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2005 DIGILAW 160 (RAJ)

Khem Singhq v. State of Rajasthan

2005-01-18

SUNIL KUMAR GARG

body2005
Judgment N.N. Mathur, J.-The instant special appeal is directed against the order of the learned Single Judge dated 17.07.2003 dismissing the writ petition in limine. 2. Brief facts giving rise to the instant appeal are that the appellant, a resident of Chak No. 16 LNP, Tehsil, Sri Ganganagar was granted Arms Licence No. 6/85 by the District Magistrate, Sri Ganganagar in the year 1985. The 3rd respondent namely Prem Singh moved an application before the District Magistrate, Sri Ganganagar for cancellation of the said licence. The learned District Magistrate obtained report from the police. The Station House Officer, Lalgarh Jatan submitted a report dated 17.08.1999. As per the report there were three cases pending against the appellant. In case No. 117/97 the appellant was convicted for offence under Section 307, IPC and sentenced to one year’s rigorous imprisonment. He was also convicted for allied offence under Sections 447, 323, 323, 324/34, IPC. In FIR Case No. 201/97 for offence under Section 336 and Section 27 of the Arms Act a final report was given for want of identification. Likewise the Case No. 98/98 for offence under Sections. 365, 147, 148, 149, 323 & 579, IPC was pending trial. On the basis of the said inquiry report, a show-cause notice as issued to the appellant. In reply to the show-cause notice the appellant submitted inter alia that the 3rd respondent made complaint mala fidely on account of village groupism. As regards the second FIR the police itself submitted a final report. Likewise in 3rd FIR the Court has taken cognizance only for offence under Section 323, IPC. However, the learned District Magistrate considering the fact that the appellant has been convicted for offence under Section 307, IPC and there were other cases against him cancelled the subject Arms Licence. The appellant carried the matter in appeal before the Divisional Commissioner unsuccessfully. The learned Single Judge dismissed the writ petition challenging the order of the District Magistrate as well as of the appellate authority by the impugned order. The brief order of the learned Single Judge is as follows:- “Licence of the petitioner has been cancelled on the ground that he has a criminal background. This is not denied that the petitioner stands convicted of an offence. An appeal is pending before this Court challenging the conviction. The brief order of the learned Single Judge is as follows:- “Licence of the petitioner has been cancelled on the ground that he has a criminal background. This is not denied that the petitioner stands convicted of an offence. An appeal is pending before this Court challenging the conviction. From the facts, it cannot be said that the observation of the respondents in relation of the licence of gun is perverse or unsubstantiated. The petitioner is a convict. His description of being a man with criminal background cannot be disputed. That being the position, the writ petition of the petitioner cannot be entertained. Accordingly, the writ petition is dismissed.” 3. It is contended by the learned Counsel that the learned Single Judge has failed to consider that the District Magistrate has not recorded any finding to the effect that it was necessary to cancel the licence for the security of the public peace or the public safety. Mere fact that some cases have been registered against the appellant, cannot be a ground to conclude that the cancellation of the licence was necessary for the security of public peace or public safety. On the other hand, it is submitted by the learned Addl. Government Advocate that the material on record clearly shows that the appellant is a person with criminal background. As such the learned Magistrate was right in considering that the cancellation of the Arms Lincence was necessary for the security of the public peace. 4. In order to appreciate the contentions, it would be appropriate to extract material portion of Section 17 of the Arms Act, 1959 relevant for our purpose as follows:- “(1) The may vary the conditions subject to which a licence has been granted if thethem as have been prescribed and may for that purpose require the licence-holder by notice in writing to deliver-up the licence to it within such time was may be specified in the notice. (3) The (b) fit or revoke a licence,-may by order in writing suspend a licence for such period as it thinks except such ofauthority deems it necessary for the security of the public peace or for (5) Wherethe licensing authority makes an order varying a licence under Sub-Section (1) or an safety to suspend or revoke the ; ounder Sub-Section (3), it shall record in writing order suspending or revoking areasons therefore and furnish to the holder of the licence on dem nd a brief statement of same unless in any case the licensing authority is of the opinion th t it will not be in the 5. From the reading of the provisi n i is manifest thainterest to furnish such statement.” the licensing authori may revoke a licence if it deems necessary for the securi y of the public peace or for public safe . The power f suspension of A ms Licence is necessary concom tant of power of revocation for effective contr l and regulation as also for the security the publ c peace or public safety. Such a power has to be exercised with g eat circumspection. The satisfaction of the authority has to be objective and must be based upon relevant material. Mere act that some reports have been lodged against the licence holder is not sufficient for canceling the licence. A licence can be revoked under Section 17(3)(b) if the licensing authority deems it necessary for the security of public peace or public safety. In absence of any finding that cancellation was necessary for public peace or public safety, such an order is liable to be quashed. 6. In the instant case the impugned order suffers from all these defects. The impugned orde the District Magistrate does not indicate as to how the cancellation of the Arms licence in favou the appellant was necessary for security of the public peace. 7. Consequently, the special appeal is allowed. The order of the learned Single Judge dated 17.07.2003 is set aside. The writ petition is allowed. The order of the District Magistrate, Sri. Ganganagar dated 23rd February, 2001 and the order of the appellate authority dated 01.04.2003 are quashed and set aside. It would be open for the District Magistrate to pass fresh order after giving an opportunity of hearing to the appellant in accordance with law.