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Allahabad High Court · body

2009 DIGILAW 1849 (ALL)

SUNIL SINGH v. STATE OF U P

2009-04-29

S.P.MEHROTRA

body2009
HON. S. P. MEHROTRA, J. The present Writ Petition has been filed under Article 226 of the Constitution of India, interalia, praying for quashing the order dated 10. 4. 2007 (Annexure-4 to the Writ Petition) passed by the District Magistrate, Chandauli (respondent no. 3) and the order dated 30. 6. 2007 (Annexure-5 to the Writ Petition) passed by the Commissioner, Varanasi Division, Varanasi (respondent no. 2 ). It is, interalia, averred in the Writ Petition that the petitioner is a license-holder of 12 Bore D. B. B. L. Gun; and that the license of the said Gun was issued having License No. 8017 in favour of the petitioner by the District Magistrate, Varansi on 1. 10. 1994 after completing all the required formalities; and that the said Gun License was renewed by the authority concerned till 31. 12. 2009. It is, interalia, further averred in the Writ Petition that the petitioner never misused his licensed Gun since 1994, and no complaint of misuse of Gun was ever made against him by any person; and that the petitioner is a businessman and the area, to which he belongs, is naxalite-affected area, therefore, for his safety purpose the petitioner applied for Gun license, and the same was issued to him. It is, interalia, further averred in the Writ Petition that on 10. 3. 2007, the Police of Police Station Balua, District-Chandauli submitted a Report against the petitioner recommending for cancellation of his Gun license; and that in the said Report, the concerned Police Station has submitted that the petitioner is a man of criminal nature and he is involved in (1) Case Crime No. 56 of 2005, under Sections 323, 504 I. P. C. , Police Station Balua, District-Chandauli, and (2) Case Crime No. 98 of 2006, under Sections 420, 485, 486,487, 488 I. P. C. and Section 63 of the Copy Rights Act, Police Station Balua, District-Chandauli. It is, interalia, further averred in the Writ Petition that the aforesaid Report was submitted by the concerned Police Station to the Superintendent of Police, Chandauli, who, by his letter dated 16. 3. 2007, recommended to the District Magistrate, Chandauli for cancellation of Fire Arm License of the petitioner. It is, interalia, further averred in the Writ Petition that in pursuance of the letter dated 16. 3. 2007 of the Superintendent of Police, Chandauli, and the Police Report dated 10. 3. 3. 2007, recommended to the District Magistrate, Chandauli for cancellation of Fire Arm License of the petitioner. It is, interalia, further averred in the Writ Petition that in pursuance of the letter dated 16. 3. 2007 of the Superintendent of Police, Chandauli, and the Police Report dated 10. 3. 2007 of the Police Station Balua, the District Magistrate, Chandauli issued a show-cause notice dated 23. 3. 2007 to the petitioner. Copy of the said show-cause notice has been filed as Annexure-2 to the Writ Petition. It is, interalia, further averred in the Writ Petition that in reply to the said show-cause notice, the petitioner submitted his explanation dated 3. 4. 2007. Copy of the said explanation dated 3. 4. 2007 has been filed as Annexure-3 to the Writ Petition. After the submission of the explanation by the petitioner, the District Magistrate, Chandauli passed the order dated 10. 4. 2007 under Section 17 (3) of the Arms Act, 1959 (in short "the Act") cancelling the Firm Arm License of the petitioner. Copy of the said order dated 10. 4. 2007 has been filed as Annexure-4 to the Writ Petition. The petitioner, thereupon, filed an Appeal under Section 18 of the Act, being Appeal No. 28 of 2007. The Commissioner, Varanasi Division, Varanasi (respondent no. 2) by the order dated 30. 6. 2007 dismissed the said Appeal filed by the petitioner. Copy of the said order dated 30. 6. 2007 has been filed as Annexure-5 to the Writ Petition. The petitioner, thereafter, filed the present Writ Petition seeking the reliefs as mentioned above. Counter affidavit on behalf of the respondents has been filed. The petitioner has filed rejoinder affidavit. I have heard Shri Amit Kumar Srivastava, learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents, and perused the record. It is submitted by Shri Amit Kumar Srivastava, learned counsel for the petitioner that the license of the petitioner has been cancelled merely on account of his involvement in criminal cases, and such cancellation is not permissible in law in view of various decisions of this Court. It is further submitted that Case Crime No. 56 of 2005, under Section 323/504 I. P. C. was based on a Non-Cognizable Report. Case Crime No. 98 of 2006 was in regard to the alleged offences under Sections 420/485/486/487/488 I. P. C. and Section 63 of the Copy Rights Act. It is further submitted that Case Crime No. 56 of 2005, under Section 323/504 I. P. C. was based on a Non-Cognizable Report. Case Crime No. 98 of 2006 was in regard to the alleged offences under Sections 420/485/486/487/488 I. P. C. and Section 63 of the Copy Rights Act. None of the two cases could provide sufficient basis for cancellation of the license of the petitioner. Shri Srivastava has placed reliance on the following decisions: 1. Masiuddin vs. Commissioner, Allahabad Division, Allahabad and another, 1972 ALJ 573. 