Pravesh Kumar and Another vs District Magistrate and Others

G.P. Mathur, J.—This writ petition has been filed praying that a writ of mandamus be issued commanding the Respondents not to seize the gun of the Petitioner No. 1 and to release the gun of Petitioner No. 2, Wasim Beg.

The case of the Petitioners, in brief, is that they had gone to the State of Nagaland to earn their livelihood and during the period of their stay, they were granted fire-arm licence by the Deputy Commissioner, Mon, Nagaland; that in the licences issued in favour of the Petitioners, it is mentioned that the same are valid for ''All India''; that a news item was published in Dainik Jagran newspaper that the police of Shahjahanpur had found that some people were carrying forged fire-arm licences which purported to have been issued in Nagaland; that the Respondents are compelling those who are having fire-arm licence from Nagaland to surrender their weapons ; that though the licences of the Petitioners have neither been suspended nor revoked but the police came to the residence of the Petitioner No. 1 to seize his weapon and the gun of the Petitioner No. 2. Wasim Beg was actually seized. The Petitioners contend that as they hold valid fire-arm licences and the same have not been suspended or revoked, the police has no authority to seize their weapons and the direction issued to the Petitioner No. 1 to deposit his fire-arm and the seizure of the weapon of Petitioner No. 2 is wholly illegal and without any authority of law.

Though the learned standing Counsel has submitted that the licences of the Petitioners are forged and fictitious, the petition is being disposed of on purely legal grounds and without expressing any opinion about the genuineness of the licences as the learned standing Counsel has not been given opportunity to file counter affidavit.

Section 3 of the Arms Act, 1959 (hereinafter referred to as the 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. Section 44 confers the Rule making power upon the Central Government and Sub-section (2)(a) thereof provides that in particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters hereinafter enumerated, namely-the appointment, jurisdiction, control and functions of licensing authorities including the areas and the categories of arms and ammunition for which they may grant licences. Rule 4 of the Arms Rules, 1962 (hereinafter referred as the ''Rules'') provides that licence under Chapter II of the Act may be granted or renewed for such purposes, by such authorities, in such forms and to be valid for such period and In such areas as are specified in Schedule II, subject to such conditions as are specified in the Schedule and the licence. In Schedule II, Column 2 describes the purpose. Column 5 mentions the name of licensing authority and Column 6 describes the area for which licences can be granted. A perusal of this Schedule would show that a District Magistrate, as a licensing authority, can issue a licence for the district or his area of jurisdiction or any specified part of his jurisdiction. He has not been conferred the power to grant a licence which may be valid for whole of India or any specified part thereof. It is only the State Government In certain cases and the Central Government which have the authority to grant a licence which may be valid for whole of India.

The Petitioners claim that fire-arm licences were issued in their favour by the Deputy Commissioner of Mon, which Is in the State of Nagaland and photocopies of these licences have been filed as Annexures 1 and 2 to the writ petition. Section 2(1)(d) of the Arms Act defines ''District Magistrate'' and in relation to any area for which a Commissioner of Police has been appointed, means the Commissioner of Police thereof and includes any such Deputy Commissioner of Police, exercising jurisdiction over the whole or any part of such area, as may be specified by the State Government in this behalf in relation to such area or part. Therefore, the Deputy Commissioner of Mon, Nagaland, who has issued the licences in favour of the Petitioners can be held to have been exercising the jurisdiction of a District Magistrate under the Act. Being a District Magistrate, he has only authority to issue a firearm licence for his district or the area of his jurisdiction or any specified part thereof. The Deputy Commissioner has. therefore, no authority to issue firearm licence which may be valid for whole of India. The endorsements in the firearm licence of the Petitioners that the same was valid for ''All India'' is of no consequence and is wholly invalid. The licences granted by Deputy Commissioner, Mon even if it contains an endorsement that it is valid for ''All India'' cannot have any legal sanctity beyond the State of Nagaland. The Petitioners are resident of Shahjahanpur and have acquired and are keeping in their possession weapons on the strength of the firearm licences issued by the Deputy Commissioner of Mon (Nagaland). The aforesaid licences are wholly invalid in the State of U.P. In law, the Petitioners would be deemed to be having no firearm licence in their favour in the State of U.P.

