As usual this appears to be an illegal order. Deposit of arms held under Arms Act 1959 has to be done under the provisions of Arms Act 1959 only and not by these illegal orders. If one reads this thread,
http://indiansforguns.com/viewtopic.php ... 2&start=60 will find that there have been plenty of High Court judgements related to this matter.
For the sake of clarity on this matter I will qoute the Election Commision order as well as some judgements below:
(1) To read the order of Election Commission one may go to
http://eci.gov.in/eci_main1/electoral_law.aspx then "Compendium of Instructions of Conduct of Elections" then click on Volume-III, Instruction Serial Number 67, page number 74(129 and 130). Same is produced below for reading:
INSTRUCTION SL. NO. 67
Election Commission Order No.464/96-L&O/PLN-I, dated 13.03.1996 addressed to The Chief Secretary and Chief Electoral Officers of all States and Union Territories Subject: General Election/Bye-Elections - restrictions on possession of arms duringelections
ORDER
In exercise of the powers conferred on the Commission under Article 324 of the Constitution of India and all other powers enabling it in this behalf and in supersession of all other instructions, the Commission hereby orders that the following instructions shall be observed during all future elections:
1. Issue of licence for arms will be totally prohibited during the period commencing with the date of announcement of elections. This ban will continue to be operative till the completion of the election as notified.
2. The police should be directed to be vigilant and asked to start mopping up operations
of the areas infested with known goonda and other bad elements right from the date of announcement of elections. During such mopping up operations special attention should be paid to unearth and seize unlicensed arms and ammunition. A very thorough search and seizure by the State Police of unlicensed arms and places of indigenous manufacture of arms and ammunition shall be carried out and persons involved shall be arrested. While unearthing and seizure of unlicensed weapons is a normal ongoing responsibility of the police, it shall be vigorously intensified during the election period. Inter-state and intra-State movements of trucks and commercial vehicles shall be strictly checked with a view to preventing smuggling of arms and ammunition and anti-social elements. Raids should be carried out regularly and intensively on underground arms factories.
3. 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:
1. persons released on bail,
2. persons having a history of criminal offences, and
3. persons previously involved in rioting at any time but especially during
the election period. (The above categories are only illustrative and not exhaustive)
After such review, all such licence-holders who are identified, shall be directed to deposit their arms with the District Administration during the period of one week from the last date for withdrawal of candidatures.
5. The District Administration shall make fool-proof arrangements for keeping the deposited fire arms in safe custody. Proper receipt must be given to the licence holders depositing the fire arms. It shall be the bounden duty of the District Administration to ensure that all fire arms deposited with the Administration are returned to the licence holders immediately after one week after the declaration of results.
6. Prohibitory orders under section 144 of the Criminal Procedure Code, 1973 shall be issued banning the carrying of licensed arms as soon as an election is announced and should be effective till the declaration of results.
7. This ban shall, not be applicable to those communities who are entitled to display weapons by long standing law, custom and usage. This shall, however, not prevent the District Administration to impound weapons of any such persons of even such communities if they are found to be indulging in violence or posing a threat to the maintenance of law and order and peaceful conduct of elections. In these cases also the fire arms shall remain impounded till one week after the declaration of results.
8. Strict vigil shall be maintained by thorough checking of lorries, light vehicles and all other vehicles from three days before the date of poll to ensure that no undesirable elements or arms and ammunition are being transported into the constituency from outside and to apprehend them if they are doing so. Such checking of vehicles shall continue till the completion of the counting of votes and the declaration of results. As and when such culprits are apprehended, the arms and ammunition and vehicles concerned shall be confiscated.
================================================================================
In order to interpret this order it needs to be noted that arms are fundamental right under Articles 19 and 21 of the Constitution of India. There is Allahabad High Court judgement confirming that arms are fundamental right under Article 21. It can be read at
http://indiansforguns.com/viewtopic.php ... 64#p147708
It is already well established that rights are wide and powers are narrow. The powers of the Election Commission to confiscate arms are claimed to be derived from Article 324. These powers under Article 324 cannot be wider or have overriding effect than the Rights under Articles 19 and 21. Also the powers under Article 324 cannot be in derogation to an existing law of land, in this case the Arms Act 1959. If arms are to be deposited, that has to be done under the provisions of Arms Act 1959 and
not by orders of authorities who have no legal authority or competence under Arms Act 1959. Hence the instruction of Election Commission is to be read in narrow sense, i.e. to confiscate arms of the likely trouble makers only, and not arms of all the license holders.
