Chandrakant Hargovindas Shah vs The Deputy Commissioner Of Police & Anr

Deputy Commissioner of Police & Anr. ... Respondents

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2. An intricate question involving interpretation of the provisions of the

Arms Act, 1959 (for short, `the Act') falls for determination in this appeal

which arises out of a judgment and order dated 06th February 2007 passed by

a Division Bench of the High Court of Bombay.

3. Appellant herein was a renowned sports person engaged in the sport

of shooting since 1988 and has been participating in the shooting events at 2

national and international levels. He has consistently been awarded the

certificate of "Renowned Shot" in the categories of small bore 10 meter rifle

and pistol, 25 meter all pistol events, 50 meter rifle events, 12 bore trap and

skeet events and 300 meter rifle events.

4. Indisputably, the Government of Maharashtra issued a notification

dated 25th June 1982 in terms of the provisions of the Act and the rules

framed thereunder, classifying the target shooters into four categories. It

furthermore specified the quantities of arms and ammunition permitted to be

possessed by the target shooters. Having regard to the fact that the appellant

fell in category 3 of the said notification dated 25th June 1982, he was

granted two licences, viz., licence no.BO/50/October/90 for 4 revolver/pistol

and licence no.BO/50A/October/90 for 5 gun/rifle in the year 1990.

5. It further appears that during the period 1996 to 2005, he had bought

and sold rifles and pistols for 36 times, the details whereof are as under :

Sr. Date of Date Weapon Details of weapon No. purchase sold Type

01 27.08.96 20.07.01 .315 Rifle .315 Rifle No.94 AB 4205

02 28.02.97 16.06.97 30.06 30.06 Rifle No.374182 by Rifle Spring Field

03 28.03.98 28.04.99 .22 Rifle .22" Rifle No.804309 by Bruno 3

04 15.07.98 23.09.98 .22 Rifle .22" Rifle No.068207 by Auschwitz

05 05.10.98 16.10.98 .32" Pistol .32" Pistol No.387437 by Unique

06 12.10.98 20.10.98 .32" .32" Revolver No.ABS Revolver 4982 by Smith & Wasson

07 02.11.98 28.04.99 .22" Pistol .22" Pistol No.G 25027 by Hammerli

08 02.12.98 25.11.99 .22" Rifle .22" Rifle No.AC/KB/667/102/77

09 09.07.99 15.07.99 .32" Pistol .32" Pistol No.672901 by Astra

10 09.07.99 16.07.99 .32" Pistol .32" Pistol No.27402 by Harrington

11 01.09.99 22.11.99 .22" Pistol .22" Pistol No.89216

12 25.08.99 07.09.99 .22" Rifle .22" Rifle No.105022 by Bruno

13 31.08.99 07.09.99 .22" Rifle .22" Rifle No.109617 by Bruno

14 27.09.99 28.09.99 .22" Rifle .22" Rifle No.95952 by Bruno

15 27.09.99 30.09.99 .22" Rifle .22" Rifle No.87431 by Bruno

16 27.10.99 19.11.99 .22" Rifle .22" Rifle No.35310 by FN Browning

17 01.11.99 18.04.00 .22" Rifle .22" Rifle No.223058 by Auschwitz

18 05.11.99 12.11.99 .32" .32" Revolver No.607020 Revolver by Taurus

19 24.11.99 20.06.00 .22" Pistol .22" Pistol No.307126 by Erma 4

20 20.12.99 28.04.00 12 Bore 12 Bore DBBL Gun DBBL No.187742 by Simson Gun

21 05.08.00 13.11.03 .22" Rifle .22" Rifle No.96818 by FN Auschwitz

22 16.09.00 26.09.01 .22" Pistol .22" Pistol No.27595 by Hammerli

23 18.01.01 20.01.01 .32" .32" Revolver No.H-

Revolver 112351 by Smith & Wasson

24 14.12.01 19.04.02 .22" Rifle .22" Rifle No.468146 by Bruno

25 22.02.02 16.10.02 12 Bore 12 Bore DBBL Gun DBBL No.27501 by WW Gun Greener

26 01.08.02 20.08.02 .45" Pistol .45" Pistol No.C-14987 by Colt

27 17.09.02 08.01.03 .22" Pistol .22" Pistol No. G-007938 by Walther

28 04.03.03 27.05.05 .38" Pistol .38" Pistol No.12548 by Colt

29 10.06.03 30.09.03 .45" Pistol .45" Pistol No.2087341 by Ithaca

30 28.11.03 26.09.01 .22" Pistol .22" Pistol No.27595 by Hammerli

31 20.02.04 19.08.04 .122" .122" L.R. Barrel Pistol Pistol No.99286 with conversion barrels

