Judgment:
ORDER
1. The State of Karnataka, along with its Corps of Detectives, are the petitioners before this Court, They have questioned the legality of the order dated 19-9-1994 (Annexure-E) passed by the XII Additional City Civil and Sessions Judge, Metropolitan Area, Bangalore in Criminal Appeal No. 111 of 1993 as also that of the order dated 24-6-1993 (Annexure-F) passed by the learned Magistrate, Bangalore in C.C. No. 2559 of 1992. The orders pertain to the disposal of 162 firearms and the same have been placed at Annexure-E and F respectively to the writ petition.
FACTS
One Mr. Arjun Vij was carrying on business in firearms under the name and style M/s. Arjun Armoury at No. 4002, High Point, Palace Road, Bangalore. For the said purpose he had obtained licence under the provisions of the Arms Act, 1959 (in short the 'Act' only) and the rules framed thereunder. According to the personal affidavit filed, by the Deputy Superintendent of Police, COD in the present proceedings on 7-2-1997, the said licence was valid for the period 24-6-1985 to 31-12-1990.
2. It is a matter of record that the said Arjun Vij was murdered in the intervening night of 3/4-4-1990 at Bombay along with one hardened criminal namely Chandra Hasa Jagannatha Shetty. When the Bombay Police, in the course of their investigation, learnt that the said Arjun Vij was running a fire arm shop at Bangalore, they requested the High Ground Police Station at Bangalore to help them in searching the shop of the deceased Arjun Vij. This is how, on 19-4-1990, the shop premises of Arjun Vij, namely M/s. Arjun Armoury was broke opened and in all 162 arms of various kind and make along with `3721 live cartridges' were seized under an inventory. The reasons assigned for seizure of firearms in question was that according to the seizing Police Officer the said firearms were neither supported by appropriate documents nor were found to have been properly accounted for. The seizure was reported tothe jurisdictional Magistrate at Bangalore who directed the City Armed Reserve, Head-quarters to keep the arms for safe custody. Copies of the Mahazar and Property Form have been placed at Annexure-A and B respectively to the writ petition. Subsequent to the said seizure the police registered Crime No. 182 of 1990 under Section 25(1)(m) of the Arms Act read with Rule 26 of the Arms Rules framed under Section 44(2)(j) of the Act. On 28-6-1990, the Director General of Police, considering the case involved that the firearms were manufactured in foreign countries, referred the case for investigation to the Corps of Detectives. But since the owner of the shop namely Mr. Arjun Vij had already been murdered, the Deputy Superintendent of Police (COD), Investigating Officer, filed an abate charge-sheet on 25-6-1992 and thus the criminal proceedings came to be closed.
3. Subsequently Mrs. Kamala Vij, as mother and legal heir of the deceased Arjun Vij, filed two applications on 16-3-1993 and 17-6-1993 both under Section 452, Cr. P.C. before the learned Judicial Magistrate for return of the seized firearms or in the alternate to direct the police to sell the same by public auction and sale proceeds thereof be given to her. The said claim was made by Mrs. Kamala Vij on the plea that her son deceased Arjun Vij had made a Will in her favour bequeathing all his properties/estate to her. The learned Magistrate, on hearing the Counsel for the applicant and the Public Prosecutor, by his order dated 24-6-1993 (Annexure-F) directed for return of firearms in question to her subject to the condition that she produces licenses for possessing the same before the Deputy Commissioner of Police, City Armed Reserve, Bangalore.
4. But, subsequently, Criminal Appeal No. 111 of 1993 was filed in her name by Sri Naresh Vij claiming himself to be her general power of attorney holder on 22-7-1993 before the learned Sessions Judge. The plea taken in the appeal was that the order of the learned Magistrate directing return of firearms to Mrs. Kamala Vij, subject to her obtaining licence for possession of those arms was erroneous since it was not feasible for her to obtain so many arms licences. According to her/him, the learned Magistrate ought to have acceded to her alternative prayer that through a public auction the seized firearms be sold making the sale proceeds thereof available to her. The learned Sessions Judge after having considered the scope and ambit of Section452, Cr. P.C. and Section 21(6) of the Arms Act found it more advisable to direct for sale of the seized firearms by auction and payment of the sale proceeds to the claimant. The operative portion of the said order dated 19-9-1994 (Annexure-E) is to the following effect: -
'The appeal is allowed. Such of those items relating to firearms--subject-matter of Property Form No. 64 of 1990 and mentioned in the annexed panchanama in Crime No. 182 of 1990 of the High Ground Police Station (C.C. No. 2559 of 1992) be auctioned immediately after two months (as prescribed under Section 452(4), Cr. P.C.) but not later than one month thereafter through an authorized arms dealer and the proceeds be paid to the applicant- appellant Mrs. Kamala Vij after deducting the expenses incurred in that behalf'.
