## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY**
**TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941**
## **WP(C).No. 9132 of 2019**
## **PETITIONER/S:**
- 1 **SULTAN THOMAS OOMMEN, AGED 37 YEARS, 12B SKYLINE BAYWATERS, BEACH ROAD, KOZHIKODE-673 032, KERALA.**
- 2 **PRIMY THOMAS, 12B SKYLINE BAYWATERS, BEACH ROAD, KOZHIKODE-673 032, KERALA.**
**BY SRI.SULTAN THOMAS OOMMEN (PARTY IN PERSON)**
## **RESPONDENT/S:**
- **1 ELECTION COMMISSION OF INDIA, REPRESENTED BY SECRETARY, NEW DELHI-110 001.**
- **2 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM-695 001.**
- **3 THE CHIEF ELECTORAL OFFICER, THIRUVANANTHAPURAM-695 001.**
- **4 THE DISTRICT POLICE CHIEF, KOZHIKODE CITY, KOZHIKODE-673 001.**
- **5 THE SUB INSPECTOR OF POLICE, TOWN POLICE STATION, KOZHIKODE-673 004.**
- **6 THE DISTRICT COLLECTOR, CIVIL STATION, KOZHIKODE-673 020.**
- **R1 & R3 BY SRI. MURALI PURUSHOTHAMAN, SC R2 & R4 TO R6 - SMT. VINITHA B., GOVERNMENT PLEADER**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
W.P.(C) No.9132 of 2019
2
## **JUDGMENT**
This writ petition is filed by the petitioners who are husband and wife respectively, seeking to quash Ext.P2 order passed by the Screening Committee constituted as per Ext.P1 notification issued by the Election Commission of India dated 01.09.2009, refusing
the exemption sought for by the petitioners from surrendering the licensed arms held by them during the election period. The reason assigned in Ext.P2 is that the licences were secured by the petitioners on personal grounds, and in order to ensure the maintenance of law and order essential for the conduct of free and fair election, the surrender of arms is a necessary requirement. The application submitted by the petitioners were examined in detail, and it was found that there are no serious concerns for exemption. As per Sec.17(b) of the Arms Act, 1959 [in short, 'the Act, 1959'], the licensing authority, if deems it necessary for the security of the public peace or for public safety, can suspend the licence for a particular period. However, the applicant has stated in his request that he and his parents have already been provided with Police protection, due to certain threat
W.P.(C) No.9132 of 2019 3
posed by the workers and hence the issue of personal security is not existing, and therefore, the request made by the petitioners were rejected.
2. I have heard the 1[st] petitioner, appearing in
person, learned Government Pleader and the learned Standing Counsel appearing for the Election Commission of India, and perused the pleadings and the documents on record.
3. The sole question to be considered is, whether
any manner of interference is warranted to Ext.P2 order passed by the Screening Committee headed by the District Collector, Kozhikode. The power was exercised by the Committee consequent to the constitution of the
Committee as per the provisions of Ext.P1 notification issued by the Election Commission of India, dated
01.09.2009. As per clause 3.10 of the said
notification, deposit of Licensed Arms is stipulated,
however, subject to the conditions contained
thereunder. It states that, immediately after the announcement of elections, the 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
W.P.(C) No.9132 of 2019
4
impounded in order to ensure maintenance of law and order so essential for ensuring free and fair elections. The arms should be deposited with the
district authorities, and among the cases which may need to be reviewed are:
_“(a) Arms licences of persons released on bail;_
_(b) Arms licences of persons having a history of criminal offences; and_
_(c) Arms licences of persons previously involved in rioting at any time but especially during the election period”._
But, it is important to note that the above categories
are made illustrative and not exhaustive.
4. Therefore, going by the said provisions, the evaluation is to be done by the Screening Committee taking into account various circumstances prescribed thereunder in respect of licensed arm holders. But the assessments were done after the election was announced, and therefore, at the advanced stage of elections, the Screening Committee may not have sufficient time to assess or review the case of each and every holder of licensed arms. It was thereupon that application was filed by the petitioners along with others before the Screening Committee. The Screening Committee is not having a case that petitioners have any background as
W.P.(C) No.9132 of 2019 5
is specified in clause 3.10 of Ext.P1 notification, illustratively. Therefore, according to the
petitioners, having not found any circumstances specified under clause 3.10, the Screening Committee went wrong in declining the exemption sought for by the petitioners, and such an order is based without taking into account the factual and legal circumstances that are required for evaluating such a state of affairs.
