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Allahabad High Court · body

2009 DIGILAW 2210 (ALL)

IMRAN SHAH KHAN v. STATE OF U. P.

2009-05-12

ARUN TANDON

body2009
JUDGMENT Hon’ble Arun Tandon, J.—Petitioner before this Court is a holder of fire-arm licence which is stated to have been granted in his favour by the Additional District Magistrate, Rampur vide order dated 15.5.2006 and was in respect of a Prohibited Bore DBBL-12 Bore bearing No. 101809-49. Since the licence of the petitioner was to expire in the year 2009, he made an application for renewal thereof. His application for renewal was not being considered, he, therefore, approached this Court by filing Civil Misc. Writ Petition No. 13428 of 2009. The writ petition was disposed of vide order dated 6.3.2009 permitting the writ petitioner to make a representation before the District Magistrate who in turn was required to pass appropriate order on the renewal application of the licences. The District Magistrate under the impugned order has held that the licence granted in favour of the writ petition by the Additional District Magistrate was illegal and, therefore, such licence cannot be renewed. It is against this order that the present writ petition has been filed. 2. Counsel for the petitioner with reference to the definition of the District Magistrate as contained in Rules 2(f) of the Arms Rules, 1962 submits that the District Magistrate will include the Additional District Magistrate and therefore, the order impugned in the present writ petition is based on misreading of Rule 2(f) of the Arms Rules, 1962. 3. Reliance has also been placed on the provisions of Section 23(2), Cr.P.C. for the purpose of alleging that it is within the competence of the District Magistrate to issue special orders distributing his work amongst Additional District Magistrate including the work of grant of fire-arm licence. He submits that the District Magistrate, Rampur had passed an order distributing the work of Licensing Authority in favour of Additional District Magistrate as is recorded in the impugned order. Therefore, the grant of fire-arm licence in favour of the petitioner by the Additional District Magistrate cannot be faulted with. 4. I have heard learned counsel for the parties and have gone through the records of the present writ petition. 5. For the purposes of resolving the controversy it would be worthwhile to reproduce the meaning of Magistrate as contained in Section 2(ff) of the Arms Act, 1959 which reads as follows : “Magistrate” means an Executive Magistrate under the Code of Criminal Procedure, 1973. 6. 5. For the purposes of resolving the controversy it would be worthwhile to reproduce the meaning of Magistrate as contained in Section 2(ff) of the Arms Act, 1959 which reads as follows : “Magistrate” means an Executive Magistrate under the Code of Criminal Procedure, 1973. 6. The Act does not contemplate any other officer to discharge functions of the District Magistrate under the Act nor does it contemplate delegation of powers to the Additional District Magistrate. 7. The power to grant the licence for fire-arm flows from Section 13 of the Arms Act and it specifically provides that an application for grant of fire-arm licence shall be made before the Licensing Authority which means an officer or authority empowered to grant or renew licences as per the rules made under the Act, and includes the Government. 8. Rule 3 read with Rule 4 of the Arms Rules, 1962 framed under the Arms Act provides that for the classification of arms and the authorities competent to grant licence qua various categories of arms to be as per the Schedule I and II to the Rules respectively. The word licensing authority has not been defined under the Rule, 1962. 9. It is admitted to petitioner that he has been granted non-prohibited bore gun licence within the category specified in Entry III of the Schedule I to the Rules, 1962 and that the District Magistrate would be the licensing authority for the purpose in view of Entry 2 of Schedule II to the Rules, 1962. 10. Definition of the District Magistrate as contained in Rule 2(f) of the Arms Rules, 1962 reads as follows : "(i) ............... (ii) in relation to any district or part thereof, an Additional District Magistrate or any other officer specially empowered in this behalf by the Government of the State Government. (iii) ............... (iv) ............... (v) ..............." 11. Thus the District Magistrate as defined under Rule 2(f) would be Licensing Authority for the purposes of category of licence granted to the petitioner. 12. On simple reading of Rule 2(f), I find that the word ‘includes’ ‘an Additional District Magistrate’ are further qualified by the words specifically empowered for the purpose by the State Government. (v) ..............." 11. Thus the District Magistrate as defined under Rule 2(f) would be Licensing Authority for the purposes of category of licence granted to the petitioner. 