Gujarat High Court
Jahangir Marzaban Parsi- Patel vs State Of Gujarat on 16 July, 2025
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Reserved On : 26/06/2025
Pronounced On : 16/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 3511 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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JAHANGIR MARZABAN PARSI- PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR RUSHABH R SHAH(5314) for the Applicant(s) No. 1
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. By way of this application under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the Code"),
the petitioner has prayed for following reliefs :-
"i) direct the authorities to give the muddamal weapon
i.e. pistol bearing No.299095 to the licensed Arms Dealer
M/s. S.M.Patel & Sons;
ii) to pass an order directing that the order passed by
Ld. Metropolitan Magistrate, dated 10.05.2012 be complied
with upon the application given by license Arms dealer
Ms/. S.M.Patel and sons;
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iii) pass appropriate order for release of the pistol
bearing No.299095 to the petitioner or to the License Arms
Dealer M/s. S.M.Patel and Sons;
iv) pass such other and further oders as the nature and
circumstances of the case may require in the interest of
justice;
v) direct the concern authorities to pay compensation
for the misplaced muddamal weapon i.e. pistol bearing
no.299095 to the petitioner;
vi) direct the concern authorities to initiate
departmental inquiry against the responsible person liable
for misplaced of muddamal weapon i.e. pistol bearing
no.2999095.
2. Brief facts of the case are as under:-
2.1. The present petitioner was charged for the offences U/Ss.
336 and 114 IPC and Sec. 25(1)В of the Arms Act. The above
offence was investigated, charge-sheet was filed and the present
petitioner along with other 7 co-accused was tried for the above
offence. The present petitioner came to be acquitted for the
above offence. During the course of investigation licensed pistol
bearing No.299095 was taken in custody on 22/2/1996 by
Police Inspector, Naranpura Police Station. Subsequently the
Officers of ATS, Ahmedabad got the said Pistol from
Navrangpura Police Station and by Receipt No.50/1996 of
Dariapur Police Station deposited the said pistol with learned
Metropolitan Magistrate, Court No.11, Ahmedabad on
10/7/1996. Since the petitioner was the license holder, but his
license was cancelled by the Police Commissioner, the petitioner
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sought permission to sell the pistol, from the Police
Commissioner and the said permission was granted on
24/10/2008 by the Police Commissioner, Ahmedabad to sell the
Pistol bearing No.299095 to the Arms and ammunition Dealer
S.M.Patel & Sons.
2.2. That the present petitioner preferred an application in the
Court of learned Metropolitan Magistrate, Court No.11,
Ahmedabad to get back muddamal pistol whereas on 13/7/2009
order for inquiry was conducted and subsequently by an order
dated 7/10/2009 the application of the present petitioner was
rejected by the learned Metropolitan Magistrate, Court No.11.
The petitioner challenged the order in the Court of the learned
Addl. Sessions Judge, Court No.19, Ahmedabad City by filing
Criminal Revision Application No.419/2009 which also came to
be rejected by an order dated 29/7/2010.
2.3. Being aggrieved by the above order, the present petitioner
has preferred Special Criminal Application No.70/2011, wherein,
this Court was pleased to pass an order dated 06/02/2012; this
Court took a view that the Ld. Metropolitan Magistrate should
hold appropriate inquiry for disposal of muddamal as
contemplated under Section 452 of Code of Criminal Procedure.
After the order dated 06/02/2012 passed by this Court in
Special Criminal Application no.70/2011, the petitioner
preferred an application to Ld. Metropolitan Magistrate on
02/05/2012 for getting the muddamal weapon back, which was
rejected on the ground that the petitioner was not having license,
by order dated 10/05/2012. It is submitted that on the same
day i.e. 02/05/2012, an application was also given by licensed
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Arms dealers M/s. S.M.Patel & Sons praying to get the
muddamal weapon, wherein, Ld. Metropolitan Magistrate Court
No.11, Ahmedabad allowed the application and passed an order
dated 10/12/2012 on certain conditions.
