IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 WP(C).No. 37032 of 2009(Y) -------------------------- PETITIONER(S): ----------------------- P.P.BABU PROPRIETOR, THEKKAN ARMORY, ARMS AND AMMUNITION DEALERS AND REPAIRS,AMMAN KOVIL ROAD KOCHI 682 035 BY ADV. SRI.K.JAYAKUMAR, SENIOR ADVOCATE SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2. THE HOME SECRETARY GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 3. THE ADDITIONAL SECRETARY DEPARTMENT OF HOME, GOVERNMENT OF KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DISTRICT COLLECTOR ERNAKULAM, CIVIL STATION, KAKKANAD. 5. THE COMMISSIONER OF POLICE KOCHI CITY, KOCHI 682 031 6. THE SUB INSPECTOR OF POLICE CENTRAL POLICE STATION, ERNAKULAM. 7. UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME AFFAIRS LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R7 GOVERNMENT PLEADER SRI.JOSEPH GEORGE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.37032/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: DATED 29.1.09 TRUE COPY OF THE LETTER NO.GA/ARMS- 34/2008/1577 FROM THE DY.COMMISIONER, MON.DISTRICT, NAGALAND. EXT.P2: DATED 9.2.09 TRUE COPY OF THE LETTER NO.M3-61583/2008 SENT BY RESPONDENT NO.4 TO RESPONDENT NO.2. EXT.P3: DATED 24.2.2009, TRUE COPY OF THE INTIMATION GIVEN TO RESPODNENT NO.6 BY THE PETITIONER. EXT.P4: DATED 24.2.2009, TRUE COPY OF THE INTIMATION GIVEN TO THE CIRCLE INSPECTOR OF POLICE, CENTRAL STATION, KOCHI BY PETITIONER. EXT.P5: DATED 24.3.2009, TRUE COPY OF THE COMPLAINT MADE BY THE PETITIONER BEFORE RESPONDENT NO.6. EXT.P6: DATED 24.4.2009, TRUE COPY OF THE LETER NO.GA/ARMS- 34/08/70 RECEIVED BY THE PETITIONER. EXT.P7: DATED 1.4.09, TRUE COPY of THELETTER NO.GA/ARMS- 34/2009/1997 RECEIVED BY THE PETITIONER. EXT.P8: DATED 26.5.09 TRUE COPY OF THE FIR NO.1178. EXT.P9: DATED 28.5.2009, TRUE COPY of THE EMAIL SENT BY THE PETITIONER. EXT.P10: DATED 27.5.2009, TRUE COPY OF THE LETTER NO.M3-25847/09 FROM RESPONDENT NO.4. EXT.P11: DATED 9.6.09, TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER. EXT.P12: DATED 30.10.09, TRUE COPY OF THE REPORT SENT BY RESPONDENT NO.5 TO RESPONDENT NO.4. EXT.P13: DATED 10.12.09 TRUE COPY OF GO(Rt) NO.3680/2009/HOME ISSUED BY RESPONDENT NO.1. EXT.P14: DATED 16.12.09, TRUE COPY OF THE SEIZURE MAHAZAR. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 37032 OF 2009 ===================== Dated this the 17th day of November, 2011 J U D G M E N T Petitioner is the Proprietor of Thekkan Armoury. According to the petitioner, since 1997, he has been a licenced arms dealer and repairer. In addition, he was also dealing in air guns and its pellets. 2. Petitioner has stated that, during June 2008 to December 2008, he had sold 21 guns and 210 ammunitions to 21 persons who had open arms licence (All India) issued by the Deputy Commissioner, Mon District of Nagaland, who were employees of security agencies such as M/s.Securitrans and Group 4 Securitas, Chennai. It is his specific case that at the time of the transaction, the customers had produced licences, purchase permits and no objection certificates issued by the licencing authority. It is also the case of the petitioner that soon after the sale of these weapons, he had sent copies of the aforesaid documents to the Deputy Commissioner, Mon, the licencing authority. 3. Petitioner submits that, on 21/2/2009, he received WPC No. 37032/09 :2 : Ext.P1 letter dated 29/1/2009 from the Deputy Commissioner, Mon, stating that originals of arms licence and documents which were sent to him were not issued from his office. It is also stated in the said letter that the office of the Deputy Commissioner had previously given him intimation vide letter No.GA/ARMS- 34/08/1217 dated 7/11/08 in connection with similar cases in the past. Petitioner was requested to do proper verification before supply of arms and ammunitions against licences supposedly issued from the office of the Deputy Commissioner. 4. It is the specific case of the petitioner that the letter dated 7/11/2008 mentioned in Ext.P1 was never received by him. On receipt of Ext.P1, by Exts.P3 and P4 addressed to the Sub Inspector of Police and Circle Inspector of Police, Central Station, Kochi, petitioner forwarded a copy of Ext.P1 and also requested to guide him regarding the genuineness of the licences against which he had sold the arms and ammunitions. Subsequently, he also issued Ext.P5 letter dated 24/3/2009 to the Station House Officer, Central Station, Ernakulam giving him the details of the purchases effected during June, 2008 to December, 2008. 