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2008 DIGILAW 2219 (ALL)

VINOD RAI v. STATE OF U. P.

2008-11-04

RAKESH TIWARI

body2008
JUDGMENT RAKESH TIWARI, J.- Heard learned Counsel for the petitioner, learned Standing Counsel representing respondents No.1 to 3 and perused the record. 2. This writ petition has been filed for quashing of the show cause notice/order dated 21.9.2008 issued by the District Magistrate, Azmagarh under section 17 (3) of the Arms Act by which while suspending the Fire Arm license with immediate effect, he also directed for deposit of the arm licensed as in his opinion it was necessary for the security of public peace and safety. The petitioner is having Rifle of 315 Bore No. 5412 with license No. 2330 dated 24.10.1997 Ludhiyana. 3. The background of the case is that three FIRs had been lodged against the petitioner by the complainant. The first FIR was lodged by the complainant against unknown persons on 9.7.2002 which was registered as Case Crime No. 141 of 2002 under section 302 IPC at Police Station Gambhir. District Azamgarh; the second FIR was lodged by the complainant against unknown persons on 18.11.2007 as Case Crime No. NIL of 2007 under section 302,201 IPC Police -Station Bardah District Azamgarh and the third FIR was lodged by the complainant against the petitioner along with four persons on 26.8.2008 as Case Crime No. 559 of 2008 under section 147/323/506 IPC at Police Station Mehnagar, District Azamgarh. 4. A police report was submitted by Station House Officer, Police Station Mehnagar mentioning the criminal history of the petitioner and requesting that gun license of the petitioner be cancelled in the public peace and security. 5. On the basis of the above police report and recommendation the Senior Superintendent of Police. Azamgarh issued a show cause notice dated 21.9.2008 suspending firearm license of the petitioner and directed him to deposit the firearm in police Malkhana and the petitioner was also asked to reply the show cause notice within fifteen days as to why his gun license be not cancelled. 6. The contention of the Counsel for the petitioner is that the order passed by the District Magistrate is against the settled proposition of law for the reason the District Magistrate has no authority to get the firearm deposited unless license has been cancelled. 6. The contention of the Counsel for the petitioner is that the order passed by the District Magistrate is against the settled proposition of law for the reason the District Magistrate has no authority to get the firearm deposited unless license has been cancelled. He has relied upon the judgment rendered by His Lordship Hon'ble K.N. Sinha, J. in this regard in the case of Satish Chandra v. State of U.P. and others, wherein it has been held that the District Magistrate has been the authority to get the arms deposited. The license cannot be suspended as the District Magistrate has no authority to get the fire arms deposited unless the license has been cancelled. The license cannot be suspended unless a reasonable opportunity has been given to the petitioner license holder to show cause. 7. The petitioner has been served with a notice directing him to file his objection but before the objection was filed, the District Magistrate passed the order for deposit of the arms along with notice itself. Since license was not cancelled, the fire arm cannot be ordered to be deposited at the police station. 8. Standing Counsel appearing for respondents No.1 to 3 has submitted that licensing authority is vested with the power under section 17 of the Arms Act, 1959 to suspend the license during the proceedings for its suspension or revocation under section 17. He submits that it is clear from the impugned order that the license the petitioner has been suspended for public peace and safety and before passing the order, a report has been sought regarding antecedents of the petitioner. He also submits that statutory appeal under section 18 of the Arms Act is available to the petitioner which he has not exhausted before filing the writ petition. 9. After hearing Counsel for the petitioner and Standing Counsel it appears that a report has been submitted by the Station House Officer, Mehnagar inter alia on the ground that the petitioner is a history sheeter and as such it is not in the public interest to allow him to keep license. Accordingly recommendation for cancellation of fire arm license of the petitioner has been made against which statutory appeal is provided under the Act. 10. Accordingly recommendation for cancellation of fire arm license of the petitioner has been made against which statutory appeal is provided under the Act. 10. Admittedly, the petitioner has been served with a show cause notice to reply within fifteen days to which petitioner has already submitted reply which is not annexed to the writ petition. However, to a query made by the Court, Counsel for the petitioner has informed the Court that the petitioner has not deposited arm in Malkhana. Show Cause notice was issued on 21.9.2008 giving fifteen days to reply it and for deposit of fire arm and petitioner has not complied with the order. In so far as non-deposit of fire arm is concerned, it shows the intention of petitioner not to obey the law. 11. Having regard to the criminal history of the petitioner as well as his disobedience of order deposit the arm shows that the petitioner is not a -law abiding citizen, this Court is not inclined to interfere with the matter in its discretionary jurisdiction under Article 226 of the Constitution of India. The writ petition is accordingly dismissed.