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2007 DIGILAW 2522 (ALL)

SANGEETA CHATURVEDI v. STATE OF UTTAR PRADESH

2007-10-04

ASHOK BHUSHAN

body2007
JUDGMENT Honble Ashok Bhushan, J.—Heard Sri A.K. Singh, learned Counsel for the petitioner and learned Standing Counsel appearing for the respondents. 2. This writ petition was heard on 30th August, 2007 on which date learned Standing Counsel produced the file of the petitioner pertaining to grant of arm licence. The records were perused by the Court and the relevant facts noticed from perusal of the record were recorded in the order dated 30th August, 2007. 3. By this writ petition, the petitioner has prayed for a direction commanding the respondents to renew the licence of the petitioner in Form-XII and to grant her licences in Forms XIII and XIV within a stipulated period of time. 4. The brief facts of the case, which emerge from pleadings of the parties are; the petitioner applied for grant of licence in Form-XII under the provisions of the Arms Act, 1959. The petitioner prayed for licence for sale of arm and ammunition. The licensing authority for grant of arm licence of sale of arms and ammunition is the State Government. On the application submitted by the petitioner for grant of said licence, the report was submitted by the District Magistrate. The police report was also sent. The State Government after considering the report submitted by the District Magistrate as well as the police report, passed an order dated 12th January, 2006 deciding to grant licence to the petitioner in Form-XII. By the said order the State Government also directed the District Magistrate, Auraiya to take decision with regard to grant of licences to the petitioner in Forms XIII and XIV. The licence in Form-XII to sell, transfer or test arms and ammunition was issued to the petitioner, which licence was valid up to the period 31st December, 2006. The petitioner submitted an application to the District Magistrate praying that licence in Forms XIII and XIV be granted to the petitioner for trading in arm and ammunition by the petitioner as per the order of the State Government. An application dated 29th December, 2006 was also made by the petitioner praying renewal of the licence granted in Form XII. The petitioner submitted an application to the District Magistrate praying that licence in Forms XIII and XIV be granted to the petitioner for trading in arm and ammunition by the petitioner as per the order of the State Government. An application dated 29th December, 2006 was also made by the petitioner praying renewal of the licence granted in Form XII. The police report dated 22nd March, 2006 was submitted to the Superintendent of Police by Circle Officer mentioning that against Sri Shailesh Chaturvedi alias Pappan there are several criminal cases registered, it was stated in the report that Shailesh Chaturvedi is original resident of Gram Bhandaripur, Police Station Auraiya and at present residing at Sanjay Nagar, Indian Oil, Auraiya. It was also stated that Smt. Sangeeta Chaturvedi is wife of Shailesh Chaturvedi. The report further stated that there are two arm licences in favour of Shailesh Chatruvedi for cancellation of which report was submitted on 16th March, 2005 to which notices were issued by the District Magistrate dated 12th April, 2005, which has been duly served on Shailesh Chaturvedi. The Senior Superintendent of Police sent a report dated 7th July, 2006 to the District Magistrate and the District Magistrate vide letter dated 22nd July, 2006 informed the State Government about all the cases, which are pending against petitioners husband. The District Magistrate stated in the letter that petitioners husband has a criminal history. The letter stated that although the licence in From XII has been issued to the petitioner but with regard to licence in Forms XIII and XIV the State Government may take decision at its own level. 5. The petitioner having not been issued licence in Forms XIII and XIV by the District Magistrate, Auraiya and there being no decision by the District Magistrate, Auraiya for renewal of licence granted to the petitioner by the State Government in Form XII after 31st December, 2006, this writ petition has been filed praying for a direction to grant the licence in Forms XIII and XIV and to renew the licence of the petitioner in Form XII. 6. 6. A counter-affidavit has been filed by the State Government in this writ petition in which it has been mentioned that the respondents came to know that large number of criminal cases have been registered against the petitioners husband details of which have been mentioned in paragraph 6 of the counter-affidavit due to which facts steps for renewal of licence granted to the petitioner in Form-12 has not been taken. It is further stated that without there being any process taken by the District Magistrate towards renewal of licence, the petitioner by adopting a proceeding of his own got deposited the licence fee of Rs. 200/- in the State Bank of India. It has been stated in paragraph 7 of the counter-affidavit that after the no objection has been issued by the State Government in favour of the petitioner, it came in the knowledge that petitioners husband is a hardened criminal and there is a long criminal history to his credit, hence regarding issuance of licence in Forms XIII and XIV the matter was got inquired and the same was referred to the State Government vide letter dated 22nd July, 2006. 7. Sri A.K. Singh, learned Counsel for the petitioner, in support of the writ petition, contended that the fact that against petitioners husband there were criminal cases registered is not a relevant fact for refusing to issue licence in Forms XIII and XIV or for refusing to take steps for renewal of petitioners licence in Form-12. It is submitted that the respondents acted wholly illegally in taking into consideration the report regarding registration of criminal cases against petitioners husband, which had no relevance with regard to grant of licence to the petitioner or its renewal. 