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TMI Blog2019 (3) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... ossess those. It would also be appropriate to state that several Experts have also opined to make it mandatory to have a license for keeping airgun/ pistol. The Kerala High Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) Versus K. Mohammed [1989 (1) TMI 335 - KERALA HIGH COURT] did not examine complete mechanism of the airgun and just on basis of its capable use in popular sense held that though airgun can cause injury but would not be an item covered under the entry arms and ammunition . Being not a toy and being an equipment that can be used to cause a lethal injury, which is also in use for causing bodily injuries and also being required to be used with all necessary caution and also being advised to be used under supervision of Expert and also being having absolute resembles that of firearm and also having a mechanism of spreading the projectiles with force that may cause hurt, the airgun/ airpistol is an arm and, therefore, it is required to be considered as an item under entry 2 Schedule IV appended with the Act, 2008. Revision dismissed. - Sales/Trade Tax Revision No. 244 of 2015 - - - Dated:- 1-3-2019 - Govind Mathur,Chief Justice And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all in the entry 'toys including electronic toys'? The argument advanced on behalf of the revisionpetitioner is that airgun and airpistol are toys used to fix the target by the player for recreation and, as such, no tax can be legally charged as the entry falls under Sr. No. 51 of Schedule I of Uttar Pradesh Value Added Tax Act, 2008 (hereinafter referred to as Act, 2008 ). In alternative, it is submitted that airgun and airpistol at the most can be taxed at the rate of four per cent being falling within the category of toys excluding electronic toys as referred at Sr. No. 124, Part A, Schedule II appended with the Act, 2008. It is asserted that the law laid down in the case of M/s Agarwal Brothers, Faizabad (supra) does not lay down the correct law as the Court in that matter has not examined the purpose and use of designing and manufacturing airguns and airpistols. Ms. Pooja Talwar, learned counsel for the revisionpetitioner, to substantiate the contention, heavily relied upon the judgments of the Kerala High Court and the Madhya Pradesh High Court referred in preceding paragraphs. Per contra, Sri Manish Goyal, learned Additional Advocate General states that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be applied mechanically to another statute with different objects, purpose and scheme. The Arms Act, 1959 was enacted by the Parliament to regulate classification of arms by classifying the different equipment and items, which were declared as arms in colonial era under the Arms Act, 1878. The Act, 1878 was intended to disarm the entire country. The Parliament, after independence noticed that the Arms Act and the rules made thereunder, if allowed to be continued, it would be different for law abiding citizens to possess firearms for selfdefence visavis terrorist, dacoits, dacoits gangs, antisocial and antinational elements who are using those arms. The legislature also intended to bring out several sharpedged items from the ambit of arms which are essentially domestic equipment. The object of the Act, 1959 being absolutely different than the Act, 2008, it would not be appropriate to accept the definition of arms given therein ipse dixit in the instant matter and it would also be appropriate to look into the definition of airgun , airpistol and pellet guns as available in different dictionaries and the literature relevant. In Words and Phrases Permanent Edition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N Rooney downloaded from jcp. bmj.comprovides more effective details relating to airguns, airpistols and compressed air weapons. In the literature aforesaid, it is concluded that damage that airweapons cause a frequently underestimated and they should not be thought of as toys. Children should not be allowed access to guns without full supervision by responsible adults. While arriving at the conclusion aforesaid, the authors examined mechanism and use of air weapons in detail. The discussion made in the literature aforesaid deserves to be quoted and that is as follows: Much has been published on the effects of airgun pellets penetrating sensitive organs, particularly the eyes but fewer fatal cases have been reported. In the United Kingdom, to be lawful an air weapon should propel a pellet with an energy of less than 12 ft lb (16.3 J). In seven fatal cases quoted by Warlow, all had energy values below the legal limits, and three of the victims were adults. In comparison, .22 rimfire cartridges, which are a relatively low velocity powder charged cartridge but of the same calibre as many air powered weapons, have much higher energy values (27 to 111 ft lb) with velocities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e