R. Sankaran, K.R. Jaysree, Chandran R., Shahul Hameed and Rajan A. v. District Magistrate, Palakkad; Superintendent of Police, Palakkad; Chief Electoral Officer, Kerala; Sub Inspector of Police, Meenakshipuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941** ## **WP(C).No. 9761 of 2019** ## **PETITIONER/S:** |**1**|**R.SANKARAN,**| |---|---| ||**AGED 58 YEARS**| ||**ADUKKATHACHALLA,**| ||**KANNIMARI P.O.,**| ||**CHITTUR, PALAKKAD.**| |**2**|**K.R.JAYASREE,**| ||**ADUKKATHACHALLA,**| ||**KANNIMARI P.O.,**| ||**PALAKKAD, PIN-678543.**| |**3**|**CHANDRAN R.,**| ||**ADUKKATHACHALLA,**| ||**KANNIMARI P.O.,**| ||**PALAKKAD DISTRICT.**| |**4**|**SHAHUL HAMEED,**| ||**MUTHALAMTHODE KALAM,**| ||**KUTTIPALLAM, PALAKKAD.**| |**5**|**RAJAN A.,**| ||**KUTTIKKAL CHALLA,**| ||**KANNIMARI P.O.,**| ||**PALAKKAD, PIN-678534.**| ## **BY ADV. SMT.R.S.ASWINI SANKAR** ## **RESPONDENT/S:** - **1 THE DISTRICT MAGISTRATE/DISTRICT COLLECTOR, CIVIL STATION, PALAKKAD-678001.** - **2 SUPERINTENDENT OF POLICE, PALAKKAD DIVISION, PALAKKAD-678001.** - **3 CHIEF ELECTORAL OFFICER OF KERALA, ELECTION DEPARTMENT, KERALA LEGISLATIVE COMPLEX, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN-695033.** W.P.(C) No.9761 of 2019 2 **4 SUB INSPECTOR OF POLICE, MEENAKSHIPURAM POLICE STATION, PALAKKAD-678533.** **R1, R2 & R4 BY SRI. B.VINOD, SENIOR GOVERNMENT PLEADER R3 BY SRI. MURALI PURUSHOTHAMAN, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.9761 of 2019 3 ## **JUDGMENT** This writ petition is filed by the petitioners seeking to quash Exts.P1 to P1(d) and P2 to P2(d) notices issued by the 4[th] respondent, and also for a direction to the respondents not to compel the petitioners to deposit their licensed arm in violation of the Circular issued by the Election Commission of India dated 01.09.2009, in respect of impounding of licensed arms during the elections. Case projected by the petitioners is that, the 4[th] respondent, i.e., the Sub Inspector of Police, Meenakshipuram Police Station issued notices to the petitioners, directing them to surrender the arm, which is against the Circular of the Election Commission of India, issued as per the direction of the Bombay High Court, in order to avoid unnecessary harassment and impounding of arm. 2. As per the Circular issued by the Election Commission of India, parameters are prescribed and stipulated, enabling the Screening Committee constituted under the Circular to review and assess the case of each and every licence holder in accordance with the prevalent State laws, and where they consider it essential are impounded in order to ensure maintenance of law and order for conduct of free and W.P.(C) No.9761 of 2019 4 fair elections. Case of the petitioners is that, overlooking the prescriptions under the said Circular, the local Police Officers have no power to direct the licensed arm holders to surrender the same. It is also submitted that the Screening Committee is also not entitled to direct the Police to seek surrender of the arm in view of the stipulation for assessment of each and every case taking into account the modalities prescribed under the Circular. 3. I have heard learned counsel for the petitioners, learned Senior Government Pleader, and the learned Standing Counsel appearing for the 3[rd] respondent, and perused the pleadings and the documents on record. 4. The basic contention put forth by the petitioners is that, there is no power vested with the local Police Officer to direct the petitioners to surrender the arm in view of the peremptory stipulations contained under the Circular, 2009. It is also pointed out that, the Screening Committee constituted thereunder is duty bound to follow the stipulations contained under the Circular, and the said Screening Committee is also not empowered thereunder directing the arm-holder to surrender the arm. But, it W.P.(C) No.9761 of 2019 5 can only be done by reviewing the situation, and only in required cases alone, impounding can be directed. 