Sultan Thomas Oommen v. Election Commission of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942** ## **WP(C).No.20155 OF 2020(T)** ## **PETITIONER:** **SULTAN THOMAS OOMMEN, AGED 38 YEARS,, 12B SKYLINE BAYWATERS, BEACH ROAD, KOZHIKODE-673 032, KERALA.** **BY SULTAN THOMAS OOMMEN(PARTY IN PERSON)** ## **RESPONDENTS:** |**1**|**ELECTION COMMISSION OF INDIA,**| |---|---| ||**REPRESENTED BY SECRETARY, NIRVACHAN SADAN,**| ||**ASHOKA RD, PANDIT PANT MARG AREA, SANSAD MARG AREA,**| ||**NEW DELHI-110 001.**| |**2**|**STATE OF KERALA,**| ||**REPRESENTED BY CHIEF SECRETARY , GOVT, SECRETARIAT,**| ||**TRIVANDRUM-695 001.**| |**3**|**THE CHIEF ELECTROAL OFFICER,**| ||**VIKAS BHAVAN, LEGISLATURE COMPLEX,**| ||**THIRUVANANTHAPURAM, KERALA-695 033.**| |**4**|**THE DISTRICT POLICE CHIEF,**| ||**DISTRICT POLICE HEADQUARTERS, MANANCHIRA,**| ||**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.**| ||**BY ADVS. SRI.MURALI PURUSHOTHAMAN, SC, ELE.COMMN.**| ||**SMT.PRINCY XAVIER, GOVERNMENT PLEADER**| |**THIS WRIT**|**PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON**| |**15.02.2021,**|**THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**| **WP(C).No.20155 OF 2020** **2** ## **JUDGMENT** **The issue raised in this writ petition is whether the licensing authority can impose any general condition regarding deposit of the licensed arms while renewing the license.** **2. Petitioner and his wife are having license to possess guns under the provisions of Arms Act. Both of them submitted applications for renewal of license. They do not have any criminal antecedents. Stating that there is no objection from the District Superintendent of Police the District Magistrate/District Collector issued Exts.P3 and P4 orders renewing their license for the period up to 27.05.2022 under Section 17 of the Arms Act imposing an additional condition that they shall surrender the licensed guns as and when election is declared. Even though the petitioner submitted Ext.P5 joint representation before the 6[th]** **WP(C).No.20155 OF 2020** **3** **respondent requesting to remove the additional conditions stipulated, the 6[th ] respondent rejected the same as per Ext.P6 order stating that the said condition is incorporated based on the opinion of the Government Pleader, since large number of cases are coming up at the time of election.** **3. According to the petitioner, such a condition is not liable to be imposed while renewing the licence and the 6[th] respondent, has no authority to impose such conditions. It is stated that the 6[th] respondent is wreaking his vengeance towards the petitioner because he had raised several complaints against him. Petitioner had approached this Court in W.P.(C) No.7958/2019 seeking a direction to the 6[th] respondent to convene a Screening Committee in tune with the notification issued by the Election Commission. The 6[th] respondent thereupon** **WP(C).No.20155 OF 2020** **4** **passed an order,directing the petitioner and his wife to deposit their guns. The petitioner had approached this Court in W.P.(C) No.9132/2018, which was disposed of recording the submission of the counsel for the respondent. Petitioner filed W.A.No.1187/2019 and based on the direction in it, the respondents had to release the deposited guns. It was in the meanwhile that applications were submitted for renewal of the licence and orders of renewal were issued imposing the additional conditions. Petitioner alleges that the same is in violation of Article 324 of the Constitution of India and that Section 17 of the Act cannot be invoked in the absence of any cogent reasons and except after conducting an enquiry with notice and opportunity of hearing to the licensee. Even though the petitioner submitted Ext.P5 representation requesting the 6[th] respondent to** **WP(C).No.20155 OF 2020** **5** **review the order and remove the additional conditions, the 6[th] respondent rejected the same. According to petitioner, when the licensed guns are supposed to be kept for self protection, by imposing such conditions, the petitioner would not have the said protection. Relying on the judgment in** _**Chhanga Prasad Sahu v. State of Uttar Pradesh And Others**_ **[AIR 1986 All. 142], it is contended that such conditions shall be imposed only sparingly and that too based on sufficient materials before the licensing authority.