Shri Anirudh Singh Katoch vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 801 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioner in this case is challenging the action of the respondent No.3 in giving custom clearance in respect of one fire arm only and detaining two other firearms. The reason given by the respondents is that as per Baggage Rules, 1998 , the petitioner could be permitted only one firearm on transfer of his residence. His case is that he holds three valid licenses with respect to three firearms as required under the Arms Act, 1959 and on transfer of his residence as per Baggage Rules, 1998 a person holding a valid license to possess arms in India ought to be permitted to bring into India all three firearms and there is no such restriction to carry one firearm only.

2. The petitioner claims to be a respectable Indian citizen and the grandson of Sh.Rai Bahadur Beni Chand Katoch, who was the Inspector General of Prisons (Northern India). He had gone to the USA for the purpose of his studies in the year 1984 and after obtaining degree of B.S.(Computer Science) with Honours from the Seattle Pacific University from Washington, USA, he starting working in the USA with M/s Quinton Instruments, a medical instrument firm. He was a Non-resident Indian since 1984. In the year 1999 he married in India to an Indian girl and his intention was to go back to the USA with his wife. However, owing to serious illness of his wife requiring a kidney transplant, his wife did not wish to say in the USA and desired to settle down in India. The petitioner thereafter decided to return to India for good and transferred his residence in India.

3. The petitioner states that as he was an enthusiast sport shooter, he applied for and obtained licenses in India. The petitioner was a frequent visitor of gun ranges, such as the Renton Fisheries and Game Park shooting range, Bellevue shooting range etc. in the USA. He used to practice the sport of shooting, trap skeet etc. in shooting ranges and other such clubs. The licenses obtained by him were under the Arms Act, 1959. He had also obtained licenses for possession of firearms in the USA. On 1st October, 2000 when the petitioner wanted to bring his firearms to India while transferring his residence to India, he consulted the Indian Consulate in San Francisco, USA to apprise himself of the Rules and Regulations and facilities available to him under the transfer of residence and sought their advice regrading the import of his three personal firearms of non-prohibited bore. He was informed by the Indian Consulate that he could take back the three firearms as baggage subject to condition that he had been issued valid firearms licenses by the Indian Government. However, on arrival at the Indira Gandhi International Airport with his baggage and firearms, he was told by the custom officials that he was permitted only one firearm under transfer of residence rules and he had to obtain firearms Import license for the other two from the Director General Foreign Trade. All the three firearms of the petitioner were detained by the respondent no.3. The only reason given on the said order of detention for such detention was "detained for the clearance as per Rules".

4. Thereafter the petitioner was given, on 16th February, 2001, one of the three firearms, namely, Walther PPKS .32 ACP handgun and the remaining two firearms were detained. He made various representations to various authorities but did not get any response. He also served legal notice dated 16th October, 2001 followed by reminder dated 12th November, 2001 by his counsel. In reply, he received a communication dated 26th March, 2001 stating that as per the existing policy of the Ministry of Home Affairs, there is a ban on import of firearms under the gift scheme as well as Baggage Rules and only one such firearm was permitted.

The petitioner thereafter filed this writ petition challenging aforesaid communication dated 26th March, 2001 with prayer to quash detention order dated 1st October, 2000, communication dated 26th March, 2001 and for a writ of mandamus directing the respondent No.3 to return to the petitioner two firearms detained by the said respondent. He has also sought direction against the respondent No.5 to keep the licenses of the two firearms detained by the respondent No.3, alive till such time the said guns are returned to the petitioner. Further direction is sought that demurrage if any incurred during the period the petitioner's guns are under detention shall be borne by the respondent No.3.

5. The sole question, therefore, which falls for consideration is as to whether a person on transfer of his residence, is allowed to bring one firearm under the Baggage Rules or the Arms Act or the Rules framed there under?

6. Mr. Trideep Pais, Learned counsel for the petitioner argued that the petitioner was entitled to bring into India, on transfer of his residence, up to three firearms which was clear from the conjoint reading of the provisions of the Arms Act, Rules framed there under as well as Baggage Rules relating to transfer of residence. He referred to the following provisions of the Arms Act in this behalf:

"3. License for acquisition and possession of firearms and ammunition.

[1] No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a license issued in accordance with the provisions of this Act and the rules made there under.

Provided that a person may, without himself holding a license, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the license for repair or for renewal of the license or for use by such holder.

[2] Notwithstanding anything contained in sub-section (1), no person, other than a person referred to in sub-section (3), shall acquire, and have in his possession or carry, at any time, more than three firearms;

Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement, the remaining firearms with the officer in charge of the nearest police station or, subject to to the conditions prescribed for the purpose of sub-section (1) of Section 21, with a licensed dealer, or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub-section."

10: License for import and export of arms, etc.-

10(1) No person shall bring into, or take out of, India by sea, land or air any arms or ammunition unless he holds in this behalf a license issued in accordance with the provisions of this Act and the rules made there under.

