Munni Singh vs The State of Bihar and Others

S.N. Jha, J.—As questions involved in these two writ petitions are identical, they have been heard together and are disposed of by this common judgment. The question of law is whether on the death of the person, holding an arms licence and after surrender of the fire-arm, the same is liable to be forfeited to the Government on expiry of the stipulated period even though application for arms licence has been made by a legal representative of the deceased licence holder and the same is pending.

In order to appreciate the point the relevant facts of the two cases may briefly be stated as follows. In CWJC No. 13068 of 1996 the fire-arm licence stood In the name of Manager Singh, the father of the Petitioner. After Manager Singh died on 15.6.90 the gun was deposited with Shashi Shastragar, Bhabhua, an arms and ammunition Dealer on 24.7.90. It is said that such deposit was made by Sheo, Murti Singh, brother of Manager Singh and, thus, uncle of the Petitioner. It is said that deposit was made by Sheo Murti Singh as the Petitioner being a patient of paralysis was unable to move. According to the Petitioner, his cousin Uday Pratap Singh, son of the said Sheo Murti Singh, applied for arms licence, with his consent and the same was granted to him on 17.12.92. The Petitioner also after recovering from the ailment applied for the licence on 19.3.94. Earlier, after the licence was granted to his cousin Uday Pratap Singh on. 29.12.92 the Petitioner had filed an application that the gun in question may be released to him. An order of forfeiture of the gun however was passed in the meantime on 17.12.93. The Petitioner challenged the forfeiture by way of writ petition, CWJC No. 11659 of 1993, in this Court. On 8.1.96 the order of forfeiture was set aside by the Court and the Petitioner was asked to appear before the District Magistrate and file show cause. Ho accordingly filed show cause. By the impugned order dated 3.10.96 the District Magistrate, Kaimur (Bhabhua) has rejected the show cause and reiterated the order of forfeiture. Copy of the said order has been marked as Annexure-7 to the writ petition. The Petitioner seeks quashing of the said order and a direction to -keep the order in abeyance till the disposal of the application for grant of arms licence filed by him so that after the licence is granted, the gun may be returned to him as its owner.

In CWJC No. 291 of 1997 the father of the Petitioner Shivadhar Gii.tjn in whose name the arms licence stood, died on 8.12.87. The gun was thereafter deposited with Jaiswal Shastrac. arms and ammunition Dealer at Bhabhua on 2.1.88. Application for arms licence was filed by one Awadhesh Singh, the grandson of the Shivadhar Singh and nephew of the Petitioner. It is an admitted position that the Petitioner never applied for the licence. The Petitioner received a show cause notice on 9.7.93 against proposed forfeiture of the gun. He filed show cause in which he took the stand that his nephew had already applied for licence within stipulated period and, therefore, the gun should not be forfeited. The District Magistrate, Kaimur (Bhabhua) by his order dated 9.12.96 rejected the plea and ordered forfeiture of the gun. Copy of the said order has been marked Annexure 2 to the writ petition.

Mr. Krishna Prasad Singh, learned for the Petitioner in CWJC No. 291 of 1997 and Mr. Ravi Shankar Sahay, learned counsel for the Petitioner in CWJC No. 13068 of 1996, submitted that the District Magistrate, had no authority to pass an order of forfeiture during pendency of the application for licence. While Mr. Sahay tried to persuade the Court that the patltloner had good reasons for not making the application on account of his ailment within the prescribed period, Mr. Krishna Prasad Singh submitted that Awadhesh Singh, being grandson of the licence holder, was fully competent to apply for licence as legal representative of the deceased and since he had applied for licence within the prescribed period, the District Magistrate committed error in passing the order of forfeiture on the ground that no application for licence had been made.

It may be mentioned here that although the date of application for licence filed by Awadhesh Singh has not been disclosed by the Petitioner, from the counter affidavit of the Respondents it appears that the application was made on 14.4.80 i.e. after the expiry of the proscribed period of one year. In view of the largo question involved in the case, I do not want to go into the side question as to whether the application was made within time or not. However, as indicated above, it is an admitted position that the Petitioner or any other son of the licence holder has not till date made any application for licence.

