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Pratap Bahadur Singh v. State Of U.P. Thru' Secy. Home & Another - WRIT - C No. 32498 of 2006 [2006] RD-AH 11719 (18 July 2006)


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Civil Misc. Writ Petition No. 32498 of 2006

Pratap Bahadur Singh vs. State of  U.P. and another

Hon'ble Krishna Murari, J.

Heard Sri Gajendra Pratap, learned counsel for the petitioner and Sri C.B.Yadav, learned Chief Standing Counsel.

A counter affidavit has been filed on behalf of the respondents. Learned counsel for the petitioner states that he does not propose to file any rejoinder affidavit.

With the consent of the learned counsel for the parties, the writ petition is being disposed of at the admission stage itself.

The main relief claimed in the writ petition is a writ, order or direction commanding the respondent no.2 to open seal put on the petitioner's shop. The facts are that the petitioner is a license dealer of arms and ammunition and runs a shop in the name of Rajesh Gun House. The Trade Tax Department contemplated inspection of stock and business record of the petitioner and for the purpose wrote a letter dated 5.5.2006 to the District Magistrate/Licensing Authority to nominate a Magistrate and to provide police help for the purpose. The District Magistrate deputed the City Magistrate, Allahabad to accompany the team of Trade Tax Department. The team along with City Magistrate carried out inspection of the petitioner's shop on 10.5.2006.

During inspection certain anomalies were discovered as the entries in the stock register did not tally with the actual stock. The records were seized and seizure memo was prepared. A report dated 10.5.2006 with regard to variation found in the actual stock and the stock register was submitted by the City Magistrate to the District Magistrate/ Licensing Authority who on the same day passed an order to initiate legal action as per law. The Magistrate along with O/C Arms again visited the shop of the petitioner and having found it locked, unable to search the premises, put his own lock and sealed the premises. An FIR under Section 3, 25 & 30 of the Arms Act (for short ''the Act') was also registered against the petitioner on 15.5.2006. Show cause notice under Section 17 of the Act for cancellation of license was also issued to the petitioner. The District Magistrate/ Licensing Authority also recommended to the State Government for initiating proceeding for cancellation of license granted in Form-12.

In the present case, we are not concerned either with the proceedings under the Trade Tax Act or cancellation of license or first information report lodged against the petitioner. The dispute in the present petition is only confined to sealing of the business premises of the petitioner.

It has been urged by learned counsel for the petitioner that under the provision of the Arms Act and Rules framed thereunder the respondents have no authority or jurisdiction to seal the business premises/shop of the petitioner.

In reply it has been vehemently urged by learned Chief Standing Counsel that Section 22 of the Act confers power of search and seizure and the authorities are well within their jurisdiction in putting a lock and sealing business premises/shop of the petitioner. It has further been urged that in view of the fact that shop of the petitioner was locked and he was absconding the Magistrate was left with no option but to put his own lock and seal the shop.

I have considered the argument advanced by learned counsel for the parties and perused the records.

Section 22 of the Act which confers power of search and seizure by the Magistrate reads as under :

"22.  Search and seizure by Magistrate - (1) Whenever any Magistrate has reason to believe -

(a)  that any person residing within the local limits of his jurisdiction has in his possession any arms or ammunition for any unlawful purpose, or

         (b) that such person cannot be left in the possession of any arms or ammunition without danger to the public peace or safety,

the Magistrate may, after having recorded the reasons for his belief, cause a search to be made of the house or premises occupied by such person or in which the Magistrate has reason to believe that such arms or ammunition are or is to be found and may have such arms or ammunition, if any, seized and detain the same in safe custody for such period as he thinks necessary, although that person may be entitled by virtue of this Act or any other law for the time being in force to have the same in his possession.

(2)    Every search under this Section shall be conducted by or in the presence of a Magistrate or by or in the presence of some officer specially empowered in this behalf by the Central Government."

A bare reading of the aforesaid provision makes it clear that Magistrate has been empowered to carry out search of the house or premises and if during such search any arms and ammunition is found in possession of the person which the Magistrate has reason to believe is for an unlawful purpose or may pose danger to public peace or safety, the Magistrate can seize and detain the same in safe custody. Such powers can be exercised by the Magistrate irrespective of the fact that person is entitled by law to be in possession of the arms and ammunition if he has reason to believe that such possession is for unlawful purpose or poses a threat to public peace and safety. It is thus clear that power of seizure has been conferred on the Magistrate only with respect to arms and ammunition and not with respect to house or premises.

In view of the above, impugned action of the Magistrate in sealing the premises of the petitioner was totally illegal and without jurisdiction. In so far as second argument advanced by learned Chief Standing Counsel that since the petitioner had absconded after putting his lock over the premises the Magistrate was left with no option but to seal the same is also without any force. Power to search includes within itself power to overcome any resistance which may be offered by any person in carrying out search. In case the petitioner had absconded after putting lock over the premises as stated, the Magistrate was not powerless. He could have broken the lock and carried out the search. Merely by putting his own lock and sealing the premises the Magistrate cannot be said to have carried out the purpose for which the powers have been vested in him by Section 22 of the Act. Thus even in the circumstances in which the Magistrate is said to have put his lock and sealed the premises cannot be said to be justified. Even otherwise, the business premises of the petitioner cannot be allowed to remain sealed indefinitely.

In such circumstances, the lock and seal put by the Magistrate over the petitioner's shop/business premises is liable to be removed.

The City Magistrate, Allahabad is directed to remove the lock and seal over the petitioner's shop/business premises within three days from the date of receipt of certified copy of this judgment. However, it shall be open to the City Magistrate to carry out the search of the petitioner's shop in accordance with the provision of Section 22 of the Act. The petitioner shall co-operate with the Magistrate in carrying out the search by removing his lock.

Subject to aforesaid directions, the writ petition stands finally disposed of.



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