5. It is against the said two orders passed by the learned Magistrate and the learned Sessions Judge, in exercising their jurisdiction under Section 452 of the Cr. P.C, that the present writ petition has been filed after a lapse of almost one year and nine months from the date of passing of the appellate order by the State of Karnataka and its agency Corps of Detectives inter alia on the ground that the public auction of firearms in question may lead to increasing of terrorist activities in the Country in general and the State of Karnataka in particular, because in all likelihood it may fall in the hands of anti-social elements and dreaded criminals and thus the same will not be in the public interest. Apart from this some other legal grounds have also been raised with which I will be dealing after a little while.
6. According to the respondent, the market value of seized 162 arms is said to be more than a crore of rupees.
7. In the present writ petition, Mrs. Kamala Vij, who was, apparently the appellant before the Sessions Judge was made the sole respondent through her purported General Power of Attorney Holder Sri Naresh Vij. On service of notice of the present writ proceedings, the said Naresh Vij, who appears to be the retired Major General of Indian Army, appeared through his Advocate and filed a memo for dismissal of the writ petition, by taking the plea that the sole respondent Mrs. Kamala Vij already had died on 12-6-1992 i.e., much prior to filing thepresent writ petition and accordingly it should be dismissed on the ground that the writ petition against the dead persons is not maintainable.
8. The learned Advocate-General having learnt about the said material fact of the death of Mrs. Kamala Vij on 12-6-1992 strenuously urged that apart from the legality and the propriety of the said order on merits, the impugned order of the learned Sessions Judge has been obtained by the interested persons by playing a fraud on the Court, since on the date of the filing of the criminal appeal the lady Mrs. Kamala Vij was already dead and therefore no appeal could have been filed by her or on her behalf by any person claiming to be a general power of attorney holder. He further submitted that without going any further for the very reason, on which the maintainability of the present writ petition has been questioned, should be held to be a conclusive for declaring the order passed by the Sessions Judge as null, void, and non est in law requiring no compliance by the State of Karnataka or its Police and/or investigating agencies.
9. The learned Advocate-General has further submitted that even if the order dated 24-6-1993 (Annexure-F) passed by the Magistrate, because of one or other reason had remained unchallenged at the instance of the State Government or its agencies under Section 454, Cr. P.C. by way of filing an appeal before the Sessions Judge and thus had attained a finality, still that cannot inure to the benefit of any surviving legal heir or beneficiary under a probated Will, because the order passed by the learned Magistrate (Annexure-F) was for return of the firearms in question on fulfilment of certain conditions only to Mrs. Kamala Vij who is no more alive and not to anyone else. According to him, under these circumstances, unless a fresh order is obtained by the person who claims to be entitled to the possession of the seized firearms or in case of their sale to the sale proceeds thereof, subject to statutory provisions, nobody can claim the said benefit.
10. In the present case, apart from trying to defeat the judicial fiat contained in the impugned orders (Annexure-E and F) passed by the Courts below on the grounds noticed above, the entire endeavour of the learned Advocate-General appeared to be to impress upon this Court that keeping in view the public interest the seized firearms should be permitted to be appropriated to the State.
11. Therefore the questions which call for consideration are these:-
(i) Whether the seized arms can be confiscated to the State,
(ii) Whether the impugned orders (Annexure-E and F) are sustainable in law, and
(iii) Whether the legal representatives of the heirs are entitled to the possession of the seized firearms or the sale proceeds thereof,
Re: Question No. (i):
12. It is not in dispute that the firearms in question had been seized from the licensed business premises of the deceased Arjun Vij. No one else including the State of Karnataka, has claimed the ownership of the said firearms. The respondent has produced documents to show the mode of acquisition of the arms by the said deceased. It is a established jurisprudential principle that possession is prima facie evidence of complete title and anyone who intends to oust the possessor must establish his title to do so. This principle has been given statutory recognition under Section 110 of the Indian Evidence Act, 1872 which reads that:--
'When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner'.
