Pradeep Rao M. v. District Collector, Kasaragod & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942** ## **WP(C).No.3682 OF 2021(I)** ## **PETITIONER:** **PRADEEP RAO M., AGED 40 YEARS S/O.KRISHNA RAO, RESIDING AT MEPODU HOUSE, BADOOR VILLAGE, DHARMATHDKA POST, MANJESHWAR TALUK, KASARAGOD DISTRICT.** **BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI SRI.SHAHID AZEEZ SMT.CHANDRALEKHA SANU** ## **RESPONDENTS:** **1 THE DISTRICT COLLECTOR, KASARAGOD, CIVIL STATION, VIDYANAGAR P.O., KASARAGOD DISTRICT-671123.** - **2 THE ADDITIONAL DISTRICT MAGISTRATE, KASARAGOD, VIDYANAGAR P.O., KASARAGOD DISTRICT-671123.** - **3 THE STATION HOUSE OFFICER, BADIADKA POLICE STATION, KASARAGOD DISTRICT-671551.** - **4 THE ELECTION COMMISSION OF INDIA, NIRVACHAN SADAN, ASOKA ROAD, PANDIT PANT MARG AREA, SANSAD MARG AREA, NEW DELHI-110001, REPRESENTED BY ITS SECRETARY.** - **5 THE STATE ELECTION COMMISSION, ELECTION DEPARTMENT, KERALA LEGISLATIVE COMPLEX, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033, REPRESENTED BY ITS SECRETARY.** **BY SHRI.MURALI PURUSHOTHAMAN, SC OTHER PRESENT:** **SMT.VINITHA.B, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.3682 OF 2021(I)** 2 ## **J U D G M E N T** Petitioner is having valid arms' licence issued as per Ext.P2 and renewed as per Ext.P3 for the period upto 30.09.2022. His complaint is that on the basis of a direction issued by the 3[rd] respondent he had to surrender the licenced firearm before the 3[rd] respondent on 13.11.2020 i.e., before the election to the local bodies was held. It is stated that though it was given back to the petitioner on 04.01.2021, 3[rd] respondent again asked him to surrender it and he had to surrender the same again on 05.02.2021 for which Ext.P5 receipt was issued. 2. Petitioner points out that the action of the 3[rd] respondent is illegal as it is contrary to the provisions in the circular issued by the Election Commission as well as the judgments of this Court. 3. The learned Government Pleader on instructions submitted that the said action is to **WP(C).No.3682 OF 2021(I)** 3 ensure a serene atmosphere for the ensuing election. 4. Heard the learned Counsel on both sides. 5. 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: **WP(C).No.3682 OF 2021(I)** 4 - (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. **WP(C).No.3682 OF 2021(I)** 5 - (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. 6. 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 license holder 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 license holder directing him to deposit the licensed arm within one week. 7. In the present case the respondents do not have a case that there is any report against the petitioner requiring impounding of the licensed firearm or that he comes under the parameters under Sub-clause **WP(C).No.3682 OF 2021(I)** **==> picture [7 x 7] intentionally omitted <==** (a) to (c) of Clause 3.10. Date of election is so far not notified. There is no report from the screening committee. No notice is issued to the petitioners by the licensing authority. 8. The only reason stated for directing deposit of the licensed arms is that the respondents want to ensure a serene atmosphere for the election. 9. When the Government has laid down a specific procedure which should precede the direction for deposit of licensed arms, there is no justifiable 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 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** **WP(C).No.3682 OF 2021(I)** 7 [2011 (1) KHC 214], **Joseph v. District Collector** [2019 (1) KLT 1034] etc. Therefore there shall be a direction to the respondents 1 and 2 to see that the police officers under them are not resorting to such short cut methods. There will be a further direction to the 3[rd] respondent to return the licensed guns deposited by the petitioners within 'two days' of the date of receipt of a copy of the judgment. The writ petition is disposed of accordingly. Sd/- **P.V.ASHA, JUDGE** AS **WP(C).No.3682 OF 2021(I)** 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE LAND TAX RECEIPT DATED 06.09.2018 ISSUED BY THE VILLAGE OFFICER, BADUR VILLAGE.** **EXHIBIT P2 THE TRUE COPY OF THE ARMS LICENCE ISSUED BY THE DISTRICT MAGISTRATE, KASARAGOD DATED 9.10.2013.** - **EXHIBIT P3 THE TRUE COPY OF THE PROCEEDINGS DATED 18.03.2020 OF THE ADDITIONAL DISTRICT MAGISTRATE, KASARAGOD RENEWING THE ARMS LICENCE OF THE PETITIONER UP TO 30.09.2022.** - **EXHIBIT P4 THE TRUE COPY OF THE RECEIPT DATED 13.11.2020 ISSUED BY THE THIRD RESPONDENT.** - **EXHIBIT P5 THE TRUE COPY OF THE RECEIPT DATED 05.02.2021 ISSUED BY THE THIRD RESPONDENT.** - **EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT DATED 30.06.2009 IN CRIMINAL WRIT PETITION NO.835/2009 ON THE FILES OF THE HONOURABLE BOMBAY HIGH COURT DOWNLOADED THROUGH INTERNET.** **EXHIBIT P7 THE TRUE COPY OF THE INSTRUCTION BEARING NO.464/INST/2009/EPS, DATED 01.09.2009 ISSUED BY THE ELECTION COMMISSION OF INDIA.**