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2011 DIGILAW 258 (ALL)

Rama Kushwaha v. State of U. P. and others

2011-02-01

RAJIV SHARMA

body2011
Rajiv Sharma, J.:- Rejoinder affidavit filed today is taken on record. Heard Sri R.K. Sharma, learned Counsel for the petitioner and learned Standing Counsel. By means of the present writ petition, the petitioner has assailed the order dated 26.3.2010 whereby arm licence of the petitioner was cancelled by the District Magistrate, Hardoi and the order dated 15.4.2010 passed by the Commissioner, Lucknow Division, Lucknow, whereby the appeal preferred by the petitioner was dismissed. The brief facts of the case are that the petitioner was granted arms licence for one N.P. Bore Rifle on 3.3.2000. In the month of August, 2008, the petitioner was served with a show cause notice by the District Magistrate, Hardoi as to why her arms licence be not suspended/cancelled on the ground that criminal case was lodged against her husband, to which the petitioner submitted a detailed reply, indicating therein that no criminal case was ever lodged against her and she has no criminal history. The District Magistrate, Hardoi, vide order dated 26.3.2010, cancelled the arms licence of the petitioner. Feeling aggrieved, the petitioner preferred an appeal before the Commissioner, Lucknow Division, Lucknow. The Commissioner, vide order dated 15.4.2010, dismissed the appeal on the ground that the petitioner's husband has criminal history and five criminal cases have been registered against her husband. Against the orders dated 26.3.2010 and 15.4.2010, the petitioner has filed the present writ petition. Learned Counsel for the petitioner has submitted that the sole reason for revoking the licence is that criminal case was registered against petitioner's husband. Furthermore, the District Magistrate, who is the Licensing Authority, has not applied his independent mind. According to the petitioner, the grounds for revocation of licence are provided under Section 17(3) of the Arms Act and these proceedings are quasi-judicial in nature. The grounds which are mentioned in Section 17(3) of the Arms Act are not at all attracted in the case of the petitioner and the petitioner has not contravened any of the conditions as enumerated in the licence and as such the impugned order passed by the District Magistrate as also the order passed by the Appellate Authority is illegal and legally not sustainable. Learned Standing Counsel has submitted that the order cancelling the licence of the petitioner was passed by the District Magistrate in public interest and it was duly communicated by the Officer Incharge (Arms). Learned Standing Counsel has submitted that the order cancelling the licence of the petitioner was passed by the District Magistrate in public interest and it was duly communicated by the Officer Incharge (Arms). According to him, the competent authority has considered all aspect of the matters including the lodging the FIR under the major offences of the India Penal Code against the petitioner's husband. He further added that in appeal the petitioner was given ample opportunity of hearing and the impugned order was passed after considering the facts and circumstances of the case. Refuting the arguments advanced by the learned Standing Counsel, the petitioner?s counsel submitted that from the perusal of order contained in annexures 1 and 2 to the writ petition, it would be established beyond doubt that the impugned order has been passed by the District Magistrate solely on the ground of lodging of FIR against the petitioner's husband and there is no mention that it has been passed in public interest. The fact which has not been mentioned in the order, can not be introduced by way of improvement in counter-affidavit. Section 17(3) of the Arms Act does not contain any ground for cancellation of arms licence in public interest. Relying upon Ganesh Chandra Bhatt Vs. District Magistrate Almora; AIR 1993 All. 291 , learned Counsel for the petitioner submits that this Court has held in clear words that a licence can not be refused/suspended/cancelled merely because there is an ordinary breach of law and order. ?Public peace? or ?public safety? do not mean ordinary disturbance of law and order public safety means safety of the public at large and not safety of few persons only. Before passing of the order in exercise of power conferred under Section 17(3) of the Act the Licensing Authority is under an obligation to apply his mind to the question as to whether there was eminent danger to public peace and safety involved in the case. In Ram Murli Madhukar Vs. District Magistrate, Sitapur [1998(16) LCD 905], this Court has held that licence can not be suspended or revoked on the ground of public interest (Janhit). It is well settled in law that mere pendency of criminal case or apprehension of abuse of arms act are not sufficient grounds for passing the order of suspension or revocation of licence under Section 17 (3) of the Act. It is well settled in law that mere pendency of criminal case or apprehension of abuse of arms act are not sufficient grounds for passing the order of suspension or revocation of licence under Section 17 (3) of the Act. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of licence under Arms Act, has been dealt with by a Division Bench of this Court Sheo Prasad Misra Vs. The District Magistrate, Basti & others, wherein the Division Bench relying upon the earlier decision of Masiuddin Vs. Commissioner, Allahabad, found that mere involvement in criminal case cannot in any way affect the public security or public interest. The law propounded in the said decisions has been subsequently followed in Habib Vs. State of U.P. reported in 2002 ACC 783, Ram Sanehi Vs. Commissioner, Devi Patan Division, Gonda & another. Having considered the submissions made by the learned counsel for the parties and the case laws, referred to above, I am of the view that the Appellate Court has committed an error in not considering the facts in correct prospective and has also failed to appreciate the grounds mentioned in Section 17(3) of the Arms Act regarding revocation or for suspending a licence. The order passed by the Appellate Authority can not be legally sustained. Furthermore, though in para 21 of the counter affidavit, it has been stated that the petitioner's husband had illegally used the petitioner's arms from time to time but on perusal of the counter affidavit, there is neither any whisper of words as to how the petitioner's husband has illegally used the arms of the petitioner nor any documentary evidence annexed in support thereof. In view of the above, the writ petition is allowed and the orders dated 15.4.2010 passed by the Commissioner, Lucknow Division, Lucknow as well as the order dated 26.3.2010 passed by the District Magistrate, Hardoi, are set-aside. The matter is remitted to the District Magistrate, Hardoi for fresh consideration. Since the matter is lingering since 2010, I hope and trust that the District Magistrate, Hardoi will make earnest endeavour in deciding the matter, expeditiously, say, within a period of six months from the date of receipt of a certified copy of this order.