2. Sheo Prasad Misra vs. District Magistrate and others, 1979 (16) ACC (Summary of Cases) 5 (D. B. ). 3. Habib vs. State of U. P. and others, 2002 (44) ACC 783. 4. Sahab Singh vs. Commissioner, Agra Region, Agra and others, 2006 (1) JIC 550 (All ). Learned Standing Counsel appearing for the respondents submits that the Licensing Authority (respondent no. 3) in passing the impugned order dated 10. 4. 2007 under Section 17 (3) of the Act has concluded that for maintenance of public peace, revocation of the license of the petitioner was necessary. The conclusion is based on consideration of relevant circumstances. The Appellate Authority (respondent no. 2) has also upheld the order of the Licensing Authority (respondent no. 3 ). In the circumstances, no interference is called for with the impugned orders. I have considered the submissions made by the learned counsel for the parties. Section 17 of the Act deals with the variation, suspension and revocation of licenses. The said Section is reproduced below: "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 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. (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 not 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. " Sub-section (3) of Section 17 of the Act deals with suspension and revocation of a license. It provides that the Licensing Authority may, by order in writing, suspend a license for such period at it thinks fit or revoke a license in case any of the contingencies contemplated in clauses (a) to (e) arises. Clause (b) of sub-section (3) of Section 17 of the Act provides that the suspension or revocation of a license may be done by the Licensing Authority if the Licensing Authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the license. Hence, the Licensing Authority has power to suspend or revoke the license if such authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the license. In view of the above provision, it is evident that before the Licensing Authority suspends or revokes the license, it must reach the conclusion that such suspension or revocation is necessary for the security of the public peace or for public safety. The present case, as noted above, is a case of revocation/ cancellation of the license. In view of the above provision, therefore, the Licensing Authority is required to reach the conclusion that revocation/ cancellation of the license of the licensee is necessary for the security of the public peace or for public safety. The present case, as noted above, is a case of revocation/ cancellation of the license. In view of the above provision, therefore, the Licensing Authority is required to reach the conclusion that revocation/ cancellation of the license of the licensee is necessary for the security of the public peace or for public safety. Such conclusion is required to be reached by the Licensing Authority taking into account the relevant considerations. In case, the licensee is involved in any criminal case, the Licensing Authority may take into consideration the fact of the pendency of such criminal case including the nature of the offence/crime involved in the case as one of the relevant considerations for reaching the conclusion as to whether revocation of the license of the licensee is necessary or not. It is true, as held in various cases noticed in the subsequent part of this judgment, that merely because a criminal case is pending against the licensee, the same will not provide a ground for cancellation of the license. However, such pendency of the criminal case including the nature of the offence/crime involved in such case may be considered as one of the relevant considerations for reaching the conclusion as required under clause (b) of sub-section (3) of Section 17 of the Act. Keeping in view the above principles, let us now consider the present case. The Licensing Authority in the impugned order dated 10. 4. 2007 has referred to the two criminal cases in which the petitioner is involved, and it has noticed that in both the cases charge-sheet has already been filed in the Court. The Licensing Authority has also referred to the admission of the petitioner that there was dispute between the petitioner and his pattidars and Ashok Singh etc. , and there was also marpeet between them. Taking into account the said circumstances, the Licensing Authority has concluded that for the maintenance of public peace, there is no justification for continuance of the license of the petitioner. It is, thus, evident that the Licensing Authority has taken into account the relevant considerations, and has reached the conclusion that the revocation of the license of the petitioner is necessary for the security of public peace, as contemplated in clause (b) of sub-section (3) of Section 17 of the Act. It is, thus, evident that the Licensing Authority has taken into account the relevant considerations, and has reached the conclusion that the revocation of the license of the petitioner is necessary for the security of public peace, as contemplated in clause (b) of sub-section (3) of Section 17 of the Act. The Licensing Authority has not revoked the license of the petitioner merely on the ground of pendency of criminal cases against him. It has taken into account various relevant considerations including the pendency of criminal cases as one of the relevant considerations. The Appellate Authority in the order dated 30. 