8. Learned Standing Counsel, refuting the submissions of Counsel for the petitioner, contended that registration of criminal cases against petitioners husband is relevant fact for grant of licence as well as for renewal of licence and no case is made out for issuing any direction to the respondents to issue licence in Forms XIII and XIV or to renew the petitioners licence in Form XII. 9. I have considered the submissions of learned Counsel for the parties and perused the record. 10. Section 5 of the Arms Act, 1959 (hereinafter referred to as the Arms Act) provides for licence for manufacture, sale etc. of arms and ammunition. 9. I have considered the submissions of learned Counsel for the parties and perused the record. 10. Section 5 of the Arms Act, 1959 (hereinafter referred to as the Arms Act) provides for licence for manufacture, sale etc. of arms and ammunition. Section 5(1) of the Arms Act, which is relevant for the purpose is extracted below : "5. Licence for manufacture, sale, etc. of arms and ammunition.—(1) No person shall— (a) [use, manufacture], sell, transfer, convert, repair, test or prove, or (b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearm or any other arms of such class or description as may be prescribed or any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder :" 11. Section 13 of the Arms Act provides that an application for grant of licence under Chapter-II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee as may be prescribed. Section 13 of the Arms Act is as follows : "13. Grant of licences.—(1) An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed. [(2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time. [(2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time. (2A) The licensing authority, after such inquiry, if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same : Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.] (3) The licensing authority shall grant— (a) a licence under Section 3 where the licence is required— (i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection : Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection, or (ii) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government. (b) a licence under Section 3 in any other case or a licence under Section 4, Section 5, Section 6, Section 10 or Section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same." 12. Section 15 deals with renewal, which is as follows : "15. (b) a licence under Section 3 in any other case or a licence under Section 4, Section 5, Section 6, Section 10 or Section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same." 12. Section 15 deals with renewal, which is as follows : "15. Duration and renewal of licence.—(1) A licence under Section 3 shall, unless revoked earlier, continue in force for a period of three years from the date on which it is granted : Provided that such a licence may be granted for a shorter period if the person by whom the licence is required so desires or if the licensing authority for reasons to be recorded in writing considers in any case that the licence should be granted for a shorter period. (2) A licence under any other provision of Chapter II shall, unless revoked earlier, continue in force for such period from the date on which it is granted as the licensing authority may in each case determine. (3) Every licence shall, unless the licensing authority for reasons to be recorded in writing otherwise decides in any case, be renewable for the same period for which the licence was originally granted and shall be so renewable from time to time, and the provisions of Sections 13 and 14 shall apply to the renewal of a licence as they apply to the grant thereof." 13. Rules have been framed under the Arms Act, namely, Arms Rules, 1962. Rule 4 of the Arms Rules provides that licence under Chapter-II of the Act may be granted or renewed for such purposes, by the such authorities, in such forms and to be valid for such period and in such areas as are specified in Schedule II. Licence in Form-XII is a licence to sell, transfer or test and keep for sale, transfer or test, arms or ammunition, which licence is to be granted by the State Government. Licence in Form-XII is for categories I(b), I(c), I(d), III(a), III(b), III(c), III(d) and V of Schedule 1, licence in Form XIII is for categories III(c), III(d), V and VI and licence in From-XIV is for possession by holders of licences of arms or ammunition deposited by their owners for safe custody. Licence in Form-XII is for categories I(b), I(c), I(d), III(a), III(b), III(c), III(d) and V of Schedule 1, licence in Form XIII is for categories III(c), III(d), V and VI and licence in From-XIV is for possession by holders of licences of arms or ammunition deposited by their owners for safe custody. Licences in Forms XIII and XIV are to be granted by the State Government or any officer specifically empowered by the State Government. By the order of the State Government dated 12th January, 2006, it is clear that the State Government by the said order permitted the District Magistrate to take decision at his own level with regard to grant of arm licences in Forms XIII and XIV. Thus the licences in Forms-XIII and XIV were to be granted by the District Magistrate on the basis of the no objection given by the State Government. 14. The issue, which has been raised in the writ petition, is as to whether the fact that against petitioners husband there are several criminal cases pending is relevant fact or wholly irrelevant fact with regard to grant of arm licence in Forms XIII and XIV. The licenses in Forms XIII and XIV are licenses of trade and business in the arms and ammunition. It is true that under Article 19(1)(g) of the Constitution of India every citizen has right to practise any profession, or to carry on any occupation, trade or business. According to Article 19(6) of the Constitution of India nothing in sub-clause (g) of clause (1) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said clause. The provisions of the Arms Act and the rules framed thereunder restrict a right of a citizen to carry out trade and business of arms and ammunition. For deciding as to what are the nature and extent of the restrictions imposed by the Arms Act and Rules it is necessary to examine the scheme and object of the Arms Act and the Rules. 15. Section 13 of the Arms Act provides for making an application for grant of a licence under Chapter II. For deciding as to what are the nature and extent of the restrictions imposed by the Arms Act and Rules it is necessary to examine the scheme and object of the Arms Act and the Rules. 15. Section 13 of the Arms Act provides for making an application for grant of a licence under Chapter II. Section 13(2), which is relevant, provides that on the receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application. The police report has to necessarily indicate the status, reputation and character of the person applying for grant of arm licence. Although the police report, which is to be sent under sub-section (2) of Section 13 does not specify the subjects and items on which the police report has to be confined but mention of words "report of the officer in charge of the nearest police station" have to be given a wide meaning not being restricted in any manner. The report to be submitted by an officer in charge of the police station may contain the general reputation, character and conduct of the person applying for licence as well as the facts pertaining to criminal history of other members of the family. No prohibition can be read in the scheme of the Act from sending a report of criminal history of a member of the family of the applicant. It goes without saying that the character and antecedent of the applicant has to be necessarily sent in the police report but there cannot be any prohibition in sending a report of antecedent and criminal history of family members of the applicant. In the present case the petitioner has applied for arm licence for trade and business in arm and ammunition. The antecedent and character of the husband of the applicant cannot be said to be irrelevant looking to the purpose and object of permitting trade and business in arm and ammunition. The registration of criminal cases against the husband of the petitioner cannot be said to be, thus, irrelevant factor while considering grant of licence to the petitioner. 16. There is another factor, which is to be noticed in the present case. An application for grant of arm licence is to be made in such form and contain such particular as prescribed. 16. There is another factor, which is to be noticed in the present case. An application for grant of arm licence is to be made in such form and contain such particular as prescribed. According to Rule 51 of the Arms Rules every application for grant of a licence under these rules shall be submitted in Form "A". Schedule-III of the Arms Rules contains Form-"A". The second column of Form-"A" provides for giving name of parent/spouse name. Column 10(c) requires following informations: "10(c). whether any other member of the applicants family is in possession of an arms licence, if so, particulars thereof." Form "A" requires mentioning of spouse name and the fact as to whether any other member of the applicants family is in possession of the arm licence. Thus for the purposes of this case, it was necessary to mention the husbands name of the petitioner and if any report is submitted with regard to husband of the petitioner regarding his antecedent and criminal history that cannot be said to be irrelevant fact. It has also come on the record that petitioners husband has also two arm licences with regard to which a report was sent for cancellation of the said arm licences. 17. From the scheme of the provisions of the Act and Rules, as noted above, it is clear that registration of criminal case against members of the family, in the present case husband of the applicant, cannot be said to be irrelevant fact having no bearing for grant of licence for trade and business in the arms and ammunition. The submission of the petitioners Counsel that the fact of registration of criminal cases against the petitioners husband were wholly irrelevant and the act of the respondents on the said basis are wholly illegal cannot be accepted. No error has been committed by the District Magistrate in not issuing arm licence in Forms-XIII and XIV to the petitioner taking into consideration the aforesaid facts. Thus the submission of the petitioners Counsel that on irrelevant facts the respondents have refused to issue licences in Forms XIII and XIV cannot be accepted. The action of the respondents in not taking any steps for renewal of the licence in Form-XII can also not be said to be without any basis. 18. Thus the submission of the petitioners Counsel that on irrelevant facts the respondents have refused to issue licences in Forms XIII and XIV cannot be accepted. The action of the respondents in not taking any steps for renewal of the licence in Form-XII can also not be said to be without any basis. 18. In facts of the present case, no direction as prayed in the writ petition can be issued for issuing arm licences in Forms XIII and XIV and for renewing the arm licence in Form-XII. This is not a case for exercise of jurisdiction by this Court under Article 226 of the Constitution of India. The writ petition fails and is dismissed. ————