** **4. In the statement filed by the 6[th]** **respondent, it is stated that application for renewal of license received from the petitioner and his wife, was inquired into through District** **Police Chief, Kozhikode and he had reported no objection for the renewal, on security point of view. Thereupon renewed licence was issued on** **WP(C).No.20155 OF 2020** **6** **22.06.2019. Thereafter petitioner had submitted an application for removing the condition for surrendering the guns at the time of election on the ground that the same is in violation of Section 17 of the Arms Act. It is stated that immediately on announcement of the election, the District Magistrate would be free to conduct a review in order to ensure law and order situation.** **5. The learned Standing Counsel for the Election Commission has filed a statement on behalf of the respondents 1 and 3. It is stated that the Election Commission has issued Annexure R1(a) Circular dated 01.09.2009, providing for the procedure to be adopted with respect to the licensed arms holders. Clause 3.11 provides for the procedure for review. It is stated that in view of the judgments of this Court in** _**Saji Kuriachan v. District collector,**_ **WP(C).No.20155 OF 2020** **7** _**Ernakulam**_ **[2011 (1) KLT 484], K.A.Joseph v. District Collector [2009 (1) KLT 1034] etc, the Circular issued by the Election Commission of India has to be followed during any election; the Screening Committee has to be constituted in accordance with Annexure R1(a) Circular of the Election Commission of India.** **6. Petitioner has filed a reply affidavit and an argument note reiterating his contentions.** **7. Heard Sri.Sultan Thomas Oommen, the petitioner who appeared in person; Smt. Princy Xavier, the learned Government Pleader and Sri.Murali Purushothaman, learned Standing Counsel for the respondents 1 and 3.** **8. The question to be determined is whether the licensing authority can impose any additional conditions while renewing a license directing that the licensed arms shall be** **WP(C).No.20155 OF 2020** **8** ## **surrendered at the time of election.** **9. The petitioner and his wife were already granted license to possess guns, in accordance with the provisions contained in Section 13 of the Arms Act, 1959, on being satisfied of its requirement as provided in subsection 3 thereof, which reads as follows:** _**“13.Grant of licences: (1) xxxx**_ _**(2) xxxx**_ _**(3) The licensing authority shall grant—**_ - _**(a) a licence under Section 3 where the licence is required—**_ _**(i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection:**_ _**Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection, or**_ _**(ii) in respect of a firearm to be used for**_ **WP(C).No.20155 OF 2020** **9** _**target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government;**_ _**(b) a licence under Section 3 in any other case or a licence under Section 4, Section 5, Section 6, Section 10 or Section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same.”**_ **10. The licensing authority granted license to the petitioner, on being convinced of its requirement. Renewal of license, is governed by Section 15 of the Act, which reads as follows:** _**“15. Duration and renewal of licence.—(1) A licence under Section 3 shall, unless revoked earlier, continue in force for a period of five years from the date on which it is granted:**_ _**Provided that such a licence may be granted for a shorter period if the person by whom the licence is required so desires or if the licensing authority for reasons to be recorded in writing considers in any case that the licence should be granted for a shorter period:**_ _**Provided further that the licence granted under Section 3 shall be subject to the conditions specified in sub-clauses (ii) and**_ **WP(C).No.20155 OF 2020** **10** _**(iii) of clause (a) of sub-section (1) of Section 9 and the licensee shall produce the licence along with the fire-arm or ammunition and connected document before the licensing authority after every five years from the date on which it is granted or renewed.