H B GURUCHANNABASAVAIAH Vs. DISTRICT MAGISTRATE TUMKUR

JUDGEMENT

(1.) An order dated 22nd of June 1990, passed by the District Magistrate, Tumkur confiscating SBBL Gun No. 2130 deposited with the Police by the father of the petitioner is what is under challenge in this writ petition. A mandamus directing the Respondents to return the Gun and renew the Licence issued in favour of the petitioner is also sought.

(2.) Petitioner's father one K. C. Basavaraj, deposited a SBBL Licensed Gun with the local Police. The reason given for making the deposit was physical weakness of the licencee due to old age. Some time later the petitioner herein made an application to the District Magistrate for release of the weapon in his favour as he had secured a licence from the Sub-Divisional Magistrate Puttur, and was entitled to possess the same. It was also stated that the petitioner was the legal representative of his father Sri. K. C. Basavaraj. The application was considered by the District Magistrate under Section 21 of the Arms Act read with Rule 46 of the Arms Rules and rejected on the ground that the licencee had not taken back the weapon within a period of two years nor had he got his licence renewed. The petitioner and his father both challenged the said order in W.P. No. 18994/89 which came to be allowed by a single Judge of this Court by order dated 11th December, 1989. This Court held that the order forfeiting the Gun was passed without providing an opportunity of being heard to the petitioners. The matter was accordingly remitted back to the District Magistrate for a fresh order. In compliance, the District Magistrate has passed a fresh order by which he has reiterated the view taken earlier and held that the petitioner herein was not entitled to claim the weapon. The solitary reasons given is that the deceased licencee had failed to claim it back within a period of two years. The explanation given by the petitioner for the failure of the licencee to take back the Gun was found unacceptable as according to the District Magistrate the licencee could have even when he was old and infirm secured the return of the gun and applied for the renewal of the licence in his favour. Aggrieved the petitioner has questioned the order passed by the District Magistrate in the present writ petition.

(3.) Learned Counsel appearing for the petitioner argued that the forfeiture ordered by the District Magistrate, was on a totally wrong assumption. She urged that the deposit of the weapon was in the instant case not referable to Section 21 of the Arms Act which pertained only to such deposits as were made in cases where the possession of the weapon had become unlawful for any reason whatsoever. It was urged that on the date the deposit was made by the petitioner's father, the possession of the weapon by him was in no way unlawful so as to attract the provisions of Section 21 or result in a forfeiture, in the event of failure of the Licencee to claim back the weapon within two years. The deposit in the instant case was according to the learned Counsel relateable to Rule 47 of the Arms Rules 1962 which provides for deposit of Arms and Ammunition for safe custody otherwise than under Section 21. Rule 47, it was urged, does not provide for forfeiture of the weapon even if the same is not claimed within a period of two years.