The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No.2625 of 2024 ---- Ranjeet Singh son of Sri Mahesh Singh, resident of Quarter No. A 18/102, DVC Township, KTPS, Bajhedih, PO PS Koderma, District Koderma (Pin 825421). … Petitioner -versus- 1. The State of Jharkhand. 2. Deputy Commissioner, Bokaro. 3. Election Commission of India through the Chief Electoral Officer having Office at Nirvachan Sadan, Ashoka Road, P.S. P.H.Q., P.O. Sansad Marg, New Delhi 110001. … Respondents ---- CORAM : SRI ANANDA SEN, J. ---- Mr. Utkarsh Krishna, Advocate Mr. Pratyush Shounikya, Advocate For the Petitioner : For the Respondents : Mr. Rahul Saboo, G.P. II ---- 4/ 17.05.2024 Heard learned counsel for the petitioner and learned counsel for the State-respondents. 2. Mr. Rahul Saboo, learned G.P.II appearing for the State- respondents takes a preliminary objection that since the petitioner has already deposited the arms in Koderma, coupled with the fact that the Deputy Commissioner, Koderma has not been made a party, and further the Election Commission of India has not responded, this writ petition be dismissed. 3. I find no merit in the preliminary objection. So far as depositing the arms is concerned, the same will not make the writ petition infructuous because if an impugned order, after adjudication is held to be bad in law, all consequent action to the said order will be treated to be null and void. So far as non-responding by the respondent-Election Commission of India is concerned, I find that this case is being heard for three dates now. Though the Election Commission of India is a party to the writ petition and copy of this writ petition has also been served to the concerned counsel for the respondent-Election Commission of India and even the name of the counsel is being reflected in the cause list, yet the said respondent has not chosen to appear. This Court cannot await for indefinite period and defer this case awaiting their appearance. Thus, this order is being passed exparte qua Election Commission of India is concerned. 1 Further, I hold that the Deputy Commissioner, Koderma is not a necessary party to this writ petition because the impugned order, which has been passed is by the Deputy Commissioner, Bokaro and arms licence of the petitioner was issued by the authorities at Bokaro, who are parties before me and have filed their reply. 4. I have heard the counsel for the parties on merit and have perused the records.
Legal Reasoning
The petitioner in this writ application has challenged the office 5. order dated 16th March 2024 issued by the Deputy Commissioner, Bokaro whereby all the Police Stations, Block Development Officers and other authorities have been deputed as Magistrate to verify all the arms for which the licences have been issued by the Competent Authority and a direction has been given to deposit the said arms with the concerned Police Stations or the places notified by the Authorities. Further prayer has been made to quash the direction by which all the license holders of the arms were directed to deposit their arms in the concerned Police Station and in the event of failure a direction has been given that they would be prosecuted. A prayer has also been made to release the licenced arms of the petitioner, which he has already deposited. 6. The main grievance of the petitioner in this writ petition is that by virtue of the aforesaid directions, the petitioner who is a valid arms licencee and is possessing firearms on the strength of the said licences, has been directed to deposit the said arms with the State authorities during the period of the forthcoming National Parliamentary Elections. The petitioner contends that he is holder of arms licence and possesses firearm, details of which is as under: – (i) License Local No. 0001/2007 (ii) License No. LN 163131A7A13320 issued on 17.01.2007 valid upto 31.12.2026. (iii) License retain reason self protection (iv) Area valid – All India. Weapon detail: - (i) Weapon No. INCMTG 22210007545. (ii) Weapon category permissible. (iii) Weapon type pistol as for personal use. (iv) Rifle bearing license No. LN 16313A7A12721 2 (v) License Local No.001/2004 dated 28.06.2004 valid from 7.6.2019 upto 31.12.2021. (vi) License retain reason self protection Area valid – All India Weapon No.4363270 Weapon Type – Rifle. Weapon category – permissible. 7. The petitioner is a Class I Officer working under the Ministry of Power, Government of India and at present he is posted as DGM in the Damodar Valley Corporation at Koderma. He is residing in the Housing Colony provided by DVC which is 15 km away from the local Police Station. Though CISF personnel are deployed but their strength has reduced due to the ensuing Parliamentary Elections. It is his contention that he has kept those firearms which are duly licensed, for his safety and security. 8. The Deputy Commissioner of Bokaro issued an office order on 27th March, 2024 (Annexure 4) whereby a direction has been given to all the valid licensees, who were holding arms on the basis of arms license, to deposit their arms at the local Police Station, Police Centre or with the authorised Arms Dealer. It has also been mentioned in the aforesaid notice that if the arms are not deposited by 4th of April, 2024 appropriate action would be taken as per the Arms Rules and proceeding would be initiated to cancel the arms license. The petitioner prayed for exemption but considering the deadline fixed by the authorities, he deposited the arms on 27.03.2024 before the authorised officer by abundant precaution. 9. It is the contention of the petitioner that no blanket order could have been passed by the Deputy Commissioner directing all the arms licensees to deposit their firearms without proper screening. His contention is that an appropriate procedure should have been followed and only those, who are imminent threat to the free and fair elections, should have been directed to
