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2009 DIGILAW 643 (UTT)

MOHD. SATTAR v. COLLECTOR, HARIDWAR

2009-12-24

V.K.BIST

body2009
JUDGMENT Present writ petition has been filed by the petitioner for the following reliefs:- “(i) Issue a writ, order or direction in the nature of certiorari to quash the show cause notice issued by the respondent on 16.07.2009 in Case No. 42 of 2009, under Section 17 of the Arms Act (contained as Annexure No. 5 of I.P.C.) to this writ petition. (ii) Issue a writ order or direction in the nature of mandamus commanding the respondent release the Arm of the petitioner in his favour. (iii) Any other writ order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case. (iv) Award the cost of the petition to the petitioner.” 2. Brief facts of the case are that the petitioner is a milkman and is carrying on business of milk. His brother Shahzad contested election of M.P. from Haridwar constituency on the ticket of Bahujan Samaj Party against Shri Harish Rawat. When the brother of the petitioner was returning after the counting of the votes, one Nawab Singh fired at his brother. Thereafter the brother of the petitioner lodged first information report against Nawab Singh on 17.05.2009 at 2:15 a.m. under Sections 307 and 504 of I.P.C. Same was registered as case crime no. 235 of 2009. In retaliation the cousin of Nawab Singh also lodged F.I.R. against the petitioner and other persons same day at 2:45 p.m. under Sections 147, 148, 149, 452, 324, 307 and 504 of I.P.C. Same was registered as case crime no. 236 of 2009. In-charge Inspector Shri Govind Singh Rawat of Thana Kotwali Manglore, Haridwar also lodged F.I.R. against Nawab Singh and other persons on 16.05.2009 in respect of same crime. The petitioner is having a licence of the revolver no. F6-20363. After the aforesaid incident the police got depostied the arms of the petitioner. Thereafter, on 16.07.2009 the respondent issued a show cause notice to the petitioner under Section 17 of the Arms Act in case no. 42 of 2009 on 17.08.2009. By this show cause notice/order the arms licence o the petitioner was suspended and the petitioner was asked to show cause on 17.08.2009 as to why his arms licence may not be cancelled. 3. 42 of 2009 on 17.08.2009. By this show cause notice/order the arms licence o the petitioner was suspended and the petitioner was asked to show cause on 17.08.2009 as to why his arms licence may not be cancelled. 3. In the counter affidavit filed by the State on behalf of the respondent it has been stated that the petitioner is involved in Case Crime No. 236 of 2009, under Sections 147, 148, 149, 452, 324, 504 and 307 I.P.C. and show cause notice was accordingly issued as per rules to the petitioner and accordingly an information was given to the petitioner to file objection against the said show cause notice and also to produce his evidence in written and orally against the said show cause notice in support of his stand. The respondent came up with the case that the arms licence of the petitioner was suspended to maintain law and order till the pendency of the case under the Arms Act. 4. Learned counsel for the petitioner submitted that the petitioner was falsely implicated in case crime no. 236 of 2009 and the F.I.R. was lodged in retaliation of the F.I.R. lodged by his brother against Nawab Singh. Learned counsel for the petitioner further submitted that only the pendency of the case is not a ground to suspend the license, as such, show cause notice is not in accordance with law. He argued that show cause notice is totally illegal, improper and bad in law as by this notice the order of suspension of arms licence was issued. He further argued that according to Section 17(3) of the Arms Act, the licence can be cancelled and simple a show cause notice, issued to the petitioner by means of which the arms licence of the petitioner was suspended, is not in accordance to the mandate of Section 17(3) of the Arms Act. The arms licence of the petitioner has been suspended due to pendency of investigation in case crime no. 236 of 2009. 5. Learned Addl. Chief Standing Counsel submitted that show cause notice was issued to the petitioner as per rules and in this respect information was given to the petitioner to file objection. He simply argued that the arms licence of the petitioner was suspended to maintain law and order till the pendency of the case under the Arms Act. 6. 5. Learned Addl. Chief Standing Counsel submitted that show cause notice was issued to the petitioner as per rules and in this respect information was given to the petitioner to file objection. He simply argued that the arms licence of the petitioner was suspended to maintain law and order till the pendency of the case under the Arms Act. 6. The provision relating to suspension of arms licence is provided under Section 17(3) of the Arms Act which reads as under:- “17. Variation, suspension and revocation of licences:- 1. .................. 2. .................. 3. The licensing authority may by order in writing suspend a licence for such periods 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 apply for it; or (d) if any of the conditions of the licence has been contravened; or (e) if the holder of the license has failed to comply with a notice under sub-section (1) requiring him to deliver-up the licence”. 7. After hearing learned counsel for the parties and after perusing the entire material available on record, this Court finds that merely because of pendency of investigation in case crime no. 236 of 2009 under Section 17 of Arms Act, the licence of the petitioner could not have been suspended. The essential ingredients for the suspension of the arms licence is, that there must be material available before the licencing authority to give its subjective satisfaction that the possession of the arms by the licensee was going to endanger public peace or public safety. The essential ingredients for the suspension of the arms licence is, that there must be material available before the licencing authority to give its subjective satisfaction that the possession of the arms by the licensee was going to endanger public peace or public safety. But in this case nothing has been found on which basis the licencing authority came to the conclusion that the possession of licence was going to endanger public peace or public safety. The licencing authority has also not recorded any reasons for suspending the arms licence of the petitioner. Once the arms of the petitioner was deposited and proceedings for cancellation of arms licence are pending, the respondent acted illegally by suspending arms licence of the petitioner. 8. In view of the discussions, the writ petition is allowed. The part of the order dated 16.07.2009 passed by the respondent, which was concerned with the suspension of arms licence no. 1436, is hereby quashed. The respondent is directed to conclude the proceeding under Section 17 of the Arms Act for the revocation of the arms licence expeditiously. 9. No order as to costs.