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NaraIn Singh Parihar Vs. State of U.P. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2342 of 1974
Judge
Reported inAIR1981All246
ActsArms Act, 1959 - Sections 2; Arms Act, 1878 - Sections 16; Arms Rules, 1951 - Rule 183; Specific Relief Act, 1963 - Sections 34
AppellantNaraIn Singh Parihar
RespondentState of U.P.
Appellant AdvocateVijay Kumar Tewari, Adv.
Respondent AdvocateStanding Counsel
DispositionAppeal allowed
Excerpt:
(i) criminal - prohibited fire arms - arms act,1959 section 2 (e) and (i) - pistol is semi automatic fire arm - require license to possess - is not prohibited to possess with license under act. (ii) criminal - ownership of fire arms deposited in 'malkhana' - section 16 of arms act, 1878 and rule183 of arms rules,1951 - fire arms deposited in 'malkhana' of police station beyond prescribed period not forfeited by government on its own - unless fire arm is forfeited by specific government order it remain property of one who has deposited - he can sell it to one having a valid license to possess fire arm - suit for declaration under section 34 of specific relief act,1963 is maintainable to declare ownership of arms deposited in 'malkhana'. - - 1. the plaintiff has failed in both the..........acquire any title to the same, it was further stated that although the pistol was entered in the arms licence of virendra singh till 1956 but thereafter the licence was never got renewed. it is also alleged that virendra singh had voluntarily deposited the weapon on 18-3-66 at the police station whereafter it had been forfeited in favour of the state. it was alleged that the pistol was an automatic weapon and conies within the definition of 'prohibited arms' as defined in the arms act. the district magistrate also had no authority to issue any licence for the same to the plaintiff. the plaintiff's locus standi to claim the weapon was denied and it was stated that only virendra singh could claim the pistol, if at all. 4. the trial court framed as many as eight issues. on issue no. 1......
Judgment:

N.N. Mithal, J.

1. The plaintiff has failed in both the courts below and has now come up in second appeal before this Court.

2. The plaint case in brief was that licence No. 6597 for a pistol of non-prohibited bore was granted to the plaintiff on 22nd Feb. 1964 by the District Magistrate, Jhansi. On 11-9-64, the plaintiff purchased a .25 bore pistol bearing No. 42114 from one Sri Viren-dra Singh, who was himself a licence-holder and owned the said pistol. However, the pistol had been illegally got deposited from Sri Virendra Singh under the directions of in-charge P. S. Samthor. The pistol was later on deposited in the Malkhana, Jhansi. Without revoking or cancelling the licence held by Sri Virendra Singh the pistol in question was forfeited. According to the plaintiff the direction to deposit the weapon in the Malkhana was absolutely illegal and Virendra Singh lasally continued to be its owner and was therefore, also entitled to sell the same. In 1964. the plaintiff applied for the renewal of his licence and for endorsing pistol No. 42114 on it for the years 1965-66-67 and the same was renewed for three years on 12-2-1965. After its renewal the licence was returned to the plaintiff but neither the weapon was endorsed on his licence nor the same was handed over to him in spite of repeated requests. It was alleged that the weapon in question is not one of prohibited bore and therefore, the plain-tiff had not violated the conditions of the licence. It was further alleged that even a notice of forfeiture was not given to Virendra Singh before it was allegedly forfeited on 11-9-64. The plaintiff had validlv purchased the wea-pon from Virendra Sineh under a re-ceipt and had also got his licence duly renewed. However, the authorities have refused to hand over the pistol to the plaintiff which continues to be in possession of the defendant. The plaintiff was thus compelled to file the suit for declaration that he was the owner of the pistol in question and was also entitled to possess and dispose of the same and that its retention in the armoury was illegal.