identifiable whole, or in fragments. These can be examined ballistically like other bullets, and should be retained. With a .22 weapon, the entrance wound will characteristically be approximately 0.5 cm in diameter. There may be a small rim of abrasion, but powder burning will not be present, as it would be in a rimfire .22 rifled weapon fired at close range. No skin splitting was seen in these cases, as is seen in firearms, particularly in contact head wounds where discharged muzzle gases tear the skin. If the weapon has been placed against the skin an impression of the muzzle of the gun may be left, as in two cases in this series. The muzzle impression may vary but if the gun is available it should be compared with the wound appearance. If there are any suspicious circumstances the death should be investigated by a forensic pathologist. The airgun should be examined by a ballistics expert to determine its muzzle energy and the trigger pressure. The trigger pressure may give an indication of the likelihood of an accidental discharge. Most air rifles have trigger pulls of between 3 and 7 lb (1.4 to 3.2 kg), although in more expensive target guns which have adjustable pulls i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a 12 bore shotgun in the chest, presumably because the airgun wounds did not produce the desired effect. Air powered weapons are readily available in the United Kingdom, being purchasable without a licence. An estimated four million weapons are present in households in the United Kingdom. The damage that air weapons cause is frequently underestimated and they should not be thought of as toys. Children should not be allowed access to guns without full supervision by responsible adults. In a case report Air Gun A Deadly Toy? authored by F S Kuligod, Prasanna S Jirli and Pradeep Kumar, Officers of the Department of Forensic Medicine, K.L.E. Society's Jawaharlal Nehru Medical College, Belgaum, Karnataka introduced airgun as under: Many people fantasize about handling guns. They try to make it come true by playing with air guns (air rifles) at funfairs by target shooting, or bird hunting in the fields. As there is no age restriction in most countries to have or handle air guns, they are easily accessible to children who, due to their ignorance, handle them inappropriately. The air gun is a simple yet ingenious and effective weapon based on fundamental mech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... small arm that hurts projectiles by means of mechanically pressurizing air and other means which involves no chemical reaction. All air weapons such as rifle and pistol generally propel metallic projectile. These guns have action mechanism, i.e., strong pistol pneumatic and compressed gas. The authors concluded that the use of airguns in criminal activities is having a rising trend and that is an alarm to the law enforcement agencies. The literature referred above discloses that the airguns or the airpistols or the other air pressure weapons which may cause serious bodily injuries are not toys. In conclusion, the Experts also advised to have effective norms may those by having statutory enactment for use of airguns, airpistols or other air pressure weapons. In the case of M/s Agarwal Brothers, Faizabad (supra) , it was held that airgun is a weapon in which compressed air is used for propelling a lead pellet, the velocity of the pellet depends upon the air pressure released from the compressor chamber of gun. Although most of the airgun are not lethal, in the sense that projectiles fired through them is not capable of killing human being, yet it is capable of inflicting bodi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and they are very much subject to the provisions of the Act, being firearms. In Ravinder Versus State (NCT of Delhi) reported in 2016 SCC Online Del 3575 , a Single Bench of Delhi High Court while considering the argument that an airgun is not a deadly weapon, thus, does not attract Section 397 I.P.C., concluded that an airgun or airpistol uses energy and force produced from compressed air or other gas for discharging of the pellet or projectile and can cause hurt, as such, would fall within the definition of a deadly weapon. The judgment cited above and the literature referred, in quite unambiguous terms, discloses that an airgun or the airpistol is certainly not a toy. The purpose of designing, manufacturing and using a toy is recreation, amusement and enjoyment generally and mainly by kids. The airgun is certainly not an article for such usual recreation, amusement and enjoyment. It is an item which resembles to a firearm and operates with high pressure air. The pellet generally used in it is a metallic and this projectile may hurt the subject and that may be quite serious in certain eventualities. On going through the entire literature available and the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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