(2) Court No. - 6
Case :- MISC. SINGLE No. - 600 of 2012
Petitioner :- Mohd. Ismail
Respondent :- State Of U.P.Thr.Secy.Home Civil Secretariat,Lko.& 3 Others
Petitioner Counsel :- Ausaf Ahmad Khan
Respondent Counsel :- C.S.C.
Hon'ble Shabihul Hasnain,J.
Heard learned counsel for the parties.
Submission of learned counsel for the petitioner is that without any written order the police officials of the police station concerned have approached him and directed to deposit the fire arms for which he has got valid license issued by the competent authority and the period of the license is still continuing. He further submits that the police of police station concerned has approached and directed him to deposit the fire arms on account of certain orders passed by the District Magistrate in pursuance to the directions issued by the Election Commission.
Learned counsel for opposite parties submits that general direction has been given by the Election Commission of India with an expectation that the arms holders should deposit their arms in spite of having valid fire arms license. The Election Commission of India had directed the State Government to maintain law and order for peaceful holding of the election.
My attention has been drawn towards the judgment and order dated 25.01.2002 passed in Writ Petition No.241 (M/S) of 2002. The Court while deciding the said writ petition observed as under:-
"In view of the direction issued by the Election Commission of India and the law declared by this court, it is expected from the authorities that they shall not compel any license holders for fire arms to surrender their arms if they are not involved in any criminal case. It is also clarified that the State is free to take action against the persons who have released on bail, against the persons who are having criminal history and those who were earlier convicted or previously involved in rioting at the time of elections."
Considering the aforesaid observation, it is provided that in case the petitioner possesses valid arms license for his fire arm and no written order has been issued by the competent authority against him with the direction to deposit the arms, he shall not be compelled to deposit the arms. However, it shall be open for the opposite parties to proceed in accordance with law on case to case basis in case they feel that continuance of the fire arms with them shall be detrimental to public peace or law and order.
The writ petition is disposed of finally subject to the above noted terms.
Order Date :- 30.1.2012/RKM.
(3) HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No.21
Writ Petition No. 14434 of 2007
Uma Kant Yadav ...........................................Petitioner.
Versus.
State of U.P. Through Chief Secretary,
Govt. of U.P. and others. ................................Respondents.
Hon'ble Tarun Agarwala, J.
Heard Sri R.K. Yadav, Sri Rakesh Pandey, Sri B.P. Singh, Sri S.C. Pandey and Sri R.C. Yadav, and other learned counsels appearing for the petitioners at length and Shri J.K. Khanna, Sri B.N. Misra and Sri Waseem Alam, the learned Standing Counsels for the respondents.
Since the matter is one of urgency and no disputed facts are required to be considered, this group of petitions are being decided together, with the consent of the parties at the admission stage itself, without the exchange of counter or rejoinder affidavits. However, pursuant to the direction of the Court, the Standing Counsel has filed an application bringing on record the order of the State Government dated 11.2.2007 and the consequential order dated 6.3.2007 issued by the District Magistrate, Allahabad with regard to the deposit of fire arms during the ensuing general assembly elections.
The preamble to our Constitution seeks to give India a democratic Constitution which provides for holding free, fair and peaceful elections and to achieve this constitutional goal, the constitutional authorities as well as other authorities are empowered to take appropriate action by exercising its power either under the Constitution or under the existing laws.
Whenever, elections are announced, the authorities, in the past, have been issuing general directions with regard to the deposit of fire arms during the election period. The compliance of these directions had become a bone of contention by the law abiding citizens, who refused to surrender the weapons for various reasons. It has been noticed that whenever the election process started, a large number of writ petitions were filed praying that the authorities should be restrained from compelling the petitioners from depositing their weapons. Various directions had been issued by the Court directing the authorities not to force the licence holders from depositing their weapons. Inspite of these directions, the State Government comes out with another ingenuous method for the compulsory deposit of arms which has no authority or sanction of law.