Legal Reasoning
deposit their arms. He argues that the Screening Committee, which has been constituted, in a mechanical manner issued sweeping blanket direction, which is impermissible. He argues that the impugned direction and the action which is being taken by the State Authorities are not in consonance with the direction/guidelines issued by the Election Commission of India. The direction and guidelines issued by the Election Commission of India has not been followed in true perspective, rather a new method has been adopted by the 3 Respondents wherein a blanket direction has been given to all the license holders to deposit their arms. This direction is solely based on assumption and presumption that all the licencee firearm holders are capable of disturbing the election process, thus all of them be directed to deposit their arms, which is illegal. This procedure adopted by the Respondents is unknown to law and is a draconian act of the Respondent which needs to be struck down. 10. The counsel appearing on behalf the State-respondents, by referring to the Counter Affidavit, submits that all these actions are being taken to ensure free and fair elections. One way to ensure free and fair election is to maintain peace and avoid any unwarranted interference. It has been argued that Election Commission of India vide their letter No.464/INST/EPS/2023/ L&O dated 8th June, 2023 directed to ensure maintenance of law and order and to conduct free and fair elections for which arms are to be impounded. Since the General Elections 2024 was notified on 16.03.2024, the Screening Committee meeting was held on 16th March, 2024 and after scrutiny the committee took a decision that an order for arms verification be issued and order be passed to deposit the arms, except where representation is made by a licensee, which can be considered on case to case basis. After the orders were passed some exemption applications were received and out of 1136 live licenses, 76 were exempted. 901 licensees deposited the arms whereas 159 did not respond, thus their licenses were cancelled. The State accepted that the petitioner deposited his arms at Police Line Koderma on 27.03.2024. It is the contention of the State that in compliance of the order/guidelines passed by the Election Commission of India the decision was taken which needs no interference. 11. After hearing the counsel for the parties I find that the main issue involved in this writ petition is (i) whether the respondent authority can pass a blanket order directing all the licensees holding firearms license to deposit their firearms with the Respondent authorities or with the authorised Arms Dealers during the period of the forthcoming National Elections; and (ii) whether the direction issued by the Respondent State is in accordance with guidelines and direction issued by the election commission of India in relation to depositing firearms. 12. From the impugned order, I find that a blanket order has been issued by the District Authority directing all the licensees to produce the firearms for inspection and thereafter to deposit the same with the Police 4 Authorities or with the approved Arms Dealer. The impugned order doesn’t differentiate between any arms licencee rather it takes in its sweep all the license holders irrespective of their status and background. All the arms licensees have been put in one basket without any differentiation. This, according to the State, has been done to ensure free and fair elections. It is the contention of the State that they had issued the aforesaid order pursuant to the direction given by the Election Commission of India. For better appreciation, I am dealing with the directions issued by the Election Commission of India in this respect. The letter of the Election Commission of India has been brought on record by the State. The same is annexed as Annexure A of the Counter Affidavit. The said letter is dated 8th June, 2023. The subject of the letter reads as follows: – Subject : Measures related to Law & Order for conduct of peaceful, free and fair General / Bye Elections – Consolidated Instruction - regarding In the aforesaid letter there are directions in respect of ban on carrying of licensed arms, ban on issue of license of arms, seizure of unlicensed arms and ammunitions, deposit of licensed arms, transportation of arms and ammunitions and display of arms, on amongst other directions. In this writ petition we are concerned with Clause F of the direction which relates to deposit of licensed arms. For better appreciation the entire directions is quoted hereinbelow:- “F. DEPOSIT OF LICENSED ARMS (i)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 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 and conduct of free and fair elections. The cases which may need inter alia special review are: (a) Arms licence of persons released on bail (b) Arms licence of persons having a history of criminal offences, and (c) Arms licence of persons previously involved in rioting at any time but especially during the election period. (d) Arms license of persons involved in election offences of any kind; (ii) The Hon’ble High Court of Bombay in CWP No.835 of 2009 (Sh Govind Vs. Vikram Kumar, Distt Magistrate & Others) vide order dated 10th July 2009 had laid down procedure for review and assessment of all license holders, which needs to be followed scrupulously, as follows: (a) There shall be a Screening Committee in every District and in every Police Commissionerate area. In the District, the Screening Committee shall consist of the District Magistrate and the Superintendent of Police. In the Commissionerate 5 area, it shall consist of the Commissioner of Police and Joint/Additional Commissioner of Police (Administration). (b) The Screening Committee shall commence the work of screening of all arms licenses from the day of announcement of election by the Election Commission and it shall complete the exercise of screening, as far as possible, before the date of issue of notification of elections. report (d) On (c) Cases of all license holders as mentioned in above para-F(i) shall also be placed before the Screening Committee. receipt of the Screening Committee, the licensing authority shall issue notice before the last date fixed for withdrawal of candidature to the individual license holder for depositing his arms and inform to the license holder that failure to deposit the arms as directed would result in prosecution under Section 188 of the Indian Penal Code. from (e) The licence holders, thereafter, shall deposit their arms forthwith and in any case within a period of seven days from the date of receipt of the notice. (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. (iii). The District Administration or Commissioner of Police shall ensure fool proof arrangements for keeping the deposited firearms in safe custody. Proper receipt must be given to the licence holders depositing their firearms. District Administration or the Commissionerate of Police shall ensure that all firearms deposited are returned to the licence holders immediately after one week of the date of declaration of results. (iv). Sportsmen who are the members of National Rifle Association, at different levels and have to participate in various sporting events in which they use their rifles, will be exempted from these restrictions. This ban shall also 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 person, even from 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 such cases also, the seized firearms shall remain impounded till one week after the declaration of results.” 14. From the aforesaid guideline it is clear that the District Magistrates are duty-bound to make a detailed and individual review of all license holders so that in those cases, where the District Magistrates consider it essential, will impound the arms licence in order to ensure maintenance of law and order for conducting free and fair elections. In the aforesaid guideline, some special cases are highlighted, i.e., those arms licencees, who were released on bail, who have history of criminal offence, licensees previously involved in rioting, 6 specially during election, or arms licencee who are involved in election offences of any kind. Thus, from the aforesaid guidelines issued by the election commission I do not find any direction which directs for issuing blanket order for depositing of all licensed firearms with the State authorities or any authorised Arms Dealer. 15. Further considering the order passed by the High Court of Bombay in case number CWP No. 835 of 2009 (Sh Govind Vs. Vikram Kumar, Distt. Magistrate & Others), the Election Commission issued guidelines of forming a Screening Committee in every District and in every Police Commissionerate area. The composition of the Committee has also been mentioned in the aforesaid guidelines. As per the said guidelines the duties casted upon the Screening Committee is to screen all arms licences individually and submit a report to the Licensing Authority. The Licensing Authority will thereafter issue individual notices for depositing arms to the license holders. The issuance of individual notice leads to the only conclusion that each individual cases have to be evaluated and judged on individual merits of each licencee as to whether in each individual cases it is necessary to give direction to the license holders to deposit their firearms or not. Thus from the guidelines it is clear that there is no concept in the entire guidelines to direct each and every license holder to deposit their firearms. 