All about Arms Act,1959 By: Tanvi Sapra

June 25,2019:

The Author, Tanvi Sapra is a 2^nd year BA.LL.B student of Vivekananda Institute of Professional Studies, GGSIPU, Delhi. She is Currently interning with Latestlaws.com.

INTRODUCTION

The Arms Act, 1959 is an Act of Parliament of India which regulates matters relating to acquisition, possession, manufacturing, sale, transportation, import and export, licencing of arms and ammunition. It also empowers government officials to exercise powers in relation to the matter. Like every other substantive law, it lays down the penalties and punishments associated with violation of rules related to this act. This Act which deters many Indians to own weapons to ensure that if there were another Indian uprising, it would be less effective.Q1. What was the need to make a law regulating arms and ammunition in India?

Ans. The history of this act dates back to the colonial times. After the Revolt of 1857, Britishers were frightened by Indians as they noticed that Indians with arms were a threat to their rule in the country. So, in order to dismiss the possibility of another uprising in masses, in 1878, they introduced Indian Arms Act. According to which, no Indian was allowed to keep arms without any prior permission & proper licence. This rule was implemented during Viceroy Lord Lytton’s tenure.

This Act exempted all Europeans, while placing strict controls and penalties on Indians owning any type of weapon. This was strongly opposed by Mahatma Gandhi and other national leaders. He said, “Among the many misdeeds of the British rule in India, history will look upon the Act depriving a whole nation of arms as the blackest…”^[1]

After independence, The Indian Arms Act,1878 was replaced by The Arms Act which came into force on 1^st October, 1962. It was found that, in certain situations, it is necessary to permit the law-abiding citizens to have in possession and use firearms. Hence, the Act came into effect. Thus, the Right to Keep and Bear Arms was not made a Fundamental Right but was recognised as a Legal Right through The Arms Act,1959. The Arms Rules,1962 also came into effect.

Q2. What are the main objectives of The Arms Act, 1959?

Ans. The basic objective behind The Arms Act,1959 is enshrined in its Preamble, which states, “An Act to consolidate and amend the law relating to arms and ammunition”. It aims to reduce the circulation of illegal weapons and the resultant crimes.

Also, the Act seek to classify firearms and other prohibited weapons so as to ensure –

• that dangerous weapons of military patterns are not available to civilians, particularly anti-social elements;
• that weapons for self-defence are available for all citizens under license unless in other circumstances. According to this legislation, no person should acquire or possess any arms or ammunition unless the person has a licence which has been issued in accordance with the provisions of this Act; and
• that firearms required for training purpose are made easily available on permits.

Q3. What set of arms and ammunition are ‘prohibited’ under this act?

Ans. The Arms Act,1959, Section 2(i) defines "prohibited arms". These are firearms, including artillery, anti-aircraft and anti-tank firearms; weapons designed to release any noxious liquid, gas or other such thing. The object and reasons of this Act intended to exclude knives, spears, bows and arrows etc from the definition.

And Section 2(h) of the act defines “prohibited ammunition”. It includes rockets, bombs, grenades, shells, missile, etc.

The Arms Rules, 1962 also lays down the classification of arms and ammunition in columns 2 and 3 respectively of its Schedule I. The Central Government by publication of a notification in the Official Gazette has the authority to specify any other prohibited arm and ammunition.

Q4. Under what circumstances, is it permissible to acquire or possess arms and ammunition?

Ans. In order to acquire or possess or carry any arms, it is essential to obtain arms possession licence from a competent licensing authority. This is stated under Section 3 of The Arms Act,1959. Section 25 of the Act is a penal provision and states that a person who carries ammunition in contravention of Section 3 is liable to be punished under the Act.

An exception to this rule is elucidated by the section itself, that is, a person, under the written authority of the licence holder or in his presence, may carry firearms for the purposes of any repair, or renewal or use.

Mere possession of Arms without knowledge is not punishable under The Arms Act as held by Hon’ble High Court of Bombay in Rachelle Joel Oseran v. The State of Maharashtra and Others on 6^th April, 2018 whilst relying on the Apex Court’s judgment in the case of Sanjay Dutt v/s State through C.B.I., Bombay (1994 SC), wherein the Apex Court while construing the word “possession” occurring in the said provision held that it would mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession.

Q5. How does the act ensure a strict regulation on circulation of illegal arms and ammunition?

Ans.The object of The Arms Act is to restrict the illegal circulation of arms and ammunition and the consequent crimes. The legislation accommodates this through: -

• Effective Licensing system

A ‘licence’ is an official document which gives you permission to do, use, or own something. A licence from a competent arms authority is a pre-requisite condition in the following cases:

1. for acquisition and possession of firearms and ammunition (section 3)

This means that for a citizen of India, to purchase, or carry or to keep any arms or ammunition, a licence from a competent licensing authority is required.