12. On simple reading of Rule 2(f), I find that the word ‘includes’ ‘an Additional District Magistrate’ are further qualified by the words specifically empowered for the purpose by the State Government. What follows is that only those Additional District Magistrate who are specifically empowered by the State Government to act as the District Magistrate alone can act as District Magistrate under the Arms Rules which will include the power to act as the licensing authority. Since it is not the case of the petitioner that State Government had empowered the Additional District Magistrate, Rampur to act as the District Magistrate under the Arms Act the grant of licence by the Additional District Magistrate in favour of the petitioner cannot be said to be a valid grant. I am persuaded to reach the said conclusion for one more reason i.e. large number of Districts of U.P., there are more than one Additional District Magistrates and all such Additional District Magistrates are not expected to act as licensing authorities qua grant of licence of fire-arm which is per se dangerous to human life. It is, therefore, with reference to the purpose of the Act and Rules providing for grant of fire-arm licence that the power to grant licence must be retained in the District Magistrate only unless otherwise authorized by the Government. 13. It has been recorded in the impugned order that Additional District Magistrate had issued licence to the writ petitioner only under an authorization made by the District Magistrate for the year 2006-07. The relevant portion of the finding recorded is being quoted herein below : “Varsh 2006-07 Mein Tatkaleen Jila Magistrate, Rampur Dwara Yah Aadesh Parit Kiya Gaya Hai Ki “Gair Nishidh Bore Agneyastron Ke License Swikrit Kiye Jane Ka Nirnaya Manko Ke Anuroop Gun Dosh Ke Aadhar Per Apar Jila Magistrate Rampur Dwara Liya Jayega Tatha Mah Ke Ant Mein Swikrit Agneyastron Ke Licenses Ki Soochi Taiyar Kar Uska Anumodan Adhohastakshari Se Liya Jayega. Yah Prakriya Tatkal Prabhao Se Lagoo Hogi.” Ukt Aadesh Ke Adhar Per Tatkaleen Apar Jila Magistrate Dwara Lagbhag 750 License Swikrit Kiye Gaye Jisme Yachi Ka License Bhi Sammilit Hai Parantu Kisi Bhi Mah Mein Swikrit Kiye Gaye Shastra Licenson Ki Soochi Tatkaleen Jila Magistrate Se Anumodit Nahin Hai Jaisa Ki Patal Par Uplabdh Abhilekhon Ke Avlokan Se Spasht Hain.” 14. Thus the authorization in favour of the Additional District Magistrate, Rampur qua exercise of powers as licensing authority was made by the District Magistrate and not by the State Government. 15. The District Magistrate has rightly recorded in his order that the District Magistrate on his own has no authority to empower the Additional District Magistrate to act as District Magistrate under the Arms Act/Rules inasmuch as under Section 2(f), it is only the State Government which has the competence to authorize the exercise of powers of the District Magistrate/licensing authority. Consequently the authorization made in the year 2006-07 in favour of the Additional District Magistrate by the District Magistrate is held to be without authority of law. 16. This Court may now deal with the contention of the petitioner based on the provisions of Code of Criminal Procedure. Section 23(2) whereof reads as follows : “23. Subordination of Executive Magistrate : (2) The District Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Executive Magistrates subordinate to him and as to the allocation of business to an Additional District Magistrate.” 17. From a bare reading of the aforesaid, it would be apparently clear that the District Magistrate under Section 23(2) of Cr.P.C. can only distribute work to be performed by the District Magistrate to the other Additional District Magistrate under the Code of Criminal Procedure. Such distribution of work cannot be extended to authorize the District Magistrate to delegate the powers vested in him under the Arms Act which is an independent Act of Parliament. 18. Even assuming for a moment that the Additional District Magistrate, Rampur was competent to exercise powers of the licensing authority in the year 2006-07, in view of authorization in his favour the powers so distributed was hedged with the condition that the Additional District Magistrate shall prepare a list of the fire-arm licences sanctioned and would obtain approval of the District Magistrate. It is admitted on record that no such approval was obtained from the District Magistrate, as is apparent from the order impugned. The finding so recorded in the impugned order quoted above, has not been questioned before this Court. 19. In the totality of the circumstances, I am of the considered opinion that the order passed by the District Magistrate is strictly in accordance with law and no interference is warranted under Article 226 of the Constitution of India. 20. However, it is clarified that this order shall not prejudice the rights of the petitioner to make an application for grant of fresh fire-arm licence before the District Magistrate, Rampur. If the petitioner makes such an application alongwith certified copy of this order, it shall be considered by the District Magistrate, preferably within eight weeks, thereafter. 21. Writ petition stands dismissed subject to the observations made herein above. ————