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2018 DIGILAW 455 (KER)

Stephen S/o David v. State of Kerala

2018-06-18

SUNIL THOMAS

body2018
ORDER : The 1st accused in Crime No.720/2010 of Panthalam Police Station, now pending as C.C.No.1146/2010 of the Judicial First Class Magistrate Court-1, Adoor seeks to quash the proceedings against him for offence punishable under Section 27 of the Arms Act. 2. On 12.07.2010 at about 9.00 a.m., the Police, on getting a secret information that the petitioner herein along with another was handling arms, conducted search in a building. Two persons were found practicing karate with weapons. Six items of arms of various descriptions were seized. They claimed that these weapons were used for self defence and practice of martial arts. Crime was registered against them. Annexure A1 is the FIR. After investigation, Annexure A2 final report was laid for offence under Section 27 of Arms Act. Prosecution of the petitioner is challenged in this proceeding. 3. Petitioner claimed himself to be a trained Kung-Fu champion, holding a certificate of merit issued by Sha-olin Martial Arts Academy, Japan, produced as Annexure A3. It showed that the petitioner had completed training of use of weapons. According to him, he has also been issued with a certificate dated 27.11.2008 by the Circle Inspector of Police, Panthalam Police Station, produced as Annexure A4, permitting him to impart physical training in Chinese Kung-Fu. It was issued under the Kerala Police (Regulation of Physical Training) Rules 2000, which permitted him to impart physical training of Chinese Kung-fu. Armed with the above certificates and materials, it was contended by the petitioner that he has not used the weapons for any illegal or prohibited purpose and it was intended by him only for the purpose of practicing karate and kung-fu. It was contended that Section 27 of the Arms Act has no application to the facts of the case and crime is not sustainable against him. 4. Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor. Examined the records. 5. A mahazar prepared at the time of search gives the details of the weapons which were recovered at the time of search. 4. Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor. Examined the records. 5. A mahazar prepared at the time of search gives the details of the weapons which were recovered at the time of search. They are, one sword with a pointed edge made of stainless steel with a width of 1¾ inch and length of 60 c.m., a sword stick of 40 cm length, pointed end and sharp at both sides, four numbers of trisul, each having 50 cm length with sharp end, a kama 60 cm length, a nanchak with a length of 26 cm and six canes of various descriptions. The petitioner herein and another person who were found in possession of it, were charged. 6. The precise contention of the learned counsel for the petitioner is that the above weapons were intended only for the purpose of practising martial arts and were not used for any illegal, offensive or nefarious activities. It was argued that mere possession of the above articles which were not prohibited arms as contemplated under the statute, in a non-notified area is not an offence under Section 27 of the Arms Act. It was contended that even according to the prosecution, mere possession of it alone was the allegation attributed to the accused. 7. The Arms Act 1959 shows that it categorises arms and ammunition into three categories, namely arms, fire arms and ammunition. Arms and ammunition are again catergorised as prohibited arms and prohibited ammunition. Each of the term is specifically defined under the statute. Chapter II of the Act is intended for regulation, control and ban of arms and ammunition and their acquisition, possession, manufacture, sale, import, export and transport. Section 3 relates to licence for acquisition and possession of fire arms and ammunition. Section 4 deals with licence for acquisition and possession of arms of specified description in notified areas. Section 5 provides for licence for the purpose of manufacture, sale, transfer, conversion, repair etc. of fire arms or any other arms of any description as may be prescribed or any ammunition. Section 7 deals with prohibition of acquisition or possession or manufacture or sale of prohibited arms or prohibited ammunition. 8. Schedule 1 of the Arms Rules 1962 enlists various categories of arms and ammunition. of fire arms or any other arms of any description as may be prescribed or any ammunition. Section 7 deals with prohibition of acquisition or possession or manufacture or sale of prohibited arms or prohibited ammunition. 8. Schedule 1 of the Arms Rules 1962 enlists various categories of arms and ammunition. Item V of that schedule refers to sharp edged and deadly weapons, namely swords (including sword sticks) spears, etc. Evidently, at least, sword, sword stick and the trisul, recovered from the possession of the accused may fall within the category V of schedule 1 framed under Rule 3 of the Arms Rules 1962. However, a Full Bench of Punjab and Haryana High Court, in State of Punjab Vs. Swaran Singh ( 2010 KHC 413 ) had held that a bare reading of the Act would show that Schedule 1 of the Rules has relevance only for the purpose of categorisation of arms and ammunition for the purpose of Act and Rules and no more. Hence possession of an arm which satisfies the prescription in the schedule, by itself, will not, by that reason alone, be punishable. 9. The crucial question that arises is whether the possession of the arms will constitute an offence punishable under Section 27 of the Arms Act, in view of Section 4 of the Arms Act. Evidently, the petitioner herein was not holding any licence under Section 4 of the Arms Act. He has also no case that the arms were not recovered from his possession or that he had no nexus with the above articles. 