3. The suit was contested by the defendant in which grant of licence of a non-prohibited bore to the plaintiff is admitted. It is also admitted that the licence of the plaintiff was renewed for the years 1965-66-67 but the defendant contended that the suit was bad for want of service of valid notice under Section 80, C. P. C. and the suit for a mere declaration was not maintainable. When the plaintiff's licence was renewed for the vears 1965-66-67 he was directed to purchase a weapon but Virendra Sineh neither sold the pistol in question to the plaintiff nor he had any authority to sell the same. In fact, the pistol already stood forfeited in favour of the State and, therefore, the plaintiff could not acquire any title to the same, it was further stated that although the pistol was entered in the arms licence of Virendra Singh till 1956 but thereafter the licence was never got renewed. It is also alleged that Virendra Singh had voluntarily deposited the weapon on 18-3-66 at the police station whereafter it had been forfeited in favour of the State. It was alleged that the pistol was an automatic weapon and conies within the definition of 'prohibited arms' as defined in the Arms Act. The District Magistrate also had no authority to issue any licence for the same to the plaintiff. The plaintiff's locus standi to claim the weapon was denied and it was stated that only Virendra Singh could claim the pistol, if at all.

4. The trial court framed as many as eight issues. On issue No. 1. regarding sale of the pistol by Virendra Sineh to the plaintiff, the court came to the conclusion that no such transfer had been proved and the receipt for thesame had been prepared only in order to save the pistol of Virendra Singh from being forfeited. It also held that the planitiff was not entitled to purchase the weapon as the same was a prohibited arm. On issue No. 2 as to whether the pistol stood forfeited, the court decided that in view of Rule 183 of the Arms Rules, the pistol stood automatically forfeited in favour of the State. On issue No. 3. as to whether the pistol was a prohibited arm. the court decided that it was a prohibited arm as it was a semi-automatic pistol. On issue No. 4 also the trial court decided against the plaintiff holding that a suit for declaration was not maintainable. Regarding issue No. 7 whether the plaintiff had a valid licence in his favour the trial court held that the District Magistrate was not competent to issue any licence in respect of a semiautomatic weapon to the plaintiff. Other issues are not relevant for the purpose of this appeal. The plaintiff filed an appeal and the lower appellate court also upheld all the findings of the trial court almost on the same grounds. Aggrieved by the decision the plaintiff has now come up for redress to this Court in second appeal.

5. In order to appreciate the facts it is necessary to keep in mind that the original owner of the pistol bearing No. 42114 was one Virendra Singh Gur-jar. Jamadar of District Jhansi. He held licence for it bearing No. 8302 which was valid up to 31-12-56. The pistol in question bearing 42114 was duly endorsed on this licence. This licence was never renewed after 31-12-56. It is alleged that under certain circumstances with which we are not concerned in this appeal, the pistol in question was deposited by Virendra Singh at P. S. Samthor on 3-2-1956. Complaints were made by Virendra Singh to various authorities including the then Chief Minister of U. P. and ultimately the pistol was transferred from the police station and deposited in the Malkhana on 21-7-58. The plaintiff obtained a licence in 1964 bearing No. 6597. It is alleged that on 11-9-64. vide Ex. 2. the plaintiff purchased pistol No. 42114 from Virendra Singh. He then applied, in December 1964 for renewal of his licence and for setting endorsement of pistol No. 42114 on his licence. On 12-2-1964. the licence only was renewed for the years 1965-66-67 in favour of the plaintiff but no endorsement in re-spect of pistol No. 42114. was made thereon. Several repesentations were made and ultimately it was informed that by order of the Commissioner. Thansi division dated 9-2-66. vide Ex. A-3 the pistol in question was held to have been forfeited to the State and as such the plaintiff could not legally purchase the same. The plaintiff thereafter served notice under Section 80, C. P. C. and filed the present suit.

