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2013 DIGILAW 900 (ALL)

Rajesh Kumar Singh v. State of U. P.

2013-03-19

SUNITA AGARWAL

body2013
Sunita Agarwal, J.— Heard Sri Varun Dev Sharma, learned counsel for the petitioner and the learned Standing Counsel for the respondents. The writ petition has been filed by Rajesh Kumar Singh with the prayer for quashing the order dated 22.2.2003 and 6.3.2006 passed by the respondents no. 2 and 3 respectively. By the order dated 22.2.2003, the firearm licence of the petitioner was cancelled. By the order dated 6.3.2006 the appeal filed against the aforesaid order was dismissed. The petitioner is holder of firearm licence no. 3018/92 for revolver which was granted in the year 1992. In so far as licence no. 382/01 is concerned, the same was granted to him for SBBL gun in the year 2001 by the licensing Authority. A show cause notice dated 17.1.2003 was issued to the petitioner suspending the licence of the petitioner directing him to deposit both the revolver and SBBL gun in the concerned police station. The show cause notice contains an allegation that the petitioner had obtained licence of SBBL gun by giving wrong address in his application. He is original resident of Gram Kondrajeet, Thana Baghrai. However, he obtained licence by mentioning address of Pratapgrah. This apart, there are several criminal cases pending against him. Therefore, allowing him to keep the licence would be against safety and security of public. It has been stated therein that he had committed fraud at the time of grant of firearm licence. The petitioner submitted his reply to the show cause notice and came out of the case that he was originally resident of Gram Kondrajeet, Thana Baghrai and the licence of revolver which was granted in the year 1992 was granted at the address of his original resident. However, with the passage of time he shifted his present place of residence from Gram Kondrajeet, Thana Baghrai to Avas Vikas Colony, Meera Bhavan, Pratapgarh and therefore while moving application for grant of licence of SBBL gun in 2001 he gave his address of Pratapgarh instead of village Kondrajeet, Thana Baghrai. He further submits that he had moved an application for change of his address before the District authorities. He further submits that he had moved an application for change of his address before the District authorities. Further contention of learned counsel for the petitioner is that he has been victimised for political reasons and in an affidavit filed in the month of January, 2007 alongwith an application, the petitioner submitted that he was attacked on 16.11.2006 by some miscreants and received serious injuries. FIR had been lodged and these persons are threatening the petitioner with dire consequences to withdraw the case. The petitioner has his own ancestral agricultural and transport business. The cancellation of arms licence is a harsh decision and it would endanger the life and liberty of the petitioner. He further submits that the District Magistrate while cancelling the firearms licence of both revolver and SBBL gun, did not consider that the show cause notice was issued with respect to SBBL gun only. In so far as revolver is concerned, there is no dispute that he has given his permanent resident of village Kondrajeet, Thana Baghrai. The petitioner has given sufficient reasons for giving address of Pratapgarh in his application for grant of his SBBL gun. Learned counsel for the petitioner further submits that as far as criminal cases mentioned in the show cause notice as also in the order of the District Magistrate, the petitioner has been acquitted in most of the cases and some of the cases are pending. He further submits that he has not been convicted in any of the criminal cases mentioned in the order. Learned counsel for the petitioner placed reliance upon the judgment of this Court reported in 2010(6)ADJ 450 (Kamal Prakash @ Kamal Nath @ Suddan vs. Commissioner, Kanpur Division, Kanpur Nagar and others) and submitted that mere involvement in a criminal case or pendency of a criminal case cannot be a ground for revocation of licence under the Arms Act. Refuting the submission of the learned counsel for the petitioner, learned Standing Counsel submits that in so far as criminal cases are concerned, it has to be ascertained as to whether the petitioner has been convicted in any of the cases mentioned in the show cause notice as also the order dated 22.2.2003 passed by the District Magistrate. Refuting the submission of the learned counsel for the petitioner, learned Standing Counsel submits that in so far as criminal cases are concerned, it has to be ascertained as to whether the petitioner has been convicted in any of the cases mentioned in the show cause notice as also the order dated 22.2.2003 passed by the District Magistrate. He further submits that the licence has not been cancelled on sole ground of involvement in a criminal case rather it was