In Mohd. Arif Khan and others vs. District Magistrate, Lucknow and others, 1994 A.C.J 315, a Division Bench of this Court, while quashing the order of the District Magistrate passed under Section 144 Cr.P.C. for depositing of the fire arms held, that it was based on the directive of the Election Commission and was not based on the own opinion of the District Magistrate and consequently suffered from the non application of the mind. The Court held that the power to take action under Section 144 Cr.P.C. was discretionary and the same had to be exercised in accordance with law. The Court further found that if any action was required to be taken under the said provision, the authority was required to consider the material facts of the case and form a bonafide opinion on relevant consideration as to whether there was a sufficient ground for proceeding under that Section and whether immediate prevention or speedy remedy was desirable. The Court further found that if the authority found that such a situation existed, in that eventuality, the authority could direct any person to abstain from doing a certain act but could not pass a general order for depositing the fire arms.
Subsequently, the Court in Shahabuddin and others vs. State of U.P. And others, 2000 (38) A.L.R. 44 issued a mandamus directing the State Authorities not to compel the licence holders to deposit the firm arms on the basis that elections are going to be held in the near future. Similar direction was again issued in Mohd. Arif Khan and others vs. State of U.P. and others 2002 A.C.J. 586.
In Ram Hit Vs. State of U.P. and others, 2000 (40) ALR 281, the Court held that the authority cannot compel a citizen to deposit the fire arms unless there was a specific order by a competent authority under the Arms Act.
In Israr Khan Vs. State of U.P., 1996(27) ALR 198, the Court held that the weapon could only be deposited in accordance with law as contemplated under the Arms Act and that the weapon could not be deposited under an oral order of the Station House Officer.
In Pandhari Yadav vs. State of U.P. And others, 2004 A. L.J. 2246, the Court held that the retention of the fire arms was essential to the preservation of the life and property of the licence holder.
In Shesh Nath Nayak vs. District Magistrate, Sant Kabir Nagar and another, 2004 (5) AWC 4675, a single judge of this Court held that even though the Election Commissioner could issue orders directing the District Magistrate to get the fire arms deposited as a preventive measure for conducting free and fair election, nonetheless, the deposit of the fire arms could only be sought through legitimate means, i.e., on a review of each individual case on objective assessment.
In Yaduvir Singh Chauhan vs. District Magistrate, Etah and other, 1993, A.C.J 1312, this Court quashed the notification of the Election Commissioner as well as the order of the District Magistrate with regard to the deposit of fire arms of the valid licence holders. Similar view was reiterated in Shri Narayan Shukla and another vs. District Magistrate, Allahabad and others decided on 12.1.1996 in Civil Misc. Writ Petition No.12755 of 1996.
Inspite of the aforesaid directions, upon the announcement of the ensuing Assembly elections, a bunch of writ petitions have again been filed alleging that the State Administration has issued some orders for the deposit of the weapons and based on such orders, the Station House Officer was compelling the petitioners and other law abiding citizens to deposit the fire arms.
In this bunch of the writ petitions, the petitioners before the Court is a Member of Parliament, a Member of Legislative Assembly, a Doctor, an Advocate, a farmer , a businessman, a prospective candidate in the ensuing election, a Security Guard, a Central Government Employee, etc. Some of the writ petitioners have approached this Court contending that they are valid licence holders of the fire arms and could not be compelled to deposit their arms on the basis of some general orders being issued by the Administration. Some of the petitioners have alleged that the licence was granted to them because of the danger to their life and property. Another petitioner has approached this Court contending that he is a security guard and that he is required to carry the fire arms as part of his employment. Another petitioner has contended that in the last election his brother was shot dead by a rival candidate and that he was also seriously wounded, and therefore requires the weapon to protect himself. There is yet another petitioner, who has approached this Court contending that as a law abiding citizen he had deposited the weapon in the last election as per the direction of the Administration and the Station House Officer, and that the Station House Officer refused to hand back the weapon to him after the elections were over. The weapon was only released when a mandamus was issued by the High Court in his petition. The petitioner contends that he does not want to undergo the same harassment again.
All the petitioners, by and large, contend that no sweeping orders could be issued by the Administration for depositing the fire arms. The petitioners contend that they are law abiding citizens and that no criminal cases are pending against them nor have they misused their weapons. It was urged that no orders had been passed either suspending their licence nor any orders had been passed cancelling their licence under the Arms Act, and therefore, the petitioners cannot be compelled to deposit the fire arms merely because the Assembly election were going to be held in the near future. The petitioners have further contended that no notice has been issued for depositing the fire arms. A learned Advocate of this Court submitted that only yesterday he had heard an announcement on a loudspeaker directing the citizens to deposit the fire arms at the local police station. The counsel submitted that such general orders could not be issued by the local Administration.
