TaxTMI 
TaxTMI 
2011 (5) TMI 1091
X X X X Extracts X X X X
X X X X Extracts X X X X
....tions and controls under the Act, was quashed. 2. The facts, in brief, which led to the filing of these applications are that the petitioner (hereafter, "PFA") preferred a writ petition challenging the above-said notification of the Central Government on the grounds, inter alia, that although the object of the Arms Act is to preserve public security, as also maintenance of public order, the basic requirements thereof have been given a go-bye by liberalizing the policy of grant of license of arms, which resulted in unhampered distribution, sale and possession of firearms in the country. The same lead to disastrous results, in as much as by reason thereof guns were being used for killing or maiming of animals or birds. The petitioner, however, was not against the target practice. The writ petition was allowed on 30.07.2002. 3. The applicants herein, i.e. National Rifle Association (respondent no. 5, hereafter, "NRA") and Toy Air Gun, Air Rifle, Air Pistol & Pellets Manufacturers (W) Association (respondent no. 6, hereafter "Manufacturers‟ Association"), claiming to be aggrieved by the impugned judgment filed separate applications seeking leave to....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... legal issues be brought forth and deliberated. 7. Further, it is alleged that as a result of the impugned judgment no sports person who is participating in international events and is less than 18 years of age will be permitted to participate in shooting events and no minor between the age-group of 10 to 18 years can possess or hold an air pistol and that it has resulted in a virtual extinction of shooting as a sport, as far as India is concerned. The Manufacturers‟ Association adds that it has also resulted in closure of manufacturing industry, for this category of rifles, in India. The respondents have submitted a brief history of the Act and quoted the following provisions of the Act- Section 2(1)(c), i.e. definition of "Arms"; (e), i.e. definition of "Firearms" and (f), i.e. definition of "Licensing Authority"; Section 3, i.e. "Licence for acquisition and possession of Firearms and Ammunition"; Section 5, i.e. "Licence for the manufacture, sale etc. of Arms and Ammunition"; Section 9, i.e. "Prohibition of acquisition or possession by, or of sale or transfer to, young persons and certain other persons of Firearms, et....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ourt to give effect to the intention of the legislature as is evident from the language of the statute and not the will of the judges. It is the Court‟s duty to give full effect to the intention of the legislature without scanning its wisdom and without engrafting, adding or implying anything which is not congenial to or consistent with the legislative intent. Where the legislature willfully omits to incorporate something, in a subsequent statute or if there is casus omissus in a statute the language of which is plain and unambiguous, the Courts, it is urged are not capable of supplying the omission by engrafting into it or introducing what it thinks to be a general principle of justice and equity. Further, the respondents urge that the power of exemption vests with the Central Government, in exercise of which the notification (GSR 991) was issued. This Court, it is submitted, while striking down the notification, has usurped the legislative power and rendered the words of the statute meaningless. The respondents assert that the exclusion of certain weapons under the Arms Act, in no way defeats any of the provisions or objectives of the WPA. 10. The respondents allege that t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns/air rifles/pistols do not fall within the definition of Arms and/or firearms as defined in the Arms Act, 1959. A Madhya Pradesh High Court decision in W.P. No. 7757 of 2006 is cited in support of the proposition that such rifles/pistols/guns etc. are toys. The petitioners have not been able to establish any inconsistency between the Arms Act and the Prevention of Cruelty to Animals Act, 1960 (hereafter, "PCA") and the WPA. 12. The sum and substance of the respondents‟ arguments can be summarized as under: i. The Court should not have overstepped its jurisdiction and conferred upon itself legislative functions. ii. The petitioner has not placed on record any material to show misuse of the air rifles/pistols/guns for killing or maiming animals. iii. The petitioner has failed to show any inconsistency or repugnancy between the provisions of the Act on one side and the PCA and the WPA on the other. iv. The petitioner has acted in collusion with the respondents one to four, especially third respondent. v. Necessary and proper parties were deliberately not impleaded. vi. The WPA provides for punishments in case of any violations. vii. The NRA urges that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n notification. It is settled law (General Manager, South Central Railway v. A.V.R. Siddhanti And Ors., AIR 1974 SC 1755) that where the legality or vires any rule, regulation, or normative standard is questioned, the necessary party to such proceeding is the concerned government, or its statutory agency. Moreover, in the present case, the Court notices that there is no compulsion to implead parties such as manufacturers or traders, of airguns, since the licenses issued by the appropriate authorities, for manufacture or trade - in respect of their activities, or commerce was never in issue. Another aspect, which the Court cannot lose sight of, is that the writ petition was filed in public interest, and had sought intervention of the Court, to enforce provisions of the Prevention of Cruelty to Animals Act, 1960, contending that in view of its enactment, and India‟s being a signatory to various International Conventions and treaties, the impugned exemption notification had lost its legality and legitimacy. In such circumstances, particularly in the exercise of public interest jurisdiction, to promote ecological standards, when no discernable impact of Court directions are invol....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Act. A person may carry firearms or ammunition either in the presence of or under express authority of the licence holder for the limited purpose of repair or for renewal of licence or for such use by the holder. Section 9(1)(a)(i) prescribes the minimum age of acquiring, possessing or carrying a fire arm as 21 years. Though sub-section (2) of section 9 opens with a non-obstante clause, it does not permit grant of licence to a person under the age of 21 years, as in the opinion of the Court the bar under sub-section (1) is only relaxed for the limited purpose of permitting use of the firearms in course of training in use of such fire arms, only after attaining the prescribed age and strictly under prescribed conditions. To give any other construction to the provision would render the purpose redundant and nugatory. Section 9 (2) has to be read in line with Rule 16 of the Arms Rules, 1962 (hereafter, "the Rules"), which prescribes as under: 16. Age limit for training and target practice.