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Madhya Pradesh High Court · body

2007 DIGILAW 922 (MP)

BADSHAH ALIAS TAJ MOHAMMAD v. STATE OF M. P.

2007-08-23

ABHAY M.NAIK

body2007
ORDER Abhay M. Naik, J. This petition has been preferred against the revocation of licence of firearm vide Annexures P/1 and P/2. Short facts leading to the petition are that the petitioner is a permanent resident of Narsinghpur. He is engaged in the business of stone crusher which is situated at a distance of about 35 Kms. from Narsinghpur which is near to the forest area. Petitioner on account of safety measure obtained Gun Licence No. 213/94. The Superintendent of Police, Narsinghpur wrote to the licensing authority that Criminal Cases Nos. 25/2000 and 517/2000 were pending against the petitioner and therefore, his licence may be suspended. A show cause notice u/s 17(3)(b) of the Arms Act, 1959 for suspension of licence was issued to the petitioner, which was duly replied. Learned licensing authority vide his order dated 8-1-2001 revoked the licence of the petitioner and directed the officer-in-charge of Police Station, Narsinghpur to confiscate the 315 NP Bore Rifle with 10 live bullets. Order dated 8-1-2001 is on record as Annexure P/2 which was challenged before the Commissioner, Jabalpur in Appeal No. 13-121/2000-2001. Against the dismissal of appeal, W.P. No. 2097/2002 was preferred which was dismissed for want of prosecution. A fresh Writ Petition No. 586/2003 was submitted by the petitioner which was dismissed with liberty to seek restoration. A restoration application was filed as M.C.C. No. 3076/03 which was dismissed. Thereafter, a fresh writ petition bearing No. 27745/03 was dismissed on 1-10-2003 on the ground that subsequent writ petition with a prayer for earlier relief was not maintainable. Aggrieved by the same, the petitioner preferred L.P.A. No. 915/03 which was dismissed on 2-1-2004 with liberty to make an application before the Licensing Authority. Pursuant thereto, petitioner filed an application before the licensing authority for revocation or order contained in Annexure P/3 dated 8-1-2001 on the ground that criminal cases registered against the petitioner have been dismissed. Respondent No. 2 on 3-10-2005 dismissed the application and confirmed the order dated 8-1-2001. This order is on record as Annexure P/1 which was communicated to the petitioner vide letter dated 4-10-2005 contained in Annexure P/2. It is contended by the learned counsel for the petitioner that earlier order dated 8-1-2001 (Annexure P/3) was passed when criminal cases were pending against the petitioner. This order is on record as Annexure P/1 which was communicated to the petitioner vide letter dated 4-10-2005 contained in Annexure P/2. It is contended by the learned counsel for the petitioner that earlier order dated 8-1-2001 (Annexure P/3) was passed when criminal cases were pending against the petitioner. Since the petitioner has not been convicted with imprisonment and that no criminal case is pending against him, the licence of firearm granted to the petitioner is liable to be restored after revoking its cancellation. In the return, it is submitted that the gun licence granted to the petitioner was rightly cancelled on 2-3-1994 on account of pendency of criminal cases against the petitioner. It is further contended that looking to the activity of the petitioner, there was likelihood of misuse of the weapon, more so, because the petitioner was involved in number of criminal cases. Respondents have placed on record a chart (Annexure R/1) which contains particulars of various criminal cases registered against him. In view of the matter, it is submitted by the respondents that the arm licence of the petitioner has rightly been revoked and the petition is liable to be dismissed. Shri K.N. Fakhruddin, learned counsel and Shri S.S. Bisen, learned Government Advocate argued in support of their respective pleas. After considering the submissions, I am of the opinion that this petition deserves to succeed. Shri Bisen, learned G.A. contended that the impugned order has rightly been passed in exercise of powers under sub-clause (b) of sub-section (3) of section 17 of the Arms Act, 1959 which is reproduced below: (3) The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence - (b) if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence. From the perusal of the record, it is clear that the licence of the petitioner was revoked on 8-1-2001 merely on account of pendency of the criminal cases against him. There is no iota on record to establish that the firearm issued to the petitioner under valid licence was ever misused. It is not the case of the respondents that any threat was ever extended by the petitioner on the strength of the subject weapon. There is no iota on record to establish that the firearm issued to the petitioner under valid licence was ever misused. It is not the case of the respondents that any threat was ever extended by the petitioner on the strength of the subject weapon. Shri Fakhruddin, learned counsel for the petitioner stated that the petitioner was acquitted in Criminal Case No. 190/91. Factum of acquittal was recorded in paragraph 33 of the judgment of learned Sessions Judge, Narsinghpur at page 14 and onwards. In Criminal Case No. 285/92, mere fine was imposed. Criminal Case No. 141/93 came to an end on account of being under sections 107 and 116(3) of Criminal Procedure Code on account of expiry of six months. Case at Crime No. 137/97 was closed in favour of petitioner for want of proof. Case at Crime No. 517/00 stood terminated in view of the compromise between the parties. Case at Serial No. 6 against Crime No. 73/25 of 2000 came to an end due to expiry of six months. Last criminal case mentioned at serial No. 7 in Annexure R/1 was registered in February, 2006 which was after passing of the impugned order. Thus, it had no bearing on the impugned order. From the aforesaid discussion, it is clear that there is no finding in the aforesaid criminal cases that the firearm owned by the petitioner under valid licence was ever used or misused by the petitioner. No threat is stated to have been extended by the petitioner on the strength of the said firearm. There is no specific provision in Arms Act or elsewhere that no licence is to be issued when criminal cases are pending against the applicant. There is further no material on record to infer that the petitioner has caused obstruction to public safety. This being so, the revocation of the petitioner's licence on the ground of public safety is not sustainable in law. On perusal of the order dated 8-1-2001 contained in Annexure P/3 it may be seen that certain criminal cases were pending at that time against the petitioner. This being so, the revocation of the petitioner's licence on the ground of public safety is not sustainable in law. On perusal of the order dated 8-1-2001 contained in Annexure P/3 it may be seen that certain criminal cases were pending at that time against the petitioner. This position was entirety changed at the time of passing of the impugned orders contained in Annexures P/1 and P/2 in the year 2005 because firstly, no criminal case was pending against the petitioner, secondly, cases under sections 107, 110, 116(3) of Criminal Procedure Code came to an end on account of expiry of six months. Only in one criminal case namely Criminal Case No. 285/92, a fine was imposed on the petitioner. Remaining criminal cases stood terminated in his favour on account of acquittal or compromise. From perusal of the record of criminal cases, it is ample clear that the firearm was not found to have been used or misused. Even in the order of District Magistrate, Narsinghpur, there is no mention that the licensed weapon was used or misused. Mere apprehension of the District Magistrate that the licensed firearm may be misused by the petitioner has no foundation and does not provide a ground for revoking the licence of the firearm. Moreover, it is quite clear that the licensing authority did not take into consideration the effect of termination of criminal cases while passing the impugned order. In view of this, the earlier order dated 8-1-2001 cannot form a basis for passing the impugned orders in the year 2005 when admittedly, the criminal cases against the petitioner were not pending. Thus, on the date of impugned orders the grounds assigned for cancellation of licence earlier on 8-1-2001 were non-existent and the impugned orders are, therefore, found to be unsustainable in law. I may refer successfully for this purpose, the view taken by the Division Bench of Allahabad High Court in the case of Udaiveer Singh Vs. D.M. Farrukhabad and Another, . Apart from the aforesaid, it may be seen that the petitioner was acquitted in Cr. Case No. 190/91. Fact of his acquittal is mentioned in paragraph 33 of the impugned judgment and page 31 of the writ petition. D.M. Farrukhabad and Another, . Apart from the aforesaid, it may be seen that the petitioner was acquitted in Cr. Case No. 190/91. Fact of his acquittal is mentioned in paragraph 33 of the impugned judgment and page 31 of the writ petition. Effect of his acquittal is liable to be taken into consideration in view of the decision of this High Court in the case of Jahar Singh vs. State of M.P., 1999(1) MPWN 188 . Merely speculative and unfounded likelihood regarding misuse of firearm cannot provide a ground for revocation of licence of the petitioner, as observed by Allahabad High Court in the case of Sita Ram Dixit Vs. Divisional Commissioner, Allahabad Division and others, . In another case of Allahabad High Court Heera Lal Varma Vs. Commissioner, Kumaun Mandal, Nainital and others, , it has been held :-- I am conscious of the fact that it is not possible to enlist exhaustive facts and circumstances from which an inference of threat to public security or public peace may be deduced, but there have to be some facts and evidence to enable such inference that licensee poses a threat to the security of public peace and public safety inasmuch as the right to acquire and possess a gun/firearm is a fundamental right and any order likely to affect such right can be passed only in conformity with the principles of natural justice. The ultimate aim of the natural justice is to secure justice or to prevent miscarriage of justice. It leaves me in no manner of doubt that the licensing authority has to act in a quasi-judicial manner in deciding whether a licence granted to a person under the Act, should be cancelled or not and as such the finding arrived at by the District Magistrate must radiate confidence and it must appear from the order that it is necessary for the security of the public peace and public safety. These are basic requirements. The provisions of the Act do not envisage untrammelled discretion but the discretion to pass an order for cancellation of the licence must be a judicial discretion to be exercised fairly and honestly in accordance with the essential principles of natural justice and on the objective existence of the grounds or circumstances envisaged in the relevant section. The provisions of the Act do not envisage untrammelled discretion but the discretion to pass an order for cancellation of the licence must be a judicial discretion to be exercised fairly and honestly in accordance with the essential principles of natural justice and on the objective existence of the grounds or circumstances envisaged in the relevant section. Considering the case in hand on the aforesaid parameters, it may be seen that there is absolutely no material on record to establish that the petitioner used or misused the firearm and that possession of firearm poses a threat to the security of the public peace and public safety. In this view of the matter, the impugned orders contained in Annexures P/1 and P/2 are clearly unsustainable in law and the same are hereby set aside. Respondent No. 2 is hereby directed to consider the application of the petitioner afresh in accordance with law keeping in view the aforesaid observations within a period of one month from the date of receipt of certified copy of this order. No order as to costs.