6. In order to decide the controversy, it is also necessary to bear in mind that according to the provisions of the Arms Act, 1878. Keeping a firearm without a licence is prohibited. Certain rules have been framed for granting licence to the persons. It is only a person who holds a licence to possess the firearm who was entitled to own and possess the same. If a person did not have a valid licence he was duty bound to deposit the same in the Malkhana. It would, therefore, be necessary for me to examine whether the plaintiff did have a valid licence for the pistol in question and whether the same could have been purchased by him. We have seen earlier that the plaintiff was granted licence only in 1964. By that time Arms Act. 1878 had been repealed and had been replaced by the Arms Act. 1959 which became effective from 1-10-1962. In Section 2(c) of the said Act 'arms' has been defined as 'articles of any description, design or adapted as weapon for offence or defence, and includes firearms, sharp edged and other deadly weapons and parts of machinery for manufacturing the arms, but does not include articles designed solely for domestic or agricultural use such as lathi or an ordinary walking stick and weapon incapable of being used otherwise than as toys or of beine converted into serviceable weapons.' This definition includes within its ambit fire-arms. Fire-arms have been defined in Section 2(e) as meaning 'arms of any description designed or adapted to discharge a pro-iectile or proiectiles of any kind by the action of any explosives or other forms of energy.....' Admittedly apistol is a fire-arm. The question is whether it is a prohibited arm or not for the licence has been granted to the plaintiff for a non-prohibited arm. Prohibited arms have been denned in Section 2(1) of the Act. 1959 as meaning '(i) fire-arm so designed or adapted that if pressure is applied to the trisggermissiles continue to be discharged until the pressure is removed from the trigger or the magzine containing missiles is empty, or (ii) weapon of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing and includes artillery, anti-air-craft and anti-tank-fire-arms and such other arms as the Central Government may, by notification in the official gazette, specify to be prohibited arm.' Basically, therefore, before a firearm could be termed as a prohibited arms, it is necessary that the system applied for firing proiectiles should be such that continued firing of proiectiles takes place until the pressure is released from the trigger or the magazine becomes empty. This is not the case with a pistol or a revolver which could be fired only once without release of the pressure. For firing again, it is necessary that the pressure should be released first and then applied again. For this reason, weapons of this kind are known as semi-automatic weapons. The kind of weapons which are envisaged under Section 2(1) as 'prohibited arms' are those of the nature of a sten-gun or a bren-eun but not a simple pistol with a magazine containing 7 or 8 bullets and in which case pressure has to be applied over and over again to fire from the weapon. The weapon in question, therefore, could not be said to be falling within the definition of prohibited arms.

7. I have gone through the judgment of both the courts below and I am surprised that both of them have held that the pistol in Question was a prohibited arm merely because it was a semi-automatic weapon. They did not. however, direct their attention to the fact that the position has materially changed after the coming into force of the Act of 1959. Even under the old Act there is no distinction between a prohibited arm or a prohibited bore nor there is a definition given of a prohibited arm. It is only in the rules made under the Arms Act, 1878 that certain provisions have been made in respect of various categories of arms regarding their possession and issuing of licence in respect thereof. It is. however, quite clear that in 1964 when the licence in question was granted to the plaintiff admittedly the old Act had been repealed and under, the new Act a pistol, even if semi-automatic, did notcome within the definition of 'prohibited arms' as defined under Section 2(i) thereof.

8. Next question that comes up for consideration is as to whether Virendra Singh had in fact transferred and was competent to transfer the pistol in question to the plaintiff. It is said that Virendra Singh had deposited this pistol with the authorities in 1956 and his licence also ceased to be effective from 31-12-56. In view of this fact and the Rule 183 framed under the Arms Act. 1878 the weapon stood automatically forfeited in favour of the State. Rule 183 as applicable in U. P. prior to 1962 prescribed, under Sub-clause (8) thereof the period of retention of a weapon in deposit in the following words : 'The following periods have been prescribed under Section 16(4)(b)(ii) as the periods after the expirv of which arms, ammunitions and stores, which are not disposed of under Section 16(2), shall be forfeited under Sub-clause (3) of Section 16. Section 16 of the Arms Act. 1878 reads as under :--

'16. In certain cases arms to be deposited at police stations or with licensed dealers.-- (1) Any person possessing arms. ammunitions or military stores the possession whereof has. in consequence of the cancellation or expiry of a license or of an exemption or by the issue of a notification under Section 15 or otherwise, become unlawful, shall without unnecessary delay deposit the same either with officer in charge of the nearest police station or. at his option and subiect to such conditions as the Central Government may by rule prescribe, with a licensed dealer.

