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2000 DIGILAW 472 (PAT)

Pramod Thakur v. State Of Bihar

2000-03-27

S.N.JHA

body2000
Judgment S.N.Jha, J. 1. The petitioner seeks quashing of the order of the District Magistrate, Muzaffarpur contained in his memo no. 64 dated 11.8.99 suspending him arms licence no. 367/415 dated 20.3.91 with respect to .315 bore rifle. 2. Three fold submissions have been made to buttress the grievance of the petitioner. Firstly, it has been contended that the order of suspension is bad because no opportunity to file show cause was given. In support of the contention reliance has been placed on a Bench decision of this Court in Jagdamba Singh vs. State of Bihar, 1993 (2) PLJR 107. Secondly, it is submitted that the licence has been suspended as a sequel to submission of charge-sheet in Sadar P.S. Case No. 133/98, but as the petitioner was not an accused in Bula Bazar (Calcutta) P.S. Case No. 136/88 and there was no warrant of arrest issued against him in that case, the alleged occurrence leading to the institution of Sadar P.S. Case No. 133/98 should be rejected as false, rendering the suspension of licence arbitrary as being passed on non est ground. Lastly it has been contended that though the order is purported to have been passed pending cancellation of the licence, no case has been instituted against the petitioner for cancellation of licence. 3. The submission that opportunity of hearing i.e. filing show cause should be given before suspending the licence looks attractive at the first instance in view of the provisions of Section 17(5) of the Arms Act, 1959 . The Court in Jagdamba Singhs case (supra) has observed that the requirement of recording reasons for passing any order of suspension or revocation of the licence under Section 17(1) obliges the authority to act judiciously and such requirement cannot be complied with unless the affected person is given an opportunity of hearing. I, however, wish to point out a distinction. There is difference between interim suspension pending enquiry and suspension as a measure of punishment. The concept of interim suspension is well known. Both service law as well as regulatory laws recognize such interim suspension. For example, in the Civil Services (Classification, Control and Appeal) Rules, 1930, suspension is one of the prescribed punishments under Rule 49. A government servant however, may also be placed under suspension pending departmental enquiry and/or criminal prosecution under Rule 49A. Both service law as well as regulatory laws recognize such interim suspension. For example, in the Civil Services (Classification, Control and Appeal) Rules, 1930, suspension is one of the prescribed punishments under Rule 49. A government servant however, may also be placed under suspension pending departmental enquiry and/or criminal prosecution under Rule 49A. When the suspension is a measure of punishment the person is entitled to due opportunity of hearing in accordance with the Rules but where he is suspended as an interim measure, he cannot claim such opportunity as a matter of right. Regulatory laws also similarly often provide for two types of suspension. While considering the question of suspension of Trade Licence in the context of the Bihar Trade Articles (Licences Unification) Order, 1984, in the case of M/s Swami Distributors vs. State of Bihar, 1990(1) PLJR 210, a Division Bench of this Court held that though both suspension and cancellation of licence take away the right of the licensee to carry on trade and business, where such suspension is interim in nature, pending cancellation of the licence, he is not entitled to opportunity of hearing. The Court first pointed out distinction between suspension of licence by way of punishment and the cancellation of licence observing that while the suspension takes away the right of the licensee to carry on trade and business "for a certain period", the cancellation of the licence visits him with the same consequences for the entire period for which the licence is granted. But so far as the interim suspension is concerned, though the licensee is prevented from carrying on trade and business, regard being had to the fact that the order is operative till the completion of the enquiry and for a period not exceeding 90 days, the licensee is not entitled to opportunity of hearing. The Court noticed the cases of Smt. Hira Devi vs. District Board, AIR 1952 Supreme Court 362, Subdivisional Officer vs. Shambhu Narain Singh, AIR 1970 Supreme Court 140 and M/s Sukhwinder Pal Bipin Kumar and Ors. vs. State of Punjab and Ors., AIR 1982 Supreme Court 65. The Court noticed the cases of Smt. Hira Devi vs. District Board, AIR 1952 Supreme Court 362, Subdivisional Officer vs. Shambhu Narain Singh, AIR 1970 Supreme Court 140 and M/s Sukhwinder Pal Bipin Kumar and Ors. vs. State of Punjab and Ors., AIR 1982 Supreme Court 65. Rejecting the contention of the licensee in the last mentioned case, the Supreme Court observed : "The power of suspension during the pendency of an inquiry cannot be exercised unless there is contravention of any of the terms and conditions of the licence or any of the provisions of the order. Secondly, it provides for a reasonable safeguard, in that it limits the period of suspension. The period of suspension would necessarily depend upon the nature of the breach, and in no case, can it exceed ninety days. During this period, the licensing authority is expected to complete the inquiry and take a decision as to the cancellation or otherwise of the licence." 