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2008 DIGILAW 2011 (ALL)

VIVEK KUMAR MISHRA v. STATE OF UTTAR PRADESH

2008-09-22

TARUN AGARWALA

body2008
JUDGMENT Honble Tarun Agarwala, J.—The licence of the petitioner was suspended and the petitioner was directed to deposit the weapon at the police station. By the impugned order, the authority also issued a notice to the petitioner to show cause why his licence should not be revoked. The petitioner, being aggrieved by the said order suspending his arms licence, has approached the Writ Court. 2. For facility, the factual averments as contained in Writ Petition No. 48617 of 2008 is being considered. In this writ petition, the reason for suspension of the arms licence is that the petitioner was a resident of Chitrakoot but obtained the arms licence from Allahabad and, that three criminal cases were filed against the petitioner. Further, the antecedent of the petitioner was such that the authorities was of the opinion that he should not be allowed to keep the weapon as he instilled fear and terror in the hearts of the citizens of that area. Further, the authorities concluded that there was likelihood of the misuse of the weapon and that public peace and safety would be jeopardised if the petitioner was allowed to keep the weapon and accordingly issued the suspension order. 3. I have heard Sri A. Chaturvedi, the learned counsel for the petitioner at length and Sri Amit Misra, the learned counsel in the connected writ petition and the learned Standing Counsel for the respondents. 4. The learned counsel for the petitioner raised two submissions, namely, that the licence of the petitioner could not be suspended pending inquiry into the revocation of the arms licence. Further, the suspension of the arms licence could not remain suspended for an indefinite period. In support of his submission, the learned counsel has placed reliance upon various judgments which will be referred hereinafter. 5. The provisions relating to the suspension of the arms licence is governed by the provision of Section 17 (3) of the Arms Act which states as under : “17. In support of his submission, the learned counsel has placed reliance upon various judgments which will be referred hereinafter. 5. The provisions relating to the suspension of the arms licence is governed by the provision of Section 17 (3) of the Arms Act which states as under : “17. (3) The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence— (a) if the licensing authority is satisfied that the holder of the licence is prohibited by this Act or by any other law for the time being in force, from acquiring, having in his possession or carrying any arms or ammunition, or is of unsound mind, or is for any reason unfit for a licence under this Act; or (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; or (c) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for it; or (d) if any of the conditions of the licence has been contravened; or (e) if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver-up the licence.” 6. The grounds of suspension is indicated in the aforesaid provision which is the same as for the revocation of the licence. It is the discretion of the authority to decide whether to suspend the licence or to revoke the licence in the facts and the circumstances of the case. 7. Section 17(3) of the Arms Act came into consideration in several matters before this Court. Four Full Benches of this Court have considered the impact of the provisions of Section 17(3) of the Arms Act. In Chhanga Prasad Sahu v. State of U.P. and others, 1984 AWC 145 , the Full Bench considered the question as to whether the authorities had the jurisdiction or power to suspend an arms licence pending inquiry in the proceedings for the revocation and/or for the suspension of the licence and, whether an opportunity of hearing was required to be given before the suspension or revocation. With regard to the opportunity of hearing, the Full Bench held that no opportunity was required to be given and held : “Again, a reading of the provisions contained in Sections 17 and 18 of the Act, as forming part of one integrated scheme, clearly brings out that the licensee is afforded ample protection when the statute obliges the licensing authority to give reasons for revoking/suspending a licence in writing and thereafter afford him an opportunity to be heard by the appellate authority on all relevant aspects of the matter. It is evident that having regard to the fact that licences involved in such cases are in respect of dangerous weapons, the legislature, in its wisdom, thought that an opportunity of being heard should be afforded to the licensee at a stage following suspension/revocation of the licence and not prior to it. Thus the legislature has, in its own way specified the stage at which the principles of natural justice are in such cases to become applicable and has thereby ruled out the application of such principles at any other stage. It is true that in order to revoke/suspend an arms licence, the licensing authority has necessarily to come to the conclusion that facts justifying revocation/suspension of licence mentioned in grounds (a) to (e) of Section 17 exist. However, the section nowhere lays it down that before coming to such a conclusion the licensing authority should either hear the licensee or hold a formal enquiry. The licensing authority may on certain information being laid before it, for its own satisfaction proceed to hold an enquiry with a view to find out if the conditions for revoking/suspending the arms licence exist and, as already explained, it would, in such enquiry, not be necessary for the licensing authority to associate the licensee and the licensee cannot claim it as of right (statutory or that based on principles of natural justice) that he must be heard and be given an opportunity to place his version of the case before the licensing authority. We are in this view supported by a Division Bench decision of Calcutta High Court in the case of Sudhir Chandra Ghosh v. A.D.M. 24 Parganas, AIR 1980 Cal. 275 ." 