This Court had directed the Standing Counsel appearing on behalf of State of U.P. and the local administration to seek necessary instructions.
The Standing Counsel has filed an application today bringing on record an order dated 11.2.2007 issued by the Chief Secretary and the Director General of Police directing all the District Magistrates and other officers for compliance of various directions in the ensuing Assembly elections. Para 6 of this order pertains to the deposit of the fire arms, in which the State Government has directed the authorities to reappraise the fire arms licence issued by them and take appropriate action for the deposit of fire arms, suspension or cancellation in accordance with the provisions of law, where it was found that the licence holder was likely to misuse the weapon.
In my view, the aforesaid direction of the State Government as contained in paragraph No.6 of its order dated 11.2.2007 is in consonance with the provision of the Arms Act and in accordance with the directions issued by this Court, from time to time, in various judgments but, based on this direction, the District Magistrate, Allahabad has issued a further direction in paragraph No.10 of its order dated 6.3.2007 directing the Station House Officer to submit a certificate indicating therein that he had made all the licence holders in his jurisdiction to deposit the weapon where in his opinion, the licence holder was likely to misuse the weapon during the election period. This portion of the order has given unlimited power to the Station House Officer pressurising the law abiding citizens to deposit their weapons. The question, at this stage, to be considered is, whether such an omnibus order could be issued by the District Magistrate to the Station House Officer for depositing the weapons? Can the District Magistrate issue a direction to the Station House Officer to exercise his discretion for depositing the fire arms ?
In my view, the direction issued by the District Magistrate, as contained in paragraph No.10 of its order dated 6.3.2007 is totally illegal and unwarranted. Such power cannot be delegated to the Station House Officer. Under Section 21 of the Arms Act, 1959, a fire arms could be deposited under certain conditions mentioned therein. The arms licence can be suspended or cancelled under the provision of Arms Act by a competent authority and while passing such an order, the authority could direct the licence holder to deposit the weapon. Even under Section 144 Cr.P.C., the competent authority has to apply his mind and exercise its discretion before issuing an order of restraint. Such power, under the Arms Act or under any other statutory provision is required to be exercised by a competent authority and such power cannot be delegated to another person, especially to a Station House Officer.
Undoubtedly, the arms licence is issued under the Arms Act. There exists a provision for the revocation, suspension, cancellation and for the deposit of the fire arms. Action, if any, for the deposit of the fire arms is required to be taken under the Arms Act. The District Magistrate or any other authority could not seek the deposit of the fire arms without initiating action under the Arms Act.
Consequently, this Court is of the opinion that the direction given by the District Magistrate to the Station House Officer for depositing the fire arms from the licence holders was wholly illegal and unwarranted. The said direction as contained in paragraph No.10 of the order of the District Magistrate, Allahabad dated 6.3.2007 cannot be sustained.
In view of the aforesaid, these writ petitions are being disposed of with the following directions;
(i) The direction contained in the order of the District Magistrate, Allahabad dated 6.3.2007 to the Station House Officer for the deposit of the fire arms from the licence holders is quashed.
(ii) A mandamus is issued to the respondents and its authorities, including the Station House Officer, not to compel the petitioners and other licence holders to deposit their fire arms unless,
(a) A review and objective assessment is made in individual cases by the competent authority, as directed by the State Government in its order dated 11.2.2007 and
(b) if it is found by the competent authority that there is a chance of the misuse of the weapon, an appropriate order in writing is required to be passed by the competent authority for the deposit of the fire arms.
(c) The order of the deposit of the weapon made by the competent authority in writing should be communicated to the licence holder.
(d) The directions contained aforesaid will apply not only for this election but for all elections.
A certified copy of this order shall be made available to the parties on payment of usual charges within four days from today. The registry is also directed to supply a certified copy of this judgment to Sri J.K. Khanna, the learned Standing Counsel within the same period, who shall immediately forward it to the Chief Secretary of the State of U.P., for necessary communication to all the authorities in the State of U.P., for immediate compliance.