cancelled on the ground that the petitioner had suppressed the relevant information and got the licence of firearm by misrepresentation and giving incorrect information. In order to substantiate his argument, he made a reference to proviso to Section 17(3)(c) of the Arms Act which provides that if the licence was obtained on suppression of material fact 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 it, the licensing Authority may revoke the licence. The petitioner was put to notice with regard to concealment made by him and reply submitted by the petitioner dated 31.1.2003 was duly considered by the District Magistrate while passing the order dated 22.2.2003. The appellate authority also considered the reply submitted by the petitioner and came to the conclusion that the petitioner has got the licence by concealment of material fact. He did not give his permanent address and got the licence by giving his temporary address. Learned Standing Counsel submits that object behind giving permanent address by the applicant is to ascertain about the antecedents of the applicant and to facilitate the police verification for consideration of grant of licence by the Licensing Authority. The petitioner has concealed the information and therefore, police verification could not be done and the cases pending against the petitioner could not come in the knowledge of the Licensing Authority. On perusal of show cause notice dated 17.1.2003 it is apparent that the show cause notice was given only with regard to licence of the petitioner of SBBL gun and it was mentioned therein that while moving an application for grant of licence for SBBL gun, he had to give correct address i.e. his permanent address of village Kondrajeet, Thana Baghrai. There is no allegation with regard to licence of the applicant of revolver. There is no allegation with regard to licence of the applicant of revolver. The order passed by the Licensing Authority as well as appellate authroity also indicate that so far as licence of revolver is concerned, there is no dispute that the petitioner has got the licence in 1992 by giving his permanent place of residence at village Kondrajeet, Thana Baghrai. In view thereof, a irresistible conclusion is that so far as grant of licence in the year 1992 is concerned, there is no suppression of material fact. The licence of revolver could not have been cancelled by the Licensing Authority on this ground. In so far as involvement in the criminal cases is concerned, it is well settled that mere involvement in a criminal case is not the ground for cancellation of licence under Section 17 of the Arms Act in view of catena of decision by this Court on this point and there is consistent view in this regard. In the case of Kamal Prakash(supra) replied upon by the learned counsel for the petitioner, there is reference of two Division Benches of this Court in Sheo Prasad Mishra vs. District Magistrate and Masi Uddin vs. Commissioner, Allahabad which was also considered in the judgment dated 14.5.2012 passed in writ petition (C) No. 122 of 2010 (Mulayam Singh vs. State of U.P. & others) delivered by me. Further, a perusal of the order passed by the District Magistrate clearly shows that there is no other material on record to indicate that possession of firearm by the petitioner would be detrimental to the public peace and tranquility and therefore, the public safety would be affected. The finding recorded by the District Magistrate is based upon report of Sub Divisional Magistrate dated 13.1.2003. The appellate authority merely upheld the order passed by the District Magistrate. In view of aforesaid, order dated 22.2.2003 passed by the Licensing Authority and the order dated 6.3.2006 passed by the appellate authority cannot be justified under Section 17(3)(b) & (c) of the Arms Act. The same are hereby quashed. However, it may be noted that this petition was filed in the year 2006 and counter affidavit dated 28.1.2013 has been filed by the respondents wherein it has been indicated that the petitioner may be convicted in many criminal cases mentioned in the order of cancellation of firearm licence. The same are hereby quashed. However, it may be noted that this petition was filed in the year 2006 and counter affidavit dated 28.1.2013 has been filed by the respondents wherein it has been indicated that the petitioner may be convicted in many criminal cases mentioned in the order of cancellation of firearm licence. The Court is not aware of the present state of affairs. In view thereof, it is directed that the District Magistrate shall consider the application for release of the firearm licence of the petitioner in view of the observations made above and pass appropriate order within a period of one month form the date of production of certified copy of this order before him. Release of firearm of the petitioner shall be subject matter of decision by the District Magistrate. The writ petition is allowed. _____________