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2015 DIGILAW 729 (GUJ)

JAYESH BHIMJI SHERAJI v. STATE OF GUJARAT

2015-07-27

N.V.ANJARIA

body2015
JUDGMENT : N.V. ANJARIA, J. 1. The petitioner has challenged in this petition filed under Article 226 of the constitution, the orders passed by the competent authorities under the Arms Act whereby restoration of licence of the petitioner for possessing arm-gun is refused. 2. The District Magistrate rejected the application of the petitioner by his order dated 21st June, 2012. The Appellate Authority dismissed Appeal No.674 of 2012 by impugned order dated 21st May, 2015 confirming the order of the District Magistrate. 3. The facts of the case are always relevant, hence, may be set out. The case of the petitioner is that he is a businessman having dealership of two companies-one is an American based company, having factory at Pune, which manufactures engines used in fishing boats, ships and trucks; the petitioner is also a dealer of another company situated at Kohlapur which manufactures gear boxes and marine spare parts. As per the say and averment in the petition, these are notorious people operating in his field and therefore he had applied for a revolver licence. It was stated that the authorities had given no-objection permitting the petitioner to purchase and have 0.32 bore revolver. 3.1 The licence to have an arm-the gun was granted and was renewed upto December, 2009. The petitioner's further case, as averred in paragraphs 2.5 and 2.6 of the petition, that on 25th October, 2008, one notorious person named Kharva Narsi Babu Masani rushed on to the petitioner at a place called Palana Chowk area, had a scuffle with the petitioner and snatched away the revolver of the petitioner. It is the case of the petitioner that he gave report upto the highest police authorities. It is the further case of the petitioner that said Babu Narsi concocted a story and filed a First Information Report against the petitioner. Criminal Case No. 4096 of 2008 came to be registered against the petitioner. Upon filing of F.I.R. agaisnt the petitioner, his licence was cancelled on 29th November, 2008. 3.2 Against the order dated 29th November, 2008 aforesaid, the petitioner preferred appeal, which came to be dismissed in absence of petitioner. This court by order passed in Special Civil Application No.9479 of 2011, remanded the matter for fresh decision. The District Magistrate rejected the case of the petitioner on 21st June, 2012 on the ground that the petitioner, though acquitted, could still commit offence. This court by order passed in Special Civil Application No.9479 of 2011, remanded the matter for fresh decision. The District Magistrate rejected the case of the petitioner on 21st June, 2012 on the ground that the petitioner, though acquitted, could still commit offence. As stated above, the appeal was also dismissed, which is the order impugned herein. 4. Learned advocate for the petitioner Mr. E.H. Qureshi vehemently submitted that the ground on which the orders are passed are not sustainable in law. According to him the Appellate Authority repeated the error committed by the District Magistrate. He submitted that Authorities guided themselves by the criminal case which was registered against him, but overlooking that the petitioner was acquitted. Learned advocate for the petitioner took exception to the reason of the Appellate Authority in particular that it observed that the petitioner was likely to misuse the licence and commit crime if the licence is restored. He further submitted that the Appellate Authority further erred in placing reliance on the opinion of the police authority, which he submitted could not be a sole consideration. He submitted that refusal of licence to possess arm is governed by the considerations mentioned in Section 17 of the Act and that the Authorities cannot act on their ipsi dixi. 4.1 Learned advocate for the petitioner relied on decision of this Court in Kumarbhai Laljibhai Malhotra Vs. State of Gujarat through Home Secretary and another of this Court in Special Civil Application No. 8273 of 2005, in particular paragraph 7 thereof. He next relied on Allahabad High Court decision in Ram Murti Madhukar Vs District Magistrate, Sitapur [1999 CRI.L.J 3712]. Both the said decisions were relied on to emphasise that mere pendency of criminal case is not a sufficient ground to refuse the licence for arm. A decision of Andhra Pradesh High Court in Gianoba and another Vs The Collector (Additional District Magistrate) Medak [1967 Cri.L.J. 1713] was relied on to submit that the respondent authorities failed to apply mind while rejecting the case of the petitioner for having the licence. A decision of Andhra Pradesh High Court in Gianoba and another Vs The Collector (Additional District Magistrate) Medak [1967 Cri.L.J. 1713] was relied on to submit that the respondent authorities failed to apply mind while rejecting the case of the petitioner for having the licence. A decision in C.P. Raman Nair Vs Additional District Magistrate, Kozhikode and others, AIR 1968 Kerala 65 of the Kerala High Court was referred to and relied on and contend that in that case cancellation of licence was sought to be justified on ground (b) of sub-clause (3) of Section 17, namely security of the public and public safety, and the High Court of Kerala held that the material did not justify the ground on which the cancellation was based and it was obligatory for the authority to record reasons. Learned advocate further relied on a Madras High Court decision in Murugan Vs Special Commissioner of Revenue Administration being Writ Petition No.12051 of 2009 decided on 24th September, 2011, in particular paragraph 9, 12, 13 and 14 thereof and submitted that only because the police officer’s report was not favourable, that could not have been the sole ground to deny the grant of licence. 