4. Though it would appear the relevant provisions of the Control Order were somewhat different inasmuch as an outer limit of ninety days during which only the suspension could remain operative, was provided for, the basic feature of suspension of trade licence and arms licence pending ihquiry/cancellation proceeding are the same. In a sense the cancellation of arms licence would stand on a lesser footing. A trade licensee can claim fundamental right to carry on trade and business under Article 19(1)(g) of the Constitution of India but there is no such fundamental right in the case of arms licence. It is in fact a privilege conferred on the citizens by the Arms Act. Reference is made to the Full Bench decision of this Court in Kapildeo Singh vs. State of Bihar, 1987 PLJR 385 . The fact that no outer limit regarding the enforcement of suspension of arms licences has been fixed in the Arms Act unlike suspension of trade licence in the Control Order, in my opinion, makes little difference because if no decision is taken on the show cause which the person concerned is required to file within a reasonable time, it is open to him to approach the Court of law and seek appropriate direction. It would not be out of place to mention here that even in Jagdamba Singhs case, the Court recognized the power of the competent authority to suspend the licence without prior notice in public interest and in emergent circumstances. The question as to whether in the particular case such power could be exercised would be question of fact which can be subjected to judicial review by courts. 5. At this stage the relevant provisions of the Arms Act may be seen as under: "17. Variation, suspension and revocation of iicence. (3) The licensing authority may, by order in writing suspend a licence for such period as it thinks fit or revoke a licence, (a)...... ... .........(emphasis added) From a perusal of the above provision it would appear that under Section 17(3) the licence can be suspended for a definite period. In my opinion, the words "for such period as it thinks fit" amply suggests that the term suspension in Section 17(3) refers to the final order-as a measure of punishmentand not any interim order. The requirement of giving opportunity to file show cause etc. would thus arise only where the licence is proposed to be suspended as a measure of punishment on proved grounds. 6 In these premises, the first contention of the counsel is rejected. 7. I do not wish to go into the merit of the second contention as to whether the facts and circumstances made out a proper case for taking action against the petitioner. That is a matter which is to be considered by the concerned authorities at the first instance. The petitioner has not filed his show cause and it would not be proper for this Court to go into the merit of the contention. Prima facie, however, it appears that the petitioner were involved in a case of theft of car at Calcutta and processes had been sent to the local police to apprehend him and it was in order to execute the process that the police went to his house where the occurrence allegedly took place. 8. The contention that no case has been registered against the petitioner for cancelling the arms licence does not go to the root of the matter. 8. The contention that no case has been registered against the petitioner for cancelling the arms licence does not go to the root of the matter. It is true that while issuing show cause notice against proposed cancellation, the authority should start a miscellaneous case and call upon the person to file his show cause in that particular case, which has not been done in the present case. But as the petitioner has not even filed his show cause he cannot complain of any prejudice on this account. It is expected that after he files show cause, the same shall be registered as a miscellaneous case (if that has not already been done) and appropriate final decision will be taken soon thereafter giving the petitioner further opportunity of hearing. Since the licence was suspended more than seven months ago, it would be only fit and proper to observe that final order in the matter be passed (if not already passed) within four weeks of the show cause, or if no show cause is filed within four weeks, then within four weeks of receipt of a copy of this order. 9. In the result, I do not find any merit in the writ petition which is accordingly dismissed but with the observations and directions mentioned above.