Opinion of Experts requested on point of law
Querist :
Anonymous
(Querist) 19 January 2011
This query is : Resolved
Dear Experts,
Please refer Apex court decision at http://yedhulaprakash1.lawyersclubindia.com/judiciary/Licence-for-acquisition-and-possession-of-firearms-and-ammunition-1557.asp
As per my understanding apex court has given primacy to general act/Exim Policy (1997-2002) instead of a specific act i.e. Arms Act 1959.
Whereas apex court, in the case of Suresh Nanada Vs C.B.I 2008 AIR 1414 held that: The Act (Passport Act) is a special Act relating to a matter of passport, whereas Section 104 of the Cr.P.C. authorizes the Court to impound document or thing produced before it. Where there is a special Act dealing with specific subject, resort should be had to that Act instead of general Act providing for the matter connected with the specific Act. As the Passports Act is a special act, the rule that ‘general provision should yield to the specific provision’ is to be applied.
In view of Suresh Nanada Vs C.B.I 2008 AIR 1414, in my opinion Exim Policy should have yielded to specific act of Parliament. No policy can be above an Act of Parliament i.e. Arms Act 1959 in this case. Please give your opinions.
R.Ramachandran
(Expert) 20 January 2011
Section 5 of the The Foreign Trade (Development and Regulation) Act, 1992 empowers the Central Government to announce the Foreign Trade Policy.
Sec.5. The Central Government may, from time to time, formulate and announce, by notification in the Official Gazette, the foreign trade policy and may also, in like manner, amend that policy:
Provided that the Central Government may direct that, in respect of the Special Economic Zones, the foreign trade policy shall apply to the goods, services and technology with such exceptions, modifications and adaptations, as may be specified by it by notification in the Official Gazette.
Thus your opinion that "No policy can be above an Act of Parliament i.e. Arms Act 1959" does not appear to be correct for the reason that the policy has statutory backing under a special Act viz., Foreign Trade (D&R) Act, 1992.
More over, the Supreme Court has considered the provisions of Arms Act and has held that "It is true that prohibition contained in Section 3(1) and Section 3(2) and Section 10 is not attracted against the appellant." However, the SC has further also held that "but that would not entitle him to bring in firearms to the country on transfer of his residence, import of which is prohibited under export and import policy."
The Exim Policy is a specific law for import of goods into the country, as opposed to the general Arms Law.
Therefore, there is no contradiction in the latest decision, vis-a-vis the decision in Suresh Nanda's case.
Querist :
Anonymous
(Querist) 20 January 2011
Thank you Adv. R. Ramachandran for your reply. Your reply is certainly helpful in better understanding and narrowing down to points of law and is raising further questions. I am presenting them below:
"Arms Act,1959
10. Licence for import and export of arms, etc.
(1) No person shall bring into, or take out of, India by sea, land or air any arms or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:
Provided that---
(a) a person who is entitled by virtue of this Act or any other lay for the time being in force to have, or is not prohibited by this Act or such other law from having, in his possession any arms or ammunition, may without a licence in this behalf bring into, or take out of, India such arms or ammunition in reasonable quantities for his own private use;"
According to me Section 10, sub-section 1, clause a) clearly indicates that if my Arms License allows me to own a particular firearm, I have the right to import a firearm of that particular category without a license for importing it.
"11. Power to prohibit import or export of arms, etc.
The Central Government may, by notification in the Official Gazette, prohibit the bringing into, or the taking out of, India, arms or ammunition of such classes and de.scriptions as may be specified in the notification.
12. Power to restrict or prohibit transport of arms
(1) The Central Government may, by notification in the Official Gazette,---
(a) direct that no person shall transport over India or any part thereof arms or ammunition of such classes and de.scriptions as may be specified in the notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder; or
(b) prohibit such transport altogether.
(2) Arms or ammunition trans-shipped at a seaport or an airport in India are transported within the meaning of this section."
The aforesaid sections of Arms Act 1959 are very clear that the govt. can prohibit the import or transport of a particular category of arms and/or ammunition but does not entitle the govt. to allow some sections of the citizens to import firearms(like renowned shots) and bar others from doing so. Nor does it allow the govt. to prohibit the import and transfer of all categories of firearms.
The points to be noted are:
1)In Arms Act 1959 Section 10, sub-section 1, clause a), the Parliament has clearly allowed the import of firearms by the arms license holders without a license for importing them. In Sections 11 and 12 Parliament has specifically provided for the regulation of the import and export of arms.
2)In Section 5 of The Foreign Trade (Development and Regulation) Act,1992, Parliament has delegated authority to the executive to formulate and announce, by notification in the Official Gazette, the foreign trade policy.
Now question arises, can the executive by creating a policy(using delegated powers under Section 5 of the The Foreign Trade (Development and Regulation) Act,1992) and undermine the intention of the Parliament that has been clearly expressed in the Arms Act 1959 Section 10, sub-section 1, clause a)? In my view delegated powers are to be interpreted as strictly as possible, consistent with the words, and rights as broadly as possible, with the presumption in favor of the right, and the burden of proof on those claiming a power. In cases of doubt, the presumption is not in favor of a power.
In view of the above questions I feel that there is a contradiction in the decision, vis-a-vis the decision in Suresh Nanda's case.
R.Ramachandran
(Expert) 20 January 2011
Dear Mr. Anonymous,
In these matters as usual we differ in our opinions/views on the subject. I respect your view points, though I do not agree with it.
