Valapra Muhammed Basheer v. Sub Inspector of Police, Areekode Police Station, Malappuram District and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA,** ## **1945** **CRL.REV.PET NO. 249 OF 2019** **AGAINST THE ORDER DATED 12.09.2018 PASSED BY THE COURT OF** **CHIEF JUDICIAL MAGISTRATE, MANJERI IN CRL.M.P.NO.2510/2018 IN C.C.NO.102/2017** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **VALAPRA MUHAMMED BASHEER AGED 52 YEARS S/O. MUHAMMEDAJI, KODIKKALAPARAMB , PALAKKAD P.O, KAVUNGAPPARA, PULPATTA VILLAGE, MALAPPURAM DISTRICT.** **BY ADV. SUNNY MATHEW** ## **RESPONDENTS/COMPLAINANT:** - **1 SUB INSPECTOR OF POLICE AREEKODE POLICE STATION, MALAPPURAM DISTRICT.** - **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SMT.SEENA C.- PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 07.02.2024, THE COURT ON 23.02.2024 DELIVERED THE FOLLOWING:** 2 Crl.R.P.No.249 of 2019 ## **P.G. AJITHKUMAR, J.** **-----------------------------------------------------------** **Crl.R.P.No.249 of 2019** **----------------------------------------------------------Dated this the 23[rd] day of February, 2024** ## **O R D E R** In the revision petition filed under Section 397 read with 401 of the Code of Criminal Procedure, 1973, the petitioner challenges the legality, propriety and correctness of the order dated 12.09.2018 of the Chief Judicial Magistrate, Manjeri in Crl.M.P.No.2510 of 2018 in C.C.No.102 of 2017. The trial court dismissed the said petition which was filed seeking discharge. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. C.C.No.102 of 2017 arose on a police report. The accusation against the petitioner is that he possessed four swords and three axes without any license for possessing the same, and also a sum of Rs.1,20,450/-. It was alleged that the said act of possessing arms was punishable under Section 4 read with 25(1B)(b) of the Arms Act, 1959 (the Act). The petitioner sought discharge on the ground that the 3 ## Crl.R.P.No.249 of 2019 weapons he allegedly possessed are not prohibited arms and in the absence of a notification prohibiting possession of such weapons in the area where he was found in possession, no such offence could be attracted. In support of that contention, the petitioner placed reliance on **Jinu v. State of Kerala [2017 (4) KLT 895]** and **Stephen v. State of Kerala [2018 (3) KLT 920].** The trial court did not accept that contention. It was held that there was a notification issued on 10.09.1922 (sic. 1929) and whether or not the said notification is valid is a matter to be decided in evidence. It was further held that possession of such weapons would constitute an offence punishable under Section 7(a) read with Section 25(1A) of the Act and therefore a charge was liable to be framed against the petitioner. 4. The learned counsel for the petitioner would submit that Section 7(a) read with Section 25(1A) of the Act can never be attracted inasmuch as the swords and axes allegedly seized from the possession of the petitioner are not prohibited arms as defined in Section 2(i) of the Act. If at all 4 Crl.R.P.No.249 of 2019 an offence is attracted, that is under Section 4 read with 25(1B)(b) of the Act, but in the absence of a valid notification issued under Section 4 of the Act, that offence will also not be attracted. 5. The learned Public Prosecutor on the other hand would submit that the offence attracted in the facts of this case is one punishable under Section 4 read with Section 25(1B)(b) of the Act and there is a notification issued under Section 15 of the Arms Act 1878 which is the forerunner of Section 4 of the Arms Act, 1959 and the said notification is valid, despite repeal of the Arms Act 1878. The learned Public Prosecutor relies on **Jithu and another v. State of Kerala and another [2014 (3) KLT 243]** and **Neel Niranjan Majumdar v. The State of W.B.[1972 (2) SCC 668]** . 6. Section 4 of the Act empowers the Central Government to issue notification prohibiting acquisition, possession, etc. of arms other than firearms, of such class or description in the areas specified in that notification without holding a license. It implies that an arm as defined in 5 Crl.R.P.No.249 of 2019 Section 2(c) of the Act can be prohibited from being possessed in a specified area without having a valid license. It is undisputed that swords and axes are arms coming within the purview of sec 2(c) of the Act. If anyone acquires, has in his possession or carries in any place specified by notification under Section 4, any arm that is specified in that notification, that amounts to an offence punishable under Section 25(1B)(b) of the Act. The question therefore is whether there is a valid notification under Section 4 of the Act covering the area where the seizure of arms from the possession of the petitioner was effected. 7. The place where the offence was allegedly committed is in Manjeri district which is a part of erstwhile Malabar district. The notification pointed out by the learned Public Prosecutor is notification No. 222 dated 14.09.1922 issued by the then Madras Government issued in exercise of the powers under Section 15 of the Arms Act, 1878. As per the said notification possession of any arm of any description within the limits of the Malabar district except under a license was prohibited. The question whether that 6 ## Crl.R.P.No.249 of 2019 notification issued under Section 15 of the Arms Act, 1878 still holds good was considered by this court in **Jithu** (supra). A learned single Judge of this Court after referring to **Neel Niranjan** (supra) held that notification No. 222 dated 14.09.1922 remains valid despite repeal the Act of 1878. 8. In **Jinu** (supra) and **Stephen** (supra) the view taken is that in the absence of a notification under Section 4, possession of arms could not be an offence. The place of occurrence in **Jithu** (supra) was Mulavukadu, a place in Kochi. The place of occurrence in **Stephen** (supra) was Panthalam, a place in Pathanamthitta district. Both places are indisputably not part of the erstwhile Malabar District. Therefore notification No.222 dated 14.09.1922 would not take within its local area the aforesaid places. The prosecution had no case that there was a notification issued under Section 4 of the Act 1959 or under Section 15 of the Act, 1878 covering those areas. Therefore the preposition of law laid down in **Jinu** (supra) and **Stephen** (supra) is not applicable in this case. 7 Crl.R.P.No.249 of 2019 9. The learned counsel for the petitioner places reliance on **Jia Lal and another v. Delhi Administration and another** [ **AIR 1962 SC 1781]** in order to contend that when notification no.222 dated 14.09.1922 covers Malabar area alone there occurs a discriminatory classification against the people in Malabar and therefore such a notification is invalid. The Apex Court in the said decision held that a notification based on geographical differences except for achieving the object of the statute amounts to a hostile discrimination and violative of Article 14 of the Constitution of India. The purport of Section 4 of the Act itself enables a geographical separation since the basis for issuing a notification is the expediency on account of the circumstances prevailing in an area. The same was the criteria for issuance of a notification under Section 15 of the Act, 1878 also. Therefore the law laid down by the Apex Court in **Jia Lal** (supra) is not of avail to the help of the petitioner. At this stage, the plea of the prosecution that notification under Section 222 dated 14.09.1922 covers the 8 Crl.R.P.No.249 of 2019 area in question cannot be discarded. That question is required to be decided after recording evidence. As held above, the said notification is valid under Section 4 of the Act. Therefore, there is ground for presuming that the petitioner had committed an offence punishable under Section 4 read with Section 25(1B)(b) of the Act and a charge for that offence is liable to be framed. The revision therefore fails. The revision is dismissed. Sd/- **P.G. AJITHKUMAR JUDGE** PV