4.2 Learned advocate for the petitioner in the next went on to contend that the right to carry an arm, specially non-prohibited fire arm, is a fundamental right of the petitioner flowing from Article 21 of the Constitution. He supported his submission by pressing into service a decision of Allahabad High Court in Ganesh Chandra Bhatt Vs District Magistrate, Almora [ AIR 1993 All 291 ]. 4.3 On the other hand, learned Assistant Government Pleader Mr.Manan Mehta supported the impugned order and submitted that the ground on which the licence to possess arm was denied to the petitioner was legitimate. The petitioner was found involved in a criminal incident and a criminal case was registered pursuant to F.I.R. filed. In the said context, submitted learned Assistant Government Pleader, that the ground supplied by the authorities that the petitioner may misuse the arm and breach of peace may result was germane. Learned Assistant Government Pleader also submitted that the report by the police authority did not favour granting of arm’s licence to the petitioner. 5. In the said context, submitted learned Assistant Government Pleader, that the ground supplied by the authorities that the petitioner may misuse the arm and breach of peace may result was germane. Learned Assistant Government Pleader also submitted that the report by the police authority did not favour granting of arm’s licence to the petitioner. 5. Before proceeding further, the contention raised on Allahabad High Court judgment in Ganesh Chandra Bhatt (supra) canvassed by learned advocate for the petitioner that right to possess arm is a fundamental right, may be first disposed of. The Allahabad High Court in Ganesh Chandra Bhatt (supra) took the view that right to carry non-prohibited arm is embedded in right to life. In that case the petitioner had applied for a licence for a revolver on the ground that he owns factory and other properties and arm was needed for security of his life and the property. The police report indicated that petitioner had no criminal antecedence, yet grant of licence was not recommending. The aggrieved petitioner approached High Court observed that right to carry arm was part of Article 21. The Allahabad High Court observed that since the time of British India in every house there were some arms, that on Dusshera day arms are worship, that in Mahabharat, the longest epic of the whole world, is full of stories of use of arms, etc; the Court proceeded to went into the events in the British Raj relating to mutiny of 1957 and the legislation on the possession of arm enacted by the British. 5.1 The Allahabad High Court then considered the objects and reasons of the Arms Act, 1959. The High Court opined that the situation in the country was worse in terms of law and order with the following observation. “The situation in the country today is that law and order has deteriorated to a very great extent. Mafia type gangs have established a reign of terror in many cities, and violence, kidnapping and extortion are rampant. Some parts of the country are terrorist infested; and even in other parts hoodlums with country made weapons are on the rampage. Peaceful and law abiding citizens are often afraid to stir out of their houses after dark or to go to certain places. Some parts of the country are terrorist infested; and even in other parts hoodlums with country made weapons are on the rampage. Peaceful and law abiding citizens are often afraid to stir out of their houses after dark or to go to certain places. The recent murder of the entire family of a Doctor in Allahabad whose throats were cut is a blaring example of the prevailing situation in which peaceful and law abiding citizens are placed. When we interpret and Act we must take into consideration the existing social conditions and we cannot interpret in a hyper technical or highly abstract manner which has no connection with the existing social reality. Hence in my opinion the correct interpretation of Sections13, 14 and 15 of the Arms Act is that every application for a non prohibited weapon must normally be allowed, and this must be done within three months of filing of the said application. If the application is rejected, this must be done only in very exceptional cases for good reasons recorded in writing and communicated to the applicant within three months of the application.” (Para 17) “The view I am taking will make the provisions of Sections 13 to 15 in conformity with Article 21 of the Constitution.” (Para 18) 5.1.1 The Court then proceeded to state:- “Article 21 states “No person shall be deprived of his life or personal liberty except according to procedure established by law. (Para 19) “In my opinion the right to bear arms is embedded in Article 21 of the Constitution, and hence it is a fundamental right. No doubt this right, like all fundamental rights, is subject to reasonable restrictions, but the reasonability of the restriction must be judged from the point of view of the prevailing social