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2011 DIGILAW 1569 (PAT)

Kumkum Kumari Wife Of Manoj. v. State Of Bihar

2011-07-28

SAMARENDRA PRATAP SINGH

body2011
JUDGEMENT 1. The petitioner seeks quashing of the order dated 16.6.2010 passed by the Divisional Commissioner, Munger in Arms Appeal No. 33 of 2010 affirming the order dated 17.12.2009/20.3.2010 passed by the District Magistrate, Begusarai in Arms Case No. 51 of 2009 whereby the application for grant of license of the petitioner has been rejected on the ground that on being queried, she stated that she would not be able to use the arms herself. 2. Both the petitioner and her husband applied for arms license in the year 2008. Their application for license has been rejected both by licensing authority as well as appellate authority. The wife Kumkum Kumari has filed the instant writ application against the impugned order rejecting her application for grant of license, as such we would confine ourselves to her case only. 3. The petitioner submits that she holds license under the Public Distribution System bearing license no. 27 of 2008. Besides this, she has a joint enterprise with her husband in the name of Jyoti Chemicals Electronics and has business with I.O.C. and Railways which necessitates a lot of movements. The petitioner further states that the Officer-in-charge, Sujhaul P.S. as well as Inspector of Police, Begusarai vide their reports dated 31.8.2008 and 20.9.2008 contained in Annexures-7 and 8 recommended for grant of license. Similarly the Dy. Superintendent of Police, Begusarai vide his memo no. 2959 dated 26.9.2010 as well as the Superintendent of Police, Begusarai vide his letter no. 8561 dated 7.11.2009 also forwarded their recommendations for grant of license to the petitioner. In such circumstances, the licensing authority ought to have granted license. The petitioner has placed reliance upon decisions in the case of Abhimanyu Singh V/s. State of Bihar, reported in 2008(1) BBCJ 27 [: 2008(2) PLJR 342 ]; Amrendra Kumar Singh V/s. State of Bihar, reported in 2007(4) BBCJ 244 [: 2008(1) PLJR 151 ]; Dinesh Kumar Singh V/s. State of Bihar, reported in 2005(2) PLJR 435 . 4. The petitioner states that the licensing authority has rejected the application for grant of license only on the ground that she is a lady and on being questioned she admitted that she would not be able to use the rifle. The learned Collector was of the view that the grant of license would be meaningless and infructuous in the circumstances. The petitioner states that the licensing authority has rejected the application for grant of license only on the ground that she is a lady and on being questioned she admitted that she would not be able to use the rifle. The learned Collector was of the view that the grant of license would be meaningless and infructuous in the circumstances. The petitioner further submits that no one can be discriminated and denied arms license on the ground of gender. The arms license can be refused only on grounds enumerated in Section 14 of the Arms Act, 1959 . As per Section 14, grant of license can be refused for arms prohibited under Sections 3, 4 and 5 of the Arms Act or if a person is prohibited under the Arms Act or by any other law for the time being in force or if he/she is an unsound mind of if otherwise unfit for holding a license. 5. The petitioner has denied that she stated before the licensing authority that she would not be able to use rifle for which she applied. Learned counsel for the petitioner submits that she has not applied for prohibited arms nor she is prohibited under the Arms Act or any other law for time being in force. She has not been held to be of an unsound mind. Thus the only ground presumably on which the license has been refused is one of unfitness to hold arms. He states that even assuming that she made the aforesaid statement, the same would not make her unfit for grant of license. He further submits that even if a licensee is not able to use the arms, one can authorize any member of his/her family or a servant to carry such arms for protection of crop or cattle with the permission of the licensing authority as provided under Rule 14 of the Arms Rules, 1962 . 6. Mr. Rajiv Roy, learned G.P. 5 submits that on account of her own admission before the licensing authority that she would not be able to use the rifle, she rendered herself unfit for being granted arms license. He further submits that Section 14(3) states that a license can be refused if one is for any reason unfit for grant of license. Rajiv Roy, learned G.P. 5 submits that on account of her own admission before the licensing authority that she would not be able to use the rifle, she rendered herself unfit for being granted arms license. He further submits that Section 14(3) states that a license can be refused if one is for any reason unfit for grant of license. The term for any reason unfit used in Section 14(3) is of wide amplitude and cannot be given restrictive interpretation. In support of his submissions, he relied upon a Full Bench decision in the case of Kapiideo Singh V/s. State of Bihar & Ors., reported in 1987 Patna 122 [: 1987 PLJR 385 ] particularly paragraph 14. He further submits that arms license of the petitioners husband has been refused as he has been made an accused in a criminal case. 7. Heard learned counsel