Section 5 of the Arms Act, 1959: Licence for Manufacture, Sale and Transfer of Arms and Ammunition

Current text of Section 5 of the Arms Act, 1959

Meaning and scope of Section 5

Section 5 is a licensing provision aimed primarily at controlling specified dealings and activities involving arms and ammunition. The activities expressly covered by sub-section (1) include:

• use;
• manufacture;
• obtaining or procuring;
• sale or transfer;
• conversion;
• repair;
• testing or proving;
• exposing or offering arms or ammunition for sale or transfer; and
• possessing arms or ammunition for sale, transfer, conversion, repair, test or proof.

The provision applies to firearms, prescribed classes or descriptions of other arms, and ammunition. The expressions "arms", "ammunition", "firearms" and "transfer" are defined in Section 2 of the Arms Act, 1959.

Licence requirement under the Arms Rules, 2016

The Arms Rules, 2016 prescribe the licensing framework, forms, licensing authorities, categories of arms and ammunition, conditions and related regulatory requirements for manufacture, sale, transfer, repair, testing and allied activities.

Schedule II to the Arms Rules, 2016 identifies different licence purposes, categories and competent licensing authorities. Depending on the category and activity, the licensing authority may include the Central Government, State Government or District Magistrate, and the authorised activity is ordinarily restricted to the premises, area and conditions stated in the licence.

A manufacturer, dealer, repairer or other person carrying on an activity covered by Section 5 should therefore read the section together with the current Arms Rules, 2016, the relevant Schedule I classification, Schedule II licensing entry, licence form and any applicable notification.

Private sale or transfer under Section 5(2)

Sub-section (2) permits a person to sell or transfer arms or ammunition lawfully possessed for the person’s own private use without obtaining a separate Section 5 dealing licence, provided the recipient is legally entitled to possess the item and is not prohibited from doing so.

Where the firearm or ammunition requires a licence under Section 3, or the arms require a licence under Section 4, the transferor must additionally:

1. inform in writing the jurisdictional District Magistrate or the officer in charge of the nearest police station;
2. state the intention to sell or transfer;
3. provide the name and address of the proposed recipient; and
4. wait at least forty-five days after giving the information before completing the sale or transfer.

The transferee must independently be legally entitled to acquire and possess the firearm, ammunition or arms concerned. Section 5(2) does not override the licensing and disqualification provisions applicable to the recipient.

Penalty for contravention of Section 5

Section 25(1)(a) of the Arms Act provides punishment for specified activities involving arms or ammunition carried out in contravention of Section 5. Under the current central text, the punishment is imprisonment for a term of not less than seven years which may extend to imprisonment for life, together with fine.

Section 25(3) separately addresses a private sale or transfer made in breach of the written-information or forty-five-day requirements contained in the proviso to Section 5(2).

Section 25 also contains enhanced provisions for certain conduct involving organised crime and illicit trafficking. The precise provision and punishment depend on the nature of the conduct and the facts of the case.

Important amendments to Section 5

• Arms (Amendment) Act, 1983: Section 5 was renumbered as sub-section (1), the former proviso was omitted and sub-section (2) was inserted, including the private-transfer procedure.
• Arms (Amendment) Act, 1988: the wording of clause (a) was amended to include "use" in addition to manufacture and the other specified activities.
• Arms (Amendment) Act, 2019: Section 5(1)(a) was amended by inserting "obtain" and "procure" in the licensing prohibition. The amendment was made by Section 4 of Act 48 of 2019 and took effect on 14 December 2019.

How Section 5 relates to other licensing provisions

Section 3 governs acquisition, possession and carrying of firearms and ammunition. Section 4 permits licensing of specified arms other than firearms in notified areas. Section 5 regulates manufacture, obtaining, procuring, sale, transfer, conversion, repair, testing and related dealings. These provisions can operate together depending on the nature of the arm, the activity and the person concerned.