conditions, and not in the abstract. Hence what may have been reasonable earlier may no longer be reasonable today.” (Para 20) 5.2 It is difficult to endorse to the view expressed by the Allahabad High Court in laying down such a preposition. It is under the provisions of the Arms Act, 1959 that licence is granted to possess arm. The statute fixes norms and parameters in its relevant Provision for issuing and allowing a licence to possess an arm. It is under the provisions of the Arms Act, 1959 that licence is granted to possess arm. The statute fixes norms and parameters in its relevant Provision for issuing and allowing a licence to possess an arm. It is one thing that an individual is permitted to have a licence to carry and possess an arm on satisfaction of prescribed conditions and within the bounds of the law, but it is too wide a proposition to be countenanced in its absoluteness that right to possess arm is a fundamental right flowing from Article 21 of the Constitution. 5.3 The concept of “personal liberty” under Article 21 in its ambit cannot extend to include a right to hold, possess or carry arm of whatever kind. The ideal of personal liberty enshrined under Article 21 and accorded to every person may be enjoyed by an individual keeping in view the collective claims of the society governed by rule of law where law enforcing agencies operate to maintain law and order. It is a consideration to be taken into account that a misuse of arm's licence given to an individual is prevented and even apprehension is allayed for that. An individual cannot be permitted to carry or possess arm as part of his “personal liberty”. Such a carte blanche would be unknown to the very idea of personal liberty conferred under Article 21 in a democratic society. Right to carry arm is neither fundamental, nor can be fundamentally claimed. It is right confirmed under the statute and has to be claimed and enjoyed within the corners of the statutes. 5.4 The contention that refusal to grant licence can be only on the grounds stated in Section 14 or that for revocation of licence the provisions of Section 17 would apply, does not carry the case of the petitioner any further or any higher. One of the grounds mentioned in the provision which permits the authority to revoke the licence is where the licencing authority deems it necessary to revoke, etc., for the security of public, public peace or public safety. It can hardly be said that these constitute valid guide-lining aspects for grant and restoration of licence as well. A claim for licence to possess arm cannot be viewed as a right in itself, much less an absolute right. It can hardly be said that these constitute valid guide-lining aspects for grant and restoration of licence as well. A claim for licence to possess arm cannot be viewed as a right in itself, much less an absolute right. Licence to possess and hold an arm, whether prohibited or non-prohibited, is governed by the statutory provisions under the Arms Act, 1959 and granting of the licence depends upon a host of relevant considerations. On all rational grounds which are not contrary to the express statutory provisions, are germane for refusing the licence. In a society governed by democratic system and rule of law, and where law operating machinery and law enforcing agencies function at all levels, grant of licence to an individual to hold an arm should be allowed minimal and in case of strong necessity. It is only in cases where a person works, operates his business or avocation or lives life in a highly insecure situation and whose life and property are under a constant threat or who needs to be allowed an arm for other valid reasons, which should guide the grant of individual arm’s licence in accordance with the provisions of the Arms Act. 6. Reverting now to the present case, going into the factual arena and grounds considered for denial of restoration of licence by the competent authority functioning under the Act, it is an admitted position that against the petitioner, an F.I.R. was lodged wherein the offence under Sections 323, 147, 148, 149, 504, 506(2) of the Indian Penal Code and the offence under Section 30 of the Arms Act, 1959 were alleged. An incident took place wherein the 33-bore revolver which was possessed by the petitioner under a licence granted to him was put to use and was actually operated for firing shots. It is an admitted position that shots were fired from the said revolver during the clash resulting out of some private rivalry. The licence to the petitioner was granted on his plea that it was needed to secure his safety as his partnership business had heavy financial turn over. Pursuant to incident where the revolver was used, the gun shots were fired, and the petitioner was involved, criminal case was registered. The licence to the petitioner was granted on his plea that it was needed to secure his safety as his partnership business had heavy financial turn over. Pursuant to incident where the revolver was used, the gun shots were fired, and the petitioner was involved, criminal case was registered. 