Kerala High Court

Subrahmanya Y vs The District Collector on 9 March, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942

                       WP(C).No.5125 OF 2021(M)


PETITIONER:

               SUBRAHMANYA Y.,
               AGED 52 YEARS,
               S/O.THRIVIKRAMA BHAT, RESIDING AT YENANKODLU HOUSE,
               BADIADKA, UBRANGALA, UKKINADKA, KASARAGOD DISTRICT.

               BY ADVS.
               SRI.T.MADHU
               SMT.C.R.SARADAMANI
               SRI.SHAHID AZEEZ

RESPONDENTS:

      1        THE DISTRICT COLLECTOR,
               KASARAGOD, CIVIL STATION, VIDYANAGAR P.O.,
               KASARAGOD DISTRICT-671 123.

      2        THE ADDITIONAL DISTRICT MAGISTRATE,
               KASARAGOD, VIDYANAGAR P.O.,
               KASARAGOD DISTRICT-671 123.

      3        THE STATION HOUSE OFFICER,
               BADIADKA POLICE STATION,
               KASARAGOD DISTRICT-671 551.

      4        THE ELECTION COMMISSION OF INDIA,
               NIRVACHAN SADAN, ASOKA ROAD, PANDIT PANT MARG AREA,
               SANSAD MARG AREA, NEW DELHI-110001,
               REPRESENTED BY ITS SECRETARY.

      5        THE STATE ELECTION COMMISSION,
               ELECTION DEPARTMENT, KERALA LEGISLATIVE COMPLEX,
               VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033,
               REPRESENTED BY ITS SECRETARY.

               BY ADVS. SRI.KODOTH SREEDHARAN
                        SMT.PRINCY XAVIER, GOVERNMENT PLEADER

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION              ON
09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.5125 OF 2021(M)

                                         2

                                     JUDGMENT

The petitioner is holding an Arms

licence, which is valid till 31.12.2021. On

direction from the 3rd respondent, petitioner

had deposited the licenced arm with the 3 rd

respondent on 12.11.2020 prior to the

election to local body and Ext.P5 receipt

was issued to him. The petitioner points out

that so far it is not returned and that he

is informed that the same would be retained

in view of the election to the Legislative

Assembly, which is being notified.

2. I have already disposed of an

identical case, where the very same 3rd

respondent is a party, where I have observed

as follows:

"5. This Court has time and again cautioned that the police officers do not have any authority to require deposit of licensed arms and that a decision regarding the requirement of deposit of licensed arms in view of upcoming elections can only be taken WP(C).No.5125 OF 2021(M)

by the screening committee constituted as per the provisions contained in the circular issued by the Election Commission on 01.09.2009. As per the said circular a screening committee has to be constituted for review and assessment of all license holders. Clause 3.10 and 3.11. of the circular reads as follows: "Deposit of Licensed Arms 3.10. Immediately after the announcement of elections, District Magistrates shall make a detailed and individual review and assessment (in accordance with the prevalent State laws) of all licence holders so that licensed arms in those cases where they consider it essential are impounded in order to ensure maintenance of law and order so essential for ensuring free and fair elections. These arms should be deposited with the district authorities. Among cases which may need to be reviewed are the following:

(a) Arms licenses of persons released on bail,

(b) Arms licenses of persons having a history of criminal offences, and

(c) Arms licenses of persons previously involved in rioting at any time but especially during the election period. The above categories are only illustrative and not exhaustive.

3.11. As per the above referred guidelines laid down by the Bombay High Court, for such review and assessment of all licence holders;

(a) There shall be a Screening Committee in every District and in every Commissionerate area. In the District, the Screening Committee shall consist of the District Magistrate and the Superintendent of Police. In the Commissionerate area, it shall consist of the WP(C).No.5125 OF 2021(M)

Commissioner of Police (Admn.) and Joint/Additional Commissioner of Police(Admn.).

(b) The Screening Committee shall commence the work of screening from the day of announcement of election by the Election Commission and it shall complete the exercise of screening in respect of licences placed before it as far as possible before the date of issue of notification of elections.