5. Petitioners have also invited my attention to Ext.P3 judgment rendered by the Allahabad High Court in
' _**Chhanga Prasad Sahu v. State of Uttar Pradesh And**_
_**Others**_ ' [AIR 1986 All. 142], wherein the power to suspend licence under Sec.17 of the Arms Act was considered, and held that, unless and until the circumstances mentioned thereunder are existing, the suspension of licence pending any renewal application cannot be sustained. However, this is a case where the licence is not suspended, but the licensed arm-holder is directed to surrender the arm in order to conduct the ensuing Parliament election in a free and fair manner, and thus to render confidence in the public to exercise their franchise. It is true that there is no criminal background for the petitioners or they are not suffering any disqualification as per the illustrations
W.P.(C) No.9132 of 2019 6
put forth in clause 3.10 of Ext.P1 notification. As per Ext.P2 order, exemption was granted to various persons who have secured the licensed arms for sports and other purposes and out of the 46 persons, exemption was declined only to the petitioners.
6. Learned Government Pleader, _per contra_ , submitted that the provisions of clause 3.10 are only illustrative, and the licence issuing authority is vested with powers under Sec.17 of Act, 1959, for variation, suspension and revocation of licences under specified circumstances and invited my attention to sub-section (3) of Sec.17, which read thus:
_“(3) The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence--_
_(a) if the licensing authority is satisfied that the holder of the licence is prohibited by this Act or by any other law for the time being in force, from acquiring, having in his possession or carrying any arms or ammunition, or is of unsound mind, or is for any reason unfit for a licence under this Act; or_
_(b) if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or_
_(c) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for it; or_
_(d) if any of the conditions of the licence has been contravened; or_
W.P.(C) No.9132 of 2019
7
_(e) if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver-up the licence.”_
7. Learned Government Pleader has also pin-
pointedly advanced arguments taking into account subclause (b) of sub-section (3), which stipulates that, if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence, and submitted that, during the process of elections, in order to ensure safety, public peace and public safety, the licensing authority is vested with ample powers to suspend the licence, which is a more extreme action than directing the petitioners to surrender the arms, and therefore, the authority is vested with ample powers to take into account the background facts and circumstances and take necessary decision in accordance with Clause 3.10 of Ext.P1 notification.
8. Having evaluated the rival submissions made across the Bar, and perusing the pleadings and the documents on record, I am of the considered opinion that, it cannot be absolutely said that the Screening Committee is not vested with powers to direct the licence holders to surrender the arms in order to conduct a free and fair poll, sustaining confidence
W.P.(C) No.9132 of 2019
8
among the public to exercise their franchise. Exemptions were granted to the sports-persons as well as others, taking into account the specific provisions contained under Ext.P1 notification, and therefore, the same cannot be clubbed with the issue raised by the petitioners for personal protection. It has also come out in evidence that petitioners have already provided with police protection consequent to certain threat put forth by the workers in the establishment. So also, it is clear from clause 3.6 of Ext.P1 that there is a clear bar on carrying of licensed arms and a direction is issued to issue prohibitory orders under Sec.144 of the Code of Criminal Procedure, 1973, banning carrying of licensed arms as soon as an election is announced and should be effective till the declaration of results.
9. Taking into account the factual and other
legal circumstances, I am of the considered opinion that, it cannot be said that there is any arbitrariness or illegality on the part of the Screening Committee in declining the exemption sought for by the petitioners, since I realize that such a decision was taken after providing opportunity of hearing to the petitioners and taking into account the attendant circumstances, on
W.P.(C) No.9132 of 2019 9
the basis of the elections declared to the Parliament. Therefore, the petitioners are not entitled to secure any reliefs as are sought for in the writ petition.
Accordingly, the writ petition is dismissed.
**Sd/-**
## **SHAJI P.CHALY**
**JUDGE**
St/12.04.2019
W.P.(C) No.9132 of 2019
10
## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1 ELECTION COMMISSION NOTIFICATION DATED 1.9.2009. EXHIBIT P2 SCREENING COMMITTEE ORDER DATED 20.3.2019. EXHIBIT P3 BOMBAY HIGH COURT DIVISION BENCH JUDGMENT, QUASHING AN ORDER PASSED BY SCREENING COMMITTEE IN VIOLATION OF ELECTION COMMISSION NOTIFICATION, VIJAY DINKARRAO PATIL AND ANR. VS. THE STATE OF MAHARASHTRA & ORS. DATED 13.8.2014. EXHIBIT P4 NOTICE FROM TOWN POLICE STATION SEEKING IMMEDIATE DEPOSIT OF FIREARMS. DATED 21.3.2019. EXHIBIT P5 APPLICATION SUBMITTED BEFORE DISTRICT COLLECTOR, KOZHIKODE SEEKING EXEMPTION. EXHIBIT P6 LUCKNOW BENCH OF ALLAHABAD HIGH COURT JUDGMENT UPHOLDING THAT LAW ABIDING CITIZENS SHOULD NOT BE COMPELLED TO DEPOSIT FIREARMS AKHILESH KUMAR TIWARI & 18 ORS. VS. STATE OF U.P. THRU D.M. AMETHI & ORS DATED 23.1.2017.**
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
P.S. TO JUDGE
St/-
