Refusal to Vary Conditions in an Arms Licence.

[asur74]

Dear Friends,
I beg to attract your attention to the issue I am facing a problem with. I am a Police Officer presently with the Arms Licence Branch in Maharashtra. We had refused a request from an existing Arms Licencee to Vary Conditions in the Licence i.e. Extension of Area of use throughout the entire State. The order of rejection said he could Appeal to the Appellate Authority i.e. the Home Dept. An Officer at the Home Dept. says that Appeals can be entertained only if Licences are Suspended/Cancelled or Refused and no appeal can be made for refusal to Vary Conditions in the Licence. The position about Appeal in Law i.e. The Arms Act is pellucid in Section 18 and Rule 55 (2). What might be the legal reason for the Home Dept.'s stand. If a Circular to that effect is issued will it override the Law. Kindly guide me on the issue and I will be thankful for the same.

[jonahpach]

hello asur,
I am no expert on the arms act but looks like this is one of those grey areas which the arms act fails to address 'adequately' and leaves for the local 'authorities' to address to the best of their knowledge. The home department seems to have rightly passed the ball to your court. (It is your area of authority you are supposed to know the local situation better and are also in a better position to know the applicant and his reasons so that a fair and correct decision can be made.)

As expected, the 'authorities' (you) have addressed it to your advantage (better safe than sorry) at the expense of the applicant. A logical question is.. what does the authorities expect to gain or suppress what crime from refusing the humble application of the citizen who feels the need to carry his legal firearm within a wider area than was first granted? If you suspect his character and reasons for extending his area of use why allow him to keep a firearm even within a limited area in the first place?

Other members who are more knowledgeable of the act will address your legal query, but I must also commend you on your 'openness' by even posting the query on an open forum. Good governance to you!

Jonah

[nagarifle]

no circular can override the law(unless the law allows). there is no reason why a licence can not be issued for the whole of the state if a good reason is shown. the appeal is only for rejection etc of the arms licence.

i think the licence is issued for a district and not the whole state? more district can be added if reason is given ie, have a house and office in two different districts etc.

[goodboy_mentor]

Arms Act 1959 is a law just to regulate the fundamental right to keep and bear arms guaranteed under Articles 19 and 21 of Constitution. It is not a law to curb, suppress or prohibit the right of people to keep and bear arms. Neither the arms license is matter of "need" or "no need". But it has been written in such a confusing manner that most of the people do not understand it properly. The result has been that gradually it has been corrupted greatly by various unconstitutional amendments to arms act, arms rules and notifications. To understand in detail that RKBA is guaranteed under Constitution you may read the following: http://indiansforguns.com/viewtopic.php ... 15#p117785

Now coming to your specific question. If your department is legally authorized to increase the area validity, then prima facie the rejection done by your department seems arbitrary and lacking any legal basis. On what basis has your department decided to reject the increase of area validity? The reason for rejection has to be found within the arms act. The only legal role of "Police" under Arms Act 1959 is to find if there exist any heinous crime records against the applicant. Did your department have any records that applicant intends to do some heinous crime by getting area validity increased? Your department appears is trying to pass the buck to home department and home department is passing the buck back to your department.

One of the Principles of Natural Justice requires that "let the other side be heard" or audi alteram partem be followed. Hence there is the provision of appeal under Section 18 of Arms Act 1959 and Rule 55 (2) of Arms Rules 1962. Section 18 and Rule 55 (2) also includes the provision for appeal if varying the conditions of a license is refused. Hence Home Department is also legally authorized to hear the applicant under the principles of natural justice. But if your department is already authorized to deal with the matter, why should Home Department deal with the matter? That is if no reason for rejection under arms act was found, the increase of the area validity should have been done by your department itself.

What might be the legal reason for the Home Dept.'s stand.

If your department is authorized to increase area validity for entire State and did not have any records that applicant intends to do some heinous crime by getting area validity increased, rather than rejecting, you should have increased the area validity.

If a Circular to that effect is issued will it override the Law.

The circular cannot override the law or the Constitution.

Since the matter relates to the fundamental right of self defense and the public authorities should work fearlessly under Arms Act 1959 if they do not have anything on record against the applicant, there is Section 40 under Arms Act 1959 that says the following:

40. Protection of action taken in good faith

No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.

So if your department is authorized to increase the area validity of license and finds no reason under arms act to refuse the same for applicant, what does your department have to fear by increasing the area validity? The Section 40 of Arms Act 1959 is standing with you for your support!

there is no reason why a licence can not be issued for the whole of the state if a good reason is shown.

Article 19(1)d of Constitution guarantees every citizen, the freedom to move freely throughout the territory of India. What better "good reason" than the guarantee to me by Article 19(1)d of Constitution can be given? Since the Article 19(1)d of Constitution guarantees me, the freedom to move freely throughout the territory of India, the burden lies on the licensing authority to justify that either I should not move freely throughout the territory of India or that outside the area validity of my license, I should be doing my self defense with my bare hands only.

[asur74]

Dear Friends,
Thank you all for your valuable opinions. The person whose application for Varying Conditions was rejected by us has 4 cases under the PITA (Prostitution) against him. We had initially revoked his Licence last year but our order was set aside by the Home Dept. Now the legal positions of the cases registered against him is that all 4 are subjudice.

[goodboy_mentor]

What has cases under PITA have to do with Arms Act 1959? Did he ever use his arms obtained under Arms Act 1959 to violate PITA? If this was the only reason for his license revoked last year, then Home Department was very much correct in setting aside your order. It has already been opined by various High Courts that getting arms license is a citizens right and should only been denied if the applicant has committed heinious crimes like murder, dacoity, kidnapping, rape etc.