13. Therefore it has to be held that the ownership over the firearms in question vested in late Mr. Arun Vij and after his death in his legal heirs/representatives/legatees.
14. Chapter IV of Part XII of the Constitution of India deals with RIGHT TO PROPERTY. Article 300A of the Constitution ensures that there will be no deprivation of the property save by authority of law. This Article reads thus:-
Article 300-A. No person shall be deprived of his property save by authority of law.
15. The above Article contains three material expressions namely, 'property', 'deprived' and 'by authority of law'.
16. In the above Article, property inter alia means something which can be acquired, disposed of or taken possession of -Charanjit Lal Chowdhury v Union of India and Others . Therefore it cannot be seriously disputed that the firearms under reference are property for the purpose of Article 300A.
17. Further deprivation of property may take place in various ways such as destruction or confiscation. It can be by way of punishment for a crime or a violation of law because fines and forfeitures are recognised forms of punishment (e.g. see Section 53, Indian Penal Code). It may be noticed here that forfeiture as a punishment for an offence is sometimes called confiscation as has been noticed in Jowitt's Dictionary of English Law, 2nd Edn., Vol. 1.
18. By authority of law means by or under a law made by a competent legislature. It may be emphasized that merely because the executive authority of the State extends to its legislative competence, it would not follow that the State or its officers can deprive a person of its property without the authority of a law made by the legislature. Under our Constitutional scheme, the executive cannot deprive a person of his property of any kind without specific legal authority which can be established in a Court of Law, however laudable the motive behind such deprivation may be - Bishambar Nath Kohli v State of U.P.2, State of M.P. and Another v Thakur Bharat Singh , Vazir v State of H.P. and Ram Jawaya Kapur v State of Punjab .
19. Now in the said perspective of the Constitutional limitations let me examine the facts and the relevant statutory provisions so as to adjudge the right of the State of Karnataka to appropriate or forfeit the seized firearms to itself. As I have already noticed above, in ordinary course of law, since the firearms were owned by late Arjun Vij, after his death those became the property of his heirs and successors, testamentary or otherwise. But the State has intervened in that process by raising various objections on the ground of maintenance of law, order and social security. But curiously despite repeated opportunities the learned Advocate-General has failed to bringto my notice any statutory provision made by any competent legislature under which the rights of the legal heirs and successors of the slain owner of the firearms to claim possession of the said property or at least the value thereof in terms of money can be defeated.
20. The only provision for confiscation of the firearms which could be pointed out at the Bar is Section 32 of the Arms Act, 1959 which reads as under:-
'Section 32. Power of confiscate.--(1) When anyperson is convicted under this Act of any offence committed by him in respect of any arms or ammunition, it shall be in the discretion of the convicting court further to direct that the whole or any portion of such arms or ammunition, and any vessel, vehicle or other means of conveyance and any receptacle or thing containing, or used to conceal, the arms or ammunition shall be confiscated:
Provided that if the conviction is set aside on appeal or otherwise, the order of confiscation shall become void.
(2) An order of confiscation may also be made by the Appellate Court or by the High Court when exercising its power of revision'.
21. In the present case admittedly in respect of the firearms in question nobody could be convicted since the original owner namely, Mr. Arjun Vij, was already murdered even before the detection of the alleged irregularities leading to abatement of the criminal proceedings. Therefore, as noticed above, the criminal proceedings had to be closed.
22. Section 32 of the Arms Act is quite clear in its scope and extent. Its bare reading makes it abundantly clear that under this Section, arms and ammunitions can be ordered to be confiscated (i) by the convicting Court, and, that too (ii) when any person is convicted under the Act in respect of those arms and ammunitions. These are the conditions precedent for invoking of Section 32.
23. In the present case admittedly neither any order of confiscation has been passed by any Court as of fact nor any such order could have been passed in law. Learned Advocate-General has failed to bring to my notice any statutory provision under which either the State or its officers had the competenceto confiscate the firearms or refuse the possession thereof, subject to licensing provisions under the Arms Act, or insist for getting the value thereof in terms of money by the owner of the arms or his heirs or successors. Accordingly, the first question is answered against the State, by holding that the State has no authority to forfeit or confiscate the firearms and it is bound to dispose of the same in accordance with the order passed under Section 452/454 of the Criminal Procedure Code by the competent Court.
Re: Question No. (ii):
24. As noticed above, after close of the criminal case instituted against deceased Arjun Vij in relation to the firearms in question, his mother, Mrs. Kamala Vij, made applications on 17-6-1993 under Section 452, Cr. P.C. for return of the seized arms or sale proceeds thereof on the strength of a Will claimed to have been executed in her favour by her son. The learned Magistrate, after hearing the applicant and the State, passed the impugned order dated 24-6-1993 (Annexure-E) directing return of the firearms subject to her producing a licence authorising possession of the same under the Arms Act and its production before the City Arm Reserve Deputy Commissioner of Police.
25. Against the said order of the learned Magistrate, an appeal purporting to be one on behalf of Mrs. Kamala Vij was filed by the respondent describing himself to be her general power of attorney holder wherein it was prayed that since the mother is not interested in carrying on business in firearms and it is difficult on her part to obtain licence for the said purpose, therefore, the learned Magistrate ought to have acceded to the request made on her behalf for disposal of the firearms through any authorised dealer and sale proceeds thereof may be given to her. The learned Sessions Judge on an interpretation of Section 452, Cr. P.C. and by looking at the scheme of disposal of firearms under the Arms Act allowed the appeal under his impugned order dated 19-9-1994 (Annexure-F). I have already extracted the operative portion of this order in verbatim in para 4, supra.
26. In my considered opinion, since Mrs. Kamala Vij has already died on 12-6-1992, therefore, no surviving legal representative either of Arjun Vij or Mrs. Kamala Vij can takebenefit of the directions contained in the impugned orders passed by the learned Magistrate or the learned Sessions Judge. It is for the reason that so far as the order passed by the learned Magistrate is concerned, the direction given for the possession of the firearms was only in favour of Mrs. Kamala Vij and not any other heir or successor. Further, so far as the order of the learned Sessions Judge is concerned, admittedly the same has been obtained in an appeal purported to have been filed in the name of a dead person since Mrs. Kamala Vij had already died much before the filing of the appeal. I do not propose to enter into the controversy as to whether the said appeal was filed under some bona fide mistaken legal concept or in an effort to play fraud with the Court, since any adjudication on this aspect needs a detailed enquiry. For the present purpose suffice it is to say that in either situation the impugned order by the Sessions Judge (Annexure-F) is a nullity and non est in law and as such nobody can claim to derive any benefit therefrom.
Re: Question No. (iii):
27. As discussed above, there cannot be serious dispute about two material facts namely, (i) the seized firearms are in the custody of the Court and, (ii) the property in the same vested in the legal representatives of the deceased Arjun Vij and/or Mrs. Kamala Vij. Accordingly, the said legal representatives can prefer their claims before the competent Magistrate in terms of Section 452, Cr. P.C. I may notice here that I am in agreement with the view taken by the learned Sessions Judge on the interpretation of Section 452 that the seized arms can be disposed of in accordance with law and its sale proceeds can be made available to the person entitled thereto.
28. It may further be noticed here that, as is evident from the Property Form 64 of 1990, the seized firearms comprise of revolvers, rifles, spare parts, etc. The petitioners have nowhere pleaded that the sale of such firearms is absolutely prohibited under any law for the time being in force, no doubt such sale can take place only in accordance with the regulatory provisions providing for licenses and other restrictions as contemplated under the Arms Act.
CONCLUSION AND DIRECTIONS
29. Keeping in view the facts and circumstances as discussed above and the relevant constitutional and statutory provisions, I find it expedient and reasonable to dispose of the present writ petition by issuing the following directions:--
(i) the Director General of Police (COD) (petitioner 2) will ensure that the firearms in question are disposed of by auction sale through a licensed arms dealer in accordance with the statutory provisions applicable in this regard within two months from today;
(ii) the sale proceeds received after disposal should be deposited in a nationalised bank as term deposit in the name of the Registrar of the City Civil Court, Bangalore, and the Fixed Deposit receipt should be immediately placed in his custody under written acknowledgement;
(iii) it will be open for the legal representatives of late Arjun Vij or Mrs. Kamala Vij, as the case, may be, to file applications under the Section 452, Cr. P.C. before the jurisdictional Magistrate for receiving the sale proceeds of the said arms;
(iv) application so filed by any legal representative should be disposed of by the competent Magistrate by adjudging the right of the claimant after due notice to all the surviving legal heirs of the said two deceased persons in accordance with the law of succession, intestate or testamentory, as the facts and pleadings demand; and,
(v) the parties will bear their own costs.