Bose Joseph v. State of Kerala and Sub Inspector of Police, Nedumkandam Police Station, Idukki

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945** **CRL.MC NO. 4349 OF 2021** **CRIME NO.62/2019 OF Nedumkandam Police Station, Idukki AGAINST THE ORDER/JUDGMENT CC 147/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NEDUMKANDOM** ## **PETITIONER/ACCUSED:** BOSE JOSEPH, AGED 62 YEARS S/O. JOSEPH, VADAKKEDAM HOUSE, NEDUMKANDAM P.O., IDUKKI-686 553, RESIDING AT VADAKKEDAM HOUSE, VADAKKUMMURI, CHITHRAKALA JUNCTION, THODUPUZHA EAST -685 584 BY ADVS. JAISON JOSEPH M.N.SANJITH SATHIAN A.P. SMITHA C.GOPI ## **RESPONDENTS/STATE:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,PIN-682 031 2 SUB INSPECTOR OF POLICE, NEDUMKANDAM POLICE STATION, IDUKKI DISTRICT,PIN-685 553 BY ADV. SMT. SREEJA V., PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.4349 of 2021 2 **P.V.KUNHIKRISHNAN, J. ------------------------------** **Crl.M.C.No.4349 of 2021 ---------------------------------------------Dated this the 08[th] day of November, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed to quash the proceedings in C.C.No.147/2019 on the file of the Judicial First Class Magistrate Court, Nedumkandam arising from Crime No.62/2019 of Nedumkandam Police Station. The above case is charge sheeted against the petitioner alleging offences punishable under Sections 21(1), 25(1B)(h) of the Arms Act, 1959. 2. The prosecution case is that the petitioner is having an arms license bearing No.BL 661/U Chola/ID issued by the District Magistrate, Idukki and the license of the petitioner expired on 17.12.2017 and Crl.M.C.No.4349 of 2021 3 the petitioner is having unlawful possession of the arms from 17.12.2017 to 07.02.2019 without depositing the arms and hence committed the aforesaid offences. According to the petitioner, even if the above allegations are accepted, no offence is made out. Hence this Crl.M.C is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 4. This Court perused the final report filed against the petitioner. In **Devasia Mathew v. State of Kerala and Others** [2017 (2) KHC 58], this Court observed that, holding an arm beyond the license period will not cast any criminal liability. The relevant portion is extracted hereunder: “8. According to the learned Senior Counsel, under R.46(4), the period within which the depositor or his legal representatives may exercise his rights of sub-section (2) of S.21 shall be six months from the date of deposit, if arms or ammunition are deposited Crl.M.C.No.4349 of 2021 4 as a consequence of contravention by its owner or any provision of the Act or Rules or any condition applied. In other cases, it will be one year from the date of deposit if the arms or ammunition are deposited as a consequence of its possession becoming unlawful under S.21(1), otherwise than as under Clause (a). Evidently, in the case at hand, the deposit was made by the petitioner herein consequent to the declaration of election and the notification thereupon under S.4 of the Arms Act. Necessarily, Rule 46(4) (b) is the clause that should apply, contends the learned Senior Counsel. It is true that pending the deposit, the period had expired. However, the application for renewal was pending and the deposit was made without much delay pursuant to the notification under S.4. In the above circumstances, a reasonable interpretation of the words "without unnecessary delay" as contemplated under S.21(1) has to be reckoned with the period within which the option has to be applied in a case covered by R.46(4). In other words, the wording 'without unreasonable delay' in S.21(2) will be