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2015 DIGILAW 281 (UTT)

Ayazuddin Siddiqui v. State of Uttarakhand

2015-05-27

ALOK SINGH

body2015
JUDGMENT : Alok Singh, J. With the consent of learned counsel for the parties, present petition is heard and is being disposed of by this judgment today itself. IA No. 2515 of 2015 stands disposed of accordingly. 2. Present petition is filed assailing the judgment and order dated 8.8.2007 passed by the District Magistrate, Chamoli, whereby Arms Licences of the petitioner being No. 847 of Revolver No. 212-RAJ and 847/86 of SBBL Gun No. A-1 4627 were cancelled, as well as the judgment and order dated 1.11.2012, whereby the appeal filed by the petitioner was dismissed by the Divisional Commissioner, Garhwal Mandal, Pauri Garhwal. 3. Brief facts of the present case, inter alia, are that the petitioner was having arms licenses being No. 847 of Revolver No. 212-RAJ and 847/86 of SBBL Gun No. A-1 4627; on 8.4.2002, Km. Bimla, daughter of Abbal Singh, resident of Village Bherni, Patwari Kshetra Gandasu, Tehsil & District Chamoli got registered one FIR being Case Crime No. 47 of 2002 under Section 354/32/506 IPC against the petitioner; on 8.4.2002, when the FIR was registered for the alleged incident, both the arms were not with the petitioner and were with the police, as the same were deposited by the petitioner himself with the police prior to the incident, under the orders of the District Magistrate Chamoli due to Assembly Elections; on the report of the Superintendent of Police dated 10.5.2002, show cause notice was issued to the petitioner showing cause as to why arms licenses issued in his favour be not cancelled and, thereafter, vide impugned order dated 8.8.2007, arms licenses of the petitioner were cancelled; feeling aggrieved, the petitioner filed a statutory appeal No. 1 of 2007-08, which came to be dismissed vide order dated 1.11.2012; hence, the present petition under Article 226 of the Constitution of India. 4. I have heard Mr. R.P. Nautiyal, learned Senior Counsel assisted by Mr. B.S. Koranga, learned counsel for the petitioner and Mr. R.C. Arya, learned Standing Counsel for the respondents, and have carefully perused the record. 5. Undisputedly, in Case Crime No. 47 of 2002 under Sections 354/323/506 IPC, the petitioner was acquitted by learned CJM, Chamoli, vide judgment dated 29.1.2004. Judgment dated 29.1.2004 was never challenged by the State Government, therefore, has attained finality. R.C. Arya, learned Standing Counsel for the respondents, and have carefully perused the record. 5. Undisputedly, in Case Crime No. 47 of 2002 under Sections 354/323/506 IPC, the petitioner was acquitted by learned CJM, Chamoli, vide judgment dated 29.1.2004. Judgment dated 29.1.2004 was never challenged by the State Government, therefore, has attained finality. Undisputedly, on the date of incident and registration of the FIR dated 8.4.2002, both the arms were with the police since same were deposited by the petitioner himself with the police prior to the incident under the orders of the District Magistrate, Chamoli due to Assembly Elections. Undisputedly, there is no allegation against the petitioner that he has used either of the arms in the alleged incident and/or by showing either of the arms has threatened any of the witnesses in Case Crime No. 47 of 2002. 6. Learned District Magistrate, in the impugned order, has observed that due to registration of the aforesaid Case Crime No. 47 of 2002 against the petitioner, the character of the petitioner has become highly doubtful, therefore, the petitioner should not be allowed to keep both the arms under the garb of arms licenses issued in favour of the petitioner. 7. Section 17 of the Arms Act, 1959 reads as under : “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. (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. (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 therefore 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. (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.” 8. Bare perusal of Section 17 of the Arms Act, 1959 would reveal that licensing authority may suspend or revoke the licence 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 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 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 if the licencee is guilty of contravening any of the conditions of the licence. 9. In the present case, it is nowhere observed by the District Magistrate that licence was obtained by suppressing any material information or on the basis of wrong information; nor the District Magistrate has observed that licencee is of unsound mind or is a threat to the public peace and security as well as public safety. 10. 9. In the present case, it is nowhere observed by the District Magistrate that licence was obtained by suppressing any material information or on the basis of wrong information; nor the District Magistrate has observed that licencee is of unsound mind or is a threat to the public peace and security as well as public safety. 10. In my considered opinion, merely because one criminal case was registered against the petitioner, in which the petitioner has not allegedly used the licencee arms and was acquitted by the Trial Court, is no ground to cancel the arms licence. 11. This Court in the case of Sukhdev Singh v. State of Uttarakhand and others reported in 2014 (2) UD, 207, in paragraph no. 9, has held as under : “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.” 12. In the case of Rajesh Kumar Shah v. State of Uttarakhand and others reported in 2015 (1) UD, 96, in paragraph Nos. 4 & 5, this Court has held as under : “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.” 13. In view of the above discussions, petition succeeds and is hereby allowed. Impugned orders are hereby quashed. 14. CLMA No. 14084 of 2012 also stands disposed of accordingly.