Procuring Arms Licence In India: Legal Procedure And Important Cases

This Article Has Been Written By Mridul Gupta & Shatakshi Singh

Coverage of this Article

Key takeaways

-A brief introduction and history of the currently in force Arms Act, 1959.

Introduction

-As per the definition mentioned in the Arms Act, 1959 Section 2 (c), “arms means articles of any description designed or adapted as weapons for offence or defence, and includes firearms, sharp edged and other deadly weapons, and parts of, and machinery for manufacturing, arms, but does not include articles designed solely for domestic or agricultural uses such as a lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or of being converted into serviceable weapons.” 

History of the Act

-The Revolt of 1857 was the first instance of Indians using guns, which alarmed the British.

Important provisions of the Arms Act

-As per the law in India, no person is allowed to carry or have possession of firearms or ammunitions without the license which is issued in accordance with the provisions of Arms Act, 1959.However, it is not always mandatory for a person to hold license for the arms in his own name as, he can carry them either in the presence of the license holder or upon the written orders of the license holder for the purpose of use, repair or for the renewal of license.

Important Case Laws

GANESH CHANDRA BHATT V. DISTT MAGISTRATE, ALMORA & ORS. [AIR 1993 ALL 291]

-The question was whether the right to bear arms was included in the right to self-defence, which is a part of the right to life and liberty under Article 21 of the Indian Constitution.

SURINDER SINGH VS STATE (UNION TERRITORY OF CHANDIGARH) [CRIMINAL APPEAL NO. 2373 OF 2010]

-The Supreme Court has said unequivocally that the illicit use of a licensed or sanctioned firearm does not constitute an offence under Section 27 of the Act unless a misdemeanor under Sections 5 or 7 of the Act is established. 

HARI KISHAN V. STATE (NCT OF DELHI), [CRL.M.C.NO. 3865/2016]

The issue was the interpretation of the term "possession" under Section 25 of the Arms Act. In this case, the petitioner was discovered to have a live cartridge in the side pocket of his backpack, which was discovered by officers conducting a luggage check at the metro station. As a result of this, the petitioner was promptly charged under Section 25 of the Arms Act.

Conclusion

The Ministry of Home Affairs' intention to keep a National Database of Arms Licenses, which would serve as an official record of license holders in order to regulate the arms industry and keep unlawful operations to a minimum, is praiseworthy.

This Article Has Been Written By Mridul Gupta & Shatakshi SinghKey takeaways

• A brief introduction and history of the currently in force Arms Act, 1959.
• The important provisions dealing with the license for holding, selling, transferring etc. of the arms in India.
• Relevant case laws concerned with the topic.

Introduction

As per the definition mentioned in the Arms Act, 1959 Section 2 (c), “arms means articles of any description designed or adapted as weapons for offence or defence, and includes firearms, sharp edged and other deadly weapons, and parts of, and machinery for manufacturing, arms, but does not include articles designed solely for domestic or agricultural uses such as a lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or of being converted into serviceable weapons.” The Arms Act deals with the provisions that are prescribed to hold, transfer, sell, import, export, etc., the arms by a person in India. It prescribes the process of filing the application for the grant of licensein order to deal with the arms within the country both by the Indian citizens and by the tourists visiting India for a limited period of time. Certain other definitions of the terms like ‘tourist’, ‘firearms’, ‘ammunition’, etc. mentioned in the concerned provisions are provided within the Arms Act, 1959.

History of the Act

• The Revolt of 1857 was the first instance of Indians using guns, which alarmed the British.
• The British felt that the only way to prevent future large uprisings against them was to enact legislation prohibiting Indians from owning firearms.
• The Indian Arms Act of 1878 was enacted as a result of this. Only those Indians with prior authorization or a legitimate license were allowed to possess arms under this Act. The manufacturing, sale, possession, and carrying of guns were all restricted under this statute.
• The Act's discriminatory nature was clear, since Europeans were simply spared from its restrictions, while Indians faced harsh penalties and punishments if they disobeyed it.
• Following independence, the Indian government passed the Indian Arms Act of 1959, which recognised the need for certain law-abiding residents to own and use firearms for sports, crop protection, and self-defense.
• The Arms Rules of 1962 were enacted in response to this Act.

Important provisions of the Arms Act

As per the law in India, no person is allowed to carry or have possession of firearms or ammunitions without the license which is issued in accordance with the provisions of Arms Act, 1959.However, it is not always mandatory for a person to hold license for the arms in his own name as, he can carry them either in the presence of the license holder or upon the written orders of the license holder for the purpose of use, repair or for the renewal of license. Additionally, a person at a time can carry only three firearms as per Section 3 of Arms Act, 1959.

Similarly, as per Section 5 of the Arms Act, a person is not entitled to sell, manufacture, transfer, repair, convert or test the arms without holding a license in his behalf. However, the private arms can be sold or transferred without holding a license for the same, to anyone, by the holder of such arms, who is allowed by the law in force or is specifically not prohibited by the law to posses such arms. For such a transfer or sale of firearms or ammunition, a person has to inform in writing about his intention of the same, to the district magistrate having jurisdictionor the officer in charge of the nearest police station along with the name and address of the person to whom such transfer has to be made. The transfer finally can be made once the period of forty-five days has expired since the date of information given to the magistrate.

Like the transfer or sale of firearms and ammunition, for the import and export of such arms by land, air or sea, a license must be obtained by a person as per the provisions of this Act. However, if the quantity is limited, then such arms can be taken out of the country or brought inside without the license for his own private use if such a person is allowed or not prohibited by law to hold such arms. A tourist from a country as prescribed by the Central Government, who is not prohibited by the law in his country to hold such arms, can also bring within India the arms in a reasonable quantity for purpose of sports only and for no other purposes. This has been provided in Section 10 of the Arms Act.

For the grant of a license, an application must be made to the licensing authority in such form and contain such particulars along with such fee, if any, as may be prescribed by Section 13 of the said Act. Then on receipt of such an application, the licensing authority calls for the report of the officer in charge of the nearest police station on that application, and such officer consequently sends his report within the prescribed time to the authority. The licensing authority later if finds it necessary may conduct an inquiryand after considering the report received, subject to the other provisions of the said Act, by order in writing shall either grant or refuse to give the license to the applicant. However, if the report is not provided to the authority within the prescribed period of time, then it may pass the order as it may deem fit after the expiry of such time period as was prescribed.

A license once granted, under Section 3, unless revoked,shall continue in force for a period of three years from the date on which it was granted. Such a license shall be granted for a shorter period of time if the person who has applied for suchlicense desires or if the licensing authority for some reasons, which has to be recorded in writing considers that the license should be granted for a shorter period.Every license has to be renewed for the same period for which the license was originally granted and such renewal has to be made from time to time.

The fees for the grant of license or renewal of the license as prescribed, differs depending upon different conditions and different forms may be prescribed for different types of licenses applied for. Further, a license may contain some additional conditions as may be considered necessary by the licensing authority in any particular case.

Important Case Laws

GANESH CHANDRA BHATT V. DISTT MAGISTRATE, ALMORA & ORS. [AIR 1993 ALL 291]

• The question was whether the right to bear arms was included in the right to self-defence, which is a part of the right to life and liberty under Article 21 of the Indian Constitution.
• According to the Court the right to bear arms did certainly fall within the scope of Article 21, under the right to self-defense.
• However, this ruling was overturned in the aftermath of the 1993 Bombay bomb blasts, as a result of which the constitutional protection granted to the right to bear arms was repealed, and the right to bear arms is now governed only by the terms of the Arms Act and is now a legal right.

SURINDER SINGH VS STATE (UNION TERRITORY OF CHANDIGARH) [CRIMINAL APPEAL NO. 2373 OF 2010]

The Supreme Court has said unequivocally that the illicit use of a licensed or sanctioned firearm does not constitute an offence under Section 27 of the Act unless a misdemeanor under Sections 5 or 7 of the Act is established. The Supreme Court further stated that it may be considered 'misconduct' under the service regulations at best.

HARI KISHAN V. STATE (NCT OF DELHI), [CRL.M.C.NO. 3865/2016]

• The issue was the interpretation of the term "possession" under Section 25 of the Arms Act. In this case, the petitioner was discovered to have a live cartridge in the side pocket of his backpack, which was discovered by officers conducting a luggage check at the metro station. As a result of this, the petitioner was promptly charged under Section 25 of the Arms Act.
• The petitioner claimed that he was completely stunned and shocked because he had no awareness of the live cartridge in his bag's and was instead falsely accused of it. The petitioner had a spotless criminal record. It was also shown that he did not have a firearm or any other weapon in his possession. Furthermore, he had no knowledge of the live cartridge's presence, or, to put it another way, he was not in conscious possession of the live cartridge.
• He said that Section 25 included conscious possession, and that mere custody without knowledge of the nature of the possession could not be considered a violation of the Act. The petitioner also informed the Court that the Act's provisions could not be applied in this case because, according to Section 45 of the Act, "the acquisition, possession, or carrying by a person of minor parts of arms or ammunition which are not intended to be used in conjunction with complementary parts acquired or possessed by them of any other person" does not constitute an offence.
• The Court agreed with the petitioner's arguments, and the FIR against the petitioner, as well as the proceedings arising therefrom, were quashed.

Conclusion

The Ministry of Home Affairs' intention to keep a National Database of Arms Licenses, which would serve as an official record of license holders in order to regulate the arms industry and keep unlawful operations to a minimum, is praiseworthy. However, according to statistics from 2021, India continues to have the second largest number of gun-related deaths, the majority of which are unregistered and illegal. India is following suit, but there is still a long way to go. For a long time, many people have debated whether weapons can ever obtain constitutional protection in India, including some of our country's most famous freedom fighters.

“I personally myself cannot conceive how it would be possible for the State to carry on its administration if every individual had the right to go into the market and purchase all sorts of instruments of attack without any let or hindrance from the State.” - Dr B. R. Ambedkar

This Article Has Been Written By Mridul Gupta & Shatakshi Singh