- Any person below the age of sixteen years but not below the age of 12 years may be allowed to use a firearm for the purposes of training in the use of such fire-arm in the immedi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....such protection, (ii) in respect of a 22 point bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licenced or recognized by Central Government. ................" Section 13(3)(a) prescribes for an obligatory grant of licence on satisfaction of conditions specified in the section for (i) sport, inter alia; and (ii) target practice by a member of a rifle association licensed or recognized by the Central Government. Such person applying for licence must also meet the requirements of Section 9 of the Act. Further, Rule 15 of the Rules, which provides as under: "15. Licences for target practice.- Where a licences in Form VI has been granted in the name of any military mess, club or association it shall be lawful for any member of such mess, club or association to use the fire-arms covered under by such licence for the purpose of the mess, club or association in accordance with the conditions of the licencee." The rule thus provides that where a military mess, club or association holds a valid licence, their members may use the licenced firearms for the purposes of the mess, club or association in accordance w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....also covered, for not only the arms which discharge projectile(s) by action of any explosive are covered under the definition, but also arms which use other forms of energy, in this case being the energy or force generated from compressed air or gas. Thus, it is safe to conclude that air guns/air rifles/air pistols are not mere toys, as against the assertion of the respondents and they are very much subject to the provisions of the Act, being firearms. No fundamental right to carry or trade in arms. 20. It is well established that the matter of grant of licence for acquisition and possession of firearms is only a statutory privilege and not a matter of fundamental right under Article 21 of the Constitution f India. A Full Bench of the Allahabad High Court in Kailash Nath and Ors. v. State of U.P. and Anr., AIR 1985 All 291 observed as under: "A right is distinct from a mere privilege. The case of a licencee to possess or use firearm is materially different from a case of licence to deal in or sell firearms. Section 3 of the Arms Act, 1959 deals with acquisition and possession of firearms or ammunition on the strength of a licence whereas Section 5 provides for a licence fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rivilege." It is therefore, apparent that no citizen has a blanket right to carry firearms. Its grant is subject to his applying for a license, and fulfilling the qualifications and criteria, spelt out in the Act and Rules. The National Rifle Association‟s position, therefore, that its members have a right to secure a license, is untenable. They have, at best a right to apply for, and be considered for the grant of a license, subject to fulfillment of the prescribed qualifications. Manufacturing arms and trading in arms is a regulated activity. 21. The provisions of the Arms Act, make it clear that holding a license is not a right, but a qualified privilege; the applicant has to fulfill the conditions prescribed, to be granted the license; after its grant, he has to fulfill the conditions prescribed in the license, so as to be able to continue to hold it. As far as manufacturers are concerned, their right to trade and carry on the profession (as firearms manufacturers or traders) can be no higher than that of licensees. 22. The Supreme Court, in several decisions, has ruled that activities which are repugnant or abhorrent to the interests of the general public, thoug....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty of use of such weapons, if they are not subjected to licensing regulations. The argument is untenable, and therefore, rejected. 25. While on the topic, it would be useful to remember that Parliamentary intention was to regulate the use of all categories of firearms -hence the inclusion of airguns, in the definition and other provisions of the Act. The executive‟s compulsions in exempting air guns and other categories of such firearms, are not clear; this Court, after considering the subsequent developments by way of enactment of the two Acts (in 1960 and 1972), as well as the impact of international conventions, was of the opinion that the exemption did not serve any discernable purpose. The notification therefore, was set aside. In doing so, the Court merely affirmed the original Parliamentary objective behind the enactment, rather than uphold the unknown virtue of the exemption, contained in the notification. The Court also reinforced the objectives of the two latter enactments, i.e. the Prevention of Cruelty to Animals Act and the Wildlife Protection Act. Allegations of bias 26. The last submission of the respondent review petitioners was the bias on the part of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... which he may be interested in supporting. This rule of disqualification is applied not only to avoid possibility of a partial decision but also to ensure public confidence in the impartiality of the administrative adjudicatory process because not only must "no man be a judge in his own case" but also "justice should not only be done but should manifestly and undoubtedly be seen to be done." A decision, which is a result of bias is a nullity and the trial is "Coram non-judice." An inference of bias, can be drawn only on the basis of the factual matrix and not merely on the basis of insinuations, conjectures and surmises (Federation of Railway Officers Assn. v. Union of India, (2003) 4 SCC 289). It has also been held that bias cannot be presumed, it must be proved from the facts of the case (Ref. Franklin v. Minister of Town & Country Planning, [1948] A.C. 87) 29. If the above principles are kept in mind, what becomes clear is that neither the averments in the applications filed by the respondents, nor any documents, is there clarity about the role that Mrs. Maneka Gandhi allegedly played in seemingly influencing the course of the Union of India‟....