IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5702 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE M.R.CALLA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- ASHOKKUMAR HARAKCHAND SHAH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: Mr.I.R.Joshi with MR DC DAVE for Petitioner Mr.A.J.Desai, learned A.G.P. for the respondents -------------------------------------------------------------- CORAM : MR.JUSTICE M.R.CALLA Date of decision: 04/04/2000 ORAL JUDGEMENT 1. The petitioner, namely, Ashokkumar Harakchand Shah, who is a Kenyan citizen and not a citizen of India is aggrieved against the rejection of his application for Arms Licence on the ground that the Arms Licence can be granted only to a person- who is a citizen of India, according to the provisions of Sec.13(3) of the Arms Act, 1959. 2. The petitioner has come with the case that though he is a Kenyan citizen he is settled in Vapi, District Valsad since 1983 and has been residing there and was residing at Vapi at the time when he applied for licence as also on the date when the present writ petition was filed. The petitioner says that he is an industrialist and has established a paper Mill known as 'Daman Ganga Paper Mill Ltd.", which was previously known as "Haria Paper Mills Ltd." in G.I.D.C., Vapi with an investment of Rs.500 lacs in an area of 8089 sq.mts. providing employment to 115 people. It is alleged that the turn over of the said Mill for the year is Rs.617.50 lacs and the production of the paper per year is 5415 M.T. It is also the case of the petitioner that in addition to the aforesaid Paper Mill, he has also established five more large scale industrial units in and around Vapi providing employment to 200 persons and has contributed to the industrial growth and industrial production of the State of Gujarat and is also providing employment in the Factory to number of workers in the State. It is also the case of the petitioner that he has recently completed a huge Project of establishing a Factory/plant for manufacturing writing and printing papers in a declared backward area of Dharampur on a land admeasuring about 354728 sq.mts. at a cost of Rs.50 crores, which has further generated employment for 250 persons and has also contributed to the industrial production and progress of the State of Gujarat besides providing employment and opportunities of employment, as stated above. The petitioner has averred that he proposes to manufacture 33000 M.T. of paper per year from the said Plant and the production in the said Factory has already started. Apart from the petitioner's role in the industrial development and industry, the petitioner also claims that he is associated with welfare and charitable activities in the Society through various educational institutions, Hospitals and other social and charitable organisations in and around the area of Vapi and that he is rendering substantial social service including monetary donations to the said Institutions and it has been stated that the petitioner has accepted Gujarat and India as his permanent home land though he was born at Nairobi in Kenya. It was also orally stated by the learned counsel for the petitioner Mr. Joshi that petitioner's parents, grand parents and ancestors were all Indian and he got Kenyan citizenship because he was born at Nairobi in Kenya and he has chosen Vapi and surrounding area as his working place in the State of Gujarat, India since 1983 although he has not given up Kenyan citizenship. It has also been submitted that he has been going to Nairobi (Kenya) intermittently. The averments made in ground (m) at page 28 of the Special Civil Application read with the contents of the petitioner's application for licence Columns 10(a) and (b) and Column 11(a) at page 42-43 show that earlier he had applied for such a licence on 7.2.92 before the Addl. District Magistrate, Valsad for self protection and such licence, which was granted as Licence No.195-Vapi, G.I.D.C., was held by the petitioner till 31.12.92 when he voluntarily surrendered the same because according to the petitioner at that time it remained no more necessary for him to possess the arm looking to the law and order situation prevailing at that time at the place of his working in the Industries at Vapi. 3. The petitioner has come with the case that in the recent past i.e. since year 1997 and onwards, the industrialists, as a class, have started facing the threat to their life, liberty and property and realising the law and order situation and the sensitivity of the area of his occupation and working and the fact that in the course of business the petitioner has to frequently visit the backward areas in Dharampur, which is almost a jungle for his new Project and sometimes he has to travel during the night and reach there during night hours and being an industrialist, he felt that it was necessary for him to possess an arm for his own protection and self defence in the probable and apprehended situations of attack and/or danger. In this background the petitioner moved an application on 6.10.97 before the District Magistrate, Valsad to possess 0.32 bore Revolver or Pistol. This Application dated 6.10.97 was sent to the District Magistrate, Valsad by the petitioner with