Singh Katoch Vs. Union of India & Ors.  INSC 350 (5 May 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.
4094-96/2010 OF 2010 (Arising out of SLP(C) Nos. 27622-27624 of 2008) Anirudh
Singh Katoch ...Appellant Versus Union of India & Ors. ...Respondents
JUDGEMENT R.M. Lodha, J.
these three appeals, by special leave, the core question that arises for
consideration is, whether the Additional Commissioner of Customs, Indira Gandhi
International Airport, New Delhi (Respondent no. 3) was justified in detaining
two duly licensed firearms which the appellant brought from United States of
America (USA) on transfer of his residence into India.
appellant--an Indian citizen--went to USA for further studies in 1984. He
graduated in Computer Science from Seattle Pacific University, Seattle, USA and
worked with a Medical Instrumentation firm there. He holds licences for the
possession of three firearms, namely, (1) Walther PPKS SNW007450 (NPB Pistol)
(2) NPB Rifle and (3) DBBL Gun under the Arms Act, 1959 (for short, `1959 Act')
and the Arms Rules, 1962 (for short, `1962 Rules'). Before coming to India, he
is said to have consulted the Indian Consulate in San Francisco, USA with
regard to these firearms and he was told that he was allowed to take his
personal firearms to India provided he held valid Indian firearms licences. The
appellant, accordingly, brought the aforesaid three firearms with him on
transfer of his residence to India. The appellant arrived at the Indira Gandhi
International Airport, New Delhi on October 1, 2000 with his baggage and
told at the customs clearance counter that he was permitted only one firearm
under the Transfer of Residence Rules and he had to obtain the firearms import
licence for the other two firearms from the 2 Director General of Foreign Trade
(DGFT). All the three firearms were, thus, detained by Respondent No.3 and a
detention order was issued on October 1, 2000 recording, `detained for
clearance as per Rules'. Thereafter on February 16, 2001, one of the firearms, namely,
Walther PPKS.32 ACP Handgun was released to the appellant and the other two
firearms remained in the custody of the custom officials. It transpires that
the appellant made an application with the DGFT on February 1, 2001 for import
of the two firearms which were detained by the custom officials. On March 8,
2001, the appellant was informed by DGFT that as per the import policy, import
of firearms and ammunition is not permitted except against a licence to
renowned shooters/rifle clubs for their own use on the recommendation of the
Department of Youth Affairs and Sports and since the application made by the
appellant did not come under that category, his case has been referred to the
Ministry of Home Affairs for their recommendation. The correspondence seems to
have ensued between the appellant and various authorities but the two firearms
were not released.
appellant then served legal notices upon the Additional 3 Commissioner of
Customs, IGI Airport, New Delhi, Deputy Director General of Foreign Trade and
Ministry of Commerce.
response thereto, the appellant received a communication dated March 26, 2001
from the DGFT informing him that he was entitled to bring only one firearm into
India. The appellant thereafter approached Delhi High Court for quashing the
detention order dated October 1, 2000 and the communication dated March 26,
2001 and for direction to the respondents to release his two firearms with a
further direction to the District Magistrate (Nainital) to keep the licences of
the two firearms detained by custom officials alive till such time the said
firearms were returned to him.
respondents filed counter affidavit in opposition to the writ petition and
pointed out that firearms fall under the restricted category of Exim Policy (1997-2002)
and as such import of firearms is not permitted except against an import
licence issued by the DGFT to renowned shooters/Rifle Clubs for their own use
on the recommendation of the Department of Youth Affairs and Sports. The
respondents submitted that although import of firearms is not permitted as per
the Exim 4 Policy, yet one firearm has been allowed under instructions dated
January 5, 1988 and June 7, 1995 issued by the Ministry of Finance applicable
to persons transferring their residence to India.
