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2010 DIGILAW 618 (ALL)

Ram Bujharat Singh v. State of U. P. & Ors.

2010-02-16

DEVI PRASAD SINGH

body2010
Devi Prasad Singh, J.- 1. Heard learned counsel for the petitioner and learned Standing Counsel. With the consent of learned counsel for the parties, I proceed to decide the present writ petition finally at admission stage. 2. The petitioner has approached this Court under Art. 226 of the Constitution of India feeling aggrieved with the impugned orders, by which his licence for S.B.B.L. gun has been cancelled by the District Magistrate in pursuance to power conferred by Section 17 of the Arms Act, 1959(in short Act) which has been affirmed by appellate Court. 3. The ground for cancellation of arm licence is that the petitioner's son Shri Nirbhay Singh possess checkered history and is a history sheeter in the police record at serial No.103 A. A show cause notice was served and after receipt of the reply, the arm licence has been cancelled on the ground that the possession of arm by the petitioner may be detrimental to law and order because of the petitioner's son being a history sheeter. The District Magistrate while passing the impugned order dated 3.9.2004, as contained in Annexure No.1, observed that there is apprehension of breach of peace and the petitioner's arm licence may be misused by his son who is alleged to be a history sheeter. Though the petitioner has tried to defend his cause inviting attention to a newspaper report dated 13.10.2002 with submission that his son is living separately but it could find favour with the district administration. The petitioner has further tried to defend himself by furnishing rashion card as well as extract of Pariwar Register to establish his submission with regard to separate living from his son. However, the District Magistrate has disbelieved the submission of the petitioner with regard to separate living and cancelled the arm licence on the ground that the gun may be misused by his history sheeter son. 4. Learned counsel for the petitioner submits that the petitioner's son Nirbhay Singh expired on 25.9.2004 and since he does not survive, the only ground on which the arm licence was cancelled does not exist. 5. 4. Learned counsel for the petitioner submits that the petitioner's son Nirbhay Singh expired on 25.9.2004 and since he does not survive, the only ground on which the arm licence was cancelled does not exist. 5. Suspension and revocation of licence by the licensing authority may be done in pursuance to the provisions contained in Sub Section (3) of Section 17 of the Act which provides that the licensing authority may suspend an arm licence for specified period or revoke a licence in case the authority deems it necessary for the security of public peace or for public safety or the licence has been obtained by suppression of material information. For convenience, the provisions of Section 17 of the Arms Act is reproduced as under: 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. (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 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 revoke 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. 6. A plain reading of Sub Section (3) of Section 17 shows that the licence may be suspended or revoked on account of certain mis-conduct committed by the licensee. While giving literal interpretation of the provisions contained in Section 17(3) of the Act, it is borne out that because of the criminal conduct of the licensee, affecting public peace and tranquility, the licence can be suspended or cancelled. While giving literal interpretation of the provisions contained in Section 17(3) of the Act, it is borne out that because of the criminal conduct of the licensee, affecting public peace and tranquility, the licence can be suspended or cancelled. In case the licensing authority is satisfied that the holder of the licence is prohibited by the 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 the Act; or if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence, the licence may be suspended or revoked. The licence may also be revoked in case it is obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or in contravention of any condition f the licence. 7. Looking to the facts of the case in hand, it does not appear that there is any allegation against the petitioner within the parameter of Sub Section (3) of Section 17 of the Act. The licence has been cancelled exclusively on the apprehension that the gun may be mis-used by the petitioner's son. The licensing authority seems to be not correct by not giving due weight to the ration card, kutumb register and the newspaper reports which prima facie indicates that the petitioner's son was living separately. Once a licensee raises specific plea asserting that his son or member of the family having criminal antecedents is living separately and has got no concern with him, then it was a bounden duty of the licensing authority /District Magistrate to record a finding on the basis of the pleading on record. In absence of any finding with regard to pleading raised by the petitioner, the District Magistrate seems to have failed to exercise jurisdiction vested in him. Being quasi-judicial authority, it was incumbent on the district Magistrate to record a finding with regard to the plea raised by the petitioner on the basis of the ration card, kutumb register that he is living separately from his son who has got checkered history. 8. Being quasi-judicial authority, it was incumbent on the district Magistrate to record a finding with regard to the plea raised by the petitioner on the basis of the ration card, kutumb register that he is living separately from his son who has got checkered history. 8. The Court should not close its eyes to the present scenario where the jointness of the family is breaking gradually. Whether it is father and son or brothers and sisters, under the western influence, the jointness is breaking day by day and peoples are adopting western style of life. In case a member of the family is living separately, then the licence of a person cannot be suspended or cancelled for the mis-conduct committed by a member of the family who is living separately. 9. Apart from above, the licence is awarded to a person for his own security and personal defence. In case a gun is not used by the member of the family who has got checkered history or who is a history sheeter, then that should not be a ground to suspend or cancel the arm licence. There must be some evidence to link the licensee with the person or near relative who is a history sheeter in the police record with regard to misuse of gun. Mere relationship with a person having a checkered history or being history sheeter in police record will not create a ground to cancel the arm licence in pursuance to power conferred by Sub Section (3) of Section 17 of the Act. In absence of any finding or material on record with regard to breach of public order or public safety or peace, the licence cannot be suspended or cancelled only because the person concerned has got some relationship with a history sheeter in police record. Everyone is responsible for his own conduct and not for others. Action should be taken keeping in view the individual conduct of the licensee. 10. The appeal preferred by the petitioner against the order passed by the District Magistrate has been dismissed being time-barred. The material on record makes out a case to condone the delay. However, instead of remitting the matter to the appellate authority, I am of the view that the appeal may be decided on merit. 10. The appeal preferred by the petitioner against the order passed by the District Magistrate has been dismissed being time-barred. The material on record makes out a case to condone the delay. However, instead of remitting the matter to the appellate authority, I am of the view that the appeal may be decided on merit. Subject to the discussion made hereinabove, the impugned order seems to have been passed without considering the letter and spirit of Sub Section (3) of Section 17 of the Act. The licensing authority has been failed to exercise jurisdiction vested in it. Unless there is collusion or meeting of mind to commit crime disturbing the public peace and public safety, for son's mis-conduct, neither father can be punished nor the arm licence may be cancelled. In the present case, there appears to be no link evidence which makes out a case to cancel petitioner's arm licence. 11. Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned orders dated 3.9.2004, 12.8.2005 and 2.3.2006 with consequential benefits. The respondents shall restore the petitioner's arm licence forthwith subject to completion of necessary formalities in accordance with rules. No order as to costs.