2. for acquisition and possession of arms of specified description in certain cases (section 4)

Primarily the possession of arms other than firearms and ammunition require no licence. But in case of special situation prevailing in any area, if the Central government is of opinion that arms other than firearms are also be regulated, that Government can issue a notification under section 4 of the Act. Thereupon acquisition, possession and carrying of arms of such class or description also are offences, unless the person, who acquires or possesses holds licence. Section 25 (1-B) (b) penalizes the violation of possession of arms of such description in the notified area.

3. for manufacture, sale, etc., of arms and ammunition (section 5) According to this legislation, no person is allowed to sell, expose or offer for sale, manufacture, transfer, convert, repair or test, any firearms or any other arms and ammunitions as prescribed as ‘prohibited’, unless the person has a licence for the same. Punishment under Section 27 of the Act is provided for the contravention of what is stipulated in section 5 thereof as imprisonment for not less than three years, extending up to seven years and fine.
4. for the shortening of guns or conversion of imitation firearms into firearms (section 6)
5. for import and export of arms, etc. (section 10)

According to Section 10, import and export of firearms and ammunition is prohibited in India, unless a person holds a licence for the same. Proviso to this section indicates that if the Arms License allows one to own a particular firearm, then he may also have the right to import a firearm of that particular category without a license for importing it.

• Certain prohibitions laid down by the act

1. Prohibition of acquisition or possession, or of manufacture or sale, of prohibited arms or prohibited ammunition (section 7)
2. Prohibition of sale or transfer of firearms not bearing identification marks (section 8)
3. Prohibition of acquisition or possession by, or of sale or transfer to young persons and certain other persons of fire arms, etc. (section 9)
4. Prohibition as to possession of notified arms in disturbed areas, etc. (section 24A)
5. Prohibition as to carrying of notified arms in or through public places in disturbed areas, etc. (section 24B)

• Gives Authority to central government and other officials (public servants)

1. Power to prohibit import or export of arms, etc. (section11)
2. Power to restrict or prohibit transport of arms (section12)

The aforesaid sections are very clear that the government can prohibit the import or transport of a particular category of arms and/or ammunition but does not entitle the government to allow some sections of the citizens to import firearms and bar others from doing so. Nor does it allow the government to prohibit the import and transfer of all categories of firearms.

3. Power to demand production of license, etc. (section19)
4. Arrest of persons conveying arms, etc., under suspicious circumstances (section 20)
5. Deposit of arms, etc., on possession ceasing to be lawful (section 21)
6. Search and seizure by magistrate (section 22)
7. Search of vessels, vehicles for arms, etc. (section 23)
8. Seizure and detention under orders of the Central Government (section 24)

• Lays down a strict procedure to obtain a licence

• Prescribes punishments

Penal provisions under the Act are provided from

Section 25 to Section 32 quite in an interesting way relating to

the sentencing policy. The sentences are divided into three

categories-

(i) indefinite sentence

(ii) mandatory minimum sentence, and

(iii) mixed sentence

There is an upward trend since 1983 to incorporate in this statute the provision of more severe and mandatory minimum sentences.

Q6. What is the procedure to obtain a licence for gun or any other arms in India?

Ans.The official procedure for obtaining a licence is enumerated in Chapter III of The Arms Act,1959. Accordingly, the procedure for the grant of licence is laid down under Section 13, The Arms Act,1959 and The Arms Rules, is as follows:

• Application to Licensing Authority

The first and foremost step is to file for an application in the appropriate (here, within one’s territorial limits) licencing authority through a prescribed Form A-1 (The Arms Rules, 2016), duly filled and payment of the fee, if any.

The documents to be furnished along with the application form are:

1. Passport size photographs
2. Proof of address
3. Proof of date of birth
4. Identification proof: Aadhar Card, or PAN, or Voter’s ID card. In case of exempted sports persons, shooters identification card issued by the National Rifle Association of India.
5. Medical certificate
6. Any other document required by the authority concerned.

Different fees, different conditions and different forms may be prescribed for different types of licences as mentioned in Section 16 of The Arms Act, 1959.

• Report of the officer-in-charge

On receipt of an application, the licensing authority shall call for the report of the officer-in-charge of the nearest police station on that application, and such officer shall send his report within the prescribed time.

The police, basically checks if there are any past records of any kind of criminal activity; if the address given is authentic or not; verification of other documents.

If the officer-in-charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for the report.

• If the following conditions are fulfilled, the authority may grant the licence.