32 09.06.92 12.01.99 30.06" 30.06" Rifle No.139853 Rifle by Winchester

33 07.06.92 23.09.98 .22" Rifle .22" Rifle No.162302 by Auschwitz

34 28.02.94 15.07.98 25/35" 25/35" Rifle No.984490 Rifle by Winchester 5

35 29.05.92 18.09.96 12 Bore 12 Bore DBBL Gun DBBL No.8127 by Felix Gun

36 31.12.99 ML Gun Muzzle Loading Gun No.14

It also appears that during the period between 2001 and 2005, on 26

occasions he had imported various arms and cartridges. During the period

between 26.11.1991 and 15.10.2004, however, he had taken part in 18

events of various State and National Shooting Championships.

6. Inter alia, on the premise that he had misused the licence, taking

undue advantage of his aforementioned certificates by transferring weapons

imported by him from abroad 39 times, a show cause notice was issued to

him on or about 20th January 2005 by the licensing authority, stating :

"You are aware that abovesaid both the Weapons permission are given to you being you are as a renowned shot. However, upon having verifying the record of this office, it has been observed that you are taking undue advantage of your renowned shot and you are importing weapons from abroad very easily and these weapons are being used by you for renowned shot and after that you are selling these weapons and have sold. It has been observed that till such time total 39 times you have sold these weapons.

You are not holding specimen Form XII weapons sale/purchase (dealership licence) issued by the Government of Maharashtra. Only on the 6

basis of that you are being as a Renowned shot, you are misusing the abovesaid licences and doing sale/purchase business and it has been noticed by this office so it would be better to cancel the abovesaid licences.

But, before doing the abovesaid act, I, Rajnish Sheth, Dy. Commissioner of Police (Head Office) and Weapon Act, 1959 and I am being a authorized officer, why I should not cancel your licence of above weapons as per the provisions made in Weapon Act, 1959 u/s. 17 so, I am giving you this show cause notice and also I am giving you 20 days of time to furnish your satisfied reply in writing to this show cause notice.

This authority shall have liberty to take ex- parte decision if your reply is not received within a prescribed time as stipulated above, which please note."

7. Appellant filed a detailed show cause, inter alia, contending:

"This is wrong I have imported only one Fire Arms Target Rifle (Steyr Rifle) in 1999 and till today it is on my arms license.

I have been given License for 5 Gun/Rifle and 4 Rev/Pistol for target shooting sports since 1990 (total 9).

And till now I have made sale purchase 39 times (in 15 years) which I have purchased from India only. This all are IInd hand and if it was worth for target shooting sport then I was keeping it or after testing or doing practice if it does not suit me, I was disposing off to arms licences holder with your Sale Permission and I was asking purchase period to purchase my choice weapon."

7 8. According to him, he had entered into the said transactions only upon

obtaining the requisite permission from the licensing authority. He

furthermore contended that as the accuracy was not to be achieved through

some arms, he had to sell them off to buy better arms.

9. By an order dated 04th April 2005, the 1st respondent, however,

cancelled his licences, opining:

"You are aware that abovesaid both the Weapons permission are given to you being you are as a renowned shot. However, upon having verifying the record of this office, it has been observed that you are taking undue advantage of your renowned shot and you are importing weapons from abroad very easily and these weapons are being used by you for renowned shot and after that you are selling these weapons and have sold. It has been observed that till such time total 39 times you have sold these weapons.

You are not holding specimen Form XII weapons sale/purchase (dealership licence) issued by the Government of Maharashtra. Only on the basis of that you are being as a Renowned shot, you are misusing the abovesaid weapons and licences and for this reason a show cause notice bearing No.533/2005 dt.20/01/2005 was served to you by this office.

For the abovesaid show cause notice, you have replied on 19/02/2005. However, in your reply have stated that `these weapons are now not suitable for the competition and hence, these were sold'. Your said point and statement is baseless.