10. Section 4 empowers the Central Government to issue notification in the Official Gazette having regard to the circumstances prevailing in any area and if it is felt that it is necessary and expedient in the public interest to regulate acquisition, possession or carrying of arms of specified class or description other than fire arms and thereafter Act will apply to the area specified in the notification. Thereupon no person shall acquire or have in his possession or carry in that notified area, arms of such class of description as may be specified in the notification, unless he holds a licence issued in accordance with the provisions of the Act and Rules made thereunder. Evidently Sections 4, 5, 6 and 7 completely regulate use, sale and other activities of arms and ammunition. Evidently Sections 4, 5, 6 and 7 completely regulate use, sale and other activities of arms and ammunition. Section 4 applies to acquisition, possession and carrying of arms other than fire arms. Regulation of above three specified activities of such arms arise only when Central Government is of opinion that use of specified category of arms in a particular area shall be regulated by notification. In other words, power under Section 4 is to be exercised by the Central Government in exigencies. The Government is empowered to prescribe the details of arms which are brought into the campus of the notification as well as the area wherein the Act would apply. Though Section 5 of the Act also applies to arms, that comes into play only for other activities like use, manufacture, sale, transport etc., specified in Section 5 of the Act. 11. It is clear from the scheme of Section 4 that mere acquisition or possession or carrying of arms other than fire arms and ammunition is not an offence under the Act. Rule 18 of the Arms Rules 1962 provides that, in any area specified in the notification issued by the Central Government under Section 4, licence for acquisition or possession or carrying of arms in that area may also be granted or renewed as provided under the Rules and in the licence. Rule 19 clarifies the position that unless the Central Government or State Government by notification in the Official Gazette so directs, no licence shall be required for the manufacture, sale, possession for sale, or test, of arms of category V except in the areas notified under Section 4. 12. In the Arms Rules 2016, Rule 4 was introduced, which provides that unless the Central Government or State Government by notification in the Official Gazette so directs, no licence shall be required for the manufacture, sale, possession for sale or test, of arms of category V in Schedule 1 except in the areas notified under Section 4. Rule 4(2) provides that in any area specified in the notification issued by the Central Government under Section 4 of the Act, licence for acquisition, possession or carrying in that area of arms of such class or description as the case may be specified in that notification may also be granted or renewed as provided in Schedule II, subject to such conditions as may be specified in those Rules. Rule 4 of Arms Rules 2016 corresponds to Rule 18 of the Arms Act 1962. 13. This Court in Jithu V. State of Kerala ( 2014 (3) KHC 77 ), had held that for constituting an offence under Section 25 of the Act, notification under Section 4 is mandatory. This is in conformity with the view of the Division Bench of Bombay High Court in Sudhir Suresh Kamble V. State of Maharashtra (Laws (Bom) 1992 106), where it was held that in the absence of a notification under Section 4, prosecution for offence under Section 25 cannot be considered. In State of Punjab V. Swaran Singh (supra) the Full Bench held that in the absence of a notification under Section 4 declaring 303 rifle as a prohibited arm, prosecution under Section 27 of Arms Act was not sustainable. 14. Referring to Sections 4 and 5 of the Arms Act, this Court in Jinu V. State of Kerala ( 2017 (5) KHC 565 ) had held that to attract Section 5, in the case of arms other than fire arms it should be of such class of description as may be prescribed. The Court held that on a reading of Section 5 along with Section 4 of the Arms Act, it can be seen that Section 5 will not be applicable in cases of arms coming under the purview of Section 4 of the Arms Act for which licence is not required. It was held that as long as the areas wherein the sword used is not a notified area, an offence under Section 27 will not lie. It was on a finding that in relation to arms covered by Section 4, the mere possession of arms will not be an offence, unless it is so notified with respect to that areas by a notification. 15. A perusal of Sections 4 and 5 makes out the clear distinction. Section 5 deals with manufacture, sale, transfer, onversion, repair, test or proof, expose or offer for sale or transfer of arms and ammunition. Section 4 deals with the case of acquisition, possession or carrying of arms other than fire arms which can be prescribed in contingencies by a notification prescribing the specifications of the arms and in relation to the area mentioned in the notification. Evidently, Section 4 applies only in relation to mere acquisition, possession or carrying of arms. Section 4 deals with the case of acquisition, possession or carrying of arms other than fire arms which can be prescribed in contingencies by a notification prescribing the specifications of the arms and in relation to the area mentioned in the notification. Evidently, Section 4 applies only in relation to mere acquisition, possession or carrying of arms. Section 5 deals with a wider transaction involving an economic or commercial content. Even though, Section 5 refers to that, use must be for the purpose of other categories mentioned in Section 5 itself, like manufacture, sale, transfer, conversion, repair, test etc. In other words, Sections 4 and 5 deal with two specified categories of use of arms. 16. A recapitulation of the discussion of above provisions with the aid of decisions, clearly lead to the conclusion that a mere acquisition, possession or carrying of arms other than fire arms or prohibited arms is not an offence under Section 27 of the Arms Act. Acquisition, possession or carrying of arms of such nature can be prohibited by a notification by the State Government or the Central Government in relation to a specified area. The description of such arms which are thereby covered by the notification shall be prescribed in the notification. 17. Clearly, a notification preceding an offence under Section 4 of the Act in relation to that area is the sine qua non for an offence under Section 27 of Arms Act in relation to arms other than fire arms. In the case at hand, the prosecution has absolutely no case that there was a notification covering that area as well as covering the items prescribed in the notification or that were recovered from the possession of the petitioner. Consequently, an offence under Section 27 will not lie in the facts and circumstances of the case. Necessarily, prosecution cannot succeed. Hence, Crl.M.C is liable to be allowed. Accordingly, Crl.M.C. is allowed. All further proceedings in C.C.No.1146/2010 of the Judicial First Class Magistrate Court-1, Adoor stand quashed.