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2015 DIGILAW 3810 (ALL)

MOHD. SHAHID v. STATE OF U. P.

2015-12-04

RAN VIJAI SINGH

body2015
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Mohd. Umar Khan, learned counsel for the petitioner and the learned standing counsel for the respondents. 2. Through this writ petition the petitioner has prayed for issuing a writ of certiorari quashing the order dated 5.2.2015 passed by the District Magistrate, Shamli and the order dated 28.5.2015 passed by the Commissioner, Saharanpur Division, Saharanpur. 3. vide order dated 5.2.2015 the petitioner’s fire-arm licence was cancelled by the District Magistrate while deciding Case No. 7/2012-13 (State v. Shahid) whereas by the subsequent order dated 28.5.2015 the Commissioner, Saharanpur Division Saharanpur has dismissed the appeal No. 02 of 2015 C2015090000228 (Shahid v. State) filed by the petitioner against the order of cancellation order dated 5.2.2015. 4. While assailing the impugned orders, learned counsel for the petitioner contends that the petitioner’s fire-arm licence has been cancelled on vague ground only on the basis of the police report without any concrete material to show that the petitioner has ever opened fire from his revolver or misused the fire-arm, therefore, the impugned orders cannot be sustained in the eye of law. 5. The facts giving rise to the present case are that the petitioner is a licence holder of Fire-arm Licence No. 4872 (Revolver). Against him a show-cause notice was issued on 18.2.2013 requiring the petitioner to file his reply to the report submitted by the Station Officer, P.S. Kotwali, district Shamli. Show-cause notice dated 18.2.2013 is not on record. However, the petitioner has annexed another notice issued to him on 14.6.2014 by the Sub Divisional Magistrate, Shamli. The petitioner has filed reply to the show-cause notice denying the allegations made in the show-cause notice. Since the notice has not been annexed with the writ petition and the District Magistrate, Shamli, in his order dated 5.2.2015, has not discussed the contents of the notice, therefore, the reason for issuing show-cause notice can only be gathered from the petitioner’s reply and the observations made by the District Magistrate in his order. From the perusal of which, it transpires that in the Panchayat election on 12.3.2013, the petitioner had opened fire amongst public by showing his anger/anguish. The date on which he opened fire, Section 144 of the Cr.P.C. was in force and in this way, the petitioner has misused his fire-arm. In the reply, the petitioner has denied the allegations of opening fire. The date on which he opened fire, Section 144 of the Cr.P.C. was in force and in this way, the petitioner has misused his fire-arm. In the reply, the petitioner has denied the allegations of opening fire. The First Information Report was lodged by the respondent, being case crime No. 23/13 under Section 188 Cr.P.C. (State v. Manish). It is stated that the petitioner is an employee in V.V. Inter College, Shamli and resides in Village Gulshan Nagar, Shamli, therefore, there was no occasion for him to open fire. 6. Considering the contends of the show-cause notice and the petitioner’s reply, the District Magistrate, vide order dated 5.2.2015, cancelled the petitioner’s fire-arm licence on the ground that the petitioner is a man of ill-repute and since he has misused his fire-arm, therefore, in the public interest, it would not be proper to continue his fire-arm licence. 7. Aggrieved by the aforesaid order, the petitioner filed Appeal No. 02 of 2015/C-2015090000228 (Shahid v. State of U.P.). The appeal too has been dismissed by the Divisional Commissioner. 8. It is submitted by the learned counsel for the petitioner that on the vague assertions, without there being any plausible reason, the petitioner’s fire-arm licence has been cancelled, which cannot be sustained in the eyes of law. 9. Refuting the submissions of learned counsel for the petitioner, learned standing counsel submits that since the petitioner has opened fire on the eve of the election in the midst of public and terrorized the atmosphere, therefore, no infirmity can be attached to the impugned orders passed by the District Magistrate as well as the Divisional Commissioner. 10. I have heard learned counsel for the parties and perused the records. 11. For appreciation, it would be necessary to go through the relevant provisions, under which fire-arm licence can be suspended/cancelled. Section 17 of the Arms Act deals with eventualities under which fire-arm can be cancelled, which is reproduced hereinunder: “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 specified in the notice. 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 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.” 12. From the perusal of the aforesaid provisions, it appears that the power has been exercised by the District Magistrate vested in him under sub-clauses (b) and (d) of sub-section (3) of Section 17, i.e., for the reason to secure public peace and public safety and breach of conditions of fire-arm licence. Undoubtedly, if a fire-arm licencee in any way, disturbs the public peace and safety and breaches the conditions of fire-arm licence, the Licensing Authority may exercise his/her power and suspend/cancel the fire-arm licence, but the question would be on what parameters, satisfaction with regard to the breach of public peace and public safety and breach of conditions of fire-arm licence can be accorded or arrived at? 13. 13. Here in this case, as would appear from the impugned order passed by the District Magistrate, Shamli, the police report contains that the petitioner has opened fire and terrorized the atmosphere while Section 144 of the Cr.P.C. was in force. A First Information Report, to that extent, was also lodged, but the petitioner, in his reply, has stated that the First Information Report is unnamed. The District Magistrate, while passing the impugned order dated 5.2.2015, has no where recorded that in the First Information Report, petitioner is named and he has misused the fire-arm. Undoubtedly, the Licensing Authority is vested with the power of suspension/cancellation of the fire-arm licence, but the power has to be exercised in a judicious manner. 