6.1 The say and the defence of the petitioner that he himself had not fired the shots from the revolver, but the revolver was snatched away from him and somebody else used it to trigger the fire, is hardly decisive when it comes to the consideration of grant and restoration of licence. The involvement of the petitioner in a criminal incident wherein the licenced arm was used, is itself a relevant material on the basis of which the competent authorities could objectively form an opinion in the matter. Again, the acquittal from the criminal case by itself, cannot be put-forth as a ground to claim as of right the restoration of the licence specially in the facts and circumstances of this case. In fact, looking to the judgment and order the learned Judicial Magistrate, copy of which is produced on record of the petition, it is revealed that in respect of the offences punishable under Section 323 and 504, IPC, the complainant and accused persons had arrived at a compromise the case and a settlement was produced before the Court which was accepted. The trial was held for rest of the offences under Sections 147, 148, 149, 506(2), IPC, and resulted into the judgment. In the judgment, the factum of use of revolver of the petitioner was established. 6.2 Therefore the reason merely that a person was acquitted in the criminal case, may not be a ground which could be pressed in all circumstances for seeking entitlement to a grant of arms licence. The fact that the person or the applicant involved in a criminal activity or a law-breaking event and that an F.I.R. was registered against him is a good and valid ground to deny him a licence to hold arm or to refuse renewal of such licence. The totality of facts and circumstances in aggregate should be taken into account. The report of the Superintendent of Police concerned was against restoration of licence. The totality of facts and circumstances in aggregate should be taken into account. The report of the Superintendent of Police concerned was against restoration of licence. It may be that the police report is not a singular consideration to be taken into account, but when cumulatively taken, the authorities could not be said to have erred in relying on the opinion of the police. 6.3 What is required utmost is that the authority concerned has applied his mind to the question of grant or cancellation of licence and in his decisional process, relevant considerations have gone into. As already observed, these relevant aspects may include host of considerations to be applied. The decision of Andhra Pradesh High Court in Gionaba (supra) relied on by the petitioner underlines the very aspect in its following observations. “The Indian Arms Act, 1887 is now repealed and repealed by the Arms Act, 1959 which according to both the parties governs this case, and section 17 of this Act lays down the provisions for the revocation of the licences for Fire Arms under the Act and corresponds to S. 18 of the Indian Arms Act, 1887. Section 17 of the present Act is more exhaustive and deals with variation, suspension and revocation of licences, while S. 18 of the previous Act dealt only with cancellation and suspension of licences. Section 17 (5) makes it clear that where the licensing authority makes an order varying, suspending, or revoking a licence, it shall record in writing the reasons therefor and furnish to the holder of the licence on demand a brief statement of the same, except where it is not in public interests to furnish such statement. There can, therefore, be not doubt that the order cancelling the licence must be a speaking order, and must indicate the reasons in writing as to why the District Magistrate thought it necessary to cancel the gun licence, and also show that cancellation was necessary in the interests of public peace. There can, therefore, be not doubt that the order cancelling the licence must be a speaking order, and must indicate the reasons in writing as to why the District Magistrate thought it necessary to cancel the gun licence, and also show that cancellation was necessary in the interests of public peace. It is needless to state that the order must indicate that the authority cancelling the licence had applied its mind to the question, and come to its own conclusion.” 6.4 When the impugned order is based on the reasonsing that the petitioner was found involved in a criminal case wherein the licenced arm was used, and since Police Superintendent concerned had opined negative for restoring the arm’s licence to the petitioner, and on that basis the possibility of misusing the licence and indulging into criminal activities was foreseen by the competent authorities, the approach in refusing to restore the licence for possessing revolver cannot be said at all to be unreasonable or perverse. It was further observed that younger brother of the petitioner was holding a licence to possess arm. The ground that the petitioner had a security threat in view of their partnership business having large turn over, was negatived by the competent authority. The requirement of application of mind and basing the order on relevant considerations are satisfied in respect of the impugned order. The appellate authority did not commit any error in passing the impugned order. Both the authorities below have assessed the case of the petitioner for restoring the licence on relevant considerations and the reasons assigned could be validly applied in the facts of the case. Therefore the impugned order confirming the order passed by the District Magistrate is eminently just, proper and legal, not warranting interference in the extra-ordinary writ jurisdiction. 7. In light of aforesaid discussion and reasons, the impugned order does not require any interference. This petition is accordingly summarily dismissed.