Dated: 23.3.2007 SFH
(4) IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.835 OF 2009
Govind @ Bhai Ganesh Tilve, residing at 187/A, Ganesh Niwas at Nirukhe Wadi, Post Kolgaon, Taluka Sawantwadi, Dist. Sindhudurg, Maharashtra.... Petitioner
Versus
1. Vikram Kumar, District Magistrate, Sindhudurg, Maharashtra.
2. The State of Maharashtra )
3. Election Commission, represented by Union of India, having office at Aayakar Bhawan, Mumbai.... Respondents
Mr. S.R. Chitnis i/b Mrs. V.R. Raje for the petitioner.
Mr. S.R. Borulkar, Public Prosecutor with Ms. U.V. Kejariwal, A.P.P. for the State.
Ms. Heena Shah with Mr. H.V. Mehta for Union of India.
Mr. Pradeep Rajagopal with Mr. Malar Manoharan i/b Ms.
Rekha Rajagopal for respondent 3.
CORAM : SMT. RANJANA DESAI &
R.G. KETKAR, JJ.
DATE ON WHICH THE JUDGMENT IS
RESERVED : 30TH JUNE, 2009.
DATE ON WHICH THE JUDGMEMT IS
PRONOUNCED : 10TH JULY, 2009.
JUDGMENT.:- (Per Smt. Ranjana Desai, J.)
1. Rule. The respondents waive service. By consent of the parties, Rule is made returnable forthwith.
2. The petitioner claims to be a social worker. He has agricultural lands at Kolgaon, Taluka Sawantwadi, District Sindhudurg. The petitioner has an arms licence issued by the District Magistrate, Sindhudurg, who is respondent 1 herein. The said licence is renewed upto 31/12/2011. The said licence has been granted for the protection of the petitioner’s agricultural lands.
3. The petitioner received notice dated 17/3/2009 issued by the 1st respondent. The notice stated that the Police Superintendent Sindhudurg had brought to the notice of the 1st respondent that Election Commission has declared election programme for parliamentary elections and, therefore, it is necessary to pass order under Section 144 of the Criminal Procedure Code (“the Code”) directing that persons who have arms licence should not be allowed to possess or move around with arms during the elections to ensure that fearless atmosphere is created during elections. The notice further stated that the 1st respondent is also of the confirmed opinion that it is necessary to restrain arms licence holders from
possessing and carrying arms during parliamentary elections to prevent attempt to create fear in the minds of the voters by use of arms through personal and political feuds and to ensure that elections take place in peaceful, fearless and just atmosphere so that people exercise their right to vote fearlessly. The notice further stated that in the circumstances order under Section 144 of the Code is issued banning arms licence holders from possessing or moving around with arms between 1/4/2009 to 23/5/2009. The notice directed all arms licence holders in Sindhudurg to surrender their arms at the nearest police station on or before 1/4/09. In this petition the petitioner has challenged the said notice (“impugned notice” for
convenience).
4. This petition along with other petitions was heard by us prior to elections. The information sought by us was not furnished by the Election Commission and, therefore, the petitions could not be disposed of prior to elections. We could have disposed of the petitions as infructuous as elections are now over, but we cannot do so because prosecutions have been launched against the petitioners in some of the petitions for not having abided by the direction to surrender arms which is impugned in these petitions. The contentions raised by the petitioners will have to be, therefore, considered. Besides the petitions raise certain important points which need to be dealt with.
5. Before we deal with rival contentions it must be noted that in the petition a solemn statement is made that the petitioner is a social worker and he does not fall in any of the categories laid down by the Election Commission in its letter dated 13/3/96 which is referred to in the impugned notice. The three categories laid down in the letter dated 13/3/96 are
(a) persons released on bail,
(b) persons having history of criminal offences and
(c) persons previously involved in rioting at any time but especially during the election period. An impression is, therefore, created that the petitioner has no antecedents.
Affidavit-in-reply has been filed by Shri Nandgaonkar, Residence Deputy Collector. Shri Nandgaonkar has stated in the affidavit that CR No. 54/2008 under Sections 143, 147, 342, 353, 323, 427, 504 and 506 of IPC was registered against the petitioner at Sawantwadi Police
Station. The petitioner was arrested in the said case and released on bail. The said case is pending trial. It is further stated that CR No. 06/1995 was registered against the petitioner under Section 188 of the IPC. In that case the petitioner was acquitted. It is also stated that Chapter Case being Case No. 55 of 2008 was initiated against the petitioner and others under Section 107 of the Code. We are distressed to note that there is not a whisper about
the above cases in the petition. On the contrary the petitioner has made false averments to misguide this court. We deprecate this conduct of the petitioner.