6. 2007 has again considered in detail various circumstances, and has concluded that the revocation order passed by the Licensing Authority is in accordance with law, and there is no justification to interfere with the same. In my opinion, the Licensing Authority has taken into account the relevant considerations for reaching the conclusion, as required under clause (b) of sub-section (3) of Section 17 of the Act. The Appellate Authority has, on a detailed consideration, agreed with the conclusion arrived at by the Licensing Authority. The submission of Shri Amit Kumar Srivastava, learned counsel for the petitioner that the revocation of the license of the petitioner has been done on the ground of pendency of criminal case, cannot, in my view, be accepted. The pendency of criminal cases has been taken into account as one of the relevant considerations, and the revocation has not been done automatically on account of the pendency of criminal cases. As regards the decisions relied upon by the learned counsel for the petitioner, in Masiuddin case (supra), this Court held as under (paragraph 7 of the said ALJ): "7. A license may be cancelled, interalia, on the ground that it is "necessary for the security of the public peace or for public safety" to do so. The District Magistrate has not recorded a finding that it was necessary for the security of the public peace or for public safety to revoke the license. The mere existence of enmity between a licensee and another person would not establish the necessary connection with security of the public peace or public safety. There should be something more than mere enmity. The mere existence of enmity between a licensee and another person would not establish the necessary connection with security of the public peace or public safety. There should be something more than mere enmity. There should be some evidence of the provocative utterances of the licensee or of his suspicious movements or of his criminal designs and conspiracy in reinforcement of the evidence of enmity. It is not possible to give an exhaustive list of facts and circumstances from which an inference of threat to public security or public peace may be deduced. The District Magistrate will have to take a decision on the facts of each case. But in the instant case there is nothing in his order to indicate that it was necessary for the security of the public peace or for public safety to cancel the license of the petitioner. Mere enmity is not sufficient. " (Emphasis supplied) Relying upon the above judgment, Shri Amit Kumar Srivastava, learned counsel for the petitioner submits that this Court has held that the mere existence of enmity between a licensee and another person would not establish the necessary connection with security of the public peace or public safety. It is submitted that in view of the said proposition, the Licensing Authority could not cancel the license on account of the Non-Cognizable Report under Section 323/504 I. P. C. . I have considered the submissions made by Shri Srivastava. The above decision lays down that the mere existence of enmity between a licensee and another person would not establish the necessary connection with security of the public peace or public safety. There should be something more than mere enmity. There should be some evidence of the provocative utterances of the licensee or of his suspicious movements or of his criminal designs and conspiracy in reinforcement of the evidence of enmity. In the present case, as noted above, the Licensing Authority has taken into account the admission of the petitioner that there was a dispute between the petitioner and his pattidars and Ashok Singh etc. and there has been marpeet also. Thus, as admitted by the petitioner himself, the present case went beyond the realm of mere enmity/ dispute. In view of this, the above decision in Masiuddin case (supra) is not applicable to the present case. and there has been marpeet also. Thus, as admitted by the petitioner himself, the present case went beyond the realm of mere enmity/ dispute. In view of this, the above decision in Masiuddin case (supra) is not applicable to the present case. In Sheo Prasad Misra case (supra), a Division Bench of this Court held as under: "in the instant case District Magistrate has not recorded any finding that it was necessary to cancel the licence for the security of public peace or for public safety. All that he has done is to have referred to some applications and reports lodged against the petitioner. The mere fact that some reports had been lodged against the petitioner could not form basis for cancelling the licence. The order passed by the District Magistrate and that passed by the Commissioner cannot, therefore, be upheld on the basis of anything contained in Section 17 (3) (b) of the Act. " (Emphasis supplied) 0 The paragraph, quoted above, shows that in Sheo Prasad Misra case (supra), the District Magistrate did not record any finding that it was necessary to cancel the license for the security of public peace or for public safety. In the present case, as noted above, the District Magistrate has recorded the required finding as contemplated in clause (b) of sub-section (3) of Section 17 of the Act. The decision in Sheo Prasad Misra case (supra) is, thus, not applicable to the present case. In Habib case (supra), this Court held as under (paragraphs 3 and 4 of the said ACC): "3. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of the licence under Arms Act, has been dealt with by a Division Bench of this Court reported in Sheo Prasad Misra v. The District Magistrate, Basti and others, 1979 (16) ACC 6 (Sum.), wherein the Division Bench relying upon the earlier decision reported in Masi Uddin v. Commissioner, Allahabad, 1972 ALJ 573, found that mere involvement in criminal case cannot in any way affect the public security or public interest and the order cancelling or revoking the licence of fire arm has been set aside. The present impugned orders also suffer from the same infirmity as was pointed out by the Division Bench in the above-mentioned cases. The present impugned orders also suffer from the same infirmity as was pointed out by the Division Bench in the above-mentioned cases. I am in full agreement with the view taken by the Division Bench that these orders cannot be sustained and deserve to be quashed and are hereby quashed. 4. There is yet another reason that during the pendency of the present writ petition, the petitioner has been acquitted from the aforesaid criminal cases and at present there is neither any case pending, nor any conviction has been attributed to the petitioner, as is evident from Annexure-SA-1 and II to the supplementary affidavit filed by the petitioner. In this way of the matter, the petitioner is entitled to have the fire-arm licence. It is submitted by petitioners counsel that the petitioner has been acquitted of the charges. " (Emphasis supplied) This case has, thus, considered the question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of the license under the Arms Act, and has concluded that mere involvement in criminal case cannot, in any way, affect the public security or public interest. This decision, thus, lays down that the license cannot be cancelled merely on account of involvement in a criminal case or pendency of a criminal case. As already held above, mere pendency of a criminal case cannot provide a ground for cancellation of the license. However, pendency of a criminal case including the nature of the offence/crime involved in such case can be taken into account as one of the relevant considerations for reaching the conclusion as required under clause (b) of sub-section (3) of 1 Section 17 of the Act. In the present case, as noted above, the license of the petitioner has been cancelled taking into account various relevant considerations including the pendency of criminal cases. The decision in Habib case (supra), thus, does not help the petitioner. In Sahab Singh case (supra), this Court held as under (paragraphs 3 and 4 of the said JIC): "3. The submission of the petitioner is that merely because of pendency of a criminal case, the arms licence of the petitioner cannot be cancelled. The decision in Habib case (supra), thus, does not help the petitioner. In Sahab Singh case (supra), this Court held as under (paragraphs 3 and 4 of the said JIC): "3. The submission of the petitioner is that merely because of pendency of a criminal case, the arms licence of the petitioner cannot be cancelled. In support of the said submission, learned counsel for the petitioner has placed reliance on two decisions of this Court in the cases of Hausla Prasad Tiwari v. State of U. P. , 2005 (51) Allahabad Criminal Cases 396; and Ishwar @ Bhuri v. State of U. P. , 2004 (2) JIC 239. It has further been submitted that in view of the Full Bench decision of this Court in the cases of Balaram Singh v. State of U. P. & Ors. , 1988 AWC 1481, Kailash Nath v. State of U. P. , 1985 AWC 493 , as well as the Division Bench decision of this Court in the case of Sadri Ram v. District Magistrate, Azamgarh & Ors. , 1998 All. CJ 1449, the arms licence of the petitioner cannot be placed under suspension pending enquiry. 4. Considering the fact that the petitioner has been acquitted in all other cases mentioned in the show- cause notice except for the Case Crime No. 124 of 2002, in which the trial is going on and keeping in view the fact that merely because of pendency of a criminal case, the licence cannot be cancelled nor the licence can be placed under suspension pending enquiry, in my view, the orders impugned in this writ petition deserved to be quashed. " (Emphasis supplied) This decision, thus, lays down that merely because of pendency of a criminal case, the arms license cannot be cancelled. As held above, while it is true that merely because of pendency of a criminal case, the arms license cannot be cancelled, the pendency of the criminal case including the nature of offence/crime involved in such case can be taken into account as one of the relevant considerations for reaching the conclusion as required under clause (b) of sub-section (3) of Section 17 of the Act. The decision in Sahab Singh case (supra), thus, does not help the petitioner. In view of the above discussion, I am of the opinion that no interference is called for with the impugned orders. The decision in Sahab Singh case (supra), thus, does not help the petitioner. In view of the above discussion, I am of the opinion that no interference is called for with the impugned orders. The Writ Petition lacks merits, and the same is liable to be dismissed. The Writ Petition is accordingly dismissed. .