Appellate Division Cases
(CIVIL)
PARTIES:
Golam Ambia……………………………………………………………Appellant
= vs =
The Deputy Commissioner Mymensingh and others …………………. Respondents
JUSTICE:
K. M. Hasan.C.J
Mohammad Fazlul Appellant karim J
Md. Hamidul Haque J
JUDGEMENT DATE: 26th August, 2003
Section 26 of the Arms Act, 1878 section 26 of the Arms Act
………..that there is no physical existence of the name of the person acted in the capacity of the peon/process server as shown to have come from the office of the Deputy commissioner, Mymensingh who said to have affixed alleged show cause notice at the gate of the petitioner’s house and further that in the service ruture particulars and addresses of the witnesses in whose presence show cause notice was said to have been affixed at the gate with date and time were not given and that they do not have any physical existence and that there never lived anybody of the said names in the locality, that petitioner was never heard in the matter personally prior to seizures of his licensed arms and as such the seizure of the arms was not only arbitrary but also volatile of the principles of natural justice, that at no stage petitioner was informed in any manner the cause of seizure of the fire arms and cancellation of licenses, that petitioner has been dealt with contrary to the established law and that he has been deprived of his right to self-defense, safety and security of life”.
On a scrutiny of section 26 of the Arms Act we find that the overnment is empowered to seize any arms, ammunition or military stores in the possession of any person, notwithstanding that such person is licensed to possess the same and the overnment may detain the same for such ‘”f time as it thinks necessary for the public safety ………..(6)
Civil Appeal No. 238 of 2001 (From (he judgment and order dated 4.5.2000 passed by the High Court Division in writ Petition No. 4559 of 1999).
Mahbubur Rahman, Senior Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-on-Record ……….For the Appellant Abdur Razaque Khan, Additional Attorney General, Md. Ataur Rahman Khan, Deputx Attorney General and Md. Faisal H. Khan, Assistant Attorney General with him) instructed by-Mr. Md. Nawab AH, Advocate-onRecord………. For the Respondents.
JUDGMENT
1. K. M. Hasan, C. J. – this appeal by leave against the judgment and order dated 8.5.2000 passed by the High Court Divdision in writ petition No. 4559 of 1999 discharging the rule.
2. The facts, in short, are that the appellant a citizen of Bangladesh is a leading usinessman of Mymensingh. for his safety. Security and protection he obtained licenses from the concerned authority to possess fire arms, a 22 bore revolver No. 1616892 with 20 rounds of live cartridges and a .22 bore rifle No, 353071 with 15 rounds of cartridges. The licenses were regularly renewed on payment of fees to the concerned authority. An Advocate, named, Javed Akther Faruq, who is his political rival, in order to harass and grab ish landed property implicated him in false cased. ON being unsuccessful in those cased, Javed Akther Faruq who is his political rival, in order to harass and grab his landed property implicated him in false cases. On being unsuccessful in those cases, Javed kther Faruq in collusion with the respondent No. 1 i. e. the Deputy Commissioner, Mymensingh and the local police had the above mentioned fire arms seized by the respondent No. 3 Sub-inspector of police, kotwali police station-Mymensingh Town, Mymensingh, by Memo/Seizure list No, )/13/99-397(66) dated 18.10.1999.
3. Subsequently, the appellant submitted repeated representations to the respondent No. 1 the Deputy Commissioner, for return of his fire arms, live bullets along with valid licenses but without any result. . The Respondents case is that the respondent NO. 1 the Deputy Commissioner, Mymensingh, received allegation in writing on 26 August, 1999 from Mr. Javed Akther Faruq that the appellant had been using his fire arms for terrorist activities, the allegations so made was investigated by the officer-incharge, kotwali police Station and adverse report was submitted in respect of the appellant. Thereupon show cause notice was issued asking the appellant to submit his reply within 30 days from the date of receiving of the notice. The said notice was served by affixing at the gate of the house of the appellant on 16th September, 1999 But as the appellant did neither show cause nor turn up to explain his position, the licenses of the fire arms of the appellant were cancelled.
4. The High Court Division discharged the rule on the ground that the appellant died not reply to the show cause notice and therefore, by canceling licenses of the arms of the appellant the respondent had acted in accordance with law. Leave was granted to consider the following :”Mr. Mahbubur Rahman, the learned counsel for the petitioner submits that there is no physical existence of the name of the person acted in the capacity of the peon/process server as shown to have come from the office of the Deputy commissioner, Mymensingh who said to have affixed alleged show cause notice at the gate of the petitioner’s house and further that in the service ruture particulars and addresses of the witnesses in whose presence show cause notice was said to have been affixed at the gate with date and time were not given and that they do not have any physical existence and that there never lived anybody of the said names in the locality, that petitioner was never heard in the matter personally prior to seizures of his licensed arms and as such the seizure of the arms was not only arbitrary but also volatile of the principles of natural justice, that at no stage petitioner was informed in any manner the cause of seizure of the fire arms and cancellation of licenses, that petitioner has been dealt with contrary to the established law and that he has been deprived of his right to self-defense, safety and security of life”. Mr. Mahbubur Rahman, the learned Counsel, apearing for the appellant relied on the submission on which the leave was granted that no show cause notice was given to the appellant.
5. Mr. Adbur Razaque Khan, the learned additional Attorney General, appearing for the respondents has referred to section 26 of the Arms Act and conceded that the arms were seized illegally. Section 26 of the Arms Act, 1878 is to the effect:” The (Government) may at any time order or cause to be seized any arms, ammunition or military stores in the possession of any person notwithstanding that such person is licensed to possess the same, and may detain the same for such time as it things necessary for the public safety.”
6. On a scrutiny of section 26 of the Arms Act we find that the Government is empowered to seize any arms, ammunition or military stores in the possession of any person, notwithstanding that such person is licensed to possess the same and the Government may detain the same for such time as it thinks necessary for the public safety.
7. The language used in this section is very clear and it appears that the intendment of the legislature is that only the Government can pass on order under this section and not the Deputy Commissioner, But from the impugned order i. e the seizer list and other papers annexed, it appears that the arms were seized by officer in charge.kotwali, at the instance of the Deputy Commissioner, Mymensingh (Annexure ‘c’) . Section 26 of the Arms Act does not empower the Deputy Commissioner to issue such an order for seizure of arms. Only the Government is empowered to seize arms of any person and to detain the same for such time as it thinks necessary for the public safety. Therefor, in our view, the respondents have acted without jurisdiction and beyond his authority which cannot be sustained in law.
8. In the result, the impugned judgment and order dated 8.5. 2000 passed by the High Court Division in writ petition No. 4559 of 1999 discharging the rule are hereby set aside.
9. In view of the above,, the appeal is allowed without any order as to cost, The impugned Memo/Seizure list No W§/ts, W5/*ns/l (1)/13/99397 (66) dated 18.10.1999 issued by the respondent No.3 (in the writ petition) to the petitioner (Annexure-F) seizing the fire arms of the petitioner and their licenses are declared to have been made without lawful authority and are of no legal effect and the respondents are directed to return the German made. 22 bore revolver No. 1616892 under license No. 467/97 with 20 round rifle No . 353071 under license No.283/87 with 15 rounds of cartridges which were seized by the impugned list to the petitioner immediately.
Ed.
Source : I ADC (2004),13