8 You are not holding specimen Form XII its weapon sales/purchase business licence (dealership licence) issued by the Government of Maharashtra only on the point that you are renowned shot these licences were offered to you but you have misused the same and it has been cleared that you are doing sales/purchase business of the weapons and hence, for cancellation of above said licences, I am passing the order as under :-

ORDER I, Dr. Sanjay Apranti - Dy. Commissioner of Police, Head Office, being as a Authorised Officer and as per the provisions made in Weapon Act, 1959 u/s 17(3) and by using my powers and authority, hereby canceling the Weapon Licence No.BO/50/October/90 and BO/50A/October/90 with immediate effect given to Shri Chandrakant H. Shah. Both the above said licences and respective weapons may be deposited with the weapon custody. This is the order."

10. An appeal was preferred thereagainst before the State Government in

terms of Section 18 of the Act. The Home Minister of the Government of

Maharashtra, who was the designated appellate authority, by an order dated

17th October 2005, while upholding the order of cancellation in respect of

one licence, directed restoration of Licence No.BO-50A/October/90.

11. Aggrieved by and dissatisfied therewith, the appellant filed a writ

petition before the High Court of Bombay. Having regard to the fact that

the order of the appellate authority was not a speaking one, the Division 9

Bench of the High Court, by reason of the order dated 17th January 2006, set

aside the said order and remitted the matter to the appellate authority on the

premise that no reason had been assigned as to why one licence was being

denied to the appellant. By reason of an order dated 19 th June 2006, the

appellate authority, however, directed cancellation of both the arms licences

of the appellant and thereby confirmed the order dated 04th April 2005

passed by the respondent no.1.

12. A writ petition was filed by the appellant thereagainst which, by

reason of the impugned judgment, has been dismissed.

13. Mr. Siddhartha Dave, learned counsel appearing on behalf of the

appellant would contend that the respondent no.1, the appellate authority as

also the High Court committed a serious error insofar as they failed to take

into consideration that purchase and sale of arms being not prohibited under

the conditions of licence and the transactions having been carried out upon

obtaining permission of the licensing authority, appellant cannot be said to

have violated the conditions of licence. It was urged that the appellant being

a sportsperson, which has not been denied or disputed, should have been

allowed to have his arms so as to enable him to participate in the National

and State level events.

10

14. Ms. Madhavi Divan, learned counsel appearing on behalf of the

respondents, on the other hand, would contend:

i. Overuse of weapons cannot be said to be a genuine justification

by the appellant for frequent sale or purchase.

ii. Frequent sale of licences is contrary to the letter and spirit of

the licences granted to the appellant.

iii. Appellant has resorted to suppresio veri and suggestio falsi

inasmuch as he has contended in Ground `C' of the petition that he was

required to purchase new weapons so as to enable him to participate and

perform better in competitions as the accuracy of a weapon gets worn off

with use and it is for that reason that he is required to sell his old weapon

and purchase new ones. In reply to the show cause notice, however, he

wrongly contended that he never made any purchase from any foreign

country as there are materials on record to show that he had imported fire-

arms, cartridges etc. at least 26 times.

15. The Arms Act, 1959 was enacted to consolidate and amend the law

relating to arms and ammunition.

Indisputably, appellant applied for and was granted licences in terms

of Section 17 of the Act. Clause (d) of sub-section (3) of Section 17 of the 11

Act provides that if any of the conditions of the licence has been

contravened, the same may either be suspended for a particular period or

revoked/cancelled. He was granted the licences as per Form III of Schedule

III of the Arms Rules, 1962 which is for the purpose of acquisition,

possession and carrying of arms or ammunition for

sport/protection/display/crop protection and property protection. Licences,

however, in Forms XII and XIII of the said Schedule are granted for the

purposes of storing, selling and transferring of arms and ammunition of

certain categories.

16. The Central Government, in exercise of its powers conferred by

Sections 5, 9, 10, 11, 12, 13, 16, 17, 18, 21, 41 and 44 of the Act framed

rules known as Arms Rules, 1962. In terms of Schedule III of the said Rules,

licences are granted in 22 different forms and for different purposes as

specified therein.