Single Judge of the High Court after hearing the parties dismissed the writ
petition on August 1, 2003. The appellant preferred Letters Patent Appeal
against the order of the Single Judge. Two miscellaneous applications were also
made in the appeal. The Division Bench dismissed the Letters Patent Appeal and
disposed of two miscellaneous applications by a common judgment dated March 20,
2008. It is from this judgment that these three appeals by special leave arise.
Pausing here, certain relevant statutory provisions may be set out. Section 3
of the 1959 Act provides for licence for acquisition and possession of firearms
and ammunition. It reads, thus :
Licence for acquisition and possession of firearms and ammunition-- (1) No
person shall acquire, have in his possession, or carry any firearm or
ammunition unless he holds in this behalf a licence issued in accordance with
the provisions of this Act and the rules made there under :
Provided that a person may, without himself holding a licence carry any
firearms or ammunition in the presence, or under the written authority, of the
holder of the licence for repair or for renewal of the licence or for use by
Notwithstanding anything contained in sub- section (1), no person, other than a
person referred to in sub-section (3), shall acquire, have in his possession or
carry, at any time, more than three firearms:
that a person who has in his possession more firearms than three at the
commencement of the Arms (Amendment) Act, 1983, may retain with him any three
of such firearms and shall deposit, within ninety days from such commencement,
the remaining firearms with the officer in charge of the nearest police station
or, subject to the conditions prescribed for the purposes of sub-section (1) of
section 21, with a licensed dealer or, where such person is a member of the
armed forces of the Union, in a unit armoury referred to in that sub-section.
Nothing contained in sub-section (2) shall apply to any dealer in firearms or
to any member of a rifle club or rifle association licensed or recognized by
the Central Government using a point 22 bore rifle or an air rifle for target
provisions of sub-section (2) to (6) (both inclusive) of section 21 shall apply
in relation to any deposit of firearms under the proviso to sub-section (2) as
they apply in relation to the deposit of any arms or ammunition under
sub-section (1) of that section."
provision of licence for import and export of arms is made in Section 10 of
1959 Act. It reads:
"S.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 there under:
that-- (a) a person who is entitled by virtue of this Act or any other law 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;
person being a bona fide tourist belonging to any such country as the Central
Government may, by notification in the Official Gazette, specify, who is not
prohibited by the laws of that country from having in his possession any arms
or ammunition, may, without a licence under this section but in accordance with
such conditions as may be prescribed, bring with him into India arms and
ammunition in reasonable quantities for use by him for purposes only of sport
and for no other purpose.
purpose of clause (b) of this proviso, the word "tourist" means a
person who not being a citizen of India visits India for a period not exceeding
six months with no other object than recreation, sight-seeing, or participation
in a representative capacity in meetings convened by the Central Government or
in international conferences, associations or other bodies.
Notwithstanding anything contained in the proviso to sub-section (1) where the
Commissioner of Customs or any other officer 7 empowered by the Central
Government in this behalf has any doubt as to the applicability of clause (a)
or clause (b) of that proviso to any person who claims that such clause is
applicable to him or as to the reasonableness of the quantities of arms or
ammunition in the possession of any person referred to in such clause, or as to
the use to which such arms or ammunition may be put by such person, may detain
the arms or ammunition in the possession of such person until he receives the
orders of the Central Government in relation thereto.
Section 11 of the 1959 Act empowers the Central Government to prohibit, by
notification in the Official Gazette, the bringing into, or the taking out of
India, arms or ammunition of such classes and descriptions as may be specified
in the notification.
Rules have been framed by the Central Government in exercise of the powers
conferred under 1959 Act. Rule 4 read with Schedule II specifies the licensing
authorities for the purposes indicated therein. Rule 51 provides for
application for the grant of licence.