16. Admittedly, the State had issued a blanket order. By issuing a blanket order the State not only misread or misinterpreted the guidelines issued by the Election Commission of India, but they had also clubbed different categories of licencee as one, which they could not have, as licencee who is involved in any criminal case or because of some of his actions he becomes a threat to the free and fair elections, cannot be equated with a law- abiding arms licencee against whom no one, even the State has got any complaint. This category of citizen, who are law-abiding and against whom there is no complain. cannot be equated with the other categories. 17. From the Counter Affidavit and the documents annexed therewith I find that the Screening Committee has not undertaken the exercise in proper perspective and in terms of the guidelines issued by the Election Commission of India. They have not undertaken any exercise to scrutinise each and every licencee. As per the guidelines they had to scrutinise each and every licencee and to come to a finding in each individual case as to whether there is imminent threat from their part which would hinder free and fair elections or 7 there would be a law and order problem from their side if their arms are not directed to be deposited with the authorities. After scrutinising each individual arms licencee, the Screening Committee, on basis of materials must come to a conclusion that the individual licensee’s arms needs to be deposited by him. Only thereafter individual direction needs to be issued for depositing the arms. In the instant case, I find that without assessing each licensees individually, including the petitioner, the respondents issued a blanket order, which is impermissible in law. Be it noted that even the Election Commission of India has also not passed any order or direction to the respondent authorities to pass any blanket order. Passing of a blanket order denotes non-application of mind which is not permissible. The entire scheme of the guidelines issued by the Election Commission suggests that individual licensee’s case has to be scrutinised and the Screening Committee has to reach at a conclusion, which means the Screening Committee has to apply their mind as to whether in respect of each individual, the arms which they are holding, needs to be deposited with the authorities or not. This exercise is naturally missing in this case since the State has issued a blanket order. 18. In view of the discussions made above, I hold that the impugned order issued by the respondent directing all the licensees to deposit their firearm, in one stroke of pen, is not in accordance with the guidelines issued by the Election Commission of India, and is arbitrary and shows non- application of mind. Directing the Arms Licensee to deposit their arms only on the ground that they are holding arms on the strength of such licence, without there being any adverse report against them, would amount to taking action only on basis of assumptions, which is impermissible This order thus cannot be sustained in the eyes of law. Thus in consequence of what has been held above, the order contained in Memo No.373 dated 16.03.2024 issued by the Deputy Commissioner, Bokaro, directing all the arm licensees to deposit the arms with the concerned Police Station or at the places notified by the authorities, is quashed and set aside. The respondents are directed to undertake an exercise to scrutinise each and every licensees and come to a definite conclusion in respect of each and every licensees based on materials on record as to whether it is necessary to direct them to deposit their arms. If from their evaluation, they conclude that there is nothing adverse against any arms licensee, and he is not a threat to free and fair elections and will not 8 cause threat to law and order, then it is not necessary to direct them to deposit their arms, just because they are holder of arms by the strength of the licence. 19. So far as the prayer to release the arms of this petitioner is concerned, I direct the respondent Deputy Commissioner, Bokaro to immediately, within a period of 5 (five) days from the date of receipt and/or production of a copy of this order, assess as to whether there are materials to conclude that retaining arms by the petitioner will come in the way of conducting free and fair General Elections for the Parliament, 2024 and whether there would be any law and order problem during elections, if the petitioner is allowed to retain his arms. If the Deputy Commissioner / Arms Licensing Authority concludes that retention of the arms by the petitioner will no way hinder forthcoming elections, same will be immediately released in favour of the petitioner. If they conclude otherwise, the reasons for not releasing the arms should be immediately communicated to the petitioner within a period of 7 (seven) days from the date of receipt of a copy of this order. 20. With the aforesaid observations and directions this writ petition stands allowed. 21. Let a copy of this order be handed over to Mr. Rahul Saboo, learned G.P.II appearing for the State as also to the counsel for the petitioner. Kumar/Cp-02 AFR (Ananda Sen, J.) 9