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Allahabad High Court · body

2009 DIGILAW 3080 (ALL)

VISHNU MISHRA v. STATE OF U. P.

2009-09-09

VINEET SARAN

body2009
JUDGMENT Hon’ble Vineet Saran, J.—Heard Sri Gopal Chaturvedi, learned Senior Counsel along with Sri L.K. Dwivedi, learned counsel for the petitioner as well as learned Standing Counsel appearing for the State-respondents and have perused the record. 2. On the last date, learned Standing Counsel was granted time to obtain instructions or file counter-affidavit. He states that he has obtained instructions in writing, copy of which has been passed on for perusal of the Court, and on his request, the same are taken on record. With consent of learned counsel for the parties, this writ petition is being disposed of finally at this stage. 3. The brief facts of this case are that the petitioner, who is a student studying at present in America, was, while he was residing in India, granted three fire arms licences sometime in the year 2005. The said licences were renewed and valid upto the year 2011. Earlier notices were issued to the petitioner in the year 2007 for cancelling the licences on the ground that he had not given his correct address in the application form at the time of applying for grant of licences. According to the learned Standing Counsel, no action was taken against the petitioner on the basis of said notices issued in the year 2007. After the issuance of the notices in the year 2007, the DBBL/SBBL licence of the petitioner (which is the licence relevant in this petition) was renewed by the District Magistrate on 5.7.2008. 4. Thereafter, on 1.9.2008 three identical notices had again been issued to the petitioner to show cause as to why the said licences be not cancelled on the ground that he is a resident of Khaptiha, Handia District Allahabad whereas in his application for grant of fire arms licence, he had mentioned his address of District Sant Ravidas Nagar (Bhadohi). The petitioner, who is at present studying in America, submitted his three separate replies through his father on 11.9.2008 stating that the father of the petitioner is an M.L.A. of the constituency of Gyanpur, Sant Ravidas Nagar (Bhadohi) and his mother is Chairman of the Zila Panchayat of Sant Ravi Das Nagar (Bhadohi) and that he is residing with them in District Sant Ravidas Nagar (Bhadohi). All the three separate replies to the identical show cause notices were the same, the District Magistrate accepted the explanation given by the petitioner in two cases (that is, for the licence of Revolver and Rifle) and by order dated 16.3.2009 passed in the aforesaid two cases, proceedings for cancellation of licence of Revolver and Rifle had been dropped. 5. However, surprisingly by an order dated 25.3.2009, the explanation of the petitioner with regard to the licence for DBBL/SBBL gun was not accepted and the said licence was cancelled by the District Magistrate. Challenging the said order, the petitioner filed a writ petition No. 19117 of 2009, in which by a detailed order dated 9.4.2009 passed by this Court, the order dated 25.3.2009 passed by the District Magistrate was stayed. 6. It may be noteworthy that after the passing of the cancellation order dated 25.3.2009, an FIR under Sections 419, 420, 467 and 468, IPC had been lodged against the petitioner for furnishing wrong information in his application for grant of licence. Challenging the said FIR, the petitioner filed a criminal case No. 6965 of 2009, in which, by a detailed and reasoned dated 22.4.2009, a Division Bench of this Court stayed the arrest of the petitioner in the crime case No. 688 of 2009 under Sections 419, 420, 467 and 468, IPC and directed that the petitioner may deposit his gun along with the cartridges with a firearm dealer of District Sant Ravidas Nagar (Bhadohi) and if no firearm dealer was available in the said district, then the said gun be deposited with some licensed firearm dealer at Allahabad. In response thereto, the petitioner deposited his gun with a licensed dealer of Allahabad. Interestingly, another FIR was lodged against the petitioner on 8.4.2009, which was under Section 3/25 of the Arms Act for not depositing the gun after the passing of the cancellation order dated 25.3.2009. Challenging the said FIR, the petitioner filed another writ petition No. 1577 of 2009, in which also the arrest of the petitioner has been stayed. 7. Interestingly, another FIR was lodged against the petitioner on 8.4.2009, which was under Section 3/25 of the Arms Act for not depositing the gun after the passing of the cancellation order dated 25.3.2009. Challenging the said FIR, the petitioner filed another writ petition No. 1577 of 2009, in which also the arrest of the petitioner has been stayed. 7. The contention of the petitioner is that while cancelling the fire arms licence, under Rule 46 of the Arms Rules, 1962, the District Magistrate ought to have specified the time within which the weapon was to be deposited and in not having done so while passing the order dated 25.3.2009, the District Magistrate had not complied with the provisions of aforesaid Rule 46 and thus, the petitioner could not be said to be guilty of any offence or of violating the provisions of the Act and the Rules. 8. Reverting back to the writ petition which was filed challenging the order dated 25.3.2009, it may be noted that by order dated 29.6.2009, the said writ petition No. 19117 of 2009 was dismissed on the ground of availability of alternative remedy of filing an appeal under Section 18 of the Arms Act. However, on the statement made by the learned counsel for the petitioner that the petitioner proposes to dispose of the gun in question (for which purpose he proposed to file an application under Section 21 of the Arms Act), the Court directed that in case if such application under Section 21 of the Arms Act was made by the petitioner before the District Magistrate, the same be disposed of expeditiously, preferably within four weeks. Pursuant thereto, the petitioner filed an application on 9.7.2009 before the District Magistrate, Sant Ravidas Nagar (Bhadohi) giving the details and background of the case and making a request to permit the petitioner to surrender the licence and to dispose of the DBBL/SBBL gun in open market, primarily on the ground that he was a student at present studying in America. Such application of the petitioner has been rejected by the District Magistrate vide his order dated 31.7.2009, which is impugned in this writ petition. 9. The main reason for rejecting such application is that the aforementioned cases have been registered against the petitioner and that the opinion of the Additional District Government Counsel was against the grant of such permission. Such application of the petitioner has been rejected by the District Magistrate vide his order dated 31.7.2009, which is impugned in this writ petition. 9. The main reason for rejecting such application is that the aforementioned cases have been registered against the petitioner and that the opinion of the Additional District Government Counsel was against the grant of such permission. Learned Standing Counsel states that the order is perfectly justified on the ground that the said SBBL gun is a case property in a case registered under Section 3/25 of the Arms Act and as such, the same cannot be disposed of without the grant of permission under Section 457 of the Cr.P.C. 10. Sri Gopal Chaturvedi, learned Senior Counsel appearing on behalf of the petitioner however submits that no charge-sheet has yet been filed in the case registered against the petitioner and as such, no enquiry or trial is pending against the petitioner before any Judicial Magistrate. Thus, there was no occasion for the petitioner to file an application before the Magistrate under Section 457 of the Cr.P.C. 11. In my considered view, the submission of the learned Standing Counsel does not have force. Admittedly, no charge-sheet has been filed in either of two criminal cases pending against the petitioner. Section 457 of Cr.P.C. provides that in case if a case property is not produced before the Criminal Court during an ‘enquiry or trial’, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof. In the present case, since there is no enquiry or trial pending, the provisions of the aforesaid Section would not be attracted. 12. While considering the case for permission to dispose of the weapon for which the petitioner had already been granted licence, the District Magistrate should consider the bona fides of the person. In the present case, the only two criminal cases, which are said to be pending against the petitioner, are relating to the grant of licence or non-deposit of weapon, which were registered only after the passing of the order dated 25.3.2009. It is not the case that in the last four years, ever since the petitioner has been granted licence in the year 2005, he has misused his licensed weapons or has been charged, or involved in any criminal offence whatsoever. It is not the case that in the last four years, ever since the petitioner has been granted licence in the year 2005, he has misused his licensed weapons or has been charged, or involved in any criminal offence whatsoever. The District Magistrate is not expected to comply with the opinion of the Additional District Government Counsel. While disposing the application filed under Section 21 of the Arms Act, he has to arrive at a conclusion on the merits of that particular case. In the present case, the District Magistrate has been clearly influenced with the facts that a case under Section 3/25 of the Arms Act is pending against the petitioner, the details of which have already been given hereinabove. In the absence of any time being provided in the order dated 25.3.2009 for the petitioner to deposit the licensed weapon, in my view, the petitioner has not violated the provisions of the Act and the Rules by not depositing the weapon, especially when he had challenged the order of cancellation by filing a writ petition, in which stay had been granted. 13. While performing their administrative duties or deciding applications under a Statute, the authorities are to exercise the discretion in a judicious manner with the intent to carry out the purpose of the Act and not to go into technicalities and defeat the purpose. No harm would be caused to the State if the gun was allowed to be sold. The weapon is not wanted in any crime nor the petitioner, who already has two other licences, has any criminal background. This Court has already observed that there is no criminal case ever filed against the petitioner with regard to misuse of his licensed weapons. The explanation given by the petitioner in reply to two other identical show cause notices dated 1.9.2008 was accepted by the respondents in two cases, whereas in the third case, although the notice as well as the reply was the same, it was not accepted and the District Magistrate proceeded to pass the order dated 25.3.2009. In any case, the petitioner, who has no criminal history and is a student studying at present in America, wants to dispose of his weapon. In the aforesaid facts and circumstances, there should be no reason why the District Magistrate should not have allowed such application of the petitioner. In any case, the petitioner, who has no criminal history and is a student studying at present in America, wants to dispose of his weapon. In the aforesaid facts and circumstances, there should be no reason why the District Magistrate should not have allowed such application of the petitioner. The grounds on which the application of the petitioner has been rejected are frivolous and unjustified. The application dated 9.7.2009 filed by the petitioner for disposal of SBBL Gun No. 287522 in open market, deserved to be allowed. 14. Accordingly, for the foregoing reasons, this writ petition stands allowed. The impugned order dated 31.7.2009 passed by the District Magistrate is quashed. The District Magistrate, Sant Ravidas Nagar, the respondent No. 2 is directed to pass fresh orders in the light of the observations made hereinabove within two weeks from the date of filing of a certified copy of this order before the said respondent No. 2. 15. There shall be no order as to costs. ————