(2) When arms, ammunitions or military stores have been deposited under Sub-section (1) or. before the first day of January, 1920. under the provisions of any law for the time being in force, the depositor shall, at any time before the expirv of such period as the Central Government may by rule prescribe, be entitled-

(a) to receive back anything so deposited the possession of which by him has become lawful, and

(b) to dispose, or authorize the disposal of anything so deposited by sale or otherwise to any person whose possession of the same would be lawful : and to receive the proceeds of any such sale :

Provided that nothing in this sub-sec-section shall be deemed to authorize the return or disposal of anything the con-fiscation of which has been directed under Section 24.

(3) All things deposited as aforesaid and not returned or disposed of under Sub-section (2) within the prescribed period therein referred to shall be forfeited to the Government,

(4) (a) The Central Government may make rules consistent with this Act for carrying into effect the provisions of this section.

(b) In particular and without preiudice to the generality of the foregoing provision, the Central Government may by rule prescribe-

(i) the conditions subiect to which arms, ammunitions and military stores may be deposited with a licensed dealer and

(ii) the period after expiry of which things deposited as aforesaid shall be forfeited under Sub-section (3).

9. Sub-section (3) of Section 16 merely grants a right or power to the Government to forfeit any weapon which remains unreturned or undisposed of within the period prescribed under the Rules. However, this cannot be spelt to mean that merely because the period prescribed has expired there would be an automatic forfeiture of the weapon in favour of the State. On the contrary it requires that the power of forfeiture is actually exercised by the State. Those words did not tantamount to an automatic forfeiture otherwise the language would have not been 'shall be forfeited' and instead would have been 'shall stand forfeited' This difference in the language makes it clear that the State Government is not empowered to treat the weapon automatically forfeited in its favour. The two courts below have therefore, erred in holding that merely because the weapon has remained in deposit for a period longer than what has been prescribed under the rules would result in automatic forfeiture of the weapon. On the other hand a reading of Section 16 of the Arms Act. 1878 alone with Rule 183 made applicable in U. P.. it would be. apparent that unless a specific order forfeiting the weapon has been made, any weapon deposited with the State will not automatically stand forfeited.

10. In view of the above discussion. it would be clear that even though the weapon had remained in deposit with the State it did not automatically becomeforfeited and Virendra Singh still continued to be the legal owner of the weapon in question. It is of course true that unless he had a valid licence after 1956. he could not possess it yet his right in property had not extinguished. He still could legally transfer his proprietary rights in the pistol to any one holding a licence. This is what precisely was done in the present case. The findings of the courts below to the contrary are, therefore, absolutely erroneous.

11. This takes (us) to the consideration of the question as to whether in fact Virendra Singh had executed Ex. 2. the receipt by which the weapon in question purports to have been transferred to the plaintiff. It is admitted that the receipt was executed by Virendra Sineh. He did not question it. He also did not question that he had yoluntariLv transferred his proprietary rights in the pistol to the plaintiff. The State has, however, relied on an application, paper No. 26-A-1 wherein he had stated that he has sold the pistol to one Smt. Benibai. A mere recital in the document that it has been sold does not necessarily mean that it had in fact been sold to some other person. There is also on the record another document in which Virendra Singh has explained that earlier he had intended to transfer this pistol to Smt. Benibai but later on the transaction fell through and it has been sold to the plaintiff. It is quite natural also because the weapon was still in the custody of the State and Smt. Beni Bai may have been interested in immediate possession of the property sold. When this may not have been possible, she decided to call off the deed and leave Virendra Singh free to sell it again. It appears to me that the courts below have been very much swayed away by the wrong notion that the weapon was a prohibited weapon being a semi automatic weapon and for that reason they did not properly apply their mind to this evidence which has been led in the case. I have no doubt in my mind that the weapon had in fact been transferred to the plaintiff under receipt Ex. 2 and the recital in Ex. 26-A is not such as being sufficient to hold otherwise.