Indisputably, grant of licences under Form III is for the purpose of

self-use. Appellant himself has contended that he intended to use the arms

and ammunition as a sportsman.

17. There cannot be any doubt or dispute whatsoever that sale and

purchase of arms and ammunition by a licencee per se is not prohibited. But

having regard to the provisions of the said Act and the purport and object for 12

which different types of licences are granted for different purposes, there

cannot be any doubt whatsoever that a licencee cannot be permitted to do

something indirectly which he cannot do directly.

18. Insofar as the contention that the appellant was guilty of suppressio

veri and suggestio falsi is concerned, we may note that the Black's Law

Dictionary (5th edition) defines suggestio falsi as, `suggestion or

representation of that which is false; false representation. To recite in a deed

that a will was duly executed, when it was not, is suggestio falsi; and to

conceal from the heir that the will was not duly executed is suppressio veri'.

A mere omission or negligence would not constitute a deliberate act of

suppressio veri and suggestio falsi. Although it may not be very accurate or

apt but suppressio veri would amount to concealment, suggestio falsi would

amount to furnishing of inaccurate particulars. [See : Dilip N. Shroff v. Joint

Commissioner of Income Tax, Mumbai (2007) 6 SCC 329 para 71].

We have noticed hereinbefore that during the period appellant had

been holding his licences, he sold arms at least 39 times. In his show cause

as also ground `G' of the Special Leave Petition, the appellant had

contended that he had imported arms only once. He, in fact, had imported

arms at least on 26 occasions. He, therefore, in our opinion, is guilty of

suppresio veri as also suggestio falsi.

13

19. Licence(s) under the Act is/are granted for specific purpose(s). Sub-

section (2) of Section 3 of the Act states that no person, other than a person

referred to in sub-section (3), can have in his possession or carry at any time

more than three firearms. As indicated hereinbefore, by reason of the

aforementioned notification dated 25th June 1982, only certain categories of

sportspersons were permitted to acquire and possess more than three

firearms for the purpose of taking part in shooting competitions. Appellant

was in possession of six arms, three in each category under two different

licences. Indisputably he was permitted to possess five rifles and four

revolvers including one of the prohibited category for the purpose of sport

shooting.

20. It also appears from the record that the appellant had imported a large

number of air rifles and air pistols although he had not been participating in

the events requiring use of the said weapons. So is the case with the toy

weapons which were of no use to him as a sportsman.

21. It may be true that the appellant had obtained permission before

transferring the weapons in favour of third parties but, indisputably, as he

had entered into a large number of transactions, the licensing authority was

entitled to infer that he had in effect and substance not been purchasing the

same for his own use which was the sine qua non for grant of licence. 14

From the aforementioned chart it would appear that on a large number

of occasions he had sold the weapons only after a few days of purchase. It

is, therefore, difficult for us to appreciate the contention of Mr. Dave that the

appellant had to sell the weapons only because upon practice he had found

that the accuracy level of the weapons had deteriorated. There is another

aspect of the matter which also cannot be lost sight of. It may be one thing

to say that he had been purchasing weapons manufactured by the companies

for which he had no occasion to test the efficacy of the weapons concerned,

but even according to the appellant himself he had been purchasing second

hand weapons. Before entering into a transaction of weapons in second

hand, it is expected, that the purchaser would take all precautions to see that

the same would be of some use to him.

22. We, therefore, keeping in view the frequency of the transactions, are

of the view that the statutory authorities were justified in passing the

impugned orders cancelling the licences.

23. Ordinarily in a case of this nature, we would have remitted the matter

back to the licensing authority so as to enable the appellant to satisfy it with

regard to his bonafide or otherwise in respect of the transactions, but,

keeping in view the peculiar facts and circumstances of this case, we are of

the opinion that the same would be a futile exercise. This Court, as is well 15

known, would not pass any order which would make a statutory authority to

comply with only useless formalities. We would, however, request the

appellate authority to consider the question as to whether the appellant,

being a sportsman, can be granted any licence so as to enable him to carry

out his sporting activities. Such licence may be granted on such terms and

conditions as are permissible in law, provided that an application is made in

accordance with the law.

24. The appeal is dismissed with the aforementioned observations. No

costs.

.....................................J. [S.B. Sinha]

.....................................J. [Cyriac Joseph]

New Delhi.

May 05, 2009