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2011 DIGILAW 975 (ALL)

Imtiyaz Husain v. State of U. P. and others

2011-04-16

SHRI KANT TRIPATHI

body2011
Shri Kant Tripathi,J.:- Heard learned counsel for the petitioner and the learned Standing Counsel for the State and perused the record. This is a petition under Article 226 of the Constitution of India for quashing the order dated 22.04.2010 (annexure 1) passed by the respondent no. 2 as well as the order dated 11.08.2008 (annexure 2) passed by the District Magistrate, Lucknow (respondent no. 3). It appears that the petitioner moved an application for a revolver/pistol licence under the Arms Act. The learned District Magistrate (respondent no. 3) after considering the G.O. No. 3504 R/Cheh:-Pu-5/1999 dated 05.06.1999 found that it was not proper to issue the desired license in favour of the petitioner. The appellate authority also considered the aforesaid G.O. and formed the same opinion and held that the petitioner had no necessity of any revolver/pistol licence, accordingly, the appellate authority dismissed the appeal. It was submitted by the learned counsel for the petitioner that this Court had already settled the legal position as to how the application for issue of arm's licence is to be dealt with. In the case of Bhakti Sharan vs Commissioner, Jhansi And Ors. 2002 (2) AWC 885 , this Court propounded the following principles: ??.... 3.there is nothing in the order passed by the Licensing Authority or by the appellate authority to show that the petitioner is not a person to whom fire arm should not be granted. Section 14 provides grounds for refusal of licence. Section 14(1)(b) says that the licence shall be refused (i) where such licence is required by a person whom the licensing authority has reason to believe that (1) 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 by any reason unfit for a licence under this Act, or (ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence.? In the case of Pawan Kumar Jha v State of U.P. & others [ 2010(10) ADJ 782 ], the Hon'ble Single Judge (Hon'ble Sibghat Ullah Khan,J.) passed the following order: ?? 3. There was absolutely nothing against the petitioner still grant of fire arm licence was denied. It is shocking. In the case of Pawan Kumar Jha v State of U.P. & others [ 2010(10) ADJ 782 ], the Hon'ble Single Judge (Hon'ble Sibghat Ullah Khan,J.) passed the following order: ?? 3. There was absolutely nothing against the petitioner still grant of fire arm licence was denied. It is shocking. The police authorities and the authorities who are responsible to consider the application for grant of fire arm licence do not realise that criminals do not require any fire arm licence for committing crime as they can very well use unlicensed fire arm. These are only respectable and peaceful persons who require licence. Moreover unnecessary rejection of applications for grant of fire arm licence breeds a tendency to keep unlicensed arms, a greater evil. 4. It appears that application of the petitioner for fire arm licence has been rejected only on the ground that petitioner is too law abiding and peaceful person. Accordingly, both the impugned orders are set aside. Writ petition is allowed. Matter is remanded to the D.M. Allahabad with the direction to grant the licence to the petitioner unless there is something adverse against him like pendency of some criminal case. 5. It is directed that the authorities while considering an application for grant of fire arm licence shall keep only and only one criteria for refusing to grant licence and that is pendency of some criminal case. Licence is normally to be granted unless there is something adverse. If there is neither anything good nor bad against a person, then the licence must be granted otherwise a tendency to keep unlicensed fire arms will grow. Amendment-II (1791) of the American Constitution is as follows: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Some people say we the Indians are still not matured enough to go to that extent. On the other hand some say that undue restriction on keeping and bearing Arms is based on unfounded fear. Gradual dismantling of the control may balance both the views." The learned counsel for the petitioner further submitted that the aforesaid G.O. dated 05.06.1999 had issued certain guidelines as to how the applications for arm's licence have to be dealt with during the election. Gradual dismantling of the control may balance both the views." The learned counsel for the petitioner further submitted that the aforesaid G.O. dated 05.06.1999 had issued certain guidelines as to how the applications for arm's licence have to be dealt with during the election. It was next submitted that the petitioner had no criminal antecedents nor there was any report regarding his involvement in any criminal activity and he has not been even convicted in any criminal case. The reports of the local police were also in favour of the petitioner but these points have not been given proper consideration by the District Magistrate as well as the Commissioner, therefore, the discretion vested in the licensing authorities (the District Magistrate and the Commissioner) has not been exercised in a just and equittable manner. They seem to have acted arbitrarily with a predetermined mind to reject the petitioner's application. It was lastly submitted that when the petitioner had no criminal history nor was a convict, nor involved in any criminal case the denial of licence to the petitioner was highly improper, specially when the G.O. dated 05.06.1999 was not attracted in this case. The respondents no. 2 & 3 were required to consider the petitioner's application and pass appropriate order, keeping in view the provisions of sections 13 & 14 of the Arms Act and the rules made thereunder and also according to the principles laid down in the cases of Bhakti Sharan (supra) and Pawan Kumar Jha (supra) but they have not considered the petitioner's application in the light of these settled principles. In view of the aforesaid, the writ petition is allowed. The impugned orders dated 11.08.2008 and 22.04.2010 passed by respondent nos. 2 & 3 are quashed. Respondent no. 3 is directed to reconsider the matter keeping in view the observations made herein before and pass an appropriate order in accordance with law.