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2016 DIGILAW 1637 (GUJ)

Ranchoodbhai Hamirbhai Samand v. State of Gujarat

2016-08-04

A.J.DESAI

body2016
JUDGMENT : A.J. Desai, J. 1. By way of the present writ petition filed under Articles 14, 19, 21 and 227 of the Constitution of India, the petitioner has challenged the order dated 31.05.2012 passed by the District Magistrate, Surendranagar refusing to grant license for NP bore revolver/pistol for his self protection under the provisions of the Arms Act, 1959 as well as the order dated 10.03.2015 passed by the Deputy Secretary, Home Department, State of Gujarat, by which the appeal preferred by the present petitioner challenging the order of the District Magistrate, Surendranagar is confirmed by dismissing the appeal. 2. Pursuant to notice issued by this Court, respondent authority has filed affidavit-in-reply opposing grant of any relief. 3. Learned advocate appearing for the petitioner has also filed affidavit-in-rejoinder. 4. Brief facts of the case arise from the record are as under: 4.1. That the petitioner, who is a resident of village Thangadh, Taluka Chotila, District Surendranagar made an application to the District Magistrate, Surendranagar under Section - 13 of the Arms Act, 1959 (hereinafter referred to as 'the Act') on 20.12.2011 and requested to grant a licence of MP bore revolver/pistol for his self protection since he is having huge agricultural land admeasuring H. Aare. Sq. Mtrs. 14.03.26 and has to visit various places in the State of Gujarat for selling the agricultural produce and has to carry huge cash with him. It is also the case of the petitioner that he is also having one truck and also maintaining a JCB machine. 4.2. The District Magistrate, Surendranagar, after calling upon the police report and after considering the same and also after hearing the petitioner, refused to grant the licence on the ground that there is adverse opinion against the petitioner. 4.3. The said decision was challenged by the petitioner by way of filing appeal under Section - 18 of the Act being Appeal No. 564 of 2014 before the Deputy Secretary, Home Department, State of Gujarat and the Deputy Secretary, after considering the material available on record and after giving an opportunity of hearing to the petitioner, dismissed the appeal and confirmed the order passed by the District Magistrate, Surendranagar. 4.4. Hence, this petition. 5. Mr. Harivadan Mishra, learned advocate appearing for the petitioner, has vehemently submitted that the authority has refused to grant the licence on extraneous and irrelevant grounds. 4.4. Hence, this petition. 5. Mr. Harivadan Mishra, learned advocate appearing for the petitioner, has vehemently submitted that the authority has refused to grant the licence on extraneous and irrelevant grounds. He would submit that the petitioner has produced sufficient material with regard to the ownership of land, necessary documents with regard to ownership of truck and JCB Machine etc. He would further submit that the petitioner is mainly dealing with the agricultural produce in different small villages and there may not be availability of banking or ATM facilities as observed by the appellate authority. He would further submit that the transactions for agricultural produce are normally dealt with by cash transactions and therefore, the observations made by both the authorities about the availability of banking as well as ATM facilities etc. cannot be treated as sufficient reasons for rejecting the application. 6. He would further submit that there are no antecedents against the present petitioner and therefore, the police officers have, without any basis, given an adverse opinion. He would submit that the officers have not opined that if the licence is