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2009 DIGILAW 1137 (ALL)

RAM BAHAL BIND v. STATE OF U. P.

2009-04-07

RAJES KUMAR

body2009
JUDGMENT Honble Rajes Kumar, J.—Heard learned counsel for the petitioner and learned Standing Counsel. 2. By means of present petition, the petitioner is challenging the order dated 20.8.2008 passed by the Divisional Commissioner, Varanasi Division, Varanasi by which he has rejected the appeal filed against the order of the District Magistrate, Jaunpur dated 31.3.2008 by which he has cancelled the arm licence of the petitioner. 3. The petitioner had D.B.B.L. Gun No. 2578 B.K. licence No. 278 and revolver No. F 7842-04, licence No. 498. The aforesaid two licences of the petitioner have been cancelled merely on the basis of the F.I.R. lodged in the year 1994 in case crime No. 94A/94 under Sections 147, 148, 149, 352, 504, 506 and 307, I.P.C. A show cause notice was issued to the petitioner on 7.3.2006 to show cause as to why both the licences may not be cancelled. The petitioner filed reply on 18.8.2006. However, by order dated 31.3.2008 both licences have been cancelled. The District Magistrate has observed that in the aforesaid F.I.R. though final report has been submitted by the police but the Court below has not taken cognizance of such report and summon was issued against which the petitioner filed writ petition before this Court in which the proceeding before the Court below has been stayed. On these facts it has been observed that in the interest of public security it could not be proper to continue the arm licence of the petitioner. 3. Being aggrieved by the order, the petitioner filed appeal before the Divisional Commissioner, Varanasi Division, Varanasi. By the impugned order appeal has been dismissed on the same ground. 4. Learned counsel for the petitioner submitted that the cancellation of the arm licences after 12 years from the date of lodging of the F.I.R. is wholly unjustified. He submitted that perusal of the F.I.R. also reveals that vague allegations have been made without any supporting evidence. He further submitted that there is no material on record to suggest that the petitioner has ever misused the arms for any illegal activity. Mere pendency of the case before the Court below is not sufficient to cancel the licence of the petitioner unless a case is made out against the petitioner about his conduct, which may result to misuse of the arms. 5. Mere pendency of the case before the Court below is not sufficient to cancel the licence of the petitioner unless a case is made out against the petitioner about his conduct, which may result to misuse of the arms. 5. Learned Standing Counsel relied upon the order of the appellate authority as well as the order of the District Magistrate. 6. Having heard learned counsel for the parties, I have perused the impugned orders and given consideration to the rival submissions. 7. Section 13, sub-section (3) of the Arms Act, 1959 (hereinafter referred to as the ("Act") contemplates grant of arms licence and Section 17 of the Act contemplates variation, suspension and revocation of licence. It would be appropriate to refer Sections 9 (1)(a), 13 and Section 17 of the Act. "9. Prohibition of acquisition or possession by, or of sale or transfer to young persons and certain other persons of firearms, etc.—(1) Notwithstanding anything in the foregoing provisions of this Act— (a) no person,— (i) who has not completed the age of twenty-one-years, or (ii) who has been sentenced on conviction of any offence involving violence or moral turpitude to imprisonment for any term at any time during a period of five years after the expiration of the sentence, or (iii) who has been ordered to execute under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) a bond for keeping the peace or for good behaviour, at any time during the term of the bond, shall acquire, have in his possession or carry any firearm or ammunition.” 13. Grant of licence.—(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 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 smooth bore gun as aforesaid for such protection, or (ii) in respect of point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle association licensed or recognized by Central Government; (2) (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. 17. Variation, suspension and revocation of Iicences.—(1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them 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 as may be specified in the notice. 17. Variation, suspension and revocation of Iicences.—(1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them 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 as may be specified in the notice. (2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed. (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. (4) The licensing authority may also revoke a licence on the application of the holder thereof. (5) Where the licensing authority makes an order varying a licence under sub-section (1) or an order suspending or revoking a licence under sub-section (3), it shall record in writing the reasons therefor and furnish to the holder of the licence on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will be in the public interest to furnish such statement. (6) The authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority. (7) A Court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence : Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void. (8) An order of suspension or revocation under sub-section (7) may also be made by an appellate Court or by the High Court when exercising its powers of revision. (9) The Central Government may, by order in the official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licences granted under this Act throughout India or any part thereof. (10) On the suspension or revocation of a licence under this section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation." 