12. The next question for consideration is whether the plaintiff held a valid licence in his favour. It appears that tha trial court as well as the lower appellate court did not frame any proper issue on this point nor this point had been taken specifically in the pleadingsof the State, The parties were only at issue as to whether the plaintiff had a licence in respect of the disputed pistol which was never a case taken up by the plaintiff. All that the plaintiff had stated in the plaint was that he had applied for the renewal of his licence and for making the endorsement on it regarding pistol No. 42114. A look at the various provisions of the Indian Arms Act, 1959 will show that Section 4 of the Act provides for the general power by the Government to require a licence by a person who wants to have possession or to carry an arm. Section 5 deals with the licence for the manufacture and sale of arms etc. Section 10 deals with the grant of licence for import or export of arms. Section 13 deals with the procedure for granting licence and lays down that for obtaining a licence under any of the provisions of Chapter 2 i. e.. Sections 3 to 12 a person desirous of obtaining licence has to make an application to the licensing authority in a prescribed form and has to pay the requisite fee for the same. Then only the licensing authority will consider the application whether or not to grant a licence in question. Rule 3 of the Arms Rules. 1962 provides that arms and ammunitions of various kinds will be such as categorised in columns 2 and 3 of Schedule 1. The table given in Rule 5 provides for the authorities who can give licence in respect of different categories of arms and in Schedule I of the said rules revolvers and pistols of every kind are categorised in Clause (a) of category 3. The licencing authority for this class of fire arm is given at serial No. 3 (b) of Schedule 2 of the Rules and it provides that the District Magistrate would be licensing authority. Admittedly in the present case the applications for licence have been granted by the District Magistrate, Jhansi. He was under the rules a competent authority to grant the licence. It cannot, therefore, be held that the licence granted to the plaintiff was not granted by an authority competent to do it. Since the plaintiff did have a valid licence which had further been legally renewed for the years 1965-66-67, it is to be held that at the relevant time he possessed a proper licence for pistol. Since he had validly purchased the pistol in dispute the authorities had no ground to refuse to endorse the said pistol to his licence. The plea of the State that the pistol in question could not have been transferred to the plaintiff as it already stood forfeited in favour ofthe State has already been reiected by me. In the circumstances I find that there is considerable force in the appeal of the plaintiff. He had a valid licence for the weapon in question and also the weapon had been duly purchased by him from its previous owner Virendra Singh. The retention of the said pistol by the State in its Malkhana is, therefore, absolutely unjustified and illegal.

13. Lastly, it was urged on behalf of the State that the suit for mere declaration was not maintainable and it would not provide any relief to the plaintiff. In a suit of this nature where we have found that the State is in custody of the weapon although its owner held a valid licence a mere declaration to the plaintiff that he was the owner of the pistol in question and was entitled to have it endorsed on his licence and also to transfer the same would be sufficient relief and the law does not require that the plaintiff should further seek possession of the weapon from the defendant. Once it is held that the State was not entitled to forfeit automatically the weapon in question in its favour after the same had been deposited in the Malkhana the State has no lien on this weapon except that it has a legal right to keep it in safe cus- tody. The possession of the State is only that of a trustee and it is bound to return it to the person who is lawfully entitled thereto. In these circumstances the suit of the plaintiff was legally maintainable and he was not required to seek further relief of possession of the wea-pon also.

14. In the result, appeal is allowed with costs. The plaintiffs suit for declaration that he is the owner of pistol No. 42114 and that he was entitled to its possession and deal with in accordance with law is decreed. It is further declared that the retention of the said pistol in the Malkhana. Jhansi is against law and illegal.


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