for the petitioner and the State. The petitioner is a working lady being a licensee of fair price shop under the Public Distribution System as well as being partner in a joint business enterprise with her husband in the name of Jyoti Chemical Electronics. Besides this, her family possesses 7-8 bighas of land for which her husband has land possession certificate. She had applied for a license for personal safety. The police officials also recommended for grant of license to her. The grant of license is a statutory right subject to not being otherwise disqualified under any one of the disability clauses mentioned in Section 14 of the Arms Act which is quoted herein below: "14: Refusal of licenses. She had applied for a license for personal safety. The police officials also recommended for grant of license to her. The grant of license is a statutory right subject to not being otherwise disqualified under any one of the disability clauses mentioned in Section 14 of the Arms Act which is quoted herein below: "14: Refusal of licenses. (1) Notwithstanding anything in Section 13, licensing authority shall refuse to grant (a) a licence under section 3, Section 4 or Section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition; (b) a licence in any other case under Chapter-ll, (i) where such licence is required by a person whom the licensing authority has reason to believe (1) to be 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 (2) to be of unsound mind, or (3) to be for any reason unfit for a licence under this Act; or (c) where a licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence. (2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property. (3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person 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." (The underlining in Section 14(1)(b)(i)(3) is mine for emphasis) 8 Sub-sections (1) and (2) of Section 14 of the Act states the grounds on which licence can be refused. As per sub-section (1)(a) of Section 14, the licence for prohibited arms or ammunition as provided under Sections 3, 4 and 5 of the Arms Act can be refused. Admittedly the petitioner has not applied for arms under prohibited category, nor she is otherwise prohibited by any other laws for grant of license. Sub-section (1)(b)(i) speaks of three grounds for refusal of a licence including unsoundness of mind. Admittedly the petitioner has not applied for arms under prohibited category, nor she is otherwise prohibited by any other laws for grant of license. Sub-section (1)(b)(i) speaks of three grounds for refusal of a licence including unsoundness of mind. The petitioner has not been held to be of an unsound mind for causing public threat or security. In the instant case, we are concerned with disability mentioned under sub-section (1)(b)(i)(3) which states that a licence can be refused for any reason unfit for grant of same. 9. In the backdrop of aforesaid provision, the issue that falls for consideration is whether a person makes oneself unfit for grant of licence if he or she makes an admission that one would not be able to use the same himself or herself. The case of the petitioner is that with the permission of the licensing authority, she can authorize any member of her family or her servant to carry the arms for protection of her crops or cattle under Rule 14 of 1962 Rules even if she cannot use the same. 10. The main thrust of petitioners argument is that grant of licence is a statutory right and cannot be refused if a person is otherwise suitable. In this regard petitioner has referred to certain cases, whch I now would refer to. The petitioner first relied upon the decisions in the case of Abhimanyu Singh V/s. State of Bihar (supra). In this case, the court observed that possession of substantial property is not necessary for grant of arms licence. A person has to evaluate his own threat perception and make arrangements for his own safety and security. The learned Single Judge observed that all that has to be seen by the licensing authority is whether a person is suitable person for grant of licence or putting it negatively, he should not be an undesirable person to hold arms. I will refer this judgment later in this order. 11. The case of Dinesh Kumar Singh V/s State of Bihar (supra) would not be relevant in this case as he was refused licence on the ground of residing within an area of11/2 Kms. from the police station and one person of the locality was already holding arms licence. I will refer this judgment later in this order. 11. The case of Dinesh Kumar Singh V/s State of Bihar (supra) would not be relevant in this case as he was refused licence on the ground of residing within an area of11/2 Kms. from the police station and one person of the locality was already holding arms licence. The learned Judge observed that merely because the police station was at a short distance and one of the persons was holding licence in the village cannot be form ground for refusal of licence. 12. In the case of Amrendra Kumar Singh V/s. State of Bihar (supra) the grant of arms licence was refused on the ground that no documentary evidence in support of threat has been filed. Negating the view of licensing authority, the learned Judge observed that the grant of arms licence is not dependent on any actual incident having occurred, nor it. is a grant of privilege by the licensing authority on his sole subjective discretion. The Court observed that arms licence is for protection and is a statutory right subject to dis-qualification mentioned in Section 14 of the Act. This case too would not be of much help to the petitioner as the ground of rejection is different. 