11. Power to prohibit import of export of arms etc.-

The Central Government may, by notification in the Official Gazette, prohibit the bringing into, or the taking out of India, arms or ammunition of such classes and description as may be specified in the notification."

7. He submitted that the petitioner who had three valid licenses was permitted to bring in the aforesaid three firearms for which he had the licenses. Any prohibition of import or export could be done only through a notification under Section 11 duly published in the Official Gazette. His further submission was that reliance upon the Baggage Rules, 1998 by the respondents to contend that only one firearm was permissible was misplaced inasmuch as there was no such embargo on the number of guns in Rule 8 thereof which is in the following terms:

"8. Transfer of residence:

(1) A person who is transferring his residence to India shall be allowed clearance free of duty, in addition to what he is allowed under Rule 3 or, the case may be, under Rule 4, articles in his bona fide baggage to the extent mentioned in column (1) of Appendix F, subject to the conditions, if any, mentioned in the corresponding entry in column (2) of the said Appendix.

(2) The conditions may be relaxed to the extent mentioned in column (3) of the said Appendix.

8. He argued that bona fide baggage to the extent mentioned in column -I of Appendix F of the Baggage Rules can be brought in column -1 of Appendix F which is as under:

"Articles allowed free of duty:

(a) Used personal and household articles, other than those listed Annex I or Annex II, but including jewellery up to ten thousand rupees by a gentleman passenger or rupees twenty thousand by a lady passenger."

9. His submission was that in so far as goods mentioned in Annexures 1 and 2 are concerned, the same are also personal goods and household articles but they are distinguishable on the ground that they are dutiable items. The first item on annexure 1 is firearms. The others being cigarettes, alcohol etc. He urged that in the said annexure there is a mere mention of the item `firearms' without any restriction as to number.

10. The case set up by the respondents, on the other hand, in the counter affidavit is that provisions enumerated in the Arms Act, 1959, Rules made there under and the Baggage Rules, 1998 framed under Section 79 of the Customs Act, 1962 regulating the import of firearms are not exhaustive but are supplemental to other applicable laws. It is stated that import of firearms is also governed by the Export and Import Policy (EXIM Policy) as laid down by the Director General of Foreign Trade (DGFT), Ministry of Commerce. Moreover under Sections 3 and 5 of the Foreign Trade (Development and Regulation) Act, 1992, the Central Government can make provisions prohibiting, restricting or otherwise regulating the export and import of goods. It is pointed out that import of firearms is prohibited under Rule 8 of the Baggage Rules, 1998 and the EXIM Policy 1997-2002 laid down by the DGFT. Firearms fall under the restricted category of import policy as mentioned in the ITC(HS) classification and as such import of firearms is not permitted except against an import license issued by the DGFT to renowned shooters/rifle clubs for their own use on the recommendation of the Department of Youth Affairs and Sports or the Licensed Arms Dealers. It is further explained that although import of firearms is not permitted as per the aforesaid import policy the Ministry of Finance under instructions dated 5th January, 1988 has allowed import of one firearm of permissible bore by persons transferring their residence to India subject to certain conditions. Pursuant to the said instructions, one firearm is allowed under the "Transfer of Residence Form Revision" to persons concerned under the Circular dated 63/95 Cus. dated 7th June, 1995. The relevant portion of this Circular dated 7th June, 1995 is as under:

" 3. In this connection, it is pointed out that one firearm of permissible bore is allowed to be imported by persons transferring their residence to India under Ministry's instructions dated 5.1.88 issued from F.No.497/57/87-Cus VI. Such release is permitted subject to the condition that the firearm so cleared shall not be sold, transferred, loaned or otherwise parted with, for consideration or otherwise, to any other person in India during the life time of the person concerned. An endorsement to this effect is made in the arm license and the passport of the passenger concerned at the time of clearance of the firearm. Such endorsement shall continue to be made by the customs authorities at the time of clearance of the firearm in question."

11. No doubt as per the provisions of Arms Act, a person can have licenses up to three firearms and he can bring into India firearms if he holds license in this behalf. However, what is to be seen is that Sections 3 and 10(i) of the Arms Act are in negative terms. Section 3 states that no person shall acquire etc. any firearms and ammunition unless he holds a license in this behalf in accordance with the provisions of the Act and further that no person shall acquire and have in his possession or carry, at any time, more than three firearms. Thus, Section 3 puts an embargo in respect of possessing the firearm without a license and further puts a cap on the number of such firearms. Likewise, Section 10 is also in negative term and states that no person shall, inter alia, bring into India any arms or ammunition unless he holds in this behalf a license issued in accordance with the provisions of the Arms Act. Likewise, Section 11 deals with power of the Central Government to issue notification prohibiting the bringing into India or taking out of India arms or ammunition of such classes and description as may be specified in the notification. Under this Section, the Central Government may prohibit import or export of arms and ammunition of particular classes and description. Likewise, the Baggages Rules deal with the import of duty free articles by a person in his bona fide baggage. In that context Rule 8 stipulates that a person who is transferring his resident to India, shall be allowed free of duty clearance of certain articles in his bona fide baggage to the extent mentioned in column (1) of Appendix F subject to the conditions mentioned in corresponding entry in column (2) of Appendix F. It is in this context the articles which are allowed free of duty are mentioned in Appendix F and entry (a) thereof which is in the following terms:

APPENDIX F

Articles allowed Conditions Relaxation that may free of duty be considered

(a) Used personal (1) Minimum stay of two (a) For condition (1) and household years abroad, immediately Shortfall of up to 2 months articles, other than preceding the date of his in stay abroad can be those listed at arrival on TR. condoned by Assistant Annex I or (2) total stay in India Commissioner of Customs Annex II, but on short visit during the if the early return is on including the 2 preceding years account of:

jewellery up to  should not exceed 6   (i) terminal leave or
up to ten thousand months, and    vacation being availed
rupees by a  (3) passenger has not              of by the passenger; or
gentleman  availed this concession          (ii) any other special
passenger or  in the preceding three           circumstances.
rupees twenty  years                                   (b) For condition (2)
thousand by a  Commissioner of Customs
lady passenger  may condone short visits
   in excess of 6 months in
   deserving cases.
   (c) For condition (3)     
   No relaxation. 
 

12. Read in this manner, it is apparent that certain articles  mentioned in Clause (a) are allowed without payment of any  duty except those listed in Annexure I and Annexure II.  Entry of firearms in Annexure I has to be read in this context.  It is not correct on the part of the petitioner to contend that since there is no limitation  in respect of other items in terms of cartridges of firearms, cigarettes, alcoholic liquor  etc. it should be understood that there is no limitation on bringing firearms.  In fact the effect would be just the reverse.                    Cartridges, cigarettes, alcoholic liquor and wines  would be permitted to the extent quantity is specified in Annexure I and not beyond that.  Likewise firearms mentioned in entry (a)  and gold or silver in entry (5) would not be permitted free of duty at all.  Therefore, the contention of the petitioner, based on these Rules, would be of no avail.  
 

13. Thus, it is clear from the reading of the aforesaid provisions that as per Section 3 of the Arms Act, a person cannot carry arms unless he is having a valid license and no person could hold license for more than 3 arms. Likewise, a person would not be allowed to bring into India any firearms unless he has a license. As pointed out above, these Sections are in negative terms and reverse would not be automatically true, namely, a person would as a matter of right be allowed to bring the firearms into India if he is the holder of license. Whether a person is to be allowed to bring in firearms into India would be governed by the relevant provisions as rightly suggested by the respondents. As per the Baggage Rules, free duty import of firearms is not permissible. That is the only conclusion which can be drawn from the reading of the aforesaid Rules. However, whether import of a particular item is to be allowed or not is governed by Imports and Exports (Control) Act, 1947. As per EXIM Policy 1997-2002 firearms fall in the restrictive category of Import Policy as mentioned in the ITC(HS) classification and as such import of firearms is not permitted except against an import license issued by the DGFT. Similarly under the Imports (Control) Order, 1955 issued by the Central Government in exercise of its powers conferred by Sections 3 and 4(a) of the Imports and Exports (Control) Act, 1947.

14. Since under the Baggages Rules firearms were excluded on the transfer of residence, in order to facilitate bringing at least one firearm, the Government of India issued Circular dated 12th January, 1989 as per which only one firearm is permitted subject to certain conditions stipulated therein which include the condition that the person bringing the firearm would not transfer the same to any person in India during his lifetime for consideration or otherwise. In fact the Baggages Rules, 1978 have already been superseded by the Baggage Rules, 1994 and Rule now deals with importation of personal and household effects of a person on bona fide transfer of residence in India which are exempted from duty. Appendix A and Appendix B are almost similar to Appendix A & Appendix B of earlier Rules. It may be mentioned that this decision to allow one firearm under the Baggage Rules is reiterated vide Circulars dated 16th May, 1978, 12th January, 1989 and 6th June, 1995. Thus there is a consistent policy of the respondents to permit import of one firearm only. It may be noted that Baggage Rules are framed under Section 79 of the Customs Act. Likewise, EXIM Policy is also statutory. They prohibit import of firearms. It would be a moot question as to whether by such administrative policy one firearm can be allowed to be imported in certain situations. Be as it may, we are not to go into this aspect in the present case inasmuch as, the petitioner is benefited by this policy as he has been able to bring into India at least one firearm. However, more than one firearm cannot be permitted even under any provision of law, including under the Baggage Rules.

15. This writ petition is, therefore, without any merit and is dismissed accordingly. However, if the petitioner so wants, he would be allowed to take back the said firearms. On his exercising such an option, the said firearms would be released to him as and when he chooses to go abroad with the condition that he would not be permitted to bring the same into India.

16. There shall be no order as to costs.