5. Meanwhile, petitioner's licence No.164/XII/97/Kerala WPC No. 37032/09 :3 : had expired and therefore he made an application to the District Collector for renewal of the licence. The District Collector obtained no objection from the Commissioner of Police, Kochi City for renewal of the aforesaid licence for the period from 1/1/2009 and forwarded the papers to the 1st respondent by Ext.P2 letter dated 9/2/2009 duly recommending renewal of the licence. The matter was pending consideration of the 1st respondent. 6. The petitioner says that while so, on 12/2/2009, similar persons from Nagaland State approached the petitioner for purchase of weapons and thereupon the petitioner reported the matter to the Deputy Commissioner, Mon, since they had produced licences and other documents issued by that authority. In response to the letter, he got Exts.P6 and P7 replies stating that the licences were not issued by he Deputy Commissioner. Petitioner says that since the customers did not report back, there was no occasion for selling any weapons to them. 7. It is also submitted by the petitioner that, on 26/5/2009, another set of three persons came to his shop for purchase of weapons producing licences and other documents issued by the Deputy Commissioner, Dimapur, Nagaland. Among the three WPC No. 37032/09 :4 : persons, one person had already purchased a weapon during the period June, 2008 to December, 2008. Realising this, petitioner claims to have detained all of them and informed the matter to the 6th respondent, who thereupon arrested those persons and registered Crime No.1178/09, the FIR of which is Ext.P8. 8. While matters stood thus, the District Collector issued Ext.P10 letter enclosing Ext.P7 and directing the petitioner to submit his explanation in the matter. On receipt of Ext.P10, petitioner submitted Ext.P11 explanation on 9/6/2009. It appears that in the meanwhile, the District Collector has also obtained Ext.P12 report dated 30/10/2009 from the Commissioner of Police, Kochi City wherein it was reported that the petitioner had sold Twenty One 12bore DBBL/SBBL guns and 225 Rounds of gun cartridges to persons from the State of Bihar, Orissa and Nagaland using fake documents like purchase permit, no objection certificate and arms licence. It is also stated that Crime No.1178/09 has been registered at the Central Police Station and that five persons were arrested and 4 guns and 40 rounds of gun cartridges were recovered from them. It is stated that the petitioner had not properly verified the genuineness of the WPC No. 37032/09 :5 : documents produced for purchase of weapons before supplying the arms and ammunitions, and that, therefore he can be considered as solely responsible in this regard. 9. Considering the entire matter, the 1st respondent Government passed Ext.P13 order, which reads thus; “In the letter read as 5th paper above, Deputy Secretary (Legal), Ministry of Home Affairs, Lok Nayak Bhavan, Khan Market, New Delhi informed Government that M/s Thekkan Armoury, Kochi had sold 21 Guns and 210 Ammunition between June 2008 and February 2009 on production of fake licenses by some persons which were purportedly issued from various districts of Nagaland by ignoring the advice received from the Licencing Authority (ies) from Nagaland. (2) In another case the Kerala Police arrested three Chennai based Security Guards hailing from Orissa namely (i) Bipin Bihari Behera (ii) Ratiranjan Parida, (iii) Biranchi Naryan Behera on May 25, 2009, while they were trying to procure 12 Bore D/SBBL Guns with ammunition from the Armoury on the strength of fake Arms Licences issued from Mon District of Nagaland. (3) Government of India have further pointed out that the Officials of M/s Thekkan Armoury are selling weapons without proper verification of the Arms Licenses produced by the purchasers. (4) In the Fax Message read as 6th paper above, the District Collector, Ernakulam has reported that M/s Thekkan Armoury had supplied twenty one 12 Bore DBBL/SBBL Guns and 225 Rounds of Gun Cartridges to the persons belongs to Bihar, Orissa and Nagaland using fake