Sub-section (1) of Section 19 of the Act lays down that any police officer may demand the production of his licence from any person who is carrying any arms or ammunition. Sub-section (2) lays down If the person upon whom a demand is made, falls to produce the licence or to show that he is entitled by virtue of the Act or any other law to carry such arms or ammunition the officer concerned may seize from that person the arms or ammunition which he is carrying Section 21(1) lays down that any person having In his possession any arms or ammunition the possession whereof has by any reason whatever 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. Therefore, the Petitioners who do not hold valid firearm licence in the State of U.P. were duty bound to deposit their weapons in accordance with Section 21 and a police officer is also entitled to seize their firearms. In these circumstances, no exception can be taken to the action initiated by the police off Shahjahanpur against the Petitioners.

Shri Ramendra Astihana, learned Counsel for the Petitioners has submitted that the Arms Act only requires that before a person acquires or has In his possession any firearm,, he must hold a licence for this purpose and the scheme of the Act does relay down that the effectiveness of the licence can be curtailed with respect any geographical area as there is no provision to that effect in the Act itself In my opinion, the contention raised by the learned Counsel has no substance. Section 44 of the Act gives power to the Central Government to make rules for carrying out the purpose of the Act which includes the jurisdiction of the licensing authorities with regard to the area for which they may grant a licence Rule 4 has been framed by the Central Government in exercise of power conferred by Section 44 of the act and this rule prescribes the power of the various licensing authorities to grant licences with regard to the nature of the weapon and the geographical area for which they would be valid. It is well settled that rules have the same force as a provision in the main Act. In The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, Subha Rao, J. quoted with approval the following statement of law m Maxwell. "On the Interpretation of Statute":

Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation.

Again in State of Tamil Nadu Vs. Hind Stone and Others, , the Court speaking through Chinnappa Reddy, J. held that a statutory rule, while-ever subordinate to the parent statute, is otherwise to be treated as part of the statute and as effective. It was further held that statutory rules made pursuant to the power entrusted by Parliament are law made by Parliament within the meaning of Article 302 of the Constitution. Therefore, the provision of Rule 4 and the Schedule has to be treated as part of the statute and has to be given full meaning. In view of the clear mandate of this rule, a firearm licence granted by Deputy Commissioner in the State of Nagaland cannot be held �5 be valid and effective outside the State of Nagaland.

Shri Asthana has next submitted that the Petitioners have a fundamental right to hold a firearm licence and the action, of the Respondents directing them to deposit their weapons or seizing the same ''a wholly illegal. In support of his submission, learned Counsel placed reliance up"n the decision given by a learned single Judge in Ganesh Chandra Bhatt v. District ''Magistrate 1993 AWC 635 Note B). It may be noticed that in Masluddin v. Commissioner 1972 AU 573, S.N. Dwivedi, J. (as His Lordship then was) had held that after a licence is granted, the right to hold the licence and possess a gun is a valuable individual right In a free country and cancellation of a licence destroys a valuable privilege of a free citizen. Again in Kailash Nath and Ors. v. State of U.P. AIR 1985 AU 291 a Full Bench of five Hon''ble Judges held that the licence for acquisition and possession of firearm Is materially different from a licence for manufacture, sale etc. While the latter confers a right to carry on a trade or business and is a source of earning livelihood, the former is merely a personal privilege for doing something which without such privilege would be unlawful and the obtaining of a licence for acquisition and possession of firearm under the Arms Act is nothing more than a privilege. It was further held that this right cannot even remotely be comprehended within the ambit of Article 21 of the Constitution which postulates the fundamental right of protection of life and personal liberty. This was again reiterated by a Full Bench in Bairendra Singh v. state of U.P. 1989 AU 23. In view of this binding precedent. I am under accept the view taken by the learned single Judge that right to be procure arms Is embedded in Article 21 of the Constitution and is a fundamental right.

In view of the reasons indicated above, there is merit in this writ petition and the same is dismissed summarily.