6. The petitioner has assailed the impugned notice on several counts. According to the petitioner having regard to the provisions of the Arms Act 1959 (“Arms Act”) the 1st
respondent could not have initiated action under Section 144 of the Code. It is the petitioner’s case that Section 17 of the Arms Act provides for surrender of licence. Therefore, order issued by the 1st respondent under Section 144 of the Code is without authority of law. Respondent 1 is not conferred with any such powers under the Arms Act and hence resort to Section 144 of the Code is uncalled for. The petitioner has placed reliance on judgment of the Division Bench of this Court (Pandya & Parkar, JJ.) in Ramakant Ovalekar v. R. N. Pradhan, Criminal Writ Petition No. 62 of 1995 and other companion writ petitions decided on 15/7/99 and judgment of this court in Ganesh Thakur v. Sr. Inspector, Boisar Police Station, Thane & Ors. 2000 ALL MR (Crim.) 928.
7. Mr. Chitnis, learned Senior Counsel for the petitioner reiterated all the submissions urged in the petition. Mr. Chitnis submitted in Ramakant Ovalekar’s case in similar circumstances this court quashed the order directing surrender of arms relying on judgment of this court in Maharashtra Wine Merchants Association & Ors. Etc. The State of Maharashtra, AIR 1992
Bombay 3. It is urged in the petition and also argued byMr. Chitnis that in Ramakant Ovalekar’s case it is held that under the rules framed under the Arms Act, licence cannot be taken away without there being power under the Arms Act and respondent 1 could not have taken away licence under Section 144 of the Code.
8. We tried hard to find out any such exposition of law in the judgment in Ramakant Ovalekar’s case. We could not locate it. In any case reliance placed on this judgment is wholly misplaced. In this case the Division Bench has referred to the judgment of learned Single Judge (Dhanuka, J.) in Maharashtra Wine Merchant’s case. It is pertinent to note that Justice Dhanuka has not decided any issue finally. He has merely issued Rule and granted interim relief. All observations made by Justice Dhanuka are of an interim nature. Mr. Chitnis has not been able to tell us what was the final order passed in Maharashtra Wine Merchant’s case. Morever while relying on Maharashtra Wine Merchant’s case, in Ramakant Ovalekar’s case, the Division Bench has observed that Justice Dhanuka has struck down the Election Commissioner’s Order ordering closure of wine shops during election period. With respect, we must observe that this is an incorrect observation because Justice Dhanuka has merely observed that prima facie the said order is ultravires and has stayed it pending disposal
of the writ petition. In Ramakant Ovalekar’s case the Election Commission was not represented by any lawyer. It is unfortunate that the above facts were not pointed out
to the Division Bench by learned counsel for the petitioner or learned APP. In our opinion, since judgment of this court in Ramakant Ovalekar’s case proceeds on a wrong assumption and it is solely based on an interim order, the petitioner cannot draw any support from it.
9. We shall now come to the judgment of this court in Ganesh Thakur’s case. In that case the petitioner had challenged the order issued by the State directing him to surrender arms during election period. The said order was based on the Election Commission’s letter dated
13/3/96 which is referred to in the impugned notice. This judgment, therefore, has relevance to the present case.
10. It is necessary to reproduce relevant paragraphs of the Election Commissions letter dated 13/3/96. “In exercise of the powers conferred on the Commissioner under Article 324 of the
Constitution of India and all other powers enabling it in this behalf and in supersession of
all other instructions, the Commission hereby orders that the following instructions shall be
observed during all future elections;
1. Issue of licence for arms will be totally prohibited during the period commencing with the date of announcement of elections. This ban will continue to be operative till the completion of the election as notified.
2. The police should be directed to be vigilant and asked to start mopping up operations of the areas infested with known goonda and other bad elements right from the date of announcement of elections. During such mopping up operations special attentions should be paid to unearth and seize unlicensed arms and ammunition. A very thorough search and seizure by the State Police of unlicensed arms and places of indigenous manufacture of arms and ammunition shall be carried out and persons involved shall be arrested. While unearthing and seizure of unlicensed weapons is a normal ongoing responsibility of the police, it shall be vigorously intensified during the election period. Inter-state and intra-State movements of trucks and commercial vehicles shall be strictly checked with a view to preventing smuggling of arms and ammunition and anti-social elements. Raids should be carried out regularly and intensively on underground arms factories.
3. 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.