**_ _**(2) A licence under any other provision of Chapter II shall, unless revoked earlier, continue in force for such period from the date on which it is granted as the licensing authority may in each case determine.**_ _**(3)Every licence shall, unless the licensing authority for reasons to be recorded in writing otherwise decides in any case, be renewable for the same period for which the licence was originally granted and shall be so renewable from time to time, and the provisions of Sections 13 and 14 shall apply to the renewal of a licence as they apply to the grant thereof.”**_ ## **11. Section 17 of the Act, under which the** **6[th] respondent claims to have varied the conditions of license, in the process of renewal, reads as follows:** _**“17. Variation, suspension and revocation of licences.—(1) The licensing authority may vary the conditions subject to which a**_ **WP(C).No.20155 OF 2020** **11** _**licence has been granted except such of them as have been prescribed and may for that purpose require the licence holder by notice - in writing to deliver up the licence to it within such time as may be specified in the notice.**_ _**(2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed.**_ _**(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 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**_ **WP(C).No.20155 OF 2020** **12** - _**(d) if any of the conditions of the licence has been contravened; or**_ _**(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.**_ _**(4) The licensing authority may also revoke a licence on the application of the holder thereof.**_ _**(5) Where the licensing authority makes an - order varying a licence under sub section**_ _**(1) or an order suspending or revoking a - licence under sub section (3), it shall record in writing the reasons therefor and furnish to the holder of the licence on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.**_ _**(6) The authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority.**_ _**xxxx”**_ **12. It is settled law that reasons, which** **are not available in an order, cannot be** **WP(C).No.20155 OF 2020** **13** **thereafter supplemented by filing counter affidavits. No reason is stated in the license issued to petitioners or in any separate proceedings accompanying it, for varying the conditions of license as prescribed in Subsection 5 of Section 17. Rule 24 of the Arms Rules 2016 provides as follows** : _**“24.Renewal of licences.-(1) Every licence may, at its expiration and subject to the same conditions (if any) as to the grant thereof, be renewed by the authority mentioned in Schedule II as renewing authority within a period of thirty days of the police report:”**_ **13. Rule 112 of the Rules provide for the common conditions applicable to all licensees. Further conditions are available in the schedule to the Rules. None of these provides for a direction to surrender of arms in anticipation of election.** **14. Therefore under Rule 24, the renewal is** **WP(C).No.20155 OF 2020** ## **14** **envisaged on the very same conditions. Variation envisaged under Subsection 5 of Section 17 of the Arms Act can only be carried out only if there are reasons for the same as provided therein. In the absence of any reasons and when even the reason stated in the statement viz legal opinion for curtailing the number of cases before this Court at the time of election, cannot be the basis for variation, the additional conditions fixed by the 6[th] respondent cannot have any force. Therefore if at all the licensing authority found it necessary to vary the conditions in license as prescribed, that can only be done only in accordance with subsection 5. In effect the 6[th] respondent has passed an order of revocation of license for a period in anticipation, otherwise than in accordance with law, defeating the purpose for which the license is granted.** **WP(C).No.20155 OF 2020** **15** **15. It is relevant to note that the** **deposit of licensed arms at the time of election is governed by the provisions contained in paragraphs 3.10 to 3.12 of Annexure R1(a) Circular, which reads as** ## **follows:** _**“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:**_ - _**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.