The relevant provisions of the Arms Act, 1959 and the Arms Rules, 1962 may be noticed at one place at this stage. Section 21 of the Act provides for deposit of arms etc. On expiry of the juration of the licence or its suspension revocation or on the death of the licence holder. The Section so far as relevant runs as follows:

Deposit of arms, etc. on possession ceasing to be lawful. (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 u/s 4 or by any reason whatever, ceased to be lawful, shall without unnecessary delay deposit the same either with the officer-in-charge or the nearest police station or subject to such conditions as may be prescribed with licensed dealer or where such person is a member of the armed farces of the Union, in a unit armory.

Explanation. - (omitted)

(2) Where aims or ammunition have or has been deposited under Sub-section (1), the depositor or in the case of his death, his legal representative,

(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;

(b) to dispose, or authorize 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 Sub-section shall be deemed to authorize the return or disposal of anything of which confiscation has been directed u/s 37.

(3) All things deposited and not received back or disposed of under Sub-section (2) within the period there in referred to shall be forfeited to

Provided that in the case of suspension of a licence no such forfeiture shall be ordered in respect of a thing capered by the licence during the period of suspension.

(4) Before making an order under Sub-section (3) the District Magistrate shall, by notice in writing to be served upon the depositor or in the case of his death, upon his legal representative, in the prescribed manner, require him to show cause within thirty days from the

(5) After considering the cause, if any shown by the depositor or, as the case may be, his legal representative, the District Magistrate shall pass such order as he thinks fit.

(6) The Government may at any time return to the depositor or his legal representative things forfeited to it or the proceeds of disposal thereof wholly or in part.

The corresponding provisions in the Arms Rules are contained in Rule 46. So far as relevant it runs as follows:

Deposit of arms and ammunition u/s 27. - (1) When a licensing authority decides to suspend or revoke a license or to refuse to renew it he shall while communicating his decision in writing to the licensee, inform him that -

(a) u/s 21(1) he is required to deposit within such time as may be specified in the order suspending, revoking or refusing to renew the

(b) subject to the proviso to Section 21(2), during the period prescribed under Sub-rule (4), he or, in the case of his death, his legal representative is entitled, to sell or otherwise dispose of the

(c) if the arms or ammunition have not been disposed of or their possession by the licensee or his legal representative, as the case may be, has not become lawful within the prescribed period they shall, subject to the proviso to Section 21(3), be forfeited to Government by order of the District Magistrate.

(2) ...

(3) ...

(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 or 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 of ammunition are deposited as a consequence of its possession becoming unlawful u/s 21(1) other wise than as under clause (1), or

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

(iii) from the date of notification is sued u/s 4:

(C) one year and six months if the fire arms are deposited as a consequence of proviso to sub-section (2) of Section 3

Provided that any period under clause (a) or (b) shall be reckoned-

(i) Where an appeal is preferred by the owner u/s 18 - from the date of the final order of the appellate authority;

(ii) Where the arms or ammunition is the subject of a legal suit or dispute or is owned or inherited by a person who has not completed the age of six teen years from the date of termination of the dispute or of completion by that person of the age of sixteen years;

(iii) Where the owner of the arms or ammunition is on active service outside India - from the date of his return to India

Provided further that-

(i) When the arm and ammunition is owned by a person who is considered by the licensing authority to be unfit, for the time being to carry the arm or ammunition for any reason, or in any other suitable case, the District Magistrate or the Commissioner of Police, in relation to any metropolitan area, may extend the period prescribed under Clause (a) or Clause (b) for a period upto six months, and

(ii) the State Government may by special or general order extend the period beyond six months:

Provided further that when the arm or ammunition is owned by a person who is considered by the licensing authority to be unfit, for the time being, to carry the arm or ammunition for any reason, the period prescribed under Clause (a) may be extended suitably by the District Magistrate, or the Commissioner of Police in relation to any metropolitan area.

(5)...

(6)...