documents, ie., Purchase Permit, No Objection Certificate and Arms Licences. This alone reveals that the proprietor M/s Thekkan Armoury had not property verified the genuiness WPC No. 37032/09 :6 : of the certificates produced by those persons from other States, before supplying the arms and ammunition to them. Under these circumstances the firm will be solely responsible in this regard. (5) In the circumstances reported above, in exercise of the powers conferred under section 17 of the Arms Act 1959 for the reason and by authorities specified in sub section 3 to 9 of that section Government turndown the proposal for the renewal of the Arms Licence held by M/s Thekkan Armoury and suspended the Arms Licence Nos.164/XII/97/Kerala, 61/XIV/98/Kerala and 62/XI/98/Kerala with immediate effect until further orders. (6) The Commissioner of Police, Kochi will take immediate action to confiscate and deposit the arms and ammunition possessed by the firm to the nearest Police Station. A statement of action taken report will be furnished to Government immediately.” 10. Based on Ext.P13, the entire stock of arms and ammunitions including weapons deposited by customers, air guns and its pellets were seized from the petitioner's armoury as per Ext.P14 mahazar. It is in these circumstances the writ petition has been filed seeking to quash Ext.P13 order and directing the respondents to renew the licences and to restore the weapons of the petitioner seized as per Ext.P14 mahazar. 11. The contention raised by the learned senior counsel for the petitioner is mainly that although it is a fact that during June 2008 and December 2008, 21 guns were sold to persons from Nagaland, the sale was effected on the strength of the licences WPC No. 37032/09 :7 : and other documents, which were produced by the buyers. It is his case that, as is required of a dealer, he sent the documents to the licencing authority and only when he got Ext.P1, the petitioner came to know that the licences and other documents were not genuine. It is stated that immediately thereupon the matter was reported to the police. It is also submitted that, when in February, 2009, further request was made producing similar licences, weapons were not sold and the matter was immediately reported to the licencing authority. Further, petitioner also points out that in May 2009 when three persons approached for sale of weapons, they were detained by him and it was he who reported the matter to the Police which led to the registration of Ext.P8 FIR. On the basis of these documents and the facts highlighted, counsel contended that the petitioner's conduct was always bonafide and that it did not deserve cancellation of licences, the renewal of which was sought for by him and suspending of other two licences mentioned in Ext.P13. 12. On the other hand, in the counter affidavit filed on behalf of respondents 1 to 3, it is stated that there was serious lapse on the part of the petitioner. According to the respondents, WPC No. 37032/09 :8 : warnings were given to the petitioner and ignoring the warnings and without verifying the genuineness of the licences, he sold dangerous weapons to persons who did not have any authority to procure weapons. It is therefore submitted that this conduct of the petitioner was serious and it was in those circumstances Ext.P13 order was validly issued. 13. I have considered the submissions made. 14. Ext.P13 is the order under challenge. Ext.P13 order shows that, by letter dated 20/7/09 from the Ministry of Home Affairs, Government of India, the 1st respondent herein had informed that ignoring the advice received from the licencing authorities from Nagaland, petitioner had sold 21 guns and 210 ammunitions between June 2008 and February, 2009. It is also stated that the Kerala Police had arrested three Chennai based security guards hailing from Orissa while they were trying to procure guns with ammunition from the petitioner's Armoury. These are the two reasons for cancellation and suspension of the licences. 