**_ **WP(C).No.20155 OF 2020** **16** ||**16**| |---|---| |**_3.11_**<br>**_. As_**|**_per the above - referred guidelines_**| |**_laid down by the Bombay High Court, for such_**|| |**_review _**|**_and assessment of all licence_**| |**_holders;_**|| |**_(a)_**|<br>**_There shall be a Screening Committee in_**| |---|---| ||**_every_**<br>**_District_**<br>**_and_**<br>**_in_**<br>**_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.)._**| ||**_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_**<br>**_issue_**| ||**_of notification of elections._**| |**_(c)_**<br>**_Cases of all licence holders as_**|| ||**_mentioned in para 3.10 above shall be_**| ||**_placed before the Screening Committee._**| ||**_placed before the Screening Committee._**| |---|---| |**_(d)_**|<br>**_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_**| **WP(C).No.20155 OF 2020** **17** **==> picture [37 x 56] intentionally omitted <==** _**the arms as directed would result in prosecution under S.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.**_ - _**(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.**_ _**3.12. The District Administration shall ensure foolproof arrangements for keeping the deposited firearms in safe custody. Proper receipt must be given to the licence holders depositing the firearms. It shall be the bounden duty of the District Administration to ensure that all firearms deposited with the Administration are returned to the licence holders immediately after one week after the declaration of results.**_ **16. From the circular, it is clear that the licensing authority can on receipt of a report from the Screening Committee, which is convened** **WP(C).No.20155 OF 2020** **18** **at the time of declaration of election 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, can issue a notice to the license holder directing him to deposit the licensed arm within one week. It is also particular to note that clause 3.10 provides for the cases under which review is essential. The 6[th] respondent does not have a case that petitioner and his wife are having any criminal antecedents. Renewal is granted only after getting report from the police authorities in their favour.** **In the above circumstances, the special conditions added by the 6[th] respondent while renewing the license of petitioner and his wife in Exts.P3 and P4 to surrender the licensed guns at the time of election as well as Ext.P6 order** **WP(C).No.20155 OF 2020** **19** **are set aside. This will not prevent the 6[th] respondent from directing the petitioner to deposit the arms licence, if it is found necessary in the proceedings prescribed in Annexure R1(a) Circular.** **The writ petition is allowed to the above extent. Sd/-** **P.V.ASHA** **JUDGE** **ww** **WP(C).No.20155 OF 2020** **20** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE DETAILED INTERIM ORDER PASSED BY THE DIVISION BENCH OF THE HIGH COURT DIRECTING IMMEDIATE RELEASE OF THE DEPOSITED WEAPONS IN WA 1187/2019 DATED 09.04.2019.** **EXHIBIT P2 TRUE COPY OF THE REPLY SENT BY RESPONDENT NO.6 TO THE SHOW CAUSE NOTICE SENT BY THE PRINCIPAL SECRETARY WHO REPORTS TO RESPONDENT NO.2, WHERE FALSE STATEMENTS HAVE BEEN MADE AND WHICH SHOWS THE ANIMOSITY THAT RESPONDENT NO.5 HOLDS TOWARDS THE PETITIONER DATED 15.07.2019.** - **EXHIBIT P3 TRUE COPY OF THE ARMS LICENSE RENEWAL LETTER ISSUED TO THE PETITIONER WHERE THE ADDITIONAL CONDITION HAS BEEN IMPOSED ILLEGALLY DATED 22.07.2019.** - **EXHIBIT P4 TRUE COPY OF THE ARMS LICENCE RENEWAL LETTER ISSUED TO THE PETITIONERS WIFE BY RESPONDENT NO.6 WHERE THE ADDITIONAL CONDITION HAS BEEN IMPOSED ILLEGALLY DATED 22.07.2019.** - **EXHIBIT P5 TRUE COPY OF THE JOINT REPRESENTATION MADE TO RESPONDENT NO.6 SEEKING TO REMOVE THE ADDITIONAL CONDITIONS DATED 25.07.2019.** - **EXHIBIT P6 TRUE COPY OF THE LETTER REFUSING TO REMOVE THE CONDITIONS SENT ON BEHALF OF RESPONDENT NO.5 DATED 22.10.2019.** - **RESPONDENTS' ANNEXURES:** - **ANNEXURE R1(A) THE PHOTOCOPY OF THE LETTER NO.464/INST/ 2009/EPS DATED 01-09-2009 ISSUED BY THE ELECTION COMMISSION OF INDIA.**