Section 79 of the Customs
Act, 1962, inter-alia, empowers the Central
Government to make rules for exemption from duty any article in the baggage of
a passenger. For that 8 purpose, Baggage Rules, 1998 have been notified by the
Central Government. Rule 7 thereof provides :
Transfer of residence.-- (1) A person who is transferring his residence to
India shall be allowed clearance free of duty, in addition to what he is
allowed under rule 3 or, as the case may be, under rule 4, articles in his
bonafide baggage to the extent mentioned in column (1) of Appendix F, subject
to the conditions, if any, mentioned in the corresponding entry in column (1)
of the said Appendix.
conditions may be relaxed to the extent mentioned in column (3) of the Appendix
Section 3 of the Foreign Trade (Development and Regulation Act), 1992 (for
short, `1992 Act') empowers the Central Government to make provisions relating
to imports and exports. Under Section 5 of 1992 Act, the Central Government may
formulate the export and import policy by notification in the Official Gazette.
In exercise of the aforesaid powers vested in the Central Government, Exim
Policy 1997-2002 was laid down by DGFT. Paras 4.5 and 4.7 of that Policy read
as follows :
Restricted Goods.- Any goods, the export or import of which is restricted under
`ITC (HS) classification of Export and Import items' may be exported or
imported only in accordance with a licence issued in this behalf.
Licence not a right.- No person may claim a licence as a right and the Director
General of Foreign Trade or the licensing authority shall have the power to
refuse to grant or renew a licence in accordance with the provisions of the Act
and the Rules made thereunder."
appears that the Ministry of Finance has issued certain circulars from time to
time relevant to the transfer of residence; the two relevant Circulars in this
regard are Circulars dated January 5, 1988 and June 7, 1995. In the latest
Circular dated June 7, 1995, the instructions issued in earlier Circular dated
January 5, 1988 have been reiterated. The Circular dated June 7, 1995 reads as
F.No. 605/74/95-DBK Transfer of Residence Form Revision Circular No. 63/95-Cus.
7/6/95 Government of India Ministry of Finance Department of Revenue, New Delhi
Subject : Transfer of Residence Form in vogue for claiming benefits of Transfer
of Residence under Chapter IV of the Baggage Rules, 1994 - reg.
undersigned is directed to say that it has been brought to the notice of the
Board that the Transfer of Residence Form being used in your 10 Collectorate
contains a clause that "the goods cleared by the passenger shall not be
sold, displayed or advertised or offered for sale until their market price has
depreciated to less than 50% of the market price when new," although in
terms of the existing provisions, there is no such restriction on the goods
cleared as baggage by a passenger. A copy of the Transfer of Residence Form
received with the reference is enclosed for your ready reference. As the
Baggage (Conditions of Exemption) Rules, 1975 have already been rescinded, this
clause in the Transfer of Residence Form has to be deleted to avoid confusion
in the minds of passengers.
2. It is,
therefore, requested that necessary action in the matter may be taken
immediately under intimation to the Board.
this connection, it is pointed out that one firearm of permissible bore is
allowed to be imported by persons transferring their residence to India under
Ministry's instructions dated 5.1.88 issued from F.No.
VI. Such release is permitted subject to the condition that the firearm so
cleared shall not be sold, transferred, loaned or otherwise parted with, for
consideration or otherwise, to any other person in India during the life time
of the person concerned. An endorsement to this effect is made in the arm
licence and the passport of the passenger concerned at the time of clearance of
the firearm. Such endorsement shall continue to be made by the customs
authorities at the time of clearance of the firearm in question.
(T.R. Kapur) Under Secretary (Cus.VI)"
thrust of the argument on behalf of the appellant is that on transfer of his
residence, the appellant was entitled to bring upto three firearms into India
for which he holds 11 valid licences. In this regard, heavy reliance is placed
on Baggage Rules, 1998 and Sections 3 and 10 of 1959 Act. It has been submitted
on behalf of the appellant that the provisions contained in 1992 Act or the
Exim Policy have no application. It was urged that the Single Judge as well as
the Division Bench erred in not properly appreciating the statutory provisions
and denial of relief to him by the High Court is erroneous.