5. On the other hand, learned Senior Government Pleader submitted that, there are thousands of licensed arm holders and the election processes have advanced, disabling the Screening Committee to review each and every case, without calling for any representation or applications from the licensed arm holders, who are claiming the benefits under Circular, 2009. 6. After evaluating the situation, I find force in the contention advanced by learned counsel for the petitioners. However, fact remains, as per the provisions of the Arms Act, 1959 and the Rules constituted thereunder, the licensing authority is vested with powers to direct an arm-holder to surrender the arm under any specified circumstances. But, in order to avoid unnecessary harassment and disabling the arm-holder to keep the arm, it was directed by the Bombay High Court to issue guidelines for the purpose. As per the provisions of Circular, 2009, as pointed out above, review is to be made by the Screening Committee, after the elections are announced and before the notification. Anyhow, the election is advanced from the date of announcement and notifications are issued. W.P.(C) No.9761 of 2019 6 Therefore, if the Screening Committee is directed to review each and every case, especially when the District Collector and the Superintendent of Police are the members of the Screening Committee, it is almost impracticable. 7. Moreover, the issue was considered by a learned Single Judge of this Court in W.P.(C) No.9933 of 2009 and connected case, and held that the deposit of licensed arms should be guided by the Circular issued by the Election Commission of India. This Court has also held in ' _**Joseph v. District Collector**_ ' [2019 (1) KLT 1034] that the evaluation is to be done in accordance with the stipulations contained under the Circular. 8. Therefore, after considering the _pros and cons_ , and in order to practically handle the situation, it is only appropriate that applications for exemption are directed to be filed before the Screening Committee, in order to evaluate the licences in accordance with the Circular, 2009. I am also of the view, even if such a direction is issued, that will not in any manner interfere with the essential and vital requirements envisaged under the notification, which will also avoid further complexity in the matter. W.P.(C) No.9761 of 2019 7 Taking into account that aspect and assimilating other factual and legal situations, Exts.P1 to P1(d) and P2 to P2(d) notices issued by the 4[th] respondent are quashed, and the petitioners are given the liberty to file suitable applications before the respective Screening Committee and the Screening Committee will be at liberty to take decision in accordance with law, and in terms of the Circular, 2009, at the earliest, and at any rate, within a week from the date of receipt of application from the petitioners. The writ petition is disposed of accordingly. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** St/29.03.2019 W.P.(C) No.9761 of 2019 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPIES OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO 1ST PETITIONER DATED 25.03.2019. EXHIBIT P1(A) TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO 2ND PETITIONER DATED 25.03.2019. EXHIBIT P1(B) TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO 3RD PETITIONER DATED 25.03.2019. EXHIBIT P1(C) TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO 4TH PETITIONER DATED 25.03.2019. EXHIBIT P1(D) TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO 5TH PETITIONER DATED 25.03.2019. EXHIBIT P2 TRUE COPY OF THE NOTICE ISSUED BY 4TH RESPONDENT TO 1ST PETITIONER DATED 25.03.2019. EXHIBIT P2(A) TRUE COPY OF THE NOTICE ISSUED BY 4TH RESPONDENT TO 2ND PETITIONER DATED 25.03.2019. EXHIBIT P2(B) TRUE COPY OF THE NOTICE ISSUED BY 4TH RESPONDENT TO 3RD PETITIONER DATED 25.03.2019. EXHIBIT P2(C) TRUE COPY OF THE NOTICE ISSUED BY 4TH RESPONDENT TO 4TH PETITIONER DATED 25.03.2019. EXHIBIT P2(D) TRUE COPY OF THE NOTICE ISSUED BY 4TH RESPONDENT TO 5TH PETITIONER DATED 25.03.2019. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/-**