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2009 DIGILAW 1218 (JHR)

Ranjeet Singh v. State of Jharkhand

2009-09-01

AMARESHWAR SAHAY

body2009
Judgment By Court.-Heard the parties. 2. The prayer of the petitioner in this writ application is to quash the order dated 13.6.2000, contained in Annexure-6, passed by the Deputy Commissioner, Ranchi, whereby an order for forfeiture of DBBL Gun belonging to the grandfather of the petitioner has been passed in terms of Section 21 (3) of the Arms Act, 1959. Further prayer of the petitioner is to grant license to the petitioner to keep the said DBBL Gun. 3. The case of the petitioner is that his grandfather, namely, late Jhulan Singh had a license for keeping the firearms and he owned a DBBL Gun under valid fire arms license. The said Jhulan Singh, grandfather of the petitioner died on 2.5.1994, living behind his two sons, namely, Ramesh Vijay Bahadur Singh and Umesh Vijay Bahadur Singh, i.e. the father of the petitioner. The father of the petitioner predeceased his father in 1980 itself. The other son namely Ramesh Vijay Bahadur Singh, who is a handicap, applied for permission for depositing the said DBBL Gun with Mis Ranchi Gun House, which was granted on 18.5.1994. Pursuant to the said permission, the gun was deposited with Mis Ranchi Gun House by Ramesh Vijay Bahadur Singh. Further case of the petitioner is that the only surviving son of the original licensee, i.e. Jhulan Singh is now Ramesh Vijay Bahadur Singh and since he is a handicap and, as such this petitioner being the grandson of late Jhulan Singh applied for grant of license in 1996 for retaining the said DBBL Gun in question. It is alleged that at one hand no order on his application for granting of license was passed by the Deputy Commissioner, Ranchi but on the other hand the petitioner was served with a notice issued from the office of the District Arms Magistrate, wherein he was asked to show cause as to why the arms in question be (sic-not ?) forfeited by the Government as envisaged under Section 21 (3) of the Arms Act. The petitioner submitted his show cause. The grievance of the petitioner is that without considering his show cause, the impugned order as contained in Annexure-6 dated 13.6.2000 forfeiting the fire arms, i.e. DBBL Gun belonging to the grandfather of the petitioner has been passed. 4. Mr. The petitioner submitted his show cause. The grievance of the petitioner is that without considering his show cause, the impugned order as contained in Annexure-6 dated 13.6.2000 forfeiting the fire arms, i.e. DBBL Gun belonging to the grandfather of the petitioner has been passed. 4. Mr. P.A.S. Pati, learned counsel appearing for the petitioner submitted that before passing the impugned order forfeiting the firearm the Deputy Commissioner ought to have considered the application of the petitioner for grant of license and only if his application for grant of license would have been rejected then only such al1 order as contained in Annexure-6 dated 13.6.2000 could have been passed. In support of his submission he has relied on a decision of the learned Single Judge of this Court in the case of II A. Hashim vs. State of Bihar, reported in 2001 (1) J.L.J.R. 279 ". . 5. On the other hand, Mr. Sauraph Pandey, learned JC to GP-II by referring the statements made in the counter affidavit submitted that no such application for grant of license was received in the office of the Deputy Commissioner, Ranchi and. therefore, question of passing any order on the application of the petitioner does not arise. It is further stated in the counter affidavit that the present petitioner applied for grant of license in his name on 10.2.2002, before the Sub-Divisional Officer, Sadar, Ranchi, after a lapse of 7 years and the present petitioner did not take any step for disposal of. the' said DBBL Gun by sale or transfer in favour of any license holder and it is only after lapse of more than 7 years, he filed an application for grant of license, which is against the provisions of Arms Act and Rules framed thereunder. 6. From the case law cited by the learned counsel for the petitioner it appears that the learned Single Judge of this Court while dealing with the matter, which was more or less similar to the present case held as follows:- "8. From bare reading of sub-section 2 of Section 21 it is manifest that in the event arm is deposited on account of death of the holder of the arm then his legal representative shall be entitled to take possession of the arm by virtue of the provisions of the Act. From bare reading of sub-section 2 of Section 21 it is manifest that in the event arm is deposited on account of death of the holder of the arm then his legal representative shall be entitled to take possession of the arm by virtue of the provisions of the Act. In other words, after deposit of the arms by the legal representative of the deceased if an application is made by the legal representative for grant of license or for transfer of license in their favour in order to take back possession of the arms then before passing order of forfeiture under sub-section (3) of the Act, it is obligatory on the competent authority to pass order on the application filed by the legal representative for grant or transfer of license. It is only after the competent authority refuses to grant license in favour of the representative necessary steps shall betaken to forfeit the arms in accordance with sub-section (3) of the Act after giving reasonable time to the legal representative