TMI Blog2010 (5) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... Decided against the appellant - 4094-96/2010 OF 2010 - - - Dated:- 5-5-2010 - JUDGEMENT R.M. Lodha, J. Leave granted. 2. In 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. 3. The 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 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. 5. The 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. 6. Pausing here, certain relevant statutory provisions may be set out. Section 3 of the 1959 Act prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; (b) a 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. Explanation--For 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. (2) Notwithstanding anything contained in the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.7 of that Policy read as follows: "4.5 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. 4.7 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." 12. It 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 follows: "F.No. 605/74/95-DBK Transfer of Residence Form Revision Circular No. 63/95-Cus. Dated 7/6/95 Government of India Ministry of Finance Department of Revenue, New Delhi Subject: Transfer of Residence Form in vogue for cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m by the High Court is erroneous. 14. 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) 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree 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 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. 17. All in all, consideration of the matter by the Division Bench appears to us to be proper justify ..... X X X X Extracts X X X X X X X X Extracts X X X X
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