14. A Division Bench of this Court in the case of Satish Singh v. District Magistrate, Sultanpur, 2009(4) ADJ 33 (LB), has observed as under : “Needless to say that right to life and liberty are guaranteed under Article 21 of the Constitution of India and the arms licenses are granted for personal safety and security after due inquiry by the authorities in accordance with the provisions contained in Arms Act, 1959. The provisions of Section 17 of the Arms Act with regard to suspension or cancellation of arms licence cannot be invoked lightly in an arbitrary manner. The provisions contained under Section 17 of the Arms Act should be construed strictly and not liberally. The conditions provided therein, should be satisfied by the authorities before proceeding ahead to cancel or suspend an arms licence. We may take notice of the fact that for any reason whatsoever, the crime rate is raising day by day. The Government is not in a position to provide security to each and every person individually. Right to possess arms is statutory right but right to life and liberty is fundamental guaranteed by Article 21 of the Constitution of India. Corollary to it, it is citizen’s right to possess fire-arms for their personal safety to save their family from miscreants. It is often said that ordinarily in a civilized society, only civilized persons require arms licence for their safety and security and not the criminals. Of course, in case the Government feels that arms licence are abused for oblique motive or criminal activities, then appropriate measures may be adopted to check such mal-practice. It is often said that ordinarily in a civilized society, only civilized persons require arms licence for their safety and security and not the criminals. Of course, in case the Government feels that arms licence are abused for oblique motive or criminal activities, then appropriate measures may be adopted to check such mal-practice. But arms licence should not be suspended in a routine manner mechanically, without application of mind and keeping in view the letter and spirit of Section 17 of the Arms Act.” The same view has been taken by this Court in Haseeb Ahmed @ Rassu v. The Commissioner, Kanpur Mandal Kanpur and others, 2012(10) ADJ 27 . 15. From the perusal of the impugned order, it transpires that the District Magistrate has no where recorded his own satisfaction considering the petitioner’s reply that it is the petitioner who has opened fire and breached the public peace and public safety. In fact, there was no material before the District Magistrate to arrive at this conclusion. The fire-arm licences are issued only after due verification of the persons who desire to obtain a fire-arm licence. The police reports are obtained and other inquiries are also made regarding the character and credential of the person desiring to have a fire-arm licence. The District Magistrate has recorded that the petitioner is a man of ill-repute and of furious nature, this finding is self-contradictory and does not suggest that if the petitioner was a man of ill-repute and of furious nature then why fire-arm licence was issued to him. It has nowhere been recorded that prior to the present incident, the petitioner has ever misused his fire-arm or any criminal case is pending against him. Merely on the basis of police report, that too without based on any concrete material, in my view, an opinion could not be formed by the Licensing Authority for cancellation of the petitioner’s fire-arm licence. Once the statute confers the power upon the authority to cancel or suspend the licence on the basis of police report or otherwise, the authority empowered under the statute ought to apply his own mind independently looking into the contents of the police report, reply of the licencee and other attending circumstances. Passing of an order treating the police report sacrosanct is neither desirable nor intention of the Legislature. Passing of an order treating the police report sacrosanct is neither desirable nor intention of the Legislature. Before the licensing authority, the police report is to be treated on the one side and reply of the licensee on another side and thereafter, after perusing the record and other attending circumstances opinion for cancellation suspension should be formed independently which part is lacking here as there was no concrete material before the licencing authority to arrive at that it is the petitioner who has been instrumental in breach of public peace and safety. 16. Learned standing counsel appearing for the State respondents could not show, either from the perusal of the impugned order passed by the District Magistrate or from the order passed by the learned Commissioner, any material substantiating the allegations of misuse of fire-arm by opening fire in the public resulting in breach of public peace or public safety. The only basis is the police report, which has been denied by the petitioner, except this there is no material, therefore, in my considered opinion, the Licensing Authority has erred in cancelling the petitioner’s fire-arm licence and misused his power for cancellation of fire-arms licence vested in him. The appellate authority too has committed the same error by not considering the grounds of appeal and dismissing the same on the reasons recorded by the District Magistrate without there being any application of mind. Therefore, impugned orders passed by the District Magistrate as well as Commissioner cannot be sustained in the eye of law. 17. The writ petition succeeds and is allowed. The order dated 5.2.2015 passed by the District Magistrate, Shamli in Case No. 7/2012-13 (State v. Shahid) as well as the order dated 28.5.2015 passed by the Commissioner, Saharanpur Division, Saharanpur in appeal No. 02 of 2015 C2015090000228 (Shahid v. State) are hereby quashed. The District Magistrate, Shamli is directed to take follow up action within a shortest period of two weeks in accordance with law from the date of receipt of certified copy of the order of this Court. ———————