Section 3(1) of 1959 Act prohibits acquisition, possession or carriage of
firearms or ammunition without a licence issued in accordance with 1959 Act and
the Rules framed thereunder. Section 3(2) puts ceiling on acquisition,
possession or carriage upto three firearms except the category of persons
mentioned in sub-section (3). Section 10 prohibits, inter alia, import of arms
or ammunition by sea, land or air without a licence issued under the 1959 Act
and the 1962 Rules. Section 11 empowers the Central Government to prohibit
import or export of arms or ammunition of such classes and descriptions as may
be specified in the notification. It is true that prohibition contained in
Section 3(1) and Section 3(2) 12 and Section 10 is not attracted against the
appellant but that would not entitle him to bring in firearms to the country on
transfer of his residence, import of which is prohibited. Under Section 5 of
1992 Act, the Central Government has formulated export and import policy (Exim
Policy 1997-2002). Para 4.5 thereof provides that any goods, the export and
import of which is restricted under ITC(HS) classification of Export and Import
items may be exported or imported only in accordance with a licence issued in
this behalf. Para 4.7 of Exim Policy makes a provision that no person may claim
a licence as a right and the DGFT or the licensing authority shall have the
power to refuse to grant or renew a licence in accordance with the provisions
of 1992 Act and the Rules made there under. The relevant extract of the ITC(HS)
classification in Exim Policy 1997-2002 is as follows :
Description Policy Conditions relating Import to the Policy under Code Public
Notice 93032000 Other sporting, Restricted Not permitted to be hunting or
target- imported except shooting Shotguns, against a licence by including
renowned combination shooters/Rifle shotgun-rifles Clubs for their own use on
the 13 recommendation of the Department of Youth Affairs and Sports;
of India 93033000 Other sporting, Restricted Not permitted to be hunting or
target- imported except shooting rifles against a Licence by renowned
shooters/Rifle Clubs for their own use on the recommendation of the Department
of Youth Affairs and Sports;
of India "
Division Bench of the High Court considered the provisions of the Exim Policy
(1997-2002) with regard to import of firearms and recorded its conclusion thus
aforesaid extract of the Exim Policy clearly shows that the import of sporting,
hunting or target-shooting shotguns, including combination shotgun-rifles is
not permitted except against a license by renowned Shooters/Rifle Clubs for
their own use and that too on the recommendation of the Government of India.
stands clearly established that the import of firearms, which is governed by
the Exim Policy, is prohibited thereunder, except to the extent stated
We are in
agreement with the view of the Division Bench.
Insofar as Baggage Rules, 1998 are concerned, we find merit in the contention
of Mr. Gourab Banerji, Additional Solicitor General, that the said Rules deal
with import of duty free articles by a person in his bona fide baggage. The
contention of the appellant that he is entitled to bring in more than one
firearm because of transfer of residence by relying upon Baggage Rules is
misconceived. The only inference that can be drawn from these Rules is that
duty free import of firearms is not permissible. The Division Bench has rightly
considered the provisions contained in Customs Act, 1962,
Baggage Rules, 1959 Act and Rules framed thereunder, 1992 Act and the Exim
Policy and did not commit any error in holding that a person is not entitled by
virtue of 1959 Act or the Rules framed thereunder to bring into India such
licensed firearms, if any provision of law prohibits or restricts the bringing
of such articles. What is important to be noticed is that in the light of the
Exim Policy, the import of firearms is permissible only against an import
licence issued by the DGFT to renowned shooters / rifle clubs for their own use
on the recommendation of the Department of Youth Affairs and Sports and the
appellant 15 has been denied import licence because he is not covered by this
category. It transpires that by virtue of the Circulars dated January 5, 1988
and June 7, 1995, however, the appellant was permitted one firearm but we do
not intend to consider the effect of Exim Policy on these circulars as such
controversy has not been raised before us.
in all, consideration of the matter by the Division Bench appears to us to be
proper justifying no interference by this Court. The appeals, therefore, have
no merit and are dismissed with no order as to costs.
..................................J. (R.V. Raveendran)
.....................................J (R. M. Lodha)
May 5, 2010.