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Allahabad High Court · body

1991 DIGILAW 948 (ALL)

S. Jafar Hussain v. State of U. P

1991-07-25

D.P.S.CHAUHAN

body1991
ORDER D.P.S. Chauhan, J. - By means of this petition under Article 226 of the Constitution of India the petitioner has challenged the order of the Sub Divisional Magistrate, Sirathu, Allahabad dated 6-1-1982 whereby he refused to grant a fire arm licence to the petitioner in respect of a 12 Bore D.B.BX.gun, and also the order passed by the District Magistrate, Allahabad on 6.3.1982 in appeal filed their against and he has prayed for quashing the same. 2. The petitioner made an application for grant of a licence for 12 bore D.B.B.L. gun to the Sub Divisional Magistrate, Sirathu. He, on the basis of a police report, rejected the application on 6.1.1982. The police report was that in the village of the petitioner there were already five fire arms licences and it would not be proper to grant any more. This order was maintained by the District Magistrate in appeal, which was dismissed on 6.3.1982. 3. Heard the learned counsel for the petitioner and the learned Standing Counsel. It may be stated that in this case no counter affidavit has been filed. 4. The objection of the learned counsel for the petitioner is that the licence was refused to the petitioner in an arbitrary manner and for consideration extraneous to the requirement of law In support of this objection, he submitted that the Licensing authority instead of considering the individual requirement of the petitioner for grant of licence considered the fact which was extraneous to law, on the basis of a police report that the petitioner is not entitled for the licence because in his village there were already existing five fire arms licences. 5. Under the Indian Arms Act, 1878 and the Arms Act, 1959 the position is different India Arms Act, 1878 was directed to disarm the nation, but the Arms Act, 1959 (hereinafter referred to as 'the Act') is directed to arm the citizens with a view to ensure their security. 6. Section 13 of the Act provides that the licensing authority after such enquiry, if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to other provisions of this Chapter, by order in writing, either grant the licence or refuse to grant the same. The object of obtaining the report from the police is only to find out the antecedent of the person seeking licence. The object of obtaining the report from the police is only to find out the antecedent of the person seeking licence. A person not having a bad antecedent is entitled to grant of the licence unless there is anything against him which may disentitle him from holding the licence. The discretion conferred on the licensing authority is not an absolute discretion but is a guided one and he is required to record reasons in writing for refusal to grant the licence as the same has been made subject to scrutiny by the appellate authority. 7. The grounds of refusal are enumerated in Section 14 of the Act and the same are that the person seeking licence is prohibited by the Act or by any other law from acquiring the fire arm or the person is of unsound mind or is a person unfit for licence under the Act and the last where the licensing authority considers it necessary to refuse the licence for the security of the peace and public safety. In the present case, no such grounds or refusal exists. The refusal is on the ground that in the village of the petitioner there are already five fire arm licences. The ground is extraneous to law. The petitioner is not a person falling in the prohibited category provided under Section 9 of the Act as he was not the person who has not completed the age of 21 years and was not a person convicted for any offence of violence or moral turpitude and was not a person required to execute a bond under Chapter VIII of the Code of Criminal Procedure, 1973 for keeping peace or for keeping a good behaviour. 8. There is no notification of the Government issued under Section 4 of the Act directing for regulation of the possession of lire arms specifying any limits village-wise. 9. I find that the order of die Sub Divisional Magistrate as well as the District Magistrate contain the reasons for refusal of the licence which are extraneous to law. The licence to the petitioner would not have been rejected on the ground that in the village there arc already five fire arms licences. The entitlement of the petitioner has to be considered in accordance with the provisions of the Act and the Rules. 10. The licence to the petitioner would not have been rejected on the ground that in the village there arc already five fire arms licences. The entitlement of the petitioner has to be considered in accordance with the provisions of the Act and the Rules. 10. In the circumstances, the writ petition is allowed and the impugned order passed by the Sub Divisional Magistrate, Sirathu, Allahabad, dated 6.1.1982 and the order passed by the District Magistrate, Allahabad dated 6.3.1982 passed in appeal are hereby quashed. The application of the petitioner for grant of licence is restored and the licensing authority is directed to consider the application of the petitioner on merits in the light of the observations made above as also in accordance with the provisions of the Act and the Rules. The application may be disposed of within a period of three months from the date of presentation of a certified copy of this order before him. There will be no order as to Cost.