19 February,2024 07:13 AM IST | Mumbai | Vinod Kumar Menon
On February 27, the apex court will deliberate on the firearms dilemma. Representation pic
The Amicus Curiae in the case to curb the large number of illegally owned and unlicensed and missing firearms has made some serious observations in his submissions to the apex court in relation to the Centre and state government's affidavits about the missing licensed firearms. The suo motu case is coming up for its final hearing on February 27.
Senior Advocate S Nagamuthu, the Amicus Curiae appointed by the Supreme Court, in his submission to the court stated, "Usage of arms and ammunition against innocent civilians is a vexed issue and a matter of grave concern globally."
"Right to life guaranteed under Article 21 of the Constitution of India. The Government of India and the States/UTs are conscious of the threat to life on account of the proliferation of illegal arms and ammunition, and though the governments are making the best possible efforts with all the resources at their command, the statistics reveal that crimes involving arms and ammunition are phenomenally on the increase," he added.
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Nagamuthu asserted, "The arms and ammunition fall into four broad groups:
a) Arms and ammunition produced under valid licenses and owned by civilian licensees for specific purposes, like self-protection, subject to regulation by the laws.
b) Arms and ammunition held under licenses but used for illicit activities, such as committing crimes in violation of regulatory laws.
c) Arms and ammunition illicitly brought into India, held by anti-social elements and certain extremist groups, blatantly breaching any legal framework.
d) Arms and ammunition domestically manufactured without any license or authority, ending up in the possession of anti-social elements, extremist groups, and even ordinary individuals.
"The laws governing the first and second categories need enhanced effectiveness and stringency to prevent licensed arms and ammunition from being misused for criminal activities. Categories three and four pose a genuine threat to the peace and security of the people and should be completely eradicated," as per the submitted statement.
The Indian government submitted affidavits on September 14, 2023, and September 25, 2023, offering valuable suggestions. Similarly, nearly all states and union territories have submitted affidavits with some recommendations. The Arms Act of 1959 and the Arms Rules of 2016 serve as the governing laws for arms and ammunition, encompassing provisions to regulate various aspects, such as acquisition, possession, use, manufacture, transfer, sale, transport, export, and import, along with penalties for contravention to prevent illegal weapons and associated violence.
"The affidavit of the Union of India states that effective steps are being taken by the Union of India to curb illegal arms and ammunition. However, it has not specifically or elaborately stated as to what these steps are. Possibly, the Government of India refrains from revealing means and methods in the interest of security and secrecy, believing that such disclosure could indirectly aid miscreants."
"The states and Union Territories, in their respective affidavits, have presented statistics on registered cases, arrested individuals, and the recovery of illegal weapons and ammunition. These affidavits reveal not only the widespread prevalence of illegal arms but also the authorities' struggle to control it."
"In states like Uttar Pradesh, Bihar, Haryana, Rajasthan, Madhya Pradesh, the situation is particularly alarming, possibly due to rowdyism and/or extremism. Conversely, some states show negligible illegal arms and ammunition, indicating that the arms culture has yet to fully extend its influence. However, none of the affidavits provide details on the measures taken in states where the situation is under control."
"States and Union territories must enhance their efforts, utilising all resources, including intelligence reports, to effectively combat the proliferation of illegal arms and ammunition. The current alarming situation, marked by a surge in violent crimes involving firearms, calls for innovative measures to address the issue promptly. The court's intervention through a suo motu petition underscores the urgency for states and Union territories to prioritise and implement more effective strategies."
Amicus curiae says it is high time for the Government of India and States to put their heads together to evolve innovative steps/methods involving science and technology to eradicate illegal arms and ammunition from Indian soil.
Having given a serious thought over the issue and having consulted some experts in the field, and having gone through the affidavits filed by the Government of India and the States/Union Territories, and more particularly the suggestions made by the Government of India, as extracted above, I have the following suggestions (for the present) to the Governments which, I sincerely believe, may be helpful for them, of course, subject to the appreciation of this Hon'ble Court.
(I) The Government of India shall constitute a "Committee of Experts" headed by a person of vast experience and special knowledge, preferably a senior-most police officer in the cadre of Director- General of Police, either serving or retired, or a senior-most retired officer of the Armed Forces of the Union. Such committee may consist of the representatives of the Government of India at the Joint Secretary level, and the representatives of the State Governments / Union Territories from the respective Home Dept. and the Police Dept., not below the rank of a Joint Secretary/Inspector- General of Police, as the case may be, Forensic Experts, legal experts who have got special knowledge and experience in the field. The maximum number of the representatives may be prescribed by the Government of India.