8. Arms Act came up for consideration before the Constitution Bench in the case of Kailash Nath and others v. State of U.P. and others, 1985 (22) ACC 353. Constitution Bench held that licence under the Arms Act is a privilege and not a right. The Constitution Bench held as follows : "A right is distinct from a mere privilege. The case of licence to possess or use fire arm is materially different from a case of licence to deal in or sell fire arms. Section 3 of the Arms Act, 1959 deals with acquisition and possession of fire arms or ammunition on the strength of a licence whereas Section 5 provides for a licence for manufacture, sale etc. of arms and ammunition. The licence for acquisition and possession of fire arms is materially different from a licence for manufacture, sale etc. Section 3 of the Arms Act, 1959 deals with acquisition and possession of fire arms or ammunition on the strength of a licence whereas Section 5 provides for a licence for manufacture, sale etc. of arms and ammunition. The licence for acquisition and possession of fire arms is materially different from a licence for manufacture, sale etc. While the latter confers a right to carry on a trade or business and is a source of earning livelihood, the former is merely a personal privilege for doing something which without such privilege would be unlawful. In my opinion, the obtaining of a licence for acquisition and possession of firearms and ammunition under the Arms Act is nothing more than a privilege and the grant of such privilege does not involve the adjudication of the rights of an individual nor does it entail civil consequences. It may, however, hasten to add that even an order rejecting the application for grant of licence may become legally vulnerable if it is passed arbitrarily or capriciously or without application of mind. No doubt, a citizen may apply for grant of a licence of fire arms mostly with the object of protecting his person or property but that is mainly the function of the State. Even remotely this cannot be comprehended within the ambit of Article 21 of the Constitution which postulates the fundamental right of protection of life and personal liberty. It deals with deprivation of life and as held in Gopalan v. State of Madras, (2). Article 21 is attracted only in cases of deprivation in the sense of total loss and accordingly has no application to the case of a mere restriction upon the right to move freely stands on an entirely different footing from the licence to carry on a trade or occupation.“ 9. The matter relating to the cancellation of the licence came up for consideration before the learned single Judge of this Court in Civil Misc. Writ Petition No. 34569 of 2003 Parvez Ahmad v. State of U.P. through Secretary (Home) U.P., Lucknow and others. This Court held as follows : “Looking to the unprecedented increase of anti-social elements known as mafias and persons involving in communal activities and terrorism it has become more appropriate that the licence should be granted only on strict enquiry about the conduct and the activities of the person concerned. This Court held as follows : “Looking to the unprecedented increase of anti-social elements known as mafias and persons involving in communal activities and terrorism it has become more appropriate that the licence should be granted only on strict enquiry about the conduct and the activities of the person concerned. The licence granted should be periodically checked. In my view, 21 years age for making a person eligible to have arm licence is less. The possession of the arm licence requires more maturity and sense. Thus, in my view, while granting the licence the maturity of persons should also be considered. It is seen that the police officers gives its report very casually without making honest and fair inquiry about the conduct and the activities of the person concerned, on various considerations and on account of which licences are being issued to such persons, who are involved in anti-social and criminal activities etc. which has resulted the tremendous increase in the crime and terrorism. Thus, in my view before granting the licence, a detailed and thorough enquiry with regard to the conduct and activities of the person should be conducted. In case if it is subsequently found that the report of the police officers are not correct, strict action should be taken against the said police officer, who has submitted the report. It is told that in the villages keeping of arm has become a matter of status symbol. These arms are being exhibited and are being fired during the marriages and on other occasions as a status symbol while it is not the purpose for granting the licence. Thus, whenever and wherever arms are found in use on such occasions other than for the purpose for which licence is granted, same may be checked, confiscated and licence be cancelled. The arms licence should be granted very rarely on a strict enquiry about the person who has applied for the arms licence. If there is little doubt about the activity and the conduct of the person and the arms being misused, the