extended by either six months or one year as the case may be, in the light of R.46(4). Hence, the meaning of the words "unnecessary delay" has to derive its basis from sub-rule (4) of Rule 46 of the Crl.M.C.No.4349 of 2021 5 Arms Rules. Consequently, in the case at hand, it is R.46(4)(b) that applies and not R.46(4)(a) as contended by the learned counsel for the de facto complainant. Consequently, the person holding possession is bound to tender the arm with the nearest Police Station without any reasonable delay within the period prescribed for lawful custody of it, as contemplated under S.21(1) of the Arms Act read with R.46(4). Consequently, petitioner herein was bound to deposit, without any much delay, within the extended period of one year from the date of its deposit as contemplated under R.46(4) of the Arms Rules. It is clear that the deposit was made on 17/03/2014 and the period expires only on 17/03/2015. The complaint was laid on 17/11/2014. Hence, it is clear that as on the date of filing the complaint even, the period had not expired. Consequently, prosecution against the second accused on the above basis is not sustainable. Crl.M.C is hence only to be allowed. However, this will not preclude the de facto complainant from prosecuting the first accused, if any, if any other offence is made out against him. In the light of above, Crl.M.C is allowed and all further proceedings as against the petitioner herein arising from Crime No. 1333 of 2014 of Kanjirappally Police Station stand quashed.” Crl.M.C.No.4349 of 2021 6 5. Moreover, a perusal of the 161 statement given by CW2 would show that an application of the petitioner is pending for renewal of the license from 23.11.2017 onwards. Annexure A5 is the application. In the light of the facts and also in the light of the dictum laid down by this Court in **Devasia Mathew** 's case ( _supra_ ), I think, even if the allegation in the final report are accepted, no offence is made out. Therefore, this Crl.M.C. is allowed. All further proceedings against the petitioner in C.C.No.147/2019 on the file of the Judicial First Class Magistrate Court, Nedumkandam arising from Crime No.62/2019 of Nedumkandam Police Station are quashed. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.4349 of 2021 7 ## **APPENDIX OF CRL.MC 4349/2021** PETITIONER ANNEXURES |ANNEXURE A1|CERTIFIED COPY OF THE FIR IN CRIME| |---|---| ||NO.62 OF 2019 OF NEDUMKANDAM POLICE| ||STATION IN CC 147 F 2019 ON THE FILE| ||OF JUDICIAL FIRST CLASS MAGISTRATE| ||COURT, NEDUMKANDAM| |ANNEXURE A2|CERTIFIED COPY OF THE FINAL REPORT| ||ALONG WITH 161 STATEMENT IN CC| ||NO.147 OF 2019 OF JUDICIAL FIRST| ||CLASS MAGISTRATE COURT, NEDUMKANDAM| |ANNEXURE A3|TRUE PHOTOSTAT COPY OF THE IDENTITY| ||CARD ISSUED BY THE SECRETARY TO THE| ||DISTRICT RIFLE ASSOCIATION OF IDUKKI| |ANNEXURE A4|TRUE PHOTOSTAT COPY OF ARMS LICENSE| ||BEARING NO.BL-661-CUHOLA-ID OF THE| ||PETITIONER ISSUED BY ADDITIONAL| ||DISTRICT MAGISTRATE,IDUKKI| |ANNEXURE A5|TRUE PHOTOSTAT COPY OF THE FORM OF| ||APPLICATION FOR RENEWAL OF ARMS| ||LICENSE DATED 23.11.2017| |ANNEXURE A6|TRUE PHOTOSTAT COPY OF THE CHALAN| ||FOR RENEWAL OF LICENSE| |ANNEXURE A7|TRUE PHOTOSTAT COPY OF FIRE ARM| ||DEPOSIT RECEIPT DATED 07.02.2019| |ANNEXURE A8|TRUE PHOTOSTAT COPY OF THE| ||PROCEEDINGS OF THE ADDITIONAL| ||DISTRICT MAGISTRATE , IDUKKI DATED| ||18.02.2019| |ANNEXURE A9|TRUE PHOTOSTAT COPY OF THE| Crl.M.C.No.4349 of 2021 **==> picture [7 x 10] intentionally omitted <==** PROCEEDINGS BEARING N.DCIDK/5031/2020-E2 DATED 09.08.2021 OF ADDITIONAL DISTRICT MAGISTRATE , IDUKKI RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE