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2009 DIGILAW 2878 (ALL)

ASHOK RAO v. STATE OF U. P.

2009-08-19

A.P.SAHI

body2009
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri S.K. Dwivedi learned counsel for the petitioner and the learned Standing Counsel for the respondents. 2. Two counter affidavits have been filed one each on behalf of the respondent Nos. 3 and 4 respectively. 3. The firearms licence of the petitioner has been cancelled by the impugned order of the District Magistrate dated 8.5.2002 on the ground that the petitioner is involved in a criminal case being case crime No. 31 of 1997 under Sections 147, 323, 336, 504, 506, I.P.C. read with Section 198, U.P.Z.A. & L.R. Act. 4. The dispute appears to have arisen on account of the possession of a certain piece of land which was allegedly given on lease to one Husaini. It is alleged that the petitioner along with his other family members forcibly dispossessed the said lease holder and also committed offence as per the allegations contained in the F.I.R. The said criminal case is stated to be pending. 5. The cancellation proceedings began with the issuance of a notice and an order of cancellation was passed which was set aside in appeal and the matter was remanded back to the District Magistrate. Upon remand, the District Magistrate by means of the impugned order dated 8.5.2002 has arrived at a conclusion that the petitioner did not conduct himself in a way that entitles him to have an arm licence on account of the incident which has led to the prosecution of the petitioner in a criminal case. The petitioner preferred an appeal against the said order of cancellation and was granted an interim order during the pendency of the appeal. The appeal was ultimately dismissed by means of the impugned order dated 29.9.2005 and the learned Commissioner has recorded a finding that the possession of the firearms by the petitioner should not be permitted keeping in view that the petitioner has violated public peace and tranquillity. 6. This petition questions the legality and validity of the said order on the ground that mere pendency of a criminal case, cannot be a ground to cancel the fire arm licence and even otherwise, there were no ingredients available to establish disturbance of law and order so as to warrant cancellation of the petitioner’s arms licence. 6. This petition questions the legality and validity of the said order on the ground that mere pendency of a criminal case, cannot be a ground to cancel the fire arm licence and even otherwise, there were no ingredients available to establish disturbance of law and order so as to warrant cancellation of the petitioner’s arms licence. It is further submitted by the learned counsel for the petitioner that the appellate authority has assumed as if the petitioner had disturbed public peace and tranquillity and public law and order, whereas the District Magistrate had taken into account only a single incident which was only an incident of law and order and not a case of disturbing public peace and tranquillity. Reliance has been placed on a decision in the case of Ram Singh v. Commissioner, Meerut Division, Meerut and others, 1986 AWC 1166 as well as the Constitution Bench decision of the Apex Court in Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 741. 7. Learned Standing Counsel on the other hand contends that as a matter of fact the petitioner’s arms licence has not been cancelled on account of a solitary incident giving rise to a criminal proceeding but on account of his general reputation and activities relating thereto. Learned Standing Counsel has invited the attention of the Court to para 4 of the counter affidavit of the respondent No. 4 and counter affidavit on behalf of the respondent No. 3 where also it has been alleged that the possession of the arms licence by the petitioner was a threat to public peace and tranquility. 8. From a perusal of the order of the District Magistrate, it is evident that it was only on account of the involvement of the petitioner in a criminal case that the petitioner was deprived of his licence. The said aspect has to be looked into keeping in view the law laid down by this Court in the case of Mohd. Haroon v. District Magistrate and others, 2003(1) ACJ 124 wherein it has been held that a mere pendency of a criminal case cannot be a ground for cancellation of the arms licence. The said aspect has to be looked into keeping in view the law laid down by this Court in the case of Mohd. Haroon v. District Magistrate and others, 2003(1) ACJ 124 wherein it has been held that a mere pendency of a criminal case cannot be a ground for cancellation of the arms licence. In the instant case the order impugned passed by the District Magistrate indicates the ground that the pendency of a criminal case whereas the appellate order travels beyond the same and recites that the activities of the petitioners are such that amounts to a threat of public peace and tranquility. This Court does not find any such element either contained in the order of the District Magistrate or in the affidavits filed on behalf of the respondents before this Court. In view of this the assertion made by the Commissioner that the petitioner’s possession of firearms licence amounts to a threat of public peace and tranquility is neither supported in fact nor in law. The averments contained in the counter affidavit also do not spell out any details of threat to public order or public peace and tranquility. 9. In view of this the orders impugned are unsustainable and are hereby quashed. The matter is remanded back to the District Magistrate to consider the question as to whether there was any threat of public peace and tranquility or not. The District Magistrate shall pass a fresh order in accordance with law as expeditiously as possible preferably within a period of three months from the date of production of a certified copy of this order before him. 10. Writ petition is allowed. No order as to costs. ———