Amrik Singh vs State of Rajasthan

Milap Chand Jain, J.—This revision is directed against the order of the learned Addl. Sessions Judge, No. 2, Sri Ganganagar dated 5-6-1987, where by the learned Additional Sessions Judge, No. 2, Sri Ganganagar dismissed the appeal and maintained the conviction and sentence passed by the Chief Judicial Magistrate, Sri Ganganagar on 4-8-1986 thereby the petitioner was convicted for the offence u/s 4/25 Arms Act, 1959 and was sentenced till rising of the court and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo 10 days simple imprisonment.

The petitioner''s defence was that he committed on offence. He had a right to keep a ''Kripan'' according to Sikh religion without licence. The learned Chief Judicial Magistrate held the petitioner guilty as he was found with Kripan without licence within the Municipal limits, which was prohibited under the Rajasthan Government Notification No. F. 1(86)/Arms/74 Jaipur dated 19-10-1974. By the said notification, the Government of Rajasthan banned the keeping of any sharp weapon having the blade more than 10, 16 cms. within the Municipal limits of certain towns viz. Ajmer, Bharatpur. Alwar, Kota, Udaipur Ganganagar and Bikaner. This was issued in the public interest. The list of arms given in the Schedule includes Sword (Talwar) Gupti, Spear, Barchhi, Kulhari, Balam, Katar, Chhuri and Gandasa having the blade more than 10, 16 cms. This notification does not make any exception for the Sikh community.

Now, the question arises as to whether, any exemption can be claimed by Sikhs for wearing and keeping the Kripan without licence within the Municipal limits of the towns which find mention in the above notification of the Government of Rajasthan. Section 4 of the Arms Act makes a provision for obtaining of licence for acquisition and possession of the specified arms other than the fire-arms. With regard to the fire-arms provision for licence is contained in Section 3. Section 4 provides that if the Central Government is of the opinion that having regard to the circumstances prevailing any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of Arms other than fire-arms should also be be regulated, it may by notification in the Official Gazette direct that Section 4 shall apply to the area specified in the notification and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless holds in this behalf a licence issued in accordance with the provisions of the Arms Act and the rules made therennder. Section 43 confers power of delegation on the Central Government. u/s 44, the Central Government may by notification in the Official Gazette, direct that any power of function which may be exercised or performed by it under the Arms Act other than the power u/s 41 or the power u/s 44 may in relation to such matters and subject to such conditions if any as it may specify in the notification, be exercised or performed also by such State Government or such officer or authority sub-ordinate to the State Government as may be specified in the-notification.

By virtue of power conferred u/s 43, the Central Government delegated its certain powers to all the State Government''s as are mentioned in the notification No. G.S.R. 1309 dated 10-10-1962. The relevant portion of this notification issued u/s 43 of the Arms Act is as under:

In exercise of the powers conferred by Sub-section (1) of Section 43 of the Arms Act, 1959 (54 of 1959) and Clause 1 of Article 258 of the Constitution, the President with the consent of all the State Government entrusts to each such government the functions of the Central Government under the provisions of the Arms Act, 1959 and the Arms Rules, 1962 and the notifications mentioned in column of the Schedule below subject to such conditions as are specified in column 2 thereof and also to the general conditions here in after mentioned; namely;

(a) that the State Government shall in the exercise of those functions, be subject to like control by the Central Government as was exercise able by it immediatly before the 1st October 1962.

(b) that the State Government shall observe the policies and instructions laid down by the Central Government and shall not enunciate new policies or issue instructions inconsistent with those of the Central Government without the prior consent of that Government; the entrustment is limited to the territories under the administration of the State Government and is without prejudice to the overall jurisdiction of the Central Government".

______________________________________________________________________________________ SCHEDULE ______________________________________________________________________________________ Provisions of the Conditions, if any, subject to Act, Rules or which functiot have been Notifications entrusted _______________________________________________________________________________________ 1 2 _______________________________________________________________________________________ (1) Sections of the Nil. Act: 2(4), 4, 10(2) This entrustment is limited to the territories 13(3)(a)(ii), 17(a) under the administrative control of the State Government and is without prejudice to the power of the Central Government to revoke or suspend licence throughout the whole or any part of India

It would appear from the above notification that the power u/s 4 has been conferred on the State Government. u/s 43 if the power has been delegated to the authority mentioned in Section 43, then those powers can be exercised subject to the conditions, which find mention in the notification. No power can be exercised by the delegated authority over and above, what has actually been delegated and the delegated authority has to exercise its power within the frame-work of the notification and not beyond it. Under Clause (b) of the notification No. 1309 dated 1-10-1962, important conditions have been imposed on the State Government. The Slate Governments are required to observe the policies and instructions laid down by the Central Government and shall not enunciate new policies or issue instructions inconsistent with those of the Central Government without the prior consent of that Government.

The Central Government has issued a notification No. GSR-991 dated 13-7-1962 u/s 41 of the Arms Act, by that notification, the power of exemption conferred u/s 41 has been exercised by the Central Government and it has been provided in that notification that the Central Government exempts or excludes the Arms and ammunition of the description specified in column (1) of Schedule II from such of the provisions of the Arms Act and subject to such conditions as are mentioned in columns (2) and (3) respectively. In Schedule-II, Item No. 3, column 1, possession and tarrying of Kripan by Sikhs has been excluded. Schedule-II, Column-I relates to the Arms and ammunition and column 2 and 3 relate to the provisions of the Act and conditions respectively. Column 2 mentions Section 4 and column 3 mentions the condition that the exemption shall apply to any part of India where Section 4 applies. In view of the aforesaid notification of the Central Government it would be clear that possession and carrying of Kripan by Sikhs is excluded. From the applicability of Section 4, and that exemption applies throughout the territory of India. Although, the powers have been delegated u/s 43 to the State Government and the Government of Rajasthan has issued notification u/s 4 of the Act, still the notification cannot be contrary to the policies issued by the Central Government in the exemption notification issued u/s 41 of the Act.

On behalf of the State if has not been pointed out that the notification has been issued after obtaining the consent of the Central Government as provided in Clause (b) of the aforesaid notification issued by the Government of Rajasthan. As the Rajasthan notification is inconsistent with the Central Government notification regarding exemption; the policy as found in the notification issued by the Central Government was required to be observed by the State Government, then the State Governments notification cannot be given effect to over the Central Government notification. It could only be given effect to, had it been issued with the prior consent of the Central Government.

It may also be stated that in Explanation No. 1 of Article 25, it is clearly provided that the wearing and carrying of Kirpans shall be deemed to be included in the profession of the Sikh religion. Under Article 25, all the persons are equally entitled to freedom of conscience and the right freely to profess, practise and propogate religion. This right can only be curtailed having reagrd to public order and morality and health and to the other provisions of Part-Ill of the Constitution. It appears that the Central Government has issued the notification keeping in view the fact that wearing and carrying of Kirpan is included in the profession of Sikh religion as provided in Article 25 of the Constitution.

In the above view of the matter, therefore, the prosecution of the petitioner was bad and not legal. When the prosecution itself was not legal, then the conviction and sentence of the petitioner passed cannot be sustained.

Accordingly, this revision petition is allowed and the conviction and sentence of the petitioner are set aside. The kirpan shall be returned to the petitioner and fine if deposited shall be refunded to the petitioner.