(d) On receipt of report from the Screening Committee, the licensing authority shall issue notice before the last date fixed for withdrawal of candidature to the individual licence holder for depositing his arms and inform the licence holder that failure to deposit the arms as directed would result in prosecution under Section 188 of the I.P.C. as stated in clause 3.11(g).

(e) The licence holder thereafter shall deposit his arms forthwith and in any case within a period of seven days from the date of receipt of the notice. The Licensing Authority shall give proper receipt to the licence holder.

(f) The decision taken by the Screening Committee shall be final.

(g) Any licence holder who fails to deposit arms within the period specified above shall be liable for prosecution under Section 188 of the Indian Penal Code.

6. From the Circular it is clear that the screening committee is expected to commence its screening work from the date on which election is announced; screening work is to be completed before the issuance of notification for election. On receipt of a WP(C).No.5125 OF 2021(M)

report of the said screening committee that the impounding of the licensed arm of a particular license holder is essential for ensuring the maintenance of law and order and for ensuring a free and fair election, the licensing authority can issue a notice to the license holder directing him to deposit the licensed arm within one week.

7. In the present case the respondents do not have a case that there is any report against the petitioner requiring impounding of the licensed firearm or that he comes under the parameters under Sub- clause (a) to (c) of Clause 3.10. Date of election is so far not notified. There is no report from the screening committee. No notice is issued to the petitioners by the licensing authority.

8. The only reason stated for directing deposit of the licensed arms is that the respondents want to ensure a serene atmosphere for the election.

9. When the Government has laid down a specific procedure which should precede the direction for deposit of licensed arms, there is no justifiable reason for deviating from the said procedure and collect the licensed arms well before election without authority and also to retain the guns even months after the election. It is unfortunate that the authorities concerned continue to adopt WP(C).No.5125 OF 2021(M)

such illegal procedure even after a series of judgments from this Court starting from Saji Kuriachan v. District Collector, Ernakulam [2011 (1) KLT 484] and reiterated in Binesh G. Vadath v. District Collector [2011 (1) KHC 214], Joseph v. District Collector [2019 (1) KLT 1034] etc."

Therefore there shall be a direction

to the respondents 1 and 2 to see that the

police officers under them are not resorting

to such short cut methods. There will be a

further direction to the 3rd respondent to

return the licensed guns deposited by the

petitioners within 'two days' of the date of

receipt of a copy of the judgment.

The writ petition is disposed of

accordingly.

Sd/-

P.V.ASHA JUDGE WW WP(C).No.5125 OF 2021(M)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE LAND TAX RECEIPT DATED 26.6.2020 ISSUED BY THE VILLAGE OFFICER, BADUR VILLAGE.

EXHIBIT P2 THE TRUE COPY OF THE LAND TAX RECEIPT DATED 26.6.2020 ISSUED BY THE VILLAGE OFFICER, BADUR VILLAGE.

EXHIBIT P3 THE TRUE COPY OF THE ARMS LICENCE ISSUED BY THE DISTRICT MAGISTRATE, KASARAGOD DATED 8.2.2019.

EXHIBIT P4 THE TRUE COPY OF THE PROCEEDINGS DATED 4.2.2019 OF THE ADDITIONAL DISTRICT MAGISTRATE, KASARAGOD RENEWING THE ARMS LICENCE OF THE PETITIONER UP TO 31.12.2021.

EXHIBIT P5 THE TRUE COPY OF THE RECEIPT DATED 12.11.2020 ISSUED BY THE THIRD RESPONDENT.

EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT DATED 30.6.2009 IN CRIMINAL WRIT PETITION NO. 835/2009 ON THE FILES OF THE HONOURABLE BOMBAY HIGH COURT DOWNLOADED THROUGH INTERNET.

EXHIBIT P7 THE TRUE COPY OF THE INSTRUCTION BEARING NO.464/INST/2009/EPS, DATED 1.9.2009 ISSUED BY THE ELECTION COMMISSION OF INDIA.

EXHIBIT P8 THE TRUE COPY OF THE JUDGMENT DATED 17.2.2021 IN WP(C) NO.3682/2021 ON THE FILES OF THIS HONOURABLE COURT.