(1)persons released on bail;
(2)persons having a history of
criminal offences; and
(3)persons previously involved in rioting at any time any but especially during the election
period. (The above categories are only illustrative and notexhaustive).
4. After such review, all such licenceholders who are identified, shall be directed to
deposit their arms with the District Administration during the period of one week from the last date for withdrawal of candidatures.
5. The District Administration shall make foolproof arrangements for keeping the deposited fire arms in safe custody. Proper receipt must be given to the licence holders depositing the fire arms. It shall be the bounden duty of the District Administration to ensure that all fire arms deposited with the Administration are returned to the licence holders immediately after one week after the declaration of results.
6. Prohibitory orders under Section 144 of the Criminal Procedure Code, 1973, shall be issued banning the carrying of licensed arms as soon as an election is announced and should be effective till the declaration of results.”
11. This order is issued under Article 324 of the Constitution of India which vests Superintendence, direction and control of elections in the Election Commission. Under clause 6 a direction is issued that prohibitory orders under Section 144 of the Code be issued banning the carrying of licensed arms as soon as an election is announced and should be effective till declaration of results. It is pursuant to this direction that order under Section 144 of the Code is issued by the 1st respondent. Therefore, we unhesitantly reject the submission that because Section 17 provides for surrender of licence, the 1st respondent could not have issued order under Section 144 of the Code or that the 1st respondent has not been entrusted with any powers under the Arms Act. The Election Commission and at its instance the 1st respondent have followed the Constitutional mandate and they cannot be faulted for it. In Ganesh Thakur’s case this court has taken a similar view.
12. We shall now come to the most crucial aspect of the case. Clause 3 of the letter dated 13/3/96 directs that immediately after the announcement of the elections,District Magistrate shall make a detailed and individual review and assessment of all license holders so that licensed arms in those cases where they consider it essential are impounded in order to ensure maintenance of law and order during elections (emphasis supplied).Clause 3 gives cases which need to be reviewed. Clause 4 states that after such review all such license holders who are identified, shall be directed to deposit their arms. Implicit in this is the restriction imposed on the District Magistrates not to arbitrarily direct all arms licence
holders to deposit their arms with the district authorities. Review is mandatory to identify cases where it is essential to impound arms so that only those persons can be directed to surrender arms. A law abiding citizen to whom a licence to possess arms is issued for his safety may take an order directing him to surrender his arm as an affront to his dignity and status. In Ganesh Thakur’s case admittedly no such review and assessment was made and
the petitioner therein was directed to surrender the arms. This court, therefore, set aside the direction and ordered that “as and when necessary during the period of election, if the powers are to be exercised in respect of the fire arms under Section 144 of the Code as per the Election Commission’s guidelines, the Screening Committee shall be formed and after categorizing the three classes referred to in the guidelines the action as per the said
guidelines shall be taken”.
13. Affidavit-in-reply has been filed on behalf of the Election Commission by Shri Channe, Deputy Secretary and Joint Election Officer Maharashtra State. He has clarified in his affidavit that for the Lok Sabha elections of 2009, the directives in force are dated 24/3/2009 and 1/4/2009 which are the same as directives contained in letter dated 13/3/96. Copies of the said directives are annexed to the affidavit. After comparing them, we find that material clauses of all these directives are the same. Shri Channe has referred to the judgment of this court in Ganesh Thakur and stated that as per the said judgment Screening Committee has to carry out review of all arms licences and it is only thereafter that the District Magistrate may order the deposit of arms. Mr. Channe has stated that that is the intention of the instructions issued by the Election Commission of India.
14. In his affidavit Shri Nandgaokar, Residence Deputy Collector has stated that a Screening Committee was formed under the Chairmanship of Collector. Superintendent of Police, Sindhudurg, Additional Superintendent of Police, Sindhudurge, Additional District Magistrate Sindhudurg and Deputy Election Officer Sindhudurg were members of the said Committee. It is further stated that the Screening Committee held meetings on 23/3/2009 and 26/3/2009 in which applications pertaining to return of arms were scrutinized and some of the arms were returned. There is no categorical statement that the Screening Committee first reviewed the cases and then called upon arms licence holders to deposit arms. The course adopted by the 1st respondent is, therefore, contrary to the directives issued by the Election Commission and contrary to the judgment of this court in Ganesh Thakur’s case. The impugned notice dated 17/3/2009 will have to be therefore, set aside and is accordingly set aside qua the petitioner.
