Siji Joseph v. State of Kerala and The Station House Officer Nedumkandam Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **MONDAY, THE 12[TH] DAY OF DECEMBER 2022/21ST AGRAHAYANA, 1944** **CRL.MC NO. 1863 OF 2022** **CRIME NO.69/2019 OF NEDUMKANDAM POLICE STATION** ## **PETITIONER/ACCUSED:** **SIJI JOSEPH AGED 52 YEARS S/O JOSEPH, PALAKKATTUKUNNEL HOUSE, PARATHODU VILLAGE, BALAGRAM KARA, IDUKKI DISTRICT., PIN - 685604 BY ADVS. DINESH THANKAPPAN R.REJI (ATTINGAL)** ## **RESPONDENT/STATE:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** - **2 THE STATION HOUSE OFFICER NEDUMKANDAM POLICE STATION, IDUKKI DISTRICT., PIN - 685553 ADV SEENA C -PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.1863/2022 : 2 : ## **ORDER** ## **Dated this the 12[th] day of December, 2022** The petitioner is the sole accused in crime No.69/2019 of Nedumkandam Police Station which is now pending as C.C. No.148/2019 on the files of the Judicial First Class Magistrate’s Court, Nedumkandam. The offences alleged against the petitioner are under Sections 21(1) read with Section 25(i)(1)(b) (x) of the Arms Act, 1959. 2. The allegation against the petitioners is that, the petitioner who was a licence holder of a gun with licence No.BL 650/U Chola/ID failed to deposit the gun with the authorities concerned, even after the expiry of the licence. It is alleged that, the validity of the licence issued in favour of the petitioner expired on 28.06.2017 and despite the fact that he was under an obligation to deposit the arm before expiry of the licence without any delay as contemplated under Section 21(1) of the Arms Act, he failed to do so in time. He made the deposit only on Crl.M.C.No.1863/2022 : 3 : 17.10.2017 before Samson Armoury, Kattappana and thereby committed the offence. Annexure-1 is the final report submitted by the Police. This Crl.M.C. is filed to quash all further proceedings pursuant to the same. 3. Heard Sri. Dinesh Thankappan, the learned counsel appearing for the petitioner and Smt. Seena C., the learned Public Prosecutor for the State. 4. The contention put forward by the learned counsel for the petitioner is that, even if the contents of Annexure-1 final report are accepted for their face value, no offence would be attracted. It is contended that the petitioner had deposited the gun within a reasonable time. It was also pointed out that, the petitioner submitted the application for renewal immediately after the expiry of the said licence on 03.07.2017. As per Annexure-3 proceedings of the Additional District Magistrate, the arms licence was renewed with effect from 29.06.2017 to 28.06.2020. It is contended that, in view of the renewal of the said licence from the date of expiry, no offences would be attracted. The learned counsel for the petitioner also relies on the decision rendered by this Court in **Devasia Mathew v. State of Kerala and others** Crl.M.C.No.1863/2022 : 4 : ## [2017 (2) KHC 58]. 5. On the other hand, the learned Public Prosecutor would oppose the contention. 6. I have gone through the records and considered the contentions raised from either side. The statutory stipulation with regard to the deposit of arms is specified in Section 21 of the Arms Act which reads as follows: ## “ **21. Deposit of arms, etc., on possession ceasing to be lawful** (1) 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 whatsoever, ceased to be lawful, shall without unnecessary delay deposit the same either with the officer in charge of the nearest police station or subject to such conditions as may be prescribed, with a licensed dealer or where such person is a member of the armed forces of the Union, in a unit armoury. Explanation: In this sub-section “unit armoury” includes an armoury in a ship or establishment of the Indian Navy. (2) Where arms or ammunition have or has been deposited under sub-section(1) the depositor or in case of his death, his legal representative, shall, at any time before the expiry of such period as may be prescribed, be entitled-- - (a) to receive back anything so deposited on his becoming entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, or - (b) to dispose, or authorise the disposal, of anything so deposited by sale or otherwise to any person entitled by virtue of this Act or any other law for the time being in force to have, or not prohibited by this Act or such other law from having, the same in his possession and to receive the proceeds of any such disposal; Crl.M.C.No.1863/2022 : 5 : PROVIDED that nothing in this sub-section shall be deemed to authorise the return or disposal of anything of which confiscation has been directed under Section 32.” 7. As per the said provision, the licencee is under an obligation, to deposit the same without unnecessary delay. The period within which such a deposit is to be made, is not specifically mentioned in the said provision. However, the implication of the aforesaid provision is that, the licencee is entitled to hold the gun along with him even after the period of the licence, for a reasonable period. In **Devasia Mathew** 's case, this Court considered the reasonable period within which the deposit of the aforesaid arm is to be made. In the said decision, this Court, after considering the stipulation in Section 21(1) along with Rule 46(4) of the Arms Rules, 1962, observed that the period stipulated in Rule 46(4) could be treated as a reasonable period. As per the said provision, the period is six months, and in some instances the period can be up to one year. When the principles laid down by this Court in **Devasia Mathew** 's case are applied to the facts of this case, it can be seen that the period within which the petitioner deposited the gun cannot be treated as beyond the prescribed period, and it was within the reasonable period and therefore, without unnecessary delay. One of the necessary Crl.M.C.No.1863/2022 : 6 : ingredients for attracting the offence under Section 21(1) of the Arms Act is the lapses on the part of the accused to deposit the gun beyond a reasonable period. In this case, the same was submitted on 17.10.2017 whereas the licence expired on 29.06.2017, within less than six months. Therefore, in the light of the principles laid down by this Court in **Devasia Mathew** 's case, no prosecution can be launched against the petitioner. 8. There is yet another aspect. As per the records produced by the petitioner, the application for renewal of the licence was submitted by the petitioner on 03.07.2017, which is immediately after the expiry of the licence. Annexure-3 is the licence issued by the Additional District Magistrate on 09.07.2019, and the said licence was issued with retrospective effect and was valid from 29.06.2017 to 28.06.2020. In the light of the renewal of the licence on 29.06.2017 also, the petitioner's possession during the said period got regularized. Thus, after going through the materials placed on record, it is evident that the prosecution against the petitioner is not legally sustainable because of the reasons mentioned above. Therefore, all further proceedings based on Annexure-1 are a clear abuse of the process of law and Crl.M.C.No.1863/2022 : 7 : ## consequently liable to be interfered with. In the result, this Crl.M.C. is allowed. Annexure-1 final report submitted by the Police in crime No.69/2019 of Nedumkandam Police Station and all further proceedings pursuant to the same, including the proceedings in C.C. No.148/2019 on the files of the Judicial First Class Magistrate’s Court, Nedumkandam are hereby quashed. **Sd/-** **ZIYAD RAHMAN A.A. JUDGE** ncd Crl.M.C.No.1863/2022 : 8 : ## **APPENDIX OF CRL.MC 1863/2022** ## PETITIONER ANNEXURES Annexure1 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO 69/2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEDUMKANDAM Annexure2 TRUE COPY OF THE PROCEEDINGS OF THE ADDITIONAL DISTRICT MAGISTRATE IDUKKI , VIA NO. E2-22903/2011/KIDS WITH RESPECT TO RENEWAL OF LICENSE Annexure3 TRUE COPY OF THE PROCEEDINGS OF THE ADDITIONAL DISTRICT MAGISTRATE IDUKKI , VIA PROCEEDINGS NO. DCIDK2340/2018/E2/KIDS