to comply the requirement of sub-section (2) of Section 21 of the Act. 9. It is well settled that where an arm remained in deposit under sub-section (1) of Section 21 of the Act then the person who deposited it continues to be its legal owner and he can legally transfer his proprietary right in the arm to anyone holding a license. Such arm lying deposited beyond the prescribed period would not be automatically forfeited to the Government. It is therefore necessary for the competent authority to consider first the case of the legal representative of the deceased holder of license regarding his prayer for grant of license or disposal of such arm and then take final decision on forfeiture of the arm under sub-section (3) of Section 21 of the Act." 7. In the aforementioned cited case, it has been held that from bare reading of sub-section 2 of Section 21, it is manifest that in the event arm is deposited on account of death of the holder of the arm then his legal representative shall be entitled to take possession of the arm by virtue of the provisions of the Act. In other words, after deposit of the arms by the legal representative of the deceased. In other words, after deposit of the arms by the legal representative of the deceased. if an application is made by the legal representative for grant of license or for transfer of license in their favour in order to take back possession of the arms then before passing order of forfeiture under sub-section (3) of the Act, it is obligatory on the competent authority to pass order legal representative for grant or transfer of license. It is only after the competent authority refuses to grant license in favour of the representative necessary steps shall be taken to forfeit the arms in accordance with sub-section (3) of the Act after giving reasonable time to the legal representative to comply the requirement of subsection (2) of Section 21 of the Act. 8. According to the petitioner, after deposit of the DBBL Gun, an application for grant of license of firearm was made in the year 1996 but this fact has been disputed by the other side and it is stated that the petitioner filed such application on 10.2.2002 only, i.e. much after the impugned order was passed for forfeiture of the Arm. 9. As it appears that notice to show cause was given to the uncle of the petitioner on 19.1.2000 and he was asked to show cause by 6.3.2000 and, thereafter, the impugned order was passed on 13.6.2000. 10. In my view, before taking extreme step to forfeit the arm, the Deputy Commissioner ought to have given some reasonable and sufficient time to the legal heirs of the deceased licensee giving them option either to dispose of the said DBBL Gun or to take action to receive back the firearm. 11. Patna High Court in the case of "Munni Singh vs. State of Bihar & Others, reported in 1998(3). P.L.J.R. 156" in para-13 has held as follows:- "13. The provisions of Section 21 of the Act read with and Rule 46 of the Rules are designed to strike a balance between the rights of the legal representative of the license holder to receive back or to dispose of the firearm and the right of the state to have the same forfeited to the Government in case of inordinate delay in making application for receiving back the firearm etc. It should be kept in mind that the deposited firearms are sold after forfeiture, for a pittance. It should be kept in mind that the deposited firearms are sold after forfeiture, for a pittance. The price for which it is actually sold has absolutely no nexus with its market value. Being a valuable item of property capable of being sold in open market for a much higher price, the provisions relating to forfeiture have to be liberally interpreted in favour of the heirs and legal representative of the deceased rather than in favour of the State. There may be bona fide cases where the person concerned is not able to take step for the disposal of the firearm within the prescribed period where he is "not interested in its possession, or for receiving back its possession. But for some laches on his part, he should not be deprived of a valuable property. A person may not have fundamental light to possess firearm, nonetheless, as an item of property, he has right to dispose of the same to an eligible person in open market with the consent of the competent authority, and to receive proper price for the same. Thus, to conclude, while the District Magistrate has power to forfeit the fire-arm on expiry of the period prescribed under Rule 46, the better part of the discretion lies in giving opportunity to the applicant/claimant to receive back the firearm or to sell the same in accordance with law." 12. Relying on the aforesaid decision in the case of "Munni Singh vs. State of Bihar" (supra) of Patna High Court, I hold that before passing the impugned order forfeiting the arm, the Deputy Commissioner should have given reasonable and sufficient opportunity to the petitioner or to any other legal heir of the deceased licensee of the firearm. 13. In view of the discussions and. findings above, the impugned order contained in Annexure-6 dated 13.6.2000, passed by the Deputy Commissioner, Ranchi cannot be sustained. Accordingly, the same is hereby set aside and the matter is remitted back to the Deputy Commissioner, Ranchi for passing a fresh order in accordance with law and in the light of the observation made above. 14. The writ petition is thus allowed accordingly. In the facts and circumstances of the case, there shall be no order as to cost.