15. First of all, the letter dated 20/7/09 that is relied on in Ext.P13 was not disclosed to the petitioner. This certainly is a WPC No. 37032/09 :9 : violation of the principles of natural justice. Further, this letter proceeds on the basis that 21 guns were sold by the petitioner ignoring the advice received by him from the licencing authority in Nagaland. As already noticed, it is the specific case of the petitioner that letter dated 7th of November, 2008 mentioned in Ext.P1 was not received by him and there is nothing on record to contradict this statement. That apart, although it is a fact that 21 guns and 210 ammunitions were sold by the petitioner, the question whether in effecting the sale, his conduct was malafide or that he had any ill motives, has not been considered at all. As already seen from the facts, immediately after concluding the transaction, petitioner had sent copies of the documents produced by the purchasers to the licencing authority and on receipt of Ext.P1 from the licencing authority, he intimated the matter to the concerned Police Station by Exts.P3, P4 and P5. This itself prima facie indicate that the conduct of the petitioner was not blameworthy. Further, in February, 2009, when similar request was made, instead of immediately selling the weapons, petitioner informed the matter to the licencing authority who replied to his query by Exts.P6 and P7. WPC No. 37032/09 :10 : 16. In Ext.P13, other reason stated is that while three persons from Orissa were trying to procure guns with ammunitions from the armoury of the petitioner, they were arrested by the Kerala Police. In this context, it is to be stated that according to the petitioner, when these persons reported at his shop, petitioner refused to sell weapons to them and after detaining them, he immediately reported the matter to the Police. According to him, it was on that basis, the three persons were arrested by the Police. In the FIR, though the petitioner is shown as the informant, nothing is mentioned about his claim of having detained the accused. In any case, in view of all these, prima facie, one is led to think that the conduct of the petitioner cannot be said to be blameworthy and that he has been cautious in the matter. 17. Although Section 17 of the Arms Act enables the licencing authority to vary, suspend or revoke licence, there should be strong and sufficient reasons for such orders. In this case, though it is a fact that 21 weapons and ammunitions were sold by the petitioner, question whether his conduct was also malafide or that he was guided by any ill motives or that he had ignored the warnings of the licencing authority ought to have been WPC No. 37032/09 :11 : taken into account. On the other hand, a reading of Ext.P13 shows that such considerations never weighed with the Government while cancelling the licence, the renewal of which was sought by the petitioner and suspending the other two licences. In short, it was without adverting to these relevant factors, the impugned order was issued. In that view of the matter, I am inclined to think that the matter requires a fresh consideration. 18. Yet another aspect of the matter which is to be stated is that by Ext.P13, licence Nos.164/XII/97/Kerala, 61/XIV/98/Kerala and 62/XI/98/Kerala were also ordered to be suspended with immediate effect until further orders. Section 17(3) provides that the licencing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence on the grounds mentioned therein. Therefore, the period of suspension should be indicated in the order suspending licence. In this case, a reading of Ext.P13 order shows that though the aforesaid three licences are ordered to be suspended, the period of such suspension is not specified. This is yet another defect in the order. 19. That apart, there is substance in the submission of the learned counsel for the petitioner that having regard to the facts WPC No. 37032/09 :12 : and circumstances noticed above, an order in the nature of Ext.P13 should not have been passed without issuing notice to the petitioner and affording him an opportunity of hearing in the matter. 20. For all these reasons, I set aside Ext.P13 order passed by the 1st respondent. It is directed that the 1st respondent will reconsider the matter with notice to the petitioner, duly adverting to the findings in this judgment. The matter shall be reconsidered as above and a fresh order shall be passed as expeditiously as possible, at any rate within 8 weeks of production of a copy of this judgment. Writ petition is disposed of as above. Sd/- ANTONY DOMINIC, JUDGE Rp //True Copy// PA to Judge