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2014 DIGILAW 214 (ALL)

STATE OF U. P. v. VISHRAM SINGH

2014-01-17

D.Y.CHANDRACHUD, DILIP GUPTA

body2014
JUDGMENT By the Court.—This special appeal arises from a judgment of the learned Single Judge dated 13 December 2013. The learned Single Judge has issued a direction permitting the respondent in this Appeal to utilize an amount of Rs. 68,856/- out of Rs. 1.00 lac which was deposited by the State, so as to enable him to purchase a new fire-arm in lieu of the fire-arm which was deposited by him with a licenced fire-arms dealer who committed suicide and from whose premises the licenced fire-arm of the respondent has been reported missing. 2. The respondent held an arms licence in respect of a rifle of N.P. .315 bore. The licenced rifle was deposited by the respondent on 18 September, 2010 with a licenced fire-arms dealer (Capt. Arms Store) at Farrukhabad. The receipt shows that the rifle was deposited for repairing in an old and damaged condition. The respondent had sought a mandamus in the writ petition to the District Magistrate, Farrukhabad to return the fire-arm that had been deposited. The proprietor of Capt. Arms Store committed suicide on 25 December 2010. Following the suicide by the fire-arms dealer, a Committee consisting of the Circle Officer, Farrukhabad and the Inspector of the concerned Police Station inspected the shop of the fire-arms dealer and after preparing an inventory of the fire-arms which were available in the shop submitted a report on 22 December 2012. The inventory did not mention the fire-arm which was deposited by the respondent. On 15 May 2013 and 16 September 2013, the District Magistrate addressed communications to the Principal Secretary (Home), seeking guidelines in respect of the weapons stolen from the shops of licenced fire-arms dealers. The respondent filed an application on 14 September 2011 before the District Magistrate, Farrukhabad, seeking release of his fire-arm and thereafter filed a writ petition under Article 226 of the Constitution in 2013. In the writ petition, the respondent averred that he had deposited his licenced fire-arm due to Panchayat elections on 18 September 2010; that the arms dealer committed suicide and though a Committee had been formed, the rifle was not being released. The respondent submitted that he has a fundamental right to life and liberty and, accordingly, sought a mandamus to the District Magistrate for the release of his fire-arm. 3. The respondent submitted that he has a fundamental right to life and liberty and, accordingly, sought a mandamus to the District Magistrate for the release of his fire-arm. 3. During the pendency of the writ petition, an interim order was passed on 23 October 2013 by the learned Single Judge by which the State was directed to deposit an amount of Rs. 1.00 lac before the Registrar General of the Court. By the judgment dated 13 December 2013, the learned Single Judge held that (i) the rifle of the respondent was deposited during the Panchayat election of 2010 pursuant to the direction of the district administration in September 2010 before the fire-arms dealer who committed suicide, as a result of which the respondent could not receive the weapon and later on it was found that the weapon was lost; (ii) the District Magistrate constituted a Committee which submitted a report on 22 December 2012 indicating that the weapon had been stolen; (iii) though on 7 March 2013 the District Magistrate had ordered that an FIR should be lodged, it was lodged only on 5 December 2013 and the matter is under investigation; and (iv) who was responsible for the loss of weapon is not known and the district administration had acted casually by constituting a Committee in 2012 though the fire-arms dealer had died in 2010. In the circumstances, the learned Single Judge directed that since the weapon had been lost, it was open to the respondent to purchase a new weapon and for this purpose the respondent was permitted to withdraw a sum of Rs. 68,856/- from the amount deposited in the Court. The District Magistrate was also permitted to recover the said amount from the person who was responsible for the loss of the weapon. 4. The State is in appeal. 5. Now, the point that needs to be noted is that the case of the respondent in the writ petition was that he had deposited the rifle on 18 September 2010 with the fire-arms dealer due to Panchayat elections. The receipt which was annexed to the petition mentions that the licenced fire-arm was deposited for repairing in an old and damaged condition and words ‘safe custody’ were scored out. The receipt which was annexed to the petition mentions that the licenced fire-arm was deposited for repairing in an old and damaged condition and words ‘safe custody’ were scored out. Though the learned Single Judge has observed that the rifle was deposited in pursuance of the direction of the District Magistrate, that was not the case with which the respondent had come to Court, nor had the respondent enclosed any specific or general order of the District Magistrate issued for deposit of fire-arms with the Police Station or licenced fire-arms dealer. In fact, the State has enclosed a copy of the order dated 1/3 November 2010 passed by the District Magistrate which mentions that in order to maintain public peace during the Panchayat election, orders were earlier issued on 21 September 2010 and 25 September 2010 to impose restrictions on sale of fire-arms and ammunitions but as the elections have taken place, it had become necessary to recall these orders. It is, therefore, clear that the District Magistrate had not passed any order for deposit of fire-arms with a licenced fire-arms dealer and from the receipt dated 18 September 2010, it is also clear that the fire-arm was deposited by the respondent with the licensed dealer for repairs in an old and damaged condition. 6. As noticed hereinabove, all that was stated by the respondent in the writ petition was that the fire-arm was deposited during the Panchayat election. This fact has been admitted in the counter-affidavit. This however, does not mean that the respondent had deposited the fire-arm with the licenced dealer in pursuance to an order passed by the District Magistrate. It can, therefore, safely be inferred that the respondent had on his own deposited the fire-arm which was in an old and damaged condition for repairs with the licenced fire-arms dealer during the election period. 