(II) The said "Committee of Experts" constituted may make a thorough study of various inputs obtained from the Government of India and the State Governments/UTs, and make its recommendations to the Government of India about the steps to be taken in future to curb the illegal arms and ammunition. The Committee may be given liberty to file interim reports, recommending urgent steps to be taken without waiting for the final report. Given the gravity of the situation, the above Committee may be directed to submit its final recommendations in a time-bound manner, preferably within a period of one year.
(III) The above Committee shall, unfailingly, gather inputs from the other countries which have been successful in curbing the menace of the illegal arms and ammunition, study the same, and suggest the best practices which could be adopted in India.
(IV) The Committee so constituted may take the assistance of experts in the field of science and technology and evolve innovative methods by which the illegal manufacturing, import, sale/purchase, and use, may be detected and curbed. The focus must be to curb the illegal manufacturing itself.
(V) The Government of India may refer to the Law Commission of India to study the inadequacies in the existing laws and to suggest either amending the existing laws, or to make new laws to strengthen regulatory measures in respect of, the manufacture,
sale, import, export, use, possession, and storage of arms and ammunition.
(VI) The Law Commission may be requested to suggest stringent provisions either in the existing laws, or in the laws to be made, mainly in the matter of procedure for investigation, inquiry, trial, etc. to eradicate the illegal arms and ammunition. The Law Commission of India may be requested to submit a report within six months, considering the urgency.
(VII) The Government of India, in consultation with the Governments of States and Union Territories, and considering the reports of the above Committee, and the Law Commission and after an extensive deliberation , may take a decision whether to amend the existing laws or to make new laws providing stringent provisions. The law should be comprehensive and exhaustive to eradicate all forms of illegal manufacturing, import, export, sale, smuggling, use, etc.
(VIII) It is suggested that the Government of India, instead of having discussions internally within the Home department on the above areas of focus, may also involve in the deliberations other departments like defence, science and technology, law and justice, the customs and central excise, etc.
(IX) The Government of India shall conduct quarterly meetings of all Chief Secretaries and DGPs of the State/Union Territory Governments to survey the situation in each State, and to study the peculiar conditions prevailing in each State and the difficulties experienced by the State agencies in curbing the illegal arms and ammunition.
The Arms Act has been amended several times and the last such amendment was made on 14.12.2019. A perusal of the penal provisions in Chapter V of the Act, which have undergone drastic amendments every now and then, would show that these provisions, in my humble view, may not require any further amendment except on certain procedural aspects, such as investigation, inquiry, and trial, including the bail provisions. Similar is the case of Explosives Act, 1884 and Explosives Substances Act, 1908.
(i) Special Police Units for each district, or for more than one district, consisting of specially trained police officers and policemen, shall be constituted, empowering them exclusively to investigate the offences under the above special laws.
(ii) Each Special Police Unit shall be assisted by forensic experts, more particularly, ballistic experts.
(iii) There shall be a speedy investigation and final report filed without any undue delay.
(iv) There shall be constituted a Special Court for each district, or for more than one district, headed by a judicial officer in the rank of a Sessions Judge, or Additional Sessions Judge, exclusively to try the offences under the above special laws, and empowering the said Court to try other offences also that have been committed in the same occurrence.
(v) There shall be appointed a Special Public Prosecutor for each Special Court, with an experience of not less than ten years as an advocate, having dealt with the cases under these laws.
(vi) Section 438 of the Code of Criminal Procedure providing for anticipatory bail, shall be excluded in its application to the offences under the above special laws.
(vii) There shall be made a special provision for bail in addition to Section 437 & 439 CrPC, making the bail provisions stringent in the model of Section 45 of the Prevention of Money Laundering Act, and Section 37 of the Narcotic Drugs and Psychotropic Substances Act.
(viii) The trial shall be conducted expeditiously, preferably on a day-to-day basis, until the examination of witnesses is complete, and the judgment shall be pronounced at the earliest.
(ix) There shall be a provision made that the Court shall presume the guilt of the accused on proof of certain foundational facts, unless the contrary is proved by the accused.
(x) There shall be a provision directing the State Forensic Departments to give preference to examine the arms and ammunition involved in the criminal cases, and to offer their opinion within one month from the date of receipt.
