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Uttarakhand High Court · body

2014 DIGILAW 502 (UTT)

RAJESH KUMAR SHAH v. STATE OF UTTARAKHAND

2014-10-30

ALOK SINGH

body2014
JUDGMENT Hon’ble Alok Singh, J. (Oral) Undisputed brief facts of the present case, inter alia, are that petitioner was holding arms licence; F.I.R. was got registered against the petitioner for the offence punishable under Sections 307 and 354 I.P.C. with Police Station Bhowali, District Nainital, being F.I.R. No. 2 of 2012; after investigation, Police submitted chargesheet for the offence punishable under Sections 354, 504 and 188 I.PC.; petitioner was acquitted from the charges by the learned Chief Judicial Magistrate, Nainital vide judgment dated 25.08.2012, annexure No.2 to the writ petition; a show cause notice was issued to the petitioner by the District Magistrate, Nainital on 02.02.2012 calling the explanation from the petitioner as to why his arms licence may not be cancelled; petitioner submitted his explanation to the show cause notice; vide order / judgment dated 01.08.2013, arms licence of the of the petitioner was cancelled by the District Magistrate, Nainital observing that although the petitioner was acquitted by the C.J.M. Nainital, however, he was acquitted because material witnesses were declared hostile; it has further been observed by the District Magistrate in the impugned order that although petitioner fired shots from the licencee revolver but since he was acquitted for want of evidence, therefore, firing stood proved by the petitioner; order of the learned District Magistrate dated 01.08.2013 was challenged by the petitioner in a statutory revision before the Divisional Commissioner, Kumaon, Naintial which too was dismissed vide judgment dated 31.10.2013; feeling aggrieved, petitioner has preferred present writ petition under Article 226 /227 of the Constitution of India. 2. It is true that initially F.I.R. was registered against the petitioner for the offence punishable under Sections 307 and 354 I.P.C. and it is also alleged in the F.I.R. that petitioner fired shot from the licensee weapon. However, fact remains that Police did not file any chargesheet for the offence punishable under Section 307 I.P.C. and chargesheet was filed against the petitioner only for the offence punishable under Sections 354, 504 and 188 I.PC. During the trial, prosecution could not prove any case against the petitioner for the offence punishable under Sections 354, 504 and 188 I.PC. too, therefore, petitioner was acquitted by the learned C.J.M. vide judgment dated 25.08.2012. 3. This Court in the case of Sukhdev Singh Vs. State of Uttarakhand and others reported in 2014 (2) U.D., 207 in paragraph Nos. During the trial, prosecution could not prove any case against the petitioner for the offence punishable under Sections 354, 504 and 188 I.PC. too, therefore, petitioner was acquitted by the learned C.J.M. vide judgment dated 25.08.2012. 3. This Court in the case of Sukhdev Singh Vs. State of Uttarakhand and others reported in 2014 (2) U.D., 207 in paragraph Nos. 4, 5, 6, 7, 9 and 11 has held as under:- “4. Section 17 - Variation, suspension and revocation of licences (1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the licence-holder by notice in writing to deliver-up the licence to it within such time as may be specified in the notice. (2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed. (3) The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence,- (a) if the licensing authority is satisfied that the holder of the licence is 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 is of unsound mind, or is for any reason unfit for a licence under this Act; or (b) if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or (c) if the licence was obtained by the suppression of material information 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 for it; or (d) if any of the conditions of the licence has been contravened; or (e) if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver-up the licence. (4) The licensing authority may also revoke a licence on the application of the holder thereof. (4) The licensing authority may also revoke a licence on the application of the holder thereof. (5) Where the licensing authority makes an order varying a licence under sub-section (1) or an order suspending or revoking a licence under sub-section (3), it shall record in writing the reasons therefor and furnish to the holder of the licence 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. (6) The authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority. (7) A court convicting the holder of a licence of any offence under this Act or the rules made there under may also suspend or revoke the licence: Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void. (8) An order of suspension or revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision. (9) The Central Government may, by order in the Official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licences granted under this Act thought India or any part thereof. (10) On the suspension or revocation of a licence under the section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation.” 5. Arms licence can be revoked or suspended if either of the conditions mentioned in sub-section (3) of Section 17 of the Act is satisfied. Besides this, arms licence can also be revoked on the application of the licence holder. 6. Learned Standing Counsel, appearing for the State, vehemently argued that arms licence was cancelled/revoked by invoking sub-section (3) of Section 17 of the Act. 7. As per Section 17(3)(b) of the Act, if licensing authority deems it necessary for the public peace and public safety, may suspend or revoke the licence. 6. Learned Standing Counsel, appearing for the State, vehemently argued that arms licence was cancelled/revoked by invoking sub-section (3) of Section 17 of the Act. 7. As per Section 17(3)(b) of the Act, if licensing authority deems it necessary for the public peace and public safety, may suspend or revoke the licence. Undisputedly, there was no criminal case registered against the petitioner except F.I.R. No. 35 of 2008, Police Station Kunda, District Udham Singh Nagar wherein petitioner was acquitted by the learned Judicial Magistrate vide order dated 26.02.2010 which has attained finality. 9. In my considered opinion to invoke Section 17 (3) (b) of the Arms Act, 1959, it must be established that petitioner is threat to pubic peace and public safety. In view of the observation made hereinbefore, it cannot be established that petitioner is threat to the public peace and public safety. 11. As observed hereinbefore to invoke Section 17 (3) (b) of the Arms Act, State has to establish that licence holder is a threat to public safety and public peace. It is not for licencee to prove in negative that he is not a threat to public peace and safety. Judgment passed by the learned Commissioner seems to be outcome of non-application of judicial mind.” 4. In the present case, neither District Magistrate nor Divisional Commissioner cared to look into the provision of Section 17 of the Act. Arms licence can be cancelled or suspended only when either of the conditions as mentioned in Section 17 of the Arms licence is proved. 5. In the present case, arms licence was cancelled by the District Magistrate on the assumption that petitioner would have fired the shot and he was acquitted only because prosecution could not prove prosecution story. In fact, firing of shots from the fire arm has not been reported by the Police in the chargesheet nor same was proved. There is no finding to the effect that petitioner has misused the licence fire arm or is threat to pubic peace and safety. 6. In the result, both the impugned orders do not sustain in the eyes of law. Consequently, writ petition succeeds and is hereby allowed. Impugned orders are hereby quashed. 7. CLMA No. 11955 of 2014 also stands disposed of accordingly.