2.4. Hence, present petition.
3. Learned advocate Mr.Rushabh Shah for the petitioner
assailing the impugned order would submit that the petitioner
was owner of the pistol bearing No.299095. Said pistol was part
of Mudammal in Criminal Case No.748 of 1996. Muddamal
pistol was received in said Criminal Case vide receipt no.50 of
1996. The petitioner was acquitted vide order dated 03.11.2001
from the said offence. However, Muddamal was neither received
back by him nor released in his favour. He would submit that
when the petitioner has moved learned Trial Court for getting
back muddamal, it came on record that said Muddamal pistal
has been lost and was not found within custody of the learned
Trial Court. It is submitted that in this circumstances, when
petitioner approached police commissioner who has cancelled
his license to hold muddamal pistol on 24.10.2008, it was found
that Police Commissioner has given permission to sell said
muddamal / pistol to Arms and Ammunition Dealer S.M.Patel
and Sons. However, said muddamal was not found as it was
established from various report called from the Court that since
muddamal was lost from custody of the learned Trial Court, the
petitioner could not deposit same to dealer, hence, it is
submitted that petitioner may be compensated for misplacement
of muddamal pistol. He would submit that in aforesaid facts,
learned Trial Court committed serious error in rejecting the
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application of the petitioner. Thus, learned advocate would
submit that petitioner may be compensated for the muddmal
lost from the custody of learned Trial Court.
3.1. Upon above submissions, it is submitted to allow the
petition.
4. Learned APP on the other side would submit that the
petition is not maintainable in present form. It is submitted that
learned Trial Court has rejected the application filed by the
petitioner to release Muddamal on the ground that petitioner's
license has expired. Said finding was given by learned Trial
Court under section 452 of Cr.P.C. The petitioner if is aggrieved
by said order, he is required to prefer Revision Application under
section 397 read with section 401 of Cr.P.C. and filing of present
petition straightway without resorting said remedy is not
maintainable.
4.1. It is further submitted that Arms and Ammunition Dealer
S.M.Patel had preferred application before the learned Trial
Court for release of Muddamal. Learned Magistrate has passed
order on 10.05.2012 and ordered to release the Muddamal pistol
to Arms and Ammunition Dealer and that order is still in
existence. It is further submitted that without challenging the
said order, the petitioner cannot seek compensation. It is
submitted that if muddamal pistol is not available or misplaced,
then Arms and Ammunition Dealer may file necessary
proceedings for compensation or file any other proceedings
available under law but in existence of said order, and having
not been set aside by Higher Court, the petitioner cannot come
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before this Court for getting compensation, more particularly,
when license is expired long back.
4.2. Learned APP also submits that in absence of complaint of
breach of fundamental right enshrined in Article 21,this Court
should not grant compensation in exercise of the jurisdiction
under Article 226 of the Constitution of India.
4.3. In aforesaid premises, learned APP would submit that
present petition since is misconceived, would not survive, more
particularly when order passed is in favour of arms and
ammunition dealer is still in existence without having been
challenged.
4.4. Upon above submissions, it is submitted to dismiss the
petition.
5. Regard had been to rival submissions made by learned
advocates for the parties, and paying anxious consideration to
the record, at the outset lets have notice of facts. The petitioner
was accused in Criminal Case No.748 of 1996. During
investigation of said offence of Criminal Case, pistol owned by
petitioner was taken as Muddamal by ATS Officer and placed it
before Navrangpura Police Station and subsequently, it was
placed before learned Metropolitan Magistrate Court, where
receipt No.50 of 1996 was issued and subsequently, on
10.07.1996 said muddamal was registered with Navrangpura
Police Station. Later on Criminal Case resulted into acquittal and
meanwhile, license possessed by petitioner was discontinued
and it was never renewed thereafter. Learned Trial Court while
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acquitting accused did not pass any order to hand over
Mudammal. In the first round of litigation, the petitioner who
preferred petition for releasing muddamal pistol remained
unsuccessful. Being aggrieved by the order passed by learned
Court below, the petitioner preferred Special Criminal
Application No.70 of 2011. Co-ordinate Bench of this Court on
06.02.2012 passed order and permitted the petitioner to file
application under section 452 of Cr.P.C. seeking release of
muddamal. Therefore, second round of litigation started and
application was filed by the petitioner before the learned Trial
Court to get back muddamal pistol on 02.05.2012. This time,
even Arms and Ammunition Dealer S.M.Patel also filed
application seeking release of said muddamal. Learned
Metropolitan Magistrate, Ahmedabad vide order dated
10.05.2012 dismissed the petition filed by the petitioner on the
ground that license of the petitioner has been cancelled on
06.02.1996 vide communication No.J/656/B/1354/96. It is also
observed by learned Trial Court that pursuant to application
filed by the petitioner on 22.07.2008, he is permitted to sell
muddamal pistol to S.M.Patel Dealer which indicates that now
S.M.Patel Dealer Arms and Ammunition is entitled to receive
muddamal and not the petitioner.