It would appear from perusal of the above provisions that after the death of the person in whose name arms licence stands (in the cases in hand we are concerned with deposit of the firearms on the death of the licence holder), the fire-arm is required to be deposited without unnecessary delay either with the officer-in-charge of the nearest police station or a licensed dealer. The depositor or, in case of his death, his legal representative is entitled to receive back the same on his becoming entitled, by virtue of the Act or any other law for the time being in force, to the possession of the arms at any time before expiry of the prescribed period. He is also entitled to dispose of or authorize disposal of the arms to any person entitled to have its possession and to receive the sale proceeds, except in cases of confiscation of the arms u/s 37 of the Act. Where the arms lying in deposit is not received back or disposed of, as aforesaid, within the prescribed period they are liable to be forfeited to the Government by order of the District Magistrate. Rule 46(4) prescribes the period of one year within which the fire-arm can be received back or disposed of. The said period of one year is to be reckoned from the date of deposit. Where the fire-arm is subject matter of any suit as regards the ownership, or where the person entitled to inherit is below sixteen years of age, the period of one year is to be reckoned from the date when the suit is decided or when the person concerned attains the age of sixteen years, as the case may be.

It is to be kept in mind that firearm is a properly, like any other property; difference lies in the fact that because of its dangerous potential as a weapon, the person concerned is not entitled to possess it like other items of property unless he holds licence to possess the same. Thus, where the holder of licence dies, its possession in the hands of his legal representative ceases to be lawful. It is for this reason that the law enjoins upon the person coming in physical possession of the fire-arm to deposit it with either officer-incharge of the nearest police station or licensed dealer with necessary intimation to the competent authority. The provisions of Section 21 and Rule 46, however, also enable the depositor or, in the case of his death, his legal representative to receive back the fire-arm or to dispose of the same. Where he wants to receive back the fire-arm, he is required to make application for licence. If no step in this regard is taken by depositor or his legal representative, in case of his death, for either receiving back the fire-arm or disposing of the same, the District Magistrate is empowered to pass an order of forfeiture to the Government.

It is thus obvious that if an application for licence has been made by either the depositor or his legal representative the firearm cannot be forfeited. The licensing authority is obliged to consider the application and pass orders thereon one way or the other. Rule 46 of the Arms Rules provides for the period within which steps are to be taken either for the release or for disposal of the fire-arm. If the law allows certain period to the depositor or his legal representative to take steps in that regard, it is obvious that the District Magistrate can not take any action for forfeiture unless the period expired.

In the cases in hand, so far as CWJC No. 13068 of 1996 is concerned, the fire-arm is said to have been deposited by the uncle of the Petitioner. The Petitioner seeks to challenge the order of forfeiture on the ground that his uncle''s son Uday Pratap Singh was granted licence on 17.12.92 and soon thereafter on 29.12.92 the Petitioner had submitted application that the gun may be handed over to him (Uday Pratap Singh). Alternatively, it is contended that as the Petitioner also applied, for licence on 19.3.94, after recovering from the stroke of paralysis, the gun could not be forfeited.

If the Petitioner''s case that the gun was deposited by his uncle Sheo Murat Singh is accepted to be true, Uday Pratap Singh being his son, was entitled to receive back the gun as the legal representative of the depositor. It is not clear from the materials on record nor the District Magistrate seems to have gone Into the question as to whether the gun was a joint family property consisting of Manager Singh (licensee), Sheo Murti Singh and other or exclusive property of Manager Singh. The provisions of Section 21(2)(a) and (b) of the Act seems to suggest that the person who is entitled to receive back the deposited fire-arm or dispose of the same and appropriate the sale proceed, must be the depositor himself or his legal representative, in case of his death. The term ''legal representative'' has not been defined in the Act. In my opinion, the terms ''depositor'' or ''legal representative'' have to be understood in the sense of owner. The actual depositor of the fire-arm may not be a person having right or interest in the fire-arm is a piece of property. If such person as not an heir of the deceased licensee he cannot have any right to receive back the deposited arm or to dispose of and appropriate the sale proceeds thereof without any consideration, which an owner of the property would have. According to me, therefore, the terms ''depositor'' or ''legal representative'' have to be given an extended meaning and understood in the sense of owner. Clause (ii) of the proviso to Rule 46(4), quoted above, gives sufficient indication of the fact that there may be dispute regarding the ownership of the fire-arm as an item of Inheritance or otherwise.

