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Allahabad High Court · body

2009 DIGILAW 1167 (ALL)

RAM BAHAL BIND v. STATE OF U P

2009-04-07

RAJES KUMAR

body2009
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 Com missioner, 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 afore said 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 po lice 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 be low 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. 4. 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. 5. 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 activ ity. 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 activ ity. 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. 6. Learned Standing Counsel relied upon the order of the appellate authority as well as the order of the District Magistrate. 7. Having heard learned Counsel for the parties, I have perused the impugned orders and given consideration to the rival submissions. 8. Section 13 sub-section (3) of the Arms Act, 1959 (hereinafter referred to as the ("act") contemplates grant of arms li cence and section 17 of the Act contem plates 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 fire arms, etc.- (1) Notwithstanding anything in the foregoing provi sions of this Act - (a) no person, - (i) who has not completed the age of twenty-one-years, or (ii) who has been sentenced on con viction of any offence involving violence or moral turpitude to im prisonment 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 li censing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed. " 13. Grant of licence.- (1) An application for the grant of a licence under Chapter II shall be made to the li censing 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 li censing 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 pre scribed time. (2a) The licensing authority, after such inquiry, if any, as it may con sider necessary, and after consider ing the report received under sub section (2) shall, subject to the other provi sions 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 re port. (3) The licensing authority shall grant - (a) A licence under section 3 where the licence is required.- (1) 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 bonafide 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 li cence in respect of any smooth bore gun as aforesaid for such protec tion, 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 as sociation licensed or recognized by Central Government; (2) (b) a licence under section 3 in any other case or a licence under sec tion 4, section 5, section 6, section 10 or section 12, if the licensing authority is satisfied that the per son by whom the licence is re quired has a good reason for ob taining the same. 17. 17. Variation, suspension and revocation of licences.- (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 de liver-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 li cence, also vary the conditions of the licence except such of them as have been prescribed. (3) The licensing authority may by or der in writing suspend a licence for such period as it thinks fit or re voke a licence – (a) If the licensing authority is satis fied 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 informa tion of on the basis of wrong in formation provided by the holder of the licence or any other person on his behalf at the time of apply ing for it; or (d) if any of the conditions of the li cence has been contravened; or (e) if the holder of the licence has failed to comply with a notice un der 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 li cence on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public in terest to furnish such statement. (6) The authority to whom the licens ing authority is subordinate may by order in writing suspend or re voke a licence on any ground on which it may be suspended or re voked 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 li cence: Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall be come void. (8) An order of suspension or revoca tion 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, sus pend or revoke or direct any licens ing 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 sus pension or revocation. " 9. Arms Act came up for considera tion 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 privi lege and not a right. The Constitution Bench held as follows: "a right is distinct from a mere privi lege. The case of licence to possess or use fire arm is materially differ ent from a case of licence to deal in or sell fire arms. Section 3 of the Arms Act, 1959 delas with acquisi tion and possession of fire arms or ammunition on the strength of a li cence whereas section 5 provides for a licence for manufacture, sale etc. of arms and ammunition. The licence for acquisition and posses sion of fire arms is materially dif ferent from a licence for manufac ture, sale etc. of arms and ammunition. The licence for acquisition and posses sion of fire arms is materially dif ferent from a licence for manufac ture, sale etc. While the latter con fers 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 posses sion 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 vul nerable 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 can not be comprehended within the ambit of Article 21 of the Constitu tion which postulates the funda mental right of protection of life and personal liberty. It deals with deprivation of life and as held in Gopalan v. State of Madras (2 ). Arti cle 21 is attracted only in cases of deprivation in the sense of total loss and accordingly has no appli cation to the case of a mere restric tion upon the right to move freely stands on an entirely different footing from the licence to carry on a trade or occupation. " 10. The matter relating to the cancel lation of the licence came up for considera tion 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 In crease of anti-social elements known as mafias and persons in volving 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 li cence granted should be periodi cally checked. This Court held as follows: "looking to the unprecedented In crease of anti-social elements known as mafias and persons in volving 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 li cence granted should be periodi cally checked. In my view, 21 years age for making a person eligible to have arm licence is less. The pos session of the arm licence requires more maturity and sense. Thus, in my view, while granting the li cence 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 enquiry about the conduct and the activities of the person concerned, on vari ous considerations and on account of which licences are being issued to such persons, who are involved in antisocial and criminal activities etc. which has resulted the tremen dous increase in the crime and ter rorism. 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 offi cer, who has submitted the report. It is told that in the villages keep ing of arm has become a matter of status symbol. These arms are be ing 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 can celled. 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 Gov ernment agency involved in main taining law and order situation and to protect the life of the citizens of the country. 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 Gov ernment agency involved in main taining 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 issu ance of the arms licence has be come 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 obliga tion to maintain law and order in the District. He has a better knowl edge 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 in volved in the communal or anti social activities, the arms licence should not be given to such per sons. 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 mis understood. 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 li cence should not be denied. It is expected from the licensing authority to make a fair enquiry and consider the matter objec tively. His decision is always open to be scrutinized by the Appellate Authority and Court. " 11. As held by the Apex Court in the case of Kailash Nath and others v. State of U. P. and others (supra) referred here-inabove, 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 li cence 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 li cence can be claimed. The arms licence once given cannot be cancelled casually and mechanically. Under clause (a) of sec tion 17 (3) of the Act the licence can be can celled 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 licens ing 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 ap ply 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 ex ercise of the power of cancellation cannot be sustained. Undoubtedly pendency of criminal case can be a ground for cancella tion of licence but apart from the pendency of criminal case, while cancelling the li cence, the authority concerned must exam ine 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. 12. 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. In this view of the matter, let the Dis trict Magistrate, Jaunpur may apply his mind afresh on the entire matter in the light of the observation made above, and there after pass the appropriate order in accor dance 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 obser vation made above. The petitioner is di rected to file a certified copy of the order within a period of one week and the Dis trict Magistrate, Jaunpur is directed to de cide the matter afresh within another pe riod 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. Petition Partly Allowed. 0 .