arms licence should be refused. Normally the arms should be in possession of Military, police or any other government agency involved in maintaining law and order situation and to protect the life of the citizens of the country. Casual issuance of arms licence to the private persons lead to the crime and terrorism. Normally the arms should be in possession of Military, police or any other government agency involved in maintaining law and order situation and to protect the life of the citizens of the country. Casual issuance of arms licence to the private persons lead to the crime and terrorism. Court cannot shut its eyes to the present situation prevailing in the Country. It appears that the issuance of the arms licence has become a casual feature. It is casually given even to those persons whose conduct are not good and they are involved in the criminal activity. Arms licence and the arms should be periodically checked even after the issuance of the arms licence. District Magistrate is under the obligation to maintain law and order in the District. He has a better knowledge about the conducts and the activities of the person residing in the district. It may happen that against a person, there is no FIR but if it is gathered that the person conduct is not good and he is involved in the communal or anti-social activities, the arms licence should not be given to such persons. The satisfaction of the District Magistrate with regard to above may not be interfered with unless found to be perverse or malafide. It may be mentioned here that the above observation may not be misunderstood. Under the statute, the licensing authority is empowered to grant licence. Such power should be exercised fairly, honestly and on objective considerations. The person genuinely required licence should not be denied. It is expected from the licensing authority to make a fair enquiry and consider the matter objectively. His decision is always open to be scrutinized by the appellate authority and Court." 10. As held by the Apex Court in the case of Kailash Nath and others v. State of U.P. and others (supra) referred hereinabove, the licence under the Arms Act is a privilege and not a right. Therefore, it cannot be claimed as a matter of right but for his own personal security the arms licence can be claimed. The arms licence once given cannot be cancelled casually and mechanically. Therefore, it cannot be claimed as a matter of right but for his own personal security the arms licence can be claimed. The arms licence once given cannot be cancelled casually and mechanically. Under clause (a) of Section 17 (3) of the Act the licence can be cancelled 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. Clause (b) provides that if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence. Clause (c) of the Act contemplates that if the licence was obtained by the suppression of material information or on the basis of wrong information. Clause (d) of the Act provides that if any of the conditions of the licence has been contravened. Therefore, merely because an F.I.R. is lodged against the person is not sufficient to revoke the licence. The licensing authority should apply its mind and satisfies himself about the condition referred hereinabove in Section 17 (3) of the Act and should record the finding in this regard. The mechanical exercise of the power of cancellation cannot be sustained. Undoubtedly pendency of criminal case can be a ground for cancellation of licence but apart from the pendency of criminal case, while cancelling the licence, the authority concerned must examine the nature of offence, the conduct of the person and further made out a case that continuance of the licence may not be in public interest and such licence may likely to be misused for illegal purposes or any reason contemplated in sub-section (3) of Section 17 of the Act. 11. In the present case the proceeding for the cancellation of the arm licence was taken in the year 2006 making the F.I.R. lodged in 1994 as the basis. No reason has been given that what has occurred after 12 years to initiate the proceeding in the year 2006 for the cancellation of the licence on the basis of the F.I.R. lodged in 1994. No reason has been given that what has occurred after 12 years to initiate the proceeding in the year 2006 for the cancellation of the licence on the basis of the F.I.R. lodged in 1994. Prima facie, there appears to be no material on record on the basis of which the licence can be cancelled on the basis of the F.I.R. lodged in 1994 after 12 years. 12. In this view of the matter, let the District Magistrate, Jaunpur may apply his mind afresh on the entire matter in the light of the observation made above, and thereafter pass the appropriate order in accordance with law. 13. In the result, the writ petition is allowed in part. The order of the Divisional Commissioner, Varanasi Division, Varanasi dated 20.8.2008 and the order of the District Magistrate, Jaunpur dated 31.3.2008 are set aside and the matter is remanded back to the District Magistrate, Jaunpur to decide the matter in the light of the observation made above. The petitioner is directed to file a certified copy of the order within a period of one week and the District Magistrate, Jaunpur is directed to decide the matter afresh within another period of three weeks. Till the fresh order being passed by the District Magistrate, Jaunpur the arms licences shall remain suspended which shall be subject to the fresh order passed by the District Magistrate, Jaunpur. ———