Clause (b) of Rule 46(4) of the Rules, the petitioner was entitled to dispose of or authorise disposal of the firearm in question by sale or otherwise to any person entitled by virtue of the Act or by any other law for the time being in force to have, or not prohibited by the Act or such other law from having the same in his possession and to receive the proceeds of any such disposal. Sub-section (2) of Section 21 gives the right to the depositor or in the case of his death, his legal representative to receive back the firearm deposited or to dispose of or authorise the disposal of the firearm in favour of any person. The right conferred under subsection (2) of Section 21 of the Arms Act has to be exercised within the time proscribed by Sub-rule (4) of Rule 46 of the Arms Rules. The view taken by the District Magistrate is that the right under Sub-section (2) of Section 21 can be exercised only within a period of one year from the date of deposit of the firearm if the person to receive the firearm under Clause (a) or to dispose of or authorise the disposal of the firearm under Clause (b) had acquired the right to have the firearm in question before the expiry of the said period. In other words, the depositor or his legal representative as the case may be, should not only exercise his rights under Sub-section (2) of Section 21 of the Act within the prescribed time, but that the person who is to receive the firearm should also have become entitled to hold the firearm before the expiry of the prescribed period. Sub-section (2) of Section 21 provides that the depositor or in. the case of his death, his legal representative, shall, at any time before the expiry of such period as may be prescribed be entitled to receive or dispose of the firearm in question. The expression 'be entitled' in the context indicates that the depositor or his legal representative as the case may be, should assert his right under Sub-section (2) of Section 21 within the prescribed period. If the depositor or in the case of his death, his legal representative, makes an application asserting his rights under Sub-section (2) of Section 21 within the time prescribed under Sub-rule (4) of Rule 46, the question still for consideration is as to whether such an application can be rejected if the person who is to receive the firearm deposited has not become entitled by the grant of an appropriate licence in his favour to hold the firearm before the expiry of the period prescribed by Sub-rule (4) of Rule 46 of the Arms Rules, It is obvious from, the language employed in clauses (a) and (b) of Sub-section (2) of Section 21 that the person who is to receive the firearm in question either under Clause (a) or Clause (b) must be a person who has become entitled by virtue of the Arms Act or by any other law for the time being in force to have the same in his possession. The District Magistrate has taken the view that the person to receive the firearm under Clause (a) or (b) must in law have become entitled to possess the firearm in question before the expiry of the period prescribed by Sub-rule (4) of Rule 46 of the Arms Rules. Having regard to the language employed in Clauses (a) and (b) and also Sub-section (2) of Section 21 it is enough if the person to receive the firearm deposited has become entitled by virtue of the Act or by any other law for the time being in force, to have the firearm in question in his possession on the date on which the licensing authority proceeds to make an order on the application of the person concerned under subsection (2) of Section 21 of the Arms Act. The period of limitation contemplated by Sub-section (2) of Section 21 is only in the matter of asserting the right of the depositor or in the case of his death his legal representative to make an application within the time prescribed under the [Rules. The permission sought for under Sub-section (2) of Section 21 cannot be refused if the person to receive the firearm had become entitled under the Act or by any other law for the time being in force to possess the firearm in question. It is clear if on the date on which the District Magistrate proceeds to make orders on the application made under subsection (2) of Section 21, the person to receive the firearm under Clause (a) or (b) of Sub-section (2) of Section 21 had by virtue of the Act or by any other law for the time being in force become entitled to possess the firearm, the permission sought for under Sub-section (2) of Section 21 cannot be refused. As already stated if the application asserting the rights under Sub-section (2) of Section 21 is made within the period prescribed under Sub-rule (4) of Rule 46, the application cannot be rejected on the ground that it is barred by time. It is only if the person to receive the firearm under Clause (a) or (b) of Sub-section (2) of Section 21 of the Act had not become entitled to be in possession of the firearm on the date on which the District Magistrate proceeds to pass the order that permission sought for under Sub-section (2) of Section 21 can be refused on the ground that the person to receive the firearm had not become entitled by virtue of the Act or by any other law for the time being in force to have the same in his possession.

7. The District Magistrate was therefore, clearly in error in rejecting the application made by the petitioner under Sub-section (2) of Section 21 which was admittedly made within the time prescribed under Sub-rule (4) of Rule 46 of the Arms Rules, on the ground that the second respondent the person authorised by the petitioner to receive the firearm had not become entitled to possess firearm before the expiry of one year from the date of deposit of the firearm in question though the second respondent had by virtue of the licence granted on the 19th May, 1975, by the Licensing Authority by the time the District Magistrate made the order, became entitled to possess the firearm.

8. As the District Magistrate has proceeded on an erroneous view of the law to reject the petitioner's application under Sub-section (2) of Section 21 of the Arms Act, his order made on the 1st of October. 1975 - Exhibit-A as well as the consequential order forfeiting the firearm dated 25th October, 1975, Exhibit-B have to be quashed.

9. For the reasons stated above, this writ petition is allowed and the impugned orders dated 1-10-1975 Exhibit-A and 25-10-1975 Exhibit-B are hereby quashed and a writ in the nature of mandamus is issued to the first respondent to consider the application of the petitioner made under Sub-section (2) of Section 21 of the Arms Act in accordance with law and in the light of the observations made in the course of this order within one month from the date of this order. No costs.


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