In the instant case, if it is found that Sheo Murti Singh (Petitioner''s uncle) had an interest in the gun as an item of property, his son Uday Pratap Singh would be deemed to be a legal representative within the meaning of Section 21 entitled to receive back the arms and/or dispose of the same. And since licence had already been granted to him on 17.12.92, the gun could not be forfeited. Even if it be assumed that the application for licence was made. by Uday Pratap Singh after expiry of period of one year, about which there is no evidence, the fact that before the District Magistrate took steps for forfeiture, a licence had been duly granted to him, entitling him to receive back the gun, the District Magistrate should not Have passed the order of forfeiture. The Petitioner had consented to Uday Pratap Singh receiving back the fire-are, after licence had been granted to him, and therefore there does not appear to be any dispute regarding ownership. The case requires further enquiry on the point as to whether Uday Pratap Singh could be called a legal representative within the meaning of Section 21 of the Act, as Interpreted above, or not. Since no such enquiry has been held the impugned order of the District Magistrate is liable to be quashed.

In CWJC No. 291 of 1997 the facts are rather simpler. The Petitioner has admittedly not made application for licence till date. His nephew applied but more than a year after the deposit of the fire-arm. The District Magistrate, therefore, had taken step for forfeiture of the firearm on expiry of the period of one year reckoned from 2.1.88 being the date of deposit. Steps in this regard however are taken only sometime in 1993-94. In the meantime, admittedly the Petitioner''s nephew had made the application for licence on 14.4.89. In my opinion, like CWJC No. 13068 of 1996, enquiry should be held as to the ownership of the gun as an item of property and if it is found that the gun belonged to joint family property of Shivadhar Singh and his brothers, Awadhesh Singh would be deemed to be his legal representative entitled to receive back the possession of the fire-arm or to dispose of and appropriate the sale proceeds of the same. I am therefore inclined to quash the impugned order for forfeiture in this case also and to direct the District Magistrate to enquire as to whether Awadhesh Singh can be. held to be legal representative of the deceased licensee Shivadhar Singh.

The provisions of Section 21 of the Act read with and Rule 46 of the Rules are designed to strike a balance between the rights of the legal representatives of the licence holder to receive back or to dispose of the fire-arm and the right of the State to have the same forfeited to the Government in case of inordinate delay in making application for receiving back the fire-arm etc. It should be kept in mind that the deposited firearms are sold, after forfeiture, for a pittance. The price for which it is actually sold has absolutely no nexus with its market value. Being a valuable item of property capable of being sold in open market for a much higher price, the provisions relating to forfeiture have to be liberally interpreted in favour of the heirs and legal representative of the deceased rather than in favour of the State. There may be bonafide cases where the person concerned is not able to take step for the disposal of the fire-arm within the prescribed period where he is not interested in its possession, or for receiving back its possession. But for some laches on his part, he should not be deprived of a valuable property. A person may not have fundamental right to possess firearm, nonetheless, as an item of property, he has right to dispose of the same to an eligible person in open market with the consent of the competent authority, and to receive proper price for the same. Thus, to conclude, while the District Magistrate has power to forfeit the fire-arm on expiry of the period prescribed under Rule 46, the better part of the discretion lies in giving opportunity to the applicant claimant to receive back the fire-arm or to sell the same in accordance with law.

In the above premises, the impugned orders contained in Annexure-7 in CWJC No. 1306� of 1996 and Annexure-1 in CWJC No. 291 of 1997 are set aside. The matter is remitted back to the District Magistrate, Kaimur (Bhabhua) for passing fresh orders in accordance with law and in the light of the observations made above.

These writ petitions are allowed accordingly.