Although there is hardly any provision in the Act or the Rules specifying any time-frame as such, but if an application for a license for a non-prohibited arm is not disposed of within three months, it will be deemed to have been allowed after the expiry of such a time –frame. The point is to make the licensing authority realize that they cannot prolong or linger-on the disposal of such application(s) at their own sweet will. This was held in the case of

Ganesh Chandra Bhatt v Distt Magistrate, Almora &Ors. (AIR 1993 ALL. 291).

• Refusal of Licence

A licence authority has to record reasons in writing for the refusal to grant a licence to any person. It may refuse to grant a licence if:

1. Any of the above-mentioned conditions are not fulfilled.
2. where such licence is required in respect of any ‘prohibited arms’ or ‘prohibited ammunition’
3. where such licence is required by a person whom the licensing authority has reason to believe:
4. to be prohibited by this Act or by any other law from acquiring, having in his possession or carrying any arms or ammunition, or
5. to be of unsound mind, or
6. to be for any reason unfit for a licence under this Act;
7. where it deems it necessary for the security of the public peace or for public safety to refuse to grant such licence.

A licence authority cannot refuse to grant a licence by giving a reason that the person does not have enough property in possession.

• Duration of a licence

Section 15 of The Arms Act, 1959 states that a licence, granted under Section 3 of the Act may continue to be in force for a period of three years, from the date on which it is granted, unless it is revoked before such date.

After that, it can be renewed for the same period for which the licence was originally granted and shall be so renewable from time to time, if the licensing authority allows such renewal.

Q7. In which matters The Arms Act,1959 is not applicable?  

Ans. Section 45 of The Arms Act, 1959 enumerates certain set of cases wherein the act does not apply. These are:

1. When carrying arms or ammunition on any sea-going vessel or any aircraft which forms a part of the ordinary armament or equipment of such vessel or aircraft;
2. Acquisition, possession or carrying, the manufacture, repair, conversion, test or proof, the sale or transfer or the import, export or transport of arms or ammunition---
3. by or under orders of the Central Government, or
4. by a public servant in the course of his duty as such public servant,
5. by a member of the National Cadet Corps raised and maintained under the National Cadet Corps Act, 1948 (31 of 1948.),
6. by any officer or enrolled person of the Territorial Army raised and maintained under the Territorial Army Act, 1948 (56 of 1948.) or
7. by any member of any other forces raised and maintained or that may hereafter be raised and maintained under any Central Act, or
8. by any member of such other forces as the Central Government may, by notification in the Official Gazette, specify, in the course of his duty as such member, officer or enrolled person;
9. any weapon of an obsolete pattern or of antiquarian value or in disrepair which is not capable of being used as a Firearm either or without repair;
10. the acquisition, possession or carrying by a person of minor parts of arms or ammunition which are not intended to be used with complementary parts acquired or possessed by that or any other person.

Q8. What is the position for multiple licences issued to individuals?

Ans.As per rule 15 of the Arms Rules, 2016, any existing licensee holding multiple licences in Form III shall on or before 1.4.2017, make an application for grant of a single licence in respect of all the firearms held by him under his UIN, to the concerned licensing authority.

Q9. Is Right to keep and bear arms and ammunition a fundamental right covered under Article 21 (Right to Life and Liberty) of the Constitution of India or simply a legal right?

Ans.In India, all aspects of gun control and possession are driven by The Arms Act of 1959 and the right has no constitutional significance. However, in certain cases the right to self-defence has been included under the ambit of Article 21 of the Indian Constitution.

In the case of Ganesh Chandra Bhatt v Distt Magistrate, Almora &Ors. (AIR 1993 All. 291), Justice Katju had taken the above view. In this case, the petitioner had applied for the license of a revolver. Even after fulfilling all the necessary formalities for obtaining a clearance, license was not granted. The petitioner approached the Allahabad High Court. Justice Katju in this particular case ruled that if an application has been made for a weapon which does not come under the category of prohibited weapons, and if three months have passed and there has been no communication, it would be deemed that the license has been granted by the government. He opined that the right to bear arms is included in the right to self-defence, which being a natural right should come within the boundaries of Article 21 which talks about right to life.  He mentioned that worshipping firearms during Diwali and Dussehra and using fire arms in Mahabharata illustrates that this right is related to the dignity and self-respect of the citizen and right to life with dignity is guaranteed by Article 21.

However, this decision was taken before the Mumbai 1993 bomb blast. This decision has been over-ruled by subsequent judgements and as of now the settled point is that right to bear arms is governed by the Arms Act only and is not constitutionally protected. Thus, the Right to Keep and Bear Arms is not made a Fundamental Right but is recognised as a Legal Right through The Arms Act,1959.