6. Having ascribed aforesaid reasons, learned Trial Court
dismissed the application filed by the petitioner. However,
another application filed by S.M.Patel Arms and Ammunition
Dealer was allowed by learned Trial Court and it was directed to
hand over possession of muddamal - pistol to Bhargav Kirit Patel
on conditions.
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7. During pendency of proceedings, reports from learned
Metropolitan Magistrate is called about missing of muddamal
pistol and also about inquiry carried out in respect of missing of
muddamal - pistol. Reports are on record which indicates that
Mr.V.H.Shah was found responsible, however, fact remains that
muddamal pistol was not found.
8. In juxtaposition of above, if we refer order of Joint Police
commissioner, Ahmedabad City it establish that license issued
in favour of the petitioner has been cancelled with effect from
06.02.1996 and muddamal pistol was deposited with
Navrangpura Police Station on 22.02.1996 subsequent to
cancellation of license.
9. It is evident that license of the petitioner is never renewed,
be it pre or post of application filed seeking custody of
muddamal.
10. As per record, subsequently office of the Police
Commissioner permitted petitioner to deposit pistol with arms
and ammunition dealer for selling. However, mudamal pistol
could not be received back by petitioner, as he was not having
license. Learned Trial Court twice rejected prayer of the
petitioner for custody. Last application filed under section 452 of
Cr.P.C. was also rejected. Both the time learned Trial Court
weighed with the reason that petitioner is not holding license.
11. Section 21 of the Arms Act, 1959 deals with deposit of
arms, etc. on possession ceasing to be lawful. It reads as
under:-
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"21. 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 under section 4 or by any reason whatever,
ceased 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 or where such person
is a memberof the armed forces of the Union, in a unit
armoury.Explanation. - In this sub-section unit armoury
includes an armoury in a ship or establishment of the
Indian Navy.
(2)Where arms or ammunition have or has been deposited
under sub-section (1), the depositor or in the case of his
death, his legal representative, shall, at any time before the
expiry of such period as may be prescribed, be entitled
(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, or
(b)to dispose, or authorise 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 authorise the return or
disposal of anything of which confiscation has been
directed under section 32.
(3)All things deposited and not received back or disposed of
under sub-section (2) within the period therein referred to
shall be forfeited to Government by order of the district
magistrate:
Provided that in the case of suspension of a licence no
such forfeiture shall be ordered in respect of a thing
covered by the licence during the period of suspension.
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(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 service of the
notice why the things specified in the notice should not be
forfeited.
(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.
12. Rule 47 of the Arms Act deals with deposit of arms and
ammunition, it reads as under :-
"47. Deposit of arms and ammunition under section 21.
(1)When a licensing authority decides to suspend or revoke
a license or to refuse to renew it, he shall, communicate
his decision in writing to the licensee, requiring him to
deposit under section 21, within such time as may be
specified in the order suspending, revoking or refusing to
renew the license, the arms or ammunition covered by the
license, either with the officer-in-charge of the nearest
police station or with a dealer holding a license in Form
VIII, or, in case he is a member of the armed forces of the
Union, in the unit armory:
Provided that in case of death of a licensee, the arms or
ammunition shall be deposited by the legal representative
with the officer-in-charge of the nearest police station or
with a dealer holding a license in Form VIII, within a period
of three months of the death of the licensee.
(2)Subject to the proviso to sub-section (2) of section 21,the
licensee or, in the case of his death, his legal representative
shall be entitled to sell or otherwise dispose of the arms or
ammunition to any person lawfully entitled to possess the
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same and to receive the sale-proceeds, if any, during the
period specified in column (3) of the Table in case of
deposit of arms and ammunition mentioned in column (2)
of the said table in sub-rule (6):
Provided that 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 period so specified, then such arms or
ammunition shall, subject to the proviso to sub-section (3)
of section 21, be forfeited to the Government by an order of
the district magistrate.
(3)Where any arm or ammunition is deposited by an owner
under sub-section (1) of section 21, in a police station or
unit armory or with a dealer holding a license in Form VIII,
the officer-in-charge of the police station or unit armory or
the licensed dealer, as the case may be, shall attach to
each article deposited, a card and issue a receipt to the
depositor and send a copy to the authority who granted the
license or renewed it last, containing the following
particulars, namely:-
(i)Description (No. etc.) of the article;
(ii)Particulars of license or exemption (if any);
(iii)Name and address of the depositor;
(iv)Serial No. in register and date of deposit;
(v)Date due for forfeiture or disposal;
(vi)Signature of the depositor; and
(vii)Signature of the dealer or officer-in-charge of police
station or unit armory.
