Vishnu, Gokul G. Nath, Rakesh, Vishnu R., Arjun v. State of Kerala and Sub Inspector of Police, Konni Police Station

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 6[TH] DAY OF FEBRUARY 2023 / 17TH MAGHA, 1944 ``` ``` CRL.MC NO. 8682 OF 2019 ``` ``` [IN C.C.NO.1237/2018 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PATHANAMTHITTA WHICH AROSE FROM CRIME NO.1301/2018 OF KONNI POLICE STATION, KONNI, PATHANAMTHITTA] PETITIONERS/ACCUSED 1 TO 5: ``` ``` 1VISHNU,AGED 26 YEARS S/O.VIKRAMAN,VALLIYATHU VEEDU,MADATHUMPADI, NARANGANAM.P.O,PATHANAMTHITTA. 2GOKUL G. NATH, AGED 26 YEARS S/O.GOPINATHAN, PONMELIL VEEDU, NARANGANAM P.O., PATHANAMTHITTA. RAKESH, AGED 27 YEARS 3S/O.REGHUPATHY, AREEPPATTU VEEDU, KOZHENCHERRY EAST P.O., KOZHENCHERRY. VISHNU R., AGED 22 YEARS 4S/O.RAVEENDRAN NAIR, KADACKAL HOUSE, NARANGANAM P.O., PATHANAMTHITTA. ARJUN, AGED 21 YEARS S/O.JAYAKUMAR, VELLAVOOR VEEDU, NARANGANAM P.O., PATHANAMTHITTA. 5 ``` ``` BY ADVS. T.K.BIJU (MANJINIKARA) SMT.ANNIE M.ABRAHAM ``` ## `RESPONDENTS/STATE AND COMPLAINANT:` ``` 1STATE OF KERALA,REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031. 2SUB INSPECTOR OF POLICE, KONNI POLICE STATION, KONNI-689641. BY SMT.SREEJA V. SR.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.01.2023, THE COURT ON 06.02.2023 PASSED THE FOLLOWING: ``` CRL.MC No.8682 /2019 2 ## `O R D E R` ``` The petitioners are accused Nos.1 to 5 in ``` ``` Crime No.1301/2018 of Konni Police Station, which is pending as C.C.No.1237/2018 on the file of the Judicial First Class Magistrate ``` ``` Court-II, Pathanamthitta. The aforesaid crime was registered for the offences punishable under Sections 7(a) r/w. 25(1A) of Arms Act, 1955. ``` ``` 2.The prosecution case is that, while the 2[nd] respondent, along with the police party was conducting patrol duty, they found the ``` ``` petitioners, who were members of ABVP/BJP, with arms in a car bearing registration No. KL03-Z- ``` ``` 1125. It is alleged that the vehicle was found ``` ``` near a college affiliated to Mahatma Gandhi University, where an election was forthcoming. ``` ``` The petitioners were arrested from the spot along with arms which consisted of hammer and a ``` CRL.MC No.8682 /2019 3 ``` brake cable made of steel and a sharp-edged ``` ``` weapon that comes within the category of ‘churika’. The said articles were seized from ``` ``` the back side of the car. Annexure-A1 is the ``` ``` F.I.R. and Annexure-A2 is the final report submitted by the police. The learned Magistrate ``` ``` had taken cognizance of the same, and it is now pending trial. This Crl.MC is filed by the petitionersforquashingallfurther ``` ``` proceedings pursuant to Annexure-A2 final report. ``` ``` 3.Heard Sri.T.K. Biju (Manjinikara), the ``` ``` learned counsel for the petitioners, Smt.Sreeja V., the learned Senior Public Prosecutor for 1[st] and 2[nd] respondents. ``` ``` 4.The contention of the learned counsel ``` ``` for the petitioners is that even if the ``` ``` allegations contained in the final report are ``` ``` accepted as true, no offences alleged against the petitioners are made out. According to the ``` CRL.MC No.8682 /2019 4 ``` petitioners, mere possession of the arms seized ``` ``` from the petitioners would not make out any offences under the Arms Act. It is further contended that no notification as contemplated ``` ``` under Section 4 of the Arms Act is in force requiring any licence for manufacturing or selling or possessing the arms which were allegedly seized from their possession. ``` ``` 5.On the other hand, the learned Public Prosecutorwouldopposetheaforesaid ``` ``` contentions. ``` ``` 6.I have carefully gone through the ``` ``` materials placed on record. One of the offences ``` ``` alleged is under Section 7(a) of the Arms Act, ``` ``` which reads as follows: ``` ``` “7.Prohibitionofacquisitionor possession, or of manufacture or sale, of prohibited arms or prohibited ammunition.— No person shall— ``` ``` aacquire, have in his possession or carry ``` ``` b……… ``` ``` c………… Anyprohibitedarmsorprohibited ``` CRL.MC No.8682 /2019 5 ``` ammunition unless he has been specially authorised by the Central Government in this behalf” ``` ``` As per the same, in order to attract the said offence, the accused must have acquired or have ``` ``` in his possession or carry any prohibited arms ``` ``` or prohibited ammunition. The term ‘prohibited ``` ``` arms’ is defined under Section 2(i) of the Arms ``` ``` Act, which reads as follows: ``` ``` “S.2(i)“prohibited arms” means— ``` ``` (i) firearms so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty, or ``` ``` (ii) weapons of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing, and includes artillery, anti-aircraft and anti- tank firearms and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms.” ``` ``` Going by the averments in the final report and ``` ``` the seizure mahazar, which forms part of the ``` ``` final report, it can be seen that no arms which ``` ``` come within the description of prohibited arms were admittedly seized from the possession of ``` CRL.MC No.8682 /2019 6 ``` the accused persons. Therefore, the offence ``` ``` under Section 7(a) would not get attracted. The next offence is under Section 25(1AA) which ``` ``` reads as follows: ``` ``` “25(1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which extend to ten years and shall also be liable to fine.” ``` ``` For attracting the said offence, the accused ``` ``` must have manufactured or possessed any arms or ammunition in contravention of Section 7 of the Arms Act. In this case, I have already found that the arms seized from the possession of the petitioners are not coming with the description of prohibited arms which is the only article dealt with in Section 7 of the Arms Act. Without any seizure of prohibited arms as defined under Section 2(i), the offence under Section 25(1A)would not be attracted. ``` ``` 7.Thus, it is evident that mere possession ``` CRL.MC No.8682 /2019 7 ``` of arms or carrying arms other than firearms and ammunition, which are not prohibited, would not attract any of the offences. The prosecution has a case that the petitioner has not obtained any licence for possessing the said article. Section 4 of the Arms Act provides for the licence for the acquisition and possession of arms of specified description in certain cases. As per the said provision, if the Central Government is of the opinion that having regard to the circumstances prevailing in any area, it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or ``` CRL.MC No.8682 /2019 8 ``` description as may be specified in that ``` ``` notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder. Rule 4 of the Arms Act provides ``` ``` that unless the Central or the State Government ``` ``` by notification in the Official Gazette so directs, no licence shall be required for the ``` ``` manufacture, sale, possession for sale or test, ``` ``` of arms of category V in Schedule I except in the areas notified under section 4. It is true that some of the arms seized from the ``` ``` possession of the petitioners would fall under category-V in Schedule I being sharp edged ``` ``` weapon. However, a joint reading of Section 5 of the Arms Act and Rule 5 of the Arms Rules would indicate that in the absence of a ``` ``` notification issued in this regard, no licence ``` ``` is required for any person to possess the said arms. Therefore, it is evident that since the ``` CRL.MC No.8682 /2019 9 ``` allegation against the petitioners is confined ``` ``` to the possession of the arms, that by itself is not something which would attract any of the ``` ``` offences contemplated under the provisions of the Arms Act or any Rules framed thereunder. The view taken by me is fortified by decision of this Court inStephen v. State of Kerala ``` ## `[2018(3)KLT 920].` ``` 8.Thus, after considering the materials placed on record as per Annexure A2 final report, the nature of arms allegedly seized ``` ``` from the possession of the petitioners and the ``` ``` statutory stipulations contained in the Arms ``` ``` Act and the Rules framed thereunder, the only ``` ``` irresistible conclusion possible is that the ``` ``` act allegedly committed by the petitioners would not attract any of the offences. Therefore the prosecution launched against the petitioners based on Annexure A2 is clearly an abuse of the process of the court. ``` CRL.MC No.8682 /2019 10 ``` In such circumstances, this Crl.M.C. is allowed, Annexure A2 final report in Crime No.1301/2018 of Konni Police Station and all further proceedings pursuant thereto including the proceedings in C.C.No.1237/2018 on the file of the Judicial First Class Magistrate Court- II, Pathanamthitta are hereby quashed. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` pkk Contd...p.11 CRL.MC No.8682 /2019 11 ``` The final order dated 6/2/2023 in Crl.M.C. ``` ``` No.8682/2019 stands suo motu corrected as follows as per order dated 3/3/2023: ``` ``` 1. The words ‘Arms Act, 1955’ occurring in the last sentence of the first paragraph of the final order stands corrected and substituted as ‘Arms Act, 1959’; ``` ``` 2.The words ‘Rule 4 of the Arms Act’ occurring in the 5[th] line at page 8 of the final order stands corrected and substituted as ‘Rule 4 of the Arms Rules’; ``` ``` 3.The words “Section 5 of the Arms Act and Rule 5 of the Arms Rules” occurring in the 15[th] and 16[th] lines at page 8 of the final order stands corrected and substituted as ``` ``` ‘Section 4 of the Arms Act and Rule 4 of the Arms Rules’. ``` ``` Sd/- ``` ``` Deputy Registrar ``` CRL.MC No.8682 /2019 12 ## `APPENDIX OF CRL.MC 8682/2019` ``` PETITIONERS’ ANNEXURES ``` ``` ANNEXURE A1A TRUE COPY OF THE FIR IN CRIME NO.1301/18 OF KONNIPOLICESTATION,KONNI,PATHANAMTHITTA DATED 06.09.2018 ANNEXURE A2A TRUE COPY OF THE FINAL REPORT IN CRIME NO.1301/2018 OF KONNI POLICE STATION, KONNI,PATHANAMTHITTA DATED 29.09.2018. ```