a covering letter dt.6.10.97. The petitioner also addressed a letter dt. 10.8..97 to the Ministry of Home, Government of Gujarat requesting them to recommend the District Magistrate to issue permission for the Arms licence. The petitioner also sent a letter dt.17.3.98 to the District Magistrate, Valsad inquiring about the status of his application and had also put on record that the petitioner had started a large Unit at Ambheti Village in a backward area of Dharampur and that he has to travel even at odd hours to visit the site and that his application be considered favourably as early as possible. The petitioner then received the order dt.20.3.98 from the District Magistrate,Vlasad whereby the petitioner's application was rejected on the ground that under the provisions of S.13(3) of the Arms Act, the arms licence could be granted only to a citizen of India and since the petitioner was a Kenyan citizen, he cannot hold the arms licence. The petitioner then preferred an Appeal dt.23.4.98 as provided under S.18 of the Arms Act. The appellate authority by his order dt.16.5.98 rejected the Appeal without giving any opportunity of being heard to the petitioner. This Appeal was also rejected on the same ground of S.13(3) that the petitioner was not a citizen of India and that a person who does not hold the citizenship of India cannot hold arms licence. The petitioner then challenged the aforesaid order by way of filing Special Civil Application No.1889/98 which was decided by this Court on 26.4.99. This court by its judgment and order dt.26.4.99 set aside the order dt.16.5.98, as passed by the appellate authority, on the grounds and for the reasons set out therein and the Court remanded the matter back to the appellate authority with a direction that it shall admit the Appeal and shall, after calling the records of the licensing authority and affording opportunity of being heard to the petitioner, decide the Appeal. The appellate authority then fixed the Appeal for hearing as was directed by this Court. The petitioner filed his written submissions before the appellate authority and the matter was fixed for hearing before the appellate authority on 27.5.99. The petitioner attended on the said date of hearing through his advocate and the submissions, as were included in the written submissions, were urged before the appellate authority. This time also the Appeal was dismissed by the respondent No.2 vide his order dt.15.6.99 and the order, as has been passed by the District Magistrate, was confirmed. The petitioner's grievance is that while his submissions have been noted, the same have not been dealt with and the Appeal has been rejected only on the ground that under S.13 of the Arms Act, the provision is to grant licence only to a citizen of India and whereas the petitioner is a Kenyan citizen and not a Citizen of India, it was not necessary to interfere with the order dt.20.3.98, as had been passed by the District Magistrate,Valsad and accordingly the Appeal was dismissed by the appellate authority in exercise of powers under S.18 of the Arms Act. 4. Aggrieved from the order dt.15.6.99 passed by the Home Department of the Government of Gujarat read with the order dt.20.3.98, as had been passed by the District Magistrate, Valsad, rejecting the petitioner's application for the licence and with the allegations and averments, as narrated above, the present Special Civil Application was filed by the petitioner in this Court on 2.8.99. On 10.8.99 rule returnable for 1.9.99 was issued. However, no return was filed on behalf of the respondents. Thereafter, the matter came up before this court on 14.3.2000. On 14.3.2000 the matter was heard for some time and the learned counsel for the petitioner wanted some time to produce some more documents and accordingly the matter was posted for 23.3.2000. Thereafter, when the matter came up before the court on 23.3.2000, the learned A.G.P. wanted time to verify the correctness of the documents as had been filed on behalf of the petitioner and, therefore, as prayed by both the sides, the matter was posted today i.e. 4.4.2000. It may be pointed out that even up till this date, the respondents have not filed any reply to the petition. However, Mr.A.J.Desai, learned A.G.P.,has orally submitted that the petitioner has now shifted to Mumbai and he is residing at Mumbai and, therefore, he may move the Application before the concerned authority in the State of Maharashtra. While making reference to a letter dt:20.8.99 sent by the petitioner to the office of the District Superintendent of Police at Mograwadi,Valsad, Mr.Desai, learned A.G.P. has submitted that the petitioner has changed his residence and has shifted to 32,Ala Moana Premises Co-operative Society Ltd., Behind Khar Telephone Exchange, Khar (West), Mumbai. However,he has submitted that the correctness of the documents, as were filed by the petitioner with the affidavit dt.17.3.2000, have been verified from the Mumbai office and the same are found to be correct. These documents were required to be verified as to whether the petitioner had in fact any permit to stay over in India for all these years or not and as to whether such permit still subsists and if so upto what date. The last document at Annexure 'E' filed with the affidavit, as aforesaid, is a document issued by the Counsellor (Consular), High Commission of India, Nairobi (Kenya) certifying that the petitioner is holder of Kenyan Passport No.B-041213 and he is permitted to stay in India upto 2.5.2001 vide Government of Gujarat G.A.D.G. Nagar No.KYN-62-96 F-II dated 26.11.96 and further that the endorsement of his stay upto the above mentioned period has been done on his residential permit dated 9.7.96 issued by R.O. and Distt Supdt of Police, Bulsar, District - Bulsar. 5. The petitioner's challenge in this petition is mainly with reference to the provisions of Arms Act, 1959 read with Arms Rules, 1962 and has submitted that there is neither any express or implied ban either under the Arms Act or under the Arms Rules, 1962 so as to reject the application for licence on the ground that the petitioner is not a citizen of India. Learned counsel for the petitioner Mr.Joshi has made a detailed reference to the provisions of the Arms Act and the Arms Rules and has submitted that in the same enactment the Legislature has used the words 'person' and 'citizen' in different provisions and wherever the Legislature wanted to restrict the scope of the Arms Act and the Arms Rules to 'citizen' it has used the word 'citizen' and in the provisions where the word 'person' has been used, it means that such person may be any person including a person who is not a citizen of India and that the licensing authority as well as the appellate authority have failed to comprehend the correct import of the provisions of the Arms Act and the Arms Rules resulting into the rejection of the petitioner's application. As against it, the learned A.G.P. has submitted that the petitioner's application has been rightly rejected in accordance with the provisions of S.13 of the Arms Act. 6. Before I proceed to examine the submissions made on behalf of both the sides, a brief reference be made to the Scheme of the Arms Act. The word 'person' as such has not been defined either under the Arms Act or under the Arms Rules. Even the General Clauses Act, 1897 gives only an inclusive definition of the word 'person' in Sec.3(42) and says that 'person' shall include any company or association or body of individuals, whether incorporated or not. However, this Court finds that in the provisions under the Arms Act and the Arms Rules, while in certain provisions the word 'person' has been used, the word 'citizen' has been used in other provisions and, therefore,one thing is clear that the Legislature itself has made a distinction while using the word 'person' and 'citizen at different places and different provisions through-out the Scheme of the Arms Act and the Rules made thereunder. 7. Under Chapter II - 'Acquisition, Possession, Manufacture, Sale, Import, Export and Transport of Arms and Ammunition' - (a) Sec.3 provides for licence for acquisition and possession of firearms and ammunition, imposing a restriction against any person to acquire or have in his possession or carry any firearm or ammunition unless he holds a licence issued in accordance with the provisions of this Act and the Rules made thereunder. (b) Sec.4 provides for the Licence for acquisition and possession of arms of specified description in certain cases and it has been provided that the Central Government may regulate the acquisition and possession of arms having regard to the circumstances prevailing in any area and further that it may also direct that no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in the Notification. (c) Sec.5 deals with Licence for manufacture, sale, etc. of arms and ammunition and this Section also starts with the words, 'No person shall.......' In this Section also through out, the word 'person' has been used. (d) Sections 6 and 7 deal with licence for shortening of guns or conversion of imitation firearms into firearms and prohibition of acquisition or possession, or of manufacture or sale, of prohibited arms or prohibited ammunition. These Sections start with the words, "No person shall........." (e) Similar is the position with regard to provisions of Sections 8,9 and 10 dealing with prohibition of sale or transfer of firearms not bearing identification marks; prohibition of acquisition or possession by, or of sale or transfer to, young persons and certain other persons of firearms, etc. and Licence for import and export of arms, etc. These Sections also start with the words, "No person shall ............." (f) Section 10(1)(b) provides that person being a bonafide tourist belonging to any such country as the Central Government may, by Notification in the Official Gazette specify, who is not prohibited by the laws of that country from having in his possession any arms or ammunition, may, without a licence under this section but in accordance with such conditions as may be prescribed, bring with him into India arms and ammunition in reasonable quantities for use by him for purposes only of sport and for no other purpose. This provision deals with specific case of bonafide tourists coming into India and makes special provisions for use of arms for sport purposes exclusively. However, the explanation below it is as under:- "Explanation.- For purposes of clause (b) of this proviso, the word 'tourist' means a person who not being a citizen of India visits India for a period not exceeding six months with no other object than recreation, sight-seeing, or participation in a representative capacity in meetings convened by the Central Government or in international conferences, associations or other bodies." (g) This explanation, therefore, further limits the scope even for the tourists and explains that 'tourist' would mean a person who not being a citizen of India visits India for a period not exceeding six months with no other object than recreation sight-seeing, or participation in a representative capacity in meetings convened by the Central Government or in international conferences, associations or other bodies. In this explanation also the use of the words, 'a person who not being a citizen of India' are made. (h) Sections 11 and 12 deal with power to prohibit import or export of arms, etc. and power to restrict or prohibit transport of arms. (i) Section 13 with regard to the grant of licences and Section 14 with regard to refusal of licences, which are more relevant for the purposes of the question under consideration, are reproduced as under:- "13. Grant of licences.- (1) An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed. (2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time. (2-A) The licensing authority, after such inquiry,if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same: Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit,make such order, after the expiry of the prescribed time, without further waiting for that report. (3) The licensing authority shall grant- (a) a licence under Section 3 where the licence is required- (i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection ; Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection, or ; (ii) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government; (b) a licence under Section 3 in any other case or a licence under Section 4, Section 5, Section 6, Section 10 or Section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same. 14. Refusal of licenses.- (1) Notwithstanding anything in Section 13,the licensing authority shall refuse to grant- (a) a licence under Section 3, Section 4 or Section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition; (b) a licence in any other case under Chapter II.- (i) where such licence is required by a person whom the licensing authority has reason to believe- (1) to be prohibited by this Act or by any other law for the time being in force from acquiring, having in his possession or carrying any arms or ammunition, or (2) to be of unsound mind or (3) to be for any reason unfit for a licence under this Act; or (ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence. (2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property. (3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement." (j) Even right of Appeal under S.18 has been made available to any person aggrieved by an order of the licencing authority and is not restricted to 'citizen' only. (k) In Section 13(3)(a)(i) it has been provided that the licensing authority shall grant a licence under Section 3 i.e. Licence for acquisition and possession of firearms and ammunition - to a citizen of India and thus licence under S.3 is to be granted only to citizens and not to any person. Under S.13(3)(b) the licensing authority shall grant the licence under Sec.3 in any other case or a licence under Sections 4, 5 6, 10 or 12, if the licencing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same. Thus Sec.13(3)(b) in terms contemplates the eligibility of any person to apply for the licence under S.3 in cases other than those of citizens as also under other Sections i.e. Sections 4,5,6, 10 and 12. A reading of Sec.13(3)(a)(i) shows that the grant of licence under S.3 in respect of smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection is available to the citizens only and not to any person but the licence with regard to the arms of the description other than those which are given under S.13(3)(a)(i) may be considered in respect of any person other than the citizen provided the applicant has a good reason for obtaining the same. (l) Section 14 with regard to the refusal of the licences starts with non obstante clause and says that notwithstanding anything in Sec.13, the licensing authority shall refuse to grant licence under Sections 3, 4 or 5 where such licence is required in respect of any prohibited arms or prohibited ammunition and the licence in any other case under Chapter II - where such licence is required by a person whom the licensing authority has reason to believe to be prohibited by this Act or by any other law for the time being in force from acquiring, having in his possession or carrying any arms or ammunition or to be of unsound mind or to be for any reason unfit for a licence under this Act or where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence. (m) Sec.14(2) says that licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property and sub-section (3) of Sec.14 casts an obligation on the licensing authority to record reasons in writing for refusal of the licence and furnish the same to the person concerned on demand