(4)Any arms or ammunition deposited in a unit armory
under sub-section (1) of section 21 may, unless returned or
disposed of earlier, be transferred, after the expiry of a
period of thirty days after such deposit, to the nearest
police station.
(5)Any arms or ammunition deposited in a police station
under sub-section (1) of section 21, which have not been
returned or disposed of -
(i)with-in thirty days of the deposit with it; and
(ii)transferred from the unit armory under sub-rule (4)may
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be transferred by the officer-in-charge of the police station
for the sake of better maintenance or safety, to a police
armory in the district/ taluqa headquarters or such other
place as may be specified by the district magistrate, in
accordance with such instructions as may be issued by the
State Government for the purpose:
Provided that the district magistrate may, if he considers it
necessary, extend the said period of thirty days up-to
ninety days and intimation of such transfer shall be given
to the depositor of the article and to the licensing authority
who, granted or last renewed the license.
The depositor or his legal representative may exercise his
rights to receive back or dispose of any arms or
ammunition under sub-section (2) of section 21, within the
period specified in column (3), in case of deposit of the
arms or ammunition specified in column (2) of the table
given below, namely:-Table
Reason of deposit of arms
S.No. Effective date
and ammunition
(1) (2) (3)
Due to contravention by the
owner of any provisions of One year from the
theAct, the rules or date of such deposit
conditions of license
One year from the
Due to suspension or
date of the order of
2. revocation of license or for
suspension
any otherreason
orrevocation
One year from the
Where the arms or date of the order of
3. ammunition are already revocation,
deposited suspensionor refusal
to renew the license
One year from the
When a notification is issued
4. date of said
under section 4
notification
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Where an appeal is preferred One year from the
5. by the owner under section date of the final
18 order
Where the arms or
ammunition are -
ffrfrom the date of
the subject of a legal suit or termination of the
dispute or dispute or the date of
final order
One year from the
Owned or inherited by a
date of completion by
person who has not
that person of the
completed the age of twenty
age of twenty one
one years
years
Where the owner is on active from the date of his
service outside India return to India
(7) Any arms or ammunition not returned or disposed of
before the expiry of the period specified under sub-rule (6)
shall be transferred to the district malkhana or such other
place, by order of the district magistrate, for the purpose of
forfeiture under sub-section (3) of section 21:
Provided that the district magistrate shall, before making
such order of forfeiture, serve a notice as required under
sub-section (4) of section 21 in like manner as for service
of summons under the Code of Criminal Procedure, 1973
(2 of 1974):
Provided further that in the case of the depositor being a
member of the armed forces of the Union the notice, shall
be served personally, through the Commanding Officer, of
such member.
(8)Charges for maintaining the articles deposited may be
levied at such rates as may be fixed from time to time by
the State Government.
13. How to receive back arms and ammunition is specified in
aforesaid provision. What appears that the petitioner without
following procedure in the Arms Act or Arms Rules, preferred
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application seeking muddamal weapon, license of which was
cancelled prior to seeking such relief. Therefore, the petitioner
cannot take physical possession. S.M.Patel Arms and
Ammunition had filed petition (Annexure F) and it was allowed
and he was permitted to receive muddamal pistol. This order
remains in force till date. The petitioner did not challenge the
said order and did not get it quashed. In that circumstances, the
petitioner has no locus standi to prefer this petition. The
petitioner who per se was not entitled to hold possession of
muddamal pistol, cannot come before this Court seeking
aforesaid relief. The petitioner would be entitled to get proceed of
sale of muddamal weapon provided it is sold by arms and
ammunition dealer.
14. Even otherwise, centric prayer of the petitioner is to grant
compensation under writ jurisdiction. It is well settled principle
that Constitutional Court under Article 226 of the Constitution
of India should be caution and slow in grating compensation in
writ jurisdiction. Said principle of law is recognized in
jurisprudence. Time and again Hon'ble Apex Court has
emphasized that compensation should be awarded in exceptional
case involving violation of fundamental right under Article 21 of
the Constitution of India (Right to live and personal liberty) and
not as routine remedy.
15. In nutshell, since Annexure F is in force, the petitioner has
no locus standi to claim that he can get back muddamal or
compensation may be given to meet with loss of muddamal.
Right is vested with arms and ammunition dealer who has been
given to hand over muddamal pistol (Annexure F).
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16. In view of above, the petition fails to receive consideration.
Accordingly, the petition stands dismissed. Rule is discharged.
Interim relief granted earlier if any stands vacated.
(J. C. DOSHI,J)
SATISH