7. Thus, in the absence of any material on record, the learned Single Judge was not justified in holding that the respondent had deposited the fire-arm with the arms dealer pursuant to the directions issued by the district administration in September 2010. 8. It is in this background that the contention of the State that the learned Single Judge was not justified in issuing a direction for payment of compensation to the respondent for the loss of the fire-arm deposited with the licensed arms dealer has to be examined. 9. 8. It is in this background that the contention of the State that the learned Single Judge was not justified in issuing a direction for payment of compensation to the respondent for the loss of the fire-arm deposited with the licensed arms dealer has to be examined. 9. However, before examining this issue, it will be useful to refer to the relevant provisions of the Arms Act, 1959 (hereinafter referred to as the Act) and the Arms Rules, 1962 (hereinafter referred to as the Rules). Section 5 of the Act deals with licence for manufacture, sale, etc. of arms and ammunitions and it provides that no person shall use, manufacture, sell, transfer, convert, repair, test any fire-arm or any other arms of such class or description as may be prescribed, unless he holds in this behalf a licence issued in accordance with the provisions of the Act and the Rules. Section 21 (1) of the Act provides that 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 with a licensed dealer. 10. Rule 3 deals with the classification of arms or ammunition. It states that for the purposes of the Act and the Rules, “arms” or “ammunition” shall be of the categories specified in columns 2 and 3 respectively of Schedule I and references to any category of arms or ammunition in the Rules shall be construed accordingly. Schedule I divides the arms into five categories. The respondent claims to have deposited a .315 bore rifle which fire-arm would fall in category I (c) of Schedule I. 11. Rule 4 deals with the licensing authority and forms of licences. It provides that licences under Chapter II of the Act may be granted or renewed for such purposes, by such authorities, in such forms as are specified in Schedule II. Item Nos. 8 and 9 of Schedule II deal, inter alia, with keeping for sale or repair of the categories of arms/ammunitions as defined in Schedule-I, including arms falling in category I (c). Item Nos. 8 and 9 of Schedule II deal, inter alia, with keeping for sale or repair of the categories of arms/ammunitions as defined in Schedule-I, including arms falling in category I (c). It also mentions that a licence for this purpose should be obtained in Form XI. Form XI deals, amongst others, with licences for keeping for repair of arms or ammunition of certain categories, including arms mentioned in category I (c). There is a specific column which requires the licensee to mention the description and the number of arms to be repaired. The conditions mentioned in Form XI also require the licencee to maintain registers of all arms and ammunition in stock and to forthwith give information to the nearest Police Station of the loss or theft of any arms or ammunition. 12. Rule 46 deals with deposit of arms and ammunition under Section 21, while Rule 47 deals with deposit of arms and ammunition for safe custody other than under Section 21. The respondent had not deposited the fire-arm under Section 21 of the Act as he had come out with a case that he had given it in the custody of the licensed fire-arms dealer though this is not borne out from the record as the receipt mentions that it was deposited for repairs and the word ‘safe custody’ were scored out. However, even if Rule 47 was to apply then too it is seen that under this Rule a person lawfully possessing arms or ammunition may deposit them for safe custody with a dealer holding a licence in Form XIV. The conditions contained in Form XIV also require the licencee to maintain separate registers of all arms and ammunition deposited with him and a copy of each of the registers certified by the dealer as a true copy has to be forwarded within one week after the expiry of the quarter, to the District Magistrate. It also mentions that the licensee shall not return to the depositor the arms deposited except in the manner and to the extent permitted. The licensee is also required to either inform the nearest Police Station and the District Magistrate personally or despatch information to the officer-in-charge of the police station and the District Magistrate concerned by registered post on the day of deposit or return or disposal, as the case may be. The licensee is also required to either inform the nearest Police Station and the District Magistrate personally or despatch information to the officer-in-charge of the police station and the District Magistrate concerned by registered post on the day of deposit or return or disposal, as the case may be. The licensee is also under an obligation to inform the police station and the District Magistrate concerned of the theft of any deposited article forthwith. 13. The receipt enclosed by the respondent shows that the fire-arm was deposited with the dealer for repairs. In such a situation, the fire-arm was required to be given to a dealer who possessed a license for repairs in Form XI. However, even if it was deposited for safe custody, as was contended by the respondent, then it was required to be deposited with a dealer having a license in Form XIV. 14. What, therefore, transpires from the provisions of the Act, Rules, Schedules and the conditions mentioned in the Forms referred to above is that the State cannot be saddled with any liability to compensate a person whose fire-arm deposited with the licenced fire-arms dealer for repairs or otherwise is not returned. Even otherwise also, we find it difficult to accept the broad proposition that the State should be asked to compensate a person whose fire-arm deposited with a licensed dealer for repairs is ultimately not returned to him for any reason. 