[veeveeaar]

Mr Asur , Is it not" graft " a criminal offence ? many policemen and politicians who are charged under anti corruption laws hold arms licences?. The arms licence is granted to protect oneself mainly. Moreover having a case under PITA or whatever law does not mean refusal of grant of licence in the first place, secondly if one feels that he or she is threatened or vulnerable at any place of his or her normal area of movement, should be granted an extended area of validity

[winnie_the_pooh]

Dear Friends,
The person whose application for Varying Conditions was rejected by us has 4 cases under the PITA (Prostitution) against him. We had initially revoked his Licence last year but our order was set aside by the Home Dept. Now the legal positions of the cases registered against him is that all 4 are subjudice.

From this I assume that he is accused of being a pimp. I am sure the gun is mighty handy to intimidate the 'girls'.

What I am mystified about is why you are worried about a circular being issued that would over ride the law.As far as an appeal under Sec 55 is concerned,no appeal lies against the order refusing to increase the area of validity of the license of this individual.The Home Dept. is right on this.

[asur74]

Dear winnie_the_pooh,
Your is the only reply which addresses the question. As you maintain that Rule 55 says that no appeal will lie for refusal to increase the area of validity. I have checked it with the Books provided to us but there is no such mention. Hence I request you to kindly send me the extract from where you read this legislation from. If you reply in approval I will post my e mail Id. Thank you

[Priyan]

Semi related but I'm feeling like a ton of C4 detonated inside my brain when I just knew prostitution is legal in India but pornography is illegal If he/she is a pimp or something like that, not just Extension of Area but the permit should be revoked.

[winnie_the_pooh]

Section 55 clearly mentions the circumstances under which an appeal can be made.Refusal to vary the conditions of a license is not one of them.I will illustrate what I have said.

Had the license been valid for the state and then it had been curtailed to the district,an appeal could have been made.

Since the license is valid for the district(I am assuming that this is so) and the licensing authority has refused to 'increase ' the area of validity,no appeal can be made.

I other words he can appeal if what he has has been allowed already in his license is taken away but not if he is refused that which is not there in his license in the first place.

Something here is not quite as it is being made out to be.

[goodboy_mentor]

As you maintain that Rule 55 says that no appeal will lie for refusal to increase the area of validity. I have checked it with the Books provided to us but there is no such mention.

Arms Rules 1962 are the rules created under Section 44 of Arms Act 1959, to be followed to implement the Arms Act 1959. In other words Arms Rules are just expanded restatements of Arms Act 1959 in form of rules. The Arms Rules 1962 cannot be in derogation to Arms Act 1959. Now let us examine Section 17, 18 of Arms Act 1959, Rules 53, 55 of Arms Rules 1962 below:

Section 17 of Arms Act 1959 talks about "Variation, suspension and revocation of licences"

Sub Section (2) under Section 17 says "(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."

Section 18 talks about appeal to be done if aggrieved by order done under Section 17 which includes variation of conditions of license. I quote the clause (1) under Section 18 below:

18. Appeals

(1) Any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an order of the licensing authority or the authority to whom the licensing authority is subordinate, suspending or revoking a licence may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed:

Now I come to Arms Rules 1962 which is just a detailed restatement of Arms Act 1959:

Arms Rules 1962, Rule 53. Variation of conditions of licences

(1) On application from a licence- holder, a licensing authority may extend the area of validity specified in his licence, if he is satisfied about the need of such extension, subject to the condition that the licensing authority has the power to grant a licence in relation to the area to which extension is sought.

Rule 55. [Appeal against the order of a licensing authority or an authority suspending or revoking a licence under Sec. 17 (6)

(b) varying any condition of a licence or suspending or revoking a licence under sub-section (1) or sub-section (3) or sub-section (6) of Sec. 17, the person aggrieved by such order may, within thirty days from the date of issue of the order, and subject to the proviso to sub-section (2) of Sec. 18 prefer an appeal against that order, to the concerned appellate authority.]

If we note in Rule 55(b), it is clearly written "varying any condition of a licence" or........

So Appellate Authourity is very much empowered to listen to the appeal related to Sub Section (2) under Section 17 of Arms Act 1959. But this does not mean that the Licensing Authourity will not apply its mind under Arms Act 1959 and arbitrarily, under wild imaginations send cases to Appellate Authourity. Just because somebody has some cases under PITA filed against him does not mean that his area validity extension will be refused. The reasons for refusal have to be found within the Arms Act 1959. Hope the matter in question is clear now.

Source for Arms Act 1959 and Arms Rules 1962 has been http://www.abhijeetsingh.com/ Since the data on the mentioned site appears old, if I have missed out anything in Arms Act or Rules, please let me know.

[subodh22]

i really found it interesting that a police officer is asking for help(advice)from civilians that to from Arms Licence Branch in Maharashtra wow

Sir where are you stationed in Mumbai with all due respect

[Katana]

with Subodh. This is a very good sign for interaction with license holders.

Moreover, I feel that just like driving licenses, arms licenses should be issued for the Union of India or the very least the State of domicile of applicant. Restricting him for just one district is a ludicrous idea.

I agree with winnie's and jonah's views too. It seems logic is too far fetched for government functionaries. No offence to you Mr.Asur.

[mundaire]

After reading this entire thread, I would be very surprised if asur74 is indeed who he says he is...