IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC NO.311 OF 2008 AND SHAILENDRA KUMAR SINGH CR. WJC NO.312 OF 2008 MANIKANT SINGH VS STATE & ORS ----------- 4. 02.12.2008. Heard learned counsel for the petitioner and learned Government Advocate for the State. 2. In the instant writ petition, the petitioner of Cr W J C No. 311 of 2008 prays for directing the respondents to release the fire arms and cartridges being .315 Bore Regular Rifle No. AB 02098(.315) having Arms license no. 14-C/02 dated 29.6.2002, valid upto 31.12.2010 along with 25 live cartridges, which were illegally seized by Kajara police station vide Station Diary Entry No. 162/2008 dated 11.1.2008. The prayer of petitioner in Cr W J C No. 312 of 2008 is substantially in similar context. 3. Before we deal with the merits of the submissions made by the learned counsel for the parties, it would be necessary to notice the facts of the case in brief. 4. The petitioner Shailendra Kumar Singh claims himself to be a social worker engaged in providing modernized training in field of agriculture and incites awareness towards social evils, like Dowry etc. He was campaigning for one such meeting of Maha sabha on a big scale scheduled for 20.1.2008. On 11.1.2008 while he along with other social workers were returning after a day’s work they were apprehended by Kajra police. The police stopped the vehicle and seized arms and cartridges from petitioner and one another (petitioner in Cr WJC No. 312 of 2008) who too was a licensee, without any valid reasons or due authorization. 5. The case of the petitioner is that on account of Naxal menace in the area, it was at times expedient to carry arms for personal security. The - 2 - petitioners of both the cases were first detained at Kajra Police Station till 9 PM, where seizure lists were prepared. Thereafter they were forwarded to Surajgarha Police Station and detained, unauthorized upto 12 noon of the following day. 6. Learned counsel assails seizure of arms in following terms. He submits that conditions required for seizure of arms have been spelt under the Arms Act, 1959. He states that police officer or a Magistrate can seize licensed arms only when the arms holder is found to be moving in suspicious circumstances as provided under section 20 of the Arms Act or pursuant to the order of suspension or revocation of license as provided under section 17 of the Act. Apart from this, arms can also be seized if the same has been misused or there has been a breach of conditions of license, or any other statutory provision. 7. Leaned counsel for petitioners submits that none of the conditions precedent for seizure of Arms, either under the Arms Act or under the Code of Criminal Procedure existed on the relevant date when his arms was seized. Furthermore, while seizing the arms, there was no statement that the arms are being seized from the petitioners as they were found moving in suspicious condition. No order under section 20 of the Arms Act was recorded necessitating the aforesaid seizure. He further states that as an after thought the respondents have subsequently tried to justify the seizure on ground of their being involved in Surajgarha Police Station case no. 163 of 2003 under sections 302/34 I.P.C. and 27 Arms Act. He further submitted that there has been no requisition either from the court or from the I.O. or the prosecuting agency of the aforesaid case for seizure of the Arms consequent to their involvement in the criminal case. Learned counsel submits that State - 3 - is belatedly trying to push in a version to justify the illegal seizure. 8. Learned counsel for the State has filed two affidavits, one on 17.10.2008 stating therein that the petitioner of Cr WJ C No. 311 of 2008 has a criminal antecedent being involved in Surjgrha Police Station case no. 163/2003. The State counsel has brought on record the FIR and Charge sheet of Surajgarha Police Station case no. 163/2003, the recommendation for cancellation of license and the order of the Collector, Lakhisarai suspending the license of the petitioner vide order dated 12.9.2008. He also submits that in view of the aforesaid order of suspension, arms have rightly been seized and in any view of the matter, the seizure would now be deemed to be under a valid order. 9. Two issues crop up in the facts and circumstances of the case. Firstly, whether Karjra Police Station had valid reasons or due authority for seizing the arms on 11.1.2008. Secondly now that the Collector, Lakhisarai on 12.9.2008 has passed order suspending the license, can the arms be still released in favour of petitioners? 10. For answering the 1st issue it would be relevant to look at section 20 of Arms Act which is quoted herein below:- 20. Arrest of persons conveying arms, etc., under suspicious circumstances.- Where any person is found carrying or conveying any arms or ammunition whether covered by a licence or not, in such manner or under such circumstances as to afford just grounds of suspicion that the same are or is being carried by him with intent to use them, or that the same may be used, for any unlawful purpose, any magistrate, any police officer or any other public servant or any persons employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, may arrest him without - 4 - warrant and seize from him such arms or ammunition. So far as seizure of the license, on 11.1.2008 is concerned, this Court finds that police has not recorded any statement at the time of seizure or even subsequent to it that arms have been seized as petitioners were moving in suspicious circumstances as required under section 20 of the Arms Act. A police officer or a magistrate or a public officer and others mentioned in sectin 20 of the Arms Act is empowered to seize arms if they find that arms are being carried in suspicious circumstances. The seizing authority must record reasons detailing the circumstances. The apprehension has to be real and objective and not fanciful or presumptive. In the instant case, the police, even till the next day, did not make any entry stating as to circumstances, which aroused suspicion. 11. Furthermore, no proceeding for suspension of license was initiated under section 17 of the Arms Act. Similarly, there is no requisition from the IO or the prosecutor of Surrajgarha Police Station case no. 163 of 2003 for seizure of arms of the petitioner. Furthermore, there is no order of a Court to seize the aforesaid arms. Belatedly the State has furnished reasons that as petitioners were involved in criminal case, being Surajgarha Police Station case no. 163 of 2003, their arms were seized. The State now relies on order dated 12.9.2008 of Collector, Lakhisarai suspending and seizing the arms. 12. The circumstances enumerated above lead to one and only conclusion that the seizure of Arms license on 11.1.2008 was without any legal sanction or due authorization of law. 13. I come to the next question whether Arms in question be released in favour of the petitioners in view of subsequent development. - 5 - Collector, Lakhisarai by his order dated 12.9.2008 (annexure C) exercising powers under Arms Act has suspended the license. In my view the answer in respect of relief has to be in negative. The collector has statutory powers to suspend or revoke license under section 17 of the Arms Act. Once he suspends the Arms license, the arms concerned are liable to be seized. The arms which were not under valid seizure on date of seizure i.e. 11.1.2008, would now after the aforesaid order dated 12.9.2008 of collector Lakhisarai would be deemed to be under valid seizure. This court for the present is not going into the merits or otherwise of the grounds contained in aforesaid order dated 12.9.2008 of Collector, Lakhisarai. It would be open to the petitioners to challenge the suspension of license and seizure and pursue his remedy in the aforesaid proceedings itself. 14. In view of above discussions, this court finds it difficult to pass an order releasing the seized arms in favour of the petitioner as on date of passing this order the arms are under valid order of seizure passed under the provisions of the Arms Act. In this view of the matter, I decline to accede to the prayer of the petitioners for release of his arms at this stage. It would be open to the petitioners to pursue his remedy in proceeding initiated vide order dated 12.9.2008, passed by the Collector, Lakhisarai. So far as prayer for the petitioners relating to his unauthorized detention and appropriate damage for seizing his arms without legal sanction they may if so advised may pursue appropriate remedy. With the aforesaid observations, the writ applications are disposed of. Shashi. (S.P.Singh,J)