15. A grievance was also made before us that the arms which are surrendered are not kept in safe custody. They are dumped in the police station and in the process they get damaged. This is denied by the respondents. In this connection, we may only remind the respondents that the directives issued by the Election Commission state that the District Administration shall ensure that foolproof arrangements are made for keeping the deposited arms in safe custody. Some of the arms are very expensive. Fear expressed before us is justified. We expect the respondents to ensure that the arms are kept in safe custody so that they are not damaged.
16. Before we close, we must express our extreme dissatisfaction about the manner in which the 1st and 2nd respondents have ignored the directives issued by the Election Commission and the judgment of this court in Ganesh Thakur’s case. Several orders issued for the same purpose were set aside during last elections on the ground that Screening Committee was not in place and there was no prior review and assessment of arms licence holders. Once again similar mistakes are committed. There appears to be a lack of coordination and communication between the Election Commission and the State and its officers. The State has not perhaps, understood the significance of the Election Commission’s directives. Such approach may lead to unsavoury incidents during elections. The Election Commission must
ensure that its directives are adhered to strictly by the State and its officers. The Screening Committees must be in place. The review and assessment of arms licence holders must be done post haste and then notice must be issued to the shortlisted arms licence holders to deposit arms. In deference to Article 324 of the Constitution the Election Commission must supervise the steps taken by the State and reprimand those who do not abide by its directives.
17. Since the need to direct licence holders who fall in the categories mentioned in the directions of the Election Commission arises at the time of every parliamentary election and the experience has shown that review and assessment of arms (“screening” for convenience) is not done by the Scrutiny Committees in terms of the directives of the Election Commission and as per the judgment of this court in Ganesh Thakur’s case, which leads to setting aside of almost all the orders directing deposit of arms which is likely to jeoperdise peaceful
holding of elections Mr. Rajgopal, learned counsel for the Election Commission of India has requested this court to lay down guidelines. In fact after consulting the Election Commission and the State Authorities, Mr. Rajgopal and Mr. Borulkar, learned Public Prosecutor have given us time-frame, which the Election Commission of India desires, should be laid down by us for the Screening Committees to abide by. We have taken on record a copy of the letter addressed by the Election Commission of India to Mr. Rajagopal dated 29/6/2009 and marked it ‘X’. We are informed that the Election Commission of India desires that Scrutiny Committees should be in place. Mr. S. R. Chitnis, learned Senior Counsel and all other counsel also requested us to translate the Election Commission of India ‘s suggestions into guidelines.
18. In the circumstances, we lay down the followingguidelines:
a) There shall be a Screening Committee in every District and in everyCommissionerate 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 and Joint/Additional Commissioner of Police(Admn.)
b) The Screening Committee shall commence the work of screening from the day of declaration of dates of election by the Election Commission.
c) Cases of all the licence holders as laid down by the Election Commission in its directive shall be placed before the Screening Committee. The categories are;
i) persons released on bail;
ii) persons having a history of criminal offences; and
iii) persons involved in rioting at any time but especially during the election period. The
Screening Committee shall bear in mind that the above categories are only illustrative and not exhaustive.
d) The Screening Committee shall complete the exercise of screening in respect of licences placed before it as far as possible before the 1st date of filing of nominations.
e) 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 the arms as directed would result in prosecution under Section 188 of the I.P.C. as stated in clause (h).
f) 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.
g) The decision taken by the Screening Committee shall be final.
h) Any licence holder who fails to deposit arms within the period specified above shall be liable for prosecution under section 188 of Indian Penal Code.
i) All the arms so deposited with the administration be returned to the licence holder within a period of one week after declaration of election results.
j) The above time-frame should be adhered to as far as possible.
19. The guidelines state that the time-frame should be adhered to as far as possible, obviously to ensure that the object behind issuing guidelines is not defeated and the entire exercise is not questioned because of minor deviation in the time-frame. But that does not absolve the officers who upset the time-frame. We make it clear that if the above time-frame is not abided by, the competent authority shall take action in accordance with law against the erring officers.
20. The petition is disposed of.
[SMT. RANJANA DESAI, J.]
[R.G. KETKAR, J.]
"If my mother tongue is shaking the foundations of your State, it probably means that you built your State on my land" - Musa Anter, Kurdish writer, assassinated by the Turkish secret services in 1992