13. The general ratio that emerges from the decision in case of Abhimanyu Singh (supra) and section 14 of the Arms Act that the main consideration for grant of licence would be to see whether a person is suitable for grant of arms licence and not otherwise disqualified or unfit for grant of licence under Section 14 of the Act. The term suitable used in the judgment is in context of being able and fit to use arms. Though one would be suitable for dramas etc., one may not be suitable for athletics etc. 14. It would appear from the order of the Collector, Begusarai that the petitioner herself admitted that she would not be able to use the arms. It is necessary that the person who applies for arms is capable of using it. As per Oxford Advanced Dictionary the word "unfit" would mean "not capable of doing". For example, one may not be capable of governance or may not be fit for a specific work on account of lack of temperament and necessary qualities for the same. It is necessary that the person who applies for arms is capable of using it. As per Oxford Advanced Dictionary the word "unfit" would mean "not capable of doing". For example, one may not be capable of governance or may not be fit for a specific work on account of lack of temperament and necessary qualities for the same. As per Law Lexicon the word "unfit" may be interpreted as "physically incapable". Here the petitioner may be suitable or fit for running a fair price shop under Public Distribution System, but may not be fit to use the arms on account of its awe or mental set up. 15. A Full Bench of this court in the case of Kapildeo Singh V/s. State of Bihar & Ors., reported in 1987 Patna 122 [: 1987 PLJR 385 ](FB) examined the extent and scope of "disqualification" mentioned in Section 14 of the Arms Act. The relevant extract of paragraph 5 is quoted hereinbelow: "5...............It would be manifest from the aforesaid provisions that under the Act there is first a legal bar for having in possession or carrying a firearm unless a valid licence is first secured in accordance with the provisions of the Act. Secondly, even the original grant under Section 13(2A) is vested entirely in the licensing authority and it seems that the widest discretion has been given to it. Even after conforming to the procedural requirements, the licensing authority may, as regards the general category of arms, either grant the licence or refuse to grant the same. This discretion in this context has perhaps been deliberately kept untrammeled. Further, under Section 14 the law mandates a refusal to grant licence even where the licensing authority has reason to believe that the applicant is for any reason unfit for licence under the Act. The larger tilt of the law in this context is thus somewhat too plain to call for further elaboration." 16. It thus appears that a person can be refused licence if for any viable reason he is found unfit, may be one emanating from fear or incapability. In my view, where a person admits that he/she would not be able to use the arms, he/she makes oneself unfit for grant of arms licence. It thus appears that a person can be refused licence if for any viable reason he is found unfit, may be one emanating from fear or incapability. In my view, where a person admits that he/she would not be able to use the arms, he/she makes oneself unfit for grant of arms licence. Thus, I do not find any infirmity in the order of either licensing authority or the Appellate Authority rejecting the application of the petitioner for grant of licence. It may be very difficult to accept the petitioners version that she did not admit so before the learned District Magistrate, Begusarai, as no bias or prejudice has been pleaded against him. Furthermore, there was no reason for the learned District Magistrate to wrongly record such admissions. 17. Mr. Thakur while referring to Rule 14 of the Arms Rules, 1962 submits that the arms of a person can be used by ones relative or servants with due permission. Rule 14 of the Rules states that where a license is granted in Form-V, any member of the family of the licensee or a servant employed by the licensee, with due permission of licensing authority can be allowed to carry arms or ammunition covered by the licence to protect crops or cattle against wild animals. Rule 14 refers to grant of licence for protection of crops or cattle against wild animal and the aforesaid provisions would not apply in the instant case where the arms licence has been sought for the personal safety and security. In paragraph 8 of the writ petition the petitioner has stated that she applied for arms licence for personal safety as well as for safety of her family property. Though the term property may include standing crops but from perusal of the writ petition, it would appear that the petitioner sought licence mainly for her own safety. 18. In backdrop of the aforesaid discussions, I do not find any infirmity in the impugned order rejecting the application of the petitioner for grant of arms licence. This writ petition is accordingly dismissed.