Kerala High Court
Vinod C.K vs State Of Kerala on 12 March, 2021
W.P(c).No.5622/2021-C 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942
WP(C).No.5622 OF 2021(C)
PETITIONERS:
1 VINOD C.K.,
AGED 50 YEARS
S/O. VIJAYAN, HARINAMAM, P.O, KADIROOR, KANNUR
DISTRICT, KERALA - 670642.
2 SHIJO K.J
AGED 38 YEARS
S/O. JOSEPH, KALATHIL PARAMBIL HOUSE, KAKKARA POST,
M.M. BAZAR, PEDENA, KANNUR DISTRICT,
KERALA - 670306.
3 KOLLIKKUNNEL THANKAPPAN,
AGED 66 YEARS,
S/O. KUNHAN, KOLLIKKUNNEL HOUSE, POTTENPLAVUR P.O,
PONADUVILVIA, KANNUR DISTRICT, KERALA - 670582.
4 PUTHANKANDATHIL PHILIP
AGED 67 YEARS
S/O. JOSEPH, PUTHANKANDATHIL HOUSE,
PULIKKURUMBAARANG P.O, KANNUR DISTRICT,
KERALA - 670582.
5 RAJESH T.C.
AGED 52 YEARS
S/O.T.C. RAJAGOPALAN NAMBIAR,
K.P HOUSE, MAYYIL P.O, KANNUR DISTRICT,
KERALA - 670602.
BY ADV. SRI.SAJI KURIACHAN
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
THIRUVANANTHAPURAM - 695036.
2 THE CHIEF ELECTORAL OFFICER
VIKAS BHAVAN, LEGISLATIVE COMPLEX,
THIRUVANANTHAPURAM DISTRICT, KERALA - 695033.
W.P(c).No.5622/2021-C 2
3 THE DISTRICT COLLECTOR,
KANNUR P.O, KANNUR - 670001.
4 THE SUPERINTENDENT OF POLICE(RURAL)
KANNUR P.O, KANNUR - 670001.
5 THE STATION HOUSE OFFICER,
KADIRUR P.O, KANNUR - 670642
6 THE STATION HOUSE OFFICER,
PERINGOME P.O, KANNUR - 670353.
7 THE STATION HOUSE OFFICER
KUDIYANMALA P.O, KANNUR - 670582.
8 THE STATION HOUSE OFFICER,
MAYYIL P.O, KANNUR - 670602.
SMT.VINITHA.B, GOVERNMENT PLEADER
SRI.KODOTH SREEDHARAN, STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(c).No.5622/2021-C 3
P.V.ASHA, J.
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W.P(c) No.5622 of 2021-C
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Dated this the 12th day of March, 2021
JUDGMENT
The petitioners are holders of arms licence. Their grievance is over the
action of respondents 5 to 8 in getting their licenced arms deposited with the
respective Police Stations under the guise of the election to legislative assembly
being held in April 2021, even in the absence of any decision by the screening
committee. In the case of petitioners 1 to 4, the respondents 5 to 7 issued receipts
dated 17.02.2021, 10.02.2021, 02.02.2021 and 03.02.2021 on getting their fire
arms deposited. In the case of the 5th petitioner, the 7th respondent got it deposited
on 19.11.2020 as can be seen from Ext.P6 receipt, ahead of the election to the local
bodies and it is not returned so far.
2. Heard the learned Counsel for the petitioner as well as the learned
Government Pleader.
3. I have already considered similar cases where the respondents 3 and 4
were parties. 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 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 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.
(c) Cases of all licence holders as mentioned in para 3.10 above shall be
placed before the Screening Committee.
(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."
4. 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 report of the said screening committee that the impounding of the
licensed arm of a particular licenseholder 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 licenseholder directing him to deposit the licensed arm
within one week.
5. In the present case the respondents do not have a case that the
petitioners are involved in any of the parameters coming under clauses (a) to (c) of
Clause 3.10. There is no report from the screening committee which relates to the
petitioners enabling any direction to deposit licensed arms and if at all it was
received for any such reason for retaining the same with them till all the elections
are over, as in the case of the 5th petitioner, from whom it was obtained on
19.11.2020, no notice is issued to the petitioners by the licensing authority. The
only reason for directing deposit of the licensed arms appears to be to ensure a
serene atmosphere for the election.
6. When a specific procedure is laid down in Ext.P1, which should
precede the direction for deposit of licensed arms, there is no 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 such an 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.
7. In the judgment dated 18.02.2021, I had already directed respondents 3
and 4 to see that the Police officers under them are not resorting to such short cut
methods. Even thereafter the position continues to be the same. Respondents 5 to
7 are also under the very same respondents. It would appear that the respondents
are adopting short cut methods and directing all the licenseholders to deposit their
firearms so that those who are aggrieved and vigilant would approach this Court.
8. Therefore, there will be a direction to respondents 5 to 8 to return the
licensed guns deposited by the petitioners within 2 days from the date of receipt of
a copy of the judgment.
The Writ Petition is allowed accordingly.
Sd/- (P.V.ASHA, JUDGE)
rtr/
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE CIRCULAR DATED
01.09.2009 FROM THE ELECTION COMMISSION.
EXHIBIT P2 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY
THE 5TH RESPONDENT DATED 17.02.2021.
EXHIBIT P3 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY
THE 6TH RESPONDENT DATED 10.02.2021.
EXHIBIT P4 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY
THE 7TH RESPONDENT DATED 02.02.2021.
EXHIBIT P5 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY
THE 7TH RESPONDENT DATED 03.02.2021.
EXHIBIT P6 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY
THE 8TH RESPONDENT DATED 19.11.2020.
EXHIBIT P7 JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.
3525 OF 2021 DATED 18.02.2021.
