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2011 DIGILAW 943 (ALL)

Sabir Hussain v. State Of U. P.

2011-04-11

PRADEEP KANT

body2011
JUDGMENT Hon'ble Pradeep Kant,J. Heard Shri Satish Chandra Pandey, learned counsel for the petitioner and Shri Ravi Ranjan, learned standing counsel appearing for the State. With the consent of the parties, the writ petition is being disposed of finally. 2. The petitioner has challenged the order dated 2.9.2004 passed by the District Magistrate, Moradabad, cancelling the arm licence of the petitioner and order dated 9.9.2010 confirming the cancellation order by the appellate authority. 3. The petitioner was issued show cause notice requiring him to show cause why his licence be not cancelled on the report submitted by the police, Majhaula, Moradabad dated 14.6.2003 forwarded by the Superintendent of Police (City), Moradabad on 21.6.2003 saying that 1.Case crime no.1966 of 2002, under Sections 147, 148, 149, 307 and 504 IPC, and 2.Case crime no.1970 of 2002, under Sections 147, 341 and 149 IPC and Section 7 of the Criminal Law Amendment Act, have been registered against him. 4. The petitioner submitted reply, which did not find favour with the District Magistrate, who vide his order dated 2.9.2004 cancelled the arm license. The appeal preferred by the petitioner was also dismissed vide impugned order dated 9.9.2010. 5. Admittedly, when the District Magistrate passed the order cancelling the arm license the trial was pending and, therefore, the District Magistrate in his order found that criminal cases have been registered against the petitioner in which charge sheet has already been submitted before the competent court where the matter is under trial and, therefore, it would not be in public interest and public order that he should be allowed to keep license. He also apprehended that the possibility of threatening and victimizing the witnesses cannot be ruled out by the petitioner. However, when the appeal came up for hearing it was submitted before the appellate authority that in both the aforesaid criminal cases the petitioner has been acquitted and, therefore, no ground subsists for maintaining to cancelling the order passed by the District Magistrate. 6. The appellate authority namely, Commissioner of the Division did not feel satisfied with the aforesaid plea and, therefore, dismissed the appeal after holding that the petitioner has not been honorably acquitted, but has been acquitted because the offences could not be proved beyond doubt. 7. The judgment and order passed in the two cases, referred to above, has been brought on record. 7. The judgment and order passed in the two cases, referred to above, has been brought on record. In neither of the judgments there is any whisper that the petitioner was having arm (Single Barrel Gun S.B.B.L. gun no.35612 bore 12) nor any role was assigned to him with respect to the aforesaid gun. 8. In criminal trial no.1074 of 2003, which was registered under Sections 147, 148, 149, 307 and 504 IPC the petitioner has been acquitted, as the prosecution failed to prove its case, whereas in criminal trial no.1970 of 2002 under Sections 147, 341 and 149 IPC and Section 7 of the Criminal Law Amendment Act, he has been acquitted for the offences not being proved beyond doubt. 9. Be that as it may, the District Magistrate has cancelled the arm license only on the ground that the criminal trial was pending against the petitioner and there was apprehension of his misusing the arm during trial, but once the petitioner stood acquitted in the criminal trial the said ground vanished and was no more available. In appeal, the Commissioner made out a new case, which was not the basis of cancellation of the license by the District Magistrate, by simply observing that the petitioner was involved in the criminal cases wherein he has been acquitted because the offence could not be proved beyond doubt, therefore, he was not entitled to have the license. 10. In my opinion, the aforesaid ground was not available to the Commissioner to dismiss the appeal in view of the specific reasons given by the District Magistrate for cancelling the license. It was the order of the District Magistrate, which was under scrutiny in appeal, therefore, the validity of the said order was to be seen by the Commissioner, on the reason given therein. He was not supposed to record his own finding, unless there was given very strong and exceptional case, to refuse the restoration of the license, but the present case is not such where the Commissioner could have taken such a view. 11. In the case of Pramod Kumar v. State of U.P. and others, 2010 (2) AAR 768 [HC] a learned Single Judge of this Court held that mere pendency of a criminal case against or involvement of the petitioner in a criminal case is no ground to cancel his fire arm license. 11. In the case of Pramod Kumar v. State of U.P. and others, 2010 (2) AAR 768 [HC] a learned Single Judge of this Court held that mere pendency of a criminal case against or involvement of the petitioner in a criminal case is no ground to cancel his fire arm license. Even otherwise, there is no justification for the continuance of the cancellation of fire arm license after his acquittal. 12. That being so, the order dated 2.9.2004 passed by the District Magistrate and dated 9.9.2010 passed by the Commissioner, Moradabad are liable to be set aside. 13. The writ petition is allowed. Orders dated 2.9.2004 passed by the District Magistrate, Moradabad and dated 9.9.2010 passed by the Commissioner, Moradabad Division, Moradabad are quashed.