15. However, for the purposes of these proceedings, even if it is assumed that the licenced fire-arm was deposited with the licenced fire-arms dealer during the election period in view of the direction issued by the District Magistrate, then too there is no averment in the writ petition to the effect that the licenced fire-arm which was deposited with the fire-arms dealer was lost or stolen on account of negligence of the State. On the contrary, the case of the respondent himself is that the fire-arms dealer committed suicide and that though a Committee had been constituted, no decision was taken for the release of the fire-arm nor any order was passed on the application submitted by the respondent before the District Magistrate for the release of the fire-arm on 14 September 2011. On the contrary, the case of the respondent himself is that the fire-arms dealer committed suicide and that though a Committee had been constituted, no decision was taken for the release of the fire-arm nor any order was passed on the application submitted by the respondent before the District Magistrate for the release of the fire-arm on 14 September 2011. The respondent did not lead any factual foundation whatsoever to enable the learned Single Judge to infer that there was negligence on the part of the State which had resulted in the loss of the fire-arm. 16. We, therefore, find merit in the grievance of the State that the relief which has been granted by the learned Single Judge was not even sought in the writ petition which was filed by the respondent under Article 226 of the Constitution. The only reliefs sought were for the release of the fire-arm and for the disposal of the representation dated 14 September 2011 filed by the respondent to the same effect. Even after the counter-affidavits were filed, no amendment was sought in the pleadings by the respondent to claim compensation. There was no factual foundation led before the learned Single Judge to even support an inference of negligence on the part of the State or its officers. The fire-arm was admittedly in the custody of the licenced fire-arms dealer with whom it was deposited by the respondent on 18 September 2010. The circumstances in which the fire-arm was stolen is a matter for evidence. The admitted position is that the licenced fire-arms dealer committed suicide on 22 December 2010. At what stage, the fire-arm was lost or stolen is not known. In these circumstances, allowing the respondent to withdraw an amount of Rs. 68,856/- out of the amount deposited by the State would virtually amount to a decree in favour of the respondent. In the counter-affidavit, the State had averred that the actual market value of the weapon as on the date of the affidavit was Rs. 68,856/-. Admittedly, the fire-arm which was stolen was not a new weapon and the receipt filed by the respondent in the writ petition would indicate that the weapon was deposited for repairing in an old and damaged condition. The registers maintained by the licenced fire-arms dealer would have to contain an inventory and details of all the fire-arms which were kept for repairing. The registers maintained by the licenced fire-arms dealer would have to contain an inventory and details of all the fire-arms which were kept for repairing. This again is a matter of evidence which has to be resolved in an appropriately constituted civil proceeding. In the circumstances, when the basic facts in relation to the cause of loss of the weapon, the attribution of negligence and the value of the weapon on the date when it was stolen remain to be determined on the basis of evidence, the learned Single Judge manifestly erred in passing the impugned judgement amounting to a decree in a Civil Suit. 17. For these reasons, we are of the view that the learned Single Judge has transgressed the limitations of writ jurisdiction under Article 226 of the Constitution by passing the impugned judgment to compensate the respondent for the loss of his fire-arm from the premises of the licenced arms dealer with whom the fire-arm was deposited, without determination of the primary facts, namely, those relating to the circumstances in which the weapon was stolen, the attribution of responsibility for the loss of the weapon and the value of the weapon on the date on which it was stolen or lost from the custody of the licenced fire-arms dealer. We may add that even after observing that it was not known as to who was responsible for the loss of the fire-arm, the learned Single Judge permitted the respondent to withdraw the amount as fault was found with the casual approach of the district administration in constituting the Committee in 2012 and lodging the FIR with delay. 18. Before we conclude, we may note that when the appeal was heard yesterday, learned counsel appearing on behalf of the respondent did not appear even when the appeal was called out in the revised list. The appeal was partly heard, but in the interest of fairness, we had directed the matter to be listed today to enable the learned counsel for the respondent to make his submissions. Since the learned counsel for the respondent is not present today also, we have proceeded to hear and decide the appeal on the basis of the material which is available on record. 19. For these reasons, we allow the special appeal and set aside the judgment and order of the learned Single Judge dated 13 December 2013. Since the learned counsel for the respondent is not present today also, we have proceeded to hear and decide the appeal on the basis of the material which is available on record. 19. For these reasons, we allow the special appeal and set aside the judgment and order of the learned Single Judge dated 13 December 2013. The writ petition filed by the respondent shall, in the circumstances, stand dismissed. In consequence, the appellants would be at liberty to withdraw the amount of Rs. 1 lac, which was deposited with the Registrar General of the Court in pursuance of the interim order of the learned Single Judge dated 23 October 2013. In the event, the respondent has in the meantime withdrawn the amount of Rs. 68,856/-, he shall deposit the said amount with the Registrar General of this Court within a period of four weeks from the date a certified copy of this order is made available to him upon which the amount shall be permitted to be withdrawn by the appellants. In case the respondent fails to deposit the said amount within the stipulated period, the appellants would be at liberty to recover the same by taking recourse to the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950 by treating it as arrears of land revenue. 20. There shall be no order as to costs.