8. We are in this view supported by a Division Bench decision of Calcutta High Court in the case of Sudhir Chandra Ghosh v. A.D.M. 24 Parganas, AIR 1980 Cal. 275 ." 8. The Full Bench further held that if there was material before the licensing authority and that it became apparent that the possession of the weapon would endanger the public peace and safety, it could straightaway suspend or revoke the licence without holding an inquiry after recording reasons. The Full Bench further held that if the authority embarked upon an enquiry in order to find out whether the grounds mentioned under Section 17(3) of the Act existed then the authority had no power to suspend the licence pending inquiry. The Full Bench held : “The object of the enquiry that a licensing authority may while proceeding to consider the question as to whether or not an arms licence should be revoked or suspended, like to make, clearly is to enable the licensing authority to come to a conclusion as to whether or not the facts stated in clauses (1) to (e) of Section 17 (3) exist and as already explained it is not obliged to before considering that a case for revocation/suspension of licence has been made out, associate the licensee in such enquiry. In this view of the matter it can safely be taken that where a licensing authority embarks upon such an enquiry it is, till then not convinced about existence of the conditions mentioned in clause (a) to (e) of Section 17(3) of the Act. So long as it is not so convinced no case to make an order either revoking or suspending an arms licence as contemplated by the section will be made out.” “So far as the first ground mentioned above is concerned, learned counsel for the State contended that one of the main objectives sought to be achieved for revocation/suspension of an arms licence is to secure public peace and safety. In case the licensing authority is not enabled to suspend the licence during pendency of the enquiry, public peace and safety may, during such enquiry, get disturbed. It would, in the circumstances, be reasonable to recognize a power in the licensing authority to suspend an arms licence pending enquiry. We are unable to accept this submission. In case the licensing authority is not enabled to suspend the licence during pendency of the enquiry, public peace and safety may, during such enquiry, get disturbed. It would, in the circumstances, be reasonable to recognize a power in the licensing authority to suspend an arms licence pending enquiry. We are unable to accept this submission. As already explained, if there already is material before the licensing authority and it becomes apparent to it that possession of arms by the licensee is going to endanger public peace and safety, it can straight-away and without holding any enquiry proceed to revoke/suspend the arms licence after recording reasons therefor and if the licensee is aggrieved by such orders, he will have a right to ventilate his grievance before the appellate authority. However, if there is no such material before the licensing authority and it is not apparent to it that there is an immediate danger to public peace and safety and it, on some information being laid before it, proceeds to find out whether there is any likelihood of public peace and safety being affected at some future date, it cannot be said that there is any such urgency so as to justify the revocation/cancellation of the licence even before the licensing authority gets so satisfied. In the circumstances, considering the nature and the object of the enquiry which a licensing authority is required to make for finding out if the facts justifying passing of an order for revocation/suspension of licence exist, it cannot be said that non-conferment of the power to suspend an arms licence pending enquiry has the effect of defeating the object of which such a power has been conferred upon the licensing authority.” 9. The Full Bench consequently concluded that the licensing authority had no power to suspend the licence pending inquiry for the revocation or for the suspension of the arms licence. The Full Bench consequently concluded that the licensing authority had no power to suspend the licence pending inquiry for the revocation or for the suspension of the arms licence. Subsequently, in Kaliash Nath and others v. State of U.P. and others, 1985 AWC 493 , the Full Bench supplemented the earlier decision of the Full Bench in Changa Prasad Sahu (supra) holding that where the authority was satisfied that there was an apprehension of breach of peace and with the object of preserving peace and to prevent the licence holder from using the fire arms, the authority was competent to pass an order of the cancellation of the licence, but such an order was provisional in nature and that the authority was required to issue a show cause notice and provide an opportunity of hearing before proceeding to pass a final order either affirming or revoking the provisional order. The Full Bench held that there was no need to give any prior notice to the licence holder but was required to give an opportunity to represent against the provisional revocation order. 10. In Balram Singh v. State of U.P. and others, a Full Bench of this Court held that the licensing authority was vested with the power to suspend the licence during the proceedings for its suspension or for revocation under Section 17 of the Act. 11. Finally, a Full Bench of five Judges of this Court in Rana Pratap Singh v. State of U.P. and others, 1996 AWC (Supp.) 92, held that the view taken in Balram Singh’s case was not correct and that the ratio laid down in Changa Prasad Sahu and Kailah Nath case (supra) was affirmed. The Full Bench in paragraph 29 held as under : “As regards suspension of an arms licence by the licensing authority during the enquiry, this, it may be clarified, may be done only in the manner as explained in the judgment in C.P. Sahu’s case (supra) and not without application of mind and recording of reasons by the licensing authority with such reasons and circumstances being in consonance with the provisions of the Arms Act.” 12. The aforesaid Full Bench decision cleared the confusion relating to the suspension of the arms licence. The aforesaid Full Bench decision cleared the confusion relating to the suspension of the arms licence. The Full Bench showed the the way that the suspension order could be issued during an enquiry and that it could be done in the manner laid down in Changa Prasad Sahu’s case (supra). 13. It is therefore clear that the suspension of the arms licence could be issued under Section 17 of the Act which is subject to certain conditions as laid down in case of Changa Prasad Sahu (supra), namely, that if there was a material before the licensing authority and that there was a subjective satisfaction to the effect that the possession of the weapon by the licensee would endanger public peace and safety, the authority could straightaway, withholding an enquiry, revoke or suspend the arms licence after recording its reasons. In Ramesh Singh v. State of U.P. and others, decided on 7.3.2007, in Writ Petition No. 8723 of 2007, the learned Single Judge after considering various case laws on this aspect held that the condition precedent for the suspension of the arms licence pending enquiry is that : “(1) there is already material before the licensing authority to be satisfied that the possession of arm by the licensee is going to endanger the public peace and safety; (2) after recording reasons therefor the suspension can be ordered pending enquiry of revocation only when there is already material before the licensing authority and on the said materials the licensing authority is satisfied that it is necessary for the security of the public peace or for public safety to suspend the licence.” 14. In Purshottam Pandey v. State of U.P. and others, 2007 (67) ALR 642, this Court held that where an authority recorded a subjective satisfaction that the continuance of the possession of the weapon in the hands of the licence holder would endanger public peace and safety and also found that the ingredients contemplated under Section 17 of the Act existed, the authorities were obliged to pass an order of the suspension of the arms licence. 15. In the present case, the Court has perused the impugned order and has found that the authority had recorded its subjective satisfaction and held that the continuance of the possession of the weapon in the hands of the petitioner would endanger public peace and safety which could pose a law and order problem. 15. In the present case, the Court has perused the impugned order and has found that the authority had recorded its subjective satisfaction and held that the continuance of the possession of the weapon in the hands of the petitioner would endanger public peace and safety which could pose a law and order problem. In view of the categorical subjective satisfaction recorded by the prescribed authority, this Court is not inclined to interfere in the suspension order at this stage. 16. The submission of the learned counsel for the petitioner that the arms licence has been suspended for an indefinite period is incorrect. The show cause notice directed the petitioner to appear on or before a particular date to show cause why his licence should not be revoked. The authorities had taken immediate steps and, if the petitioner had replied, the authorities would have been obliged to pass an order. Consequently, it could not be said that the suspension order was for an indefinite period. 17. In view of the aforesaid, the writ petition fails and is dismissed. However, in view of the decision of the Court in Sadri Ram v. District Magistrate/Licensing Authority, Azamgarh and others, 1998 (3) AWC 2102 and in the case of Ravindra Singh v. State of U.P. and another, 2003 (53) ALR 488, holding that the arms licence could not be suspended for an indefinite period, consequently, I direct the authority to conclude the proceedings and decide the matter within three months from the date of the production of a certified copy of this order. ———