- (1.) S. K. Phaujdar, J. All these cases have been taken up together as certain common questions of law regarding inter pretation of the provisions of the Arms Act, 1959, had cropped up in all these matters. While taking up the matters, the common points will be dealt in common while the individual cases of the ap plicants, beyond the common points, shall be taken up separately. The cases could be grouped in three broad groups. In almost all the applications the FIRs in the respec tive case have been sought to be quashed. In some of them protection against arrest during investigation has been prayed for while in one case there is simply a prayer for transfer of the investigation of C. B. I, (in Crl. Misc. Application No. 4694 of 1997 ). Some of the applicants are dealers in arms, who are sought to be prosecuted for purchase of weapons allegedly smug gled into India. Some others are both pur chasers and sellers while a third group consists of mere bona fide purchasers as per their claims.
(2.) THE basic facts behind these cases, bereft of the details, are as follows: "on some report about illegal smuggling of arms into India, the District Magistrates of different districts issued directions to the licensed arms dealers to declare their transac tions of purchase and sale during a certain period. Upon such disclosures the matters were enquired into and alleged fake deals under fake licences were discovered wherein fire-arms of foreign origin were purchased and /or sold. A consolidated FIR was lodged covering all such actions. THE FIR was challenged before the High Court and it was held to be illegal and the authorities were directed to institute separate and definite cases against the different alleged wrong- doers. This gave rise to the present FIRs which are under challenge in the aforesaid ap plications. " Crl. Misc. Application No. 4434 of 1997 relates to case Crime No. 631 of 1997 under Section 8 (2) (25) of the Arms Act, P. S. Shahganj, Allahabad. This report was lodged on 8-7-97 by the City Magistrate, In- charge of the Arms Section, Allahabad. M/s. India Arms Stores, Leader Road, P. S. Shahganj, stood names as the accused. The applicant, Mohd. Nazim, is the licensee for this M/s. India Arms Stores. This case re lates to two pistols on which the names of the manufacturing company were not engraved. The licensee was asked to indi cate in detail the description of these two pistols but the licensee simply indicated the pistols to be of foreign make. It was stated in the FIR that there was violation of Section 8 (2) punishable under Section 25 of the Act. The FIR itself speaks of a plea by the dealer that he was not in a position to give the other details as his papers were seized by the CBI. It is the case of the prosecution that the CBI had seized the papers for a particular period only and it was open for the dealer to give the details from the subsequent papers. In this case it is the plea of the applicant Mohd. Nazim that the available details were given to the District Magistrate in terms of his notice. His firm had purchased one pistol from M/s. H. N. Sahu and Company, another from one Mirajuddin, an arms dealer of Indore and, thus, papers were there for the two pistol involved in the FIR. He took up a plea that he was a bona fide purchaser of the pistols from two arms dealers and he had sold these two pistols to customers in his capacity as a dealer in arms. It was submitted that he violated no provisions of law and the FIR should be quashed or, atleast, he should be given a protection against arrest during investigation of the case. Initially, the prayer for quashing the FIR was not there but it was subsequently added by an amendment. Crl. Misc. Application No. 4452 of 1997 of Ashiqur Rehman Khan deals with an FIR in case Crime No. 26 of 1996 under Section 25 of the Arms Act, P. S. Phitar, District Shahjahanpur, together with another FIR in case Crime No. 23 of 1996 under Sections 420,467 and 471, IPC of the same police station. He also made a prayer for protection against arrest during inves tigation. In this FIR, the allegations against the applicant and others was made on 7 -3-1996. It is the case of the prosecu tion that the applicant posed to be holder of a fire-arm licence issued from Nagaland which after verification was found to be illegal and forged. The concerned licence, which according to the applicant, was is sued to him from Nagaland where he had been staying in connection with his busi ness, bore No. NL/3/467/tsq for a 12-bore DBBL gun. He was also hold a gun under that licence, the gun No. being 5416 of 1992 and the possession thereof is not denied, rather is being justified to have been held under the aforesaid licence. In this application it was stated that no step was taken by the authorities for cancella tion of the licence and the whole proceed ing was untenable.
(3.) IN the third case, being Crl. Misc. Application No. 4988 of 1997, the applica tion is by one INdra Lal. INitially he prayed for a protection against arrest in case Crime No. 177 of 1997 under Section25 of the Arms Act, as also in case Crime No. 178 of 1997 for offences under Sections 420, 467,468 and 471, IPC relating to PS Meja, District Allahabad. Subsequently, the prayer was amended to include a prayer for quashing these FIRs. The allegations against him as per the FIRs covering the above two cases are that he was in posses sion of a fire-arm on the basis of a licence issued from Nagaland which was a forged one. It was his defence that he was given a valid licence by the Additional Dy. Com missioner, Deemapur, Nagaland for a gun and on the basis of that licence he was holding a DBBL gun of 12 bore which he had purchased from INdia Arms Store, a registered fire arm dealer at Allahabad. It was further stated that the licence had not been cancelled as yet and he may not be arrested by police. It was contended by the learned AGA that under the Arms Act and Rules the Addl. Dy. Commissioner of Nagaland could not have issued a licence to a person, for holding a gun at Allahabad and, atleast on this point the possession of the gun must be held to be illegal. In Crl. Misc. Application No. 3923 of 1997, the applicant is Markandey Misra. For him, there is something more in the case than the others, as on presentation of his application before this Court on 27-6-1997 before Hon'ble B. K. Sharma, J. an interim order was passed directing that he may not be arrested in the concerned case Crime Nos. 526 of 1997,527 of 1997,628 of 1997 and 529 of 1997, all relating to P. S. Khatauli, District Allahabad, subject to his surrendering his weapon (pistol) No. PNB1400- 49) in the concerned police sta tion latest by 10 a. m. on 28th June, 1997. This interim order stood extended from time to time and it remains in operation till the present order is pronounced. So far this applicant, Markandey Misra, is con cerned, the case against him is made out in the FIR that was drawn up on 13-6-1997. Under the orders of the District Magistrate, as indicated in the initial para graphs of this judgment, the arms dealers had submitted reports of purchase and sale of arms by them and it came out from such statements of M/s. H. N. Sahu and Com pany that four pistols were purchased from persons who were holding the same under licences issued from Nagaland and the same were re-sold to four persons includ ing this applicant. The aforesaid licences from Nagaland were found to be fake and forged. The applicant was sought to be prosecuted for holding a weapon which had come to the hands of the dealer through a fake licence-holder. The weapon in question was of foreign origin and was smuggled into India and its pos session was not permitted under the law. The applicant took a plea of the bona fide as he was holding a valid licence and as he made a purchase, as per rule, from a licenced dealer and there was no bad faith on his part. In this case, the learned AGA submitted that while all the three other purchasers from M/s. H. N. Had immedi ately surrendered their weapons, this ap plicant was absconding. It was further stated that although he was a permanent resident of Vindhyachal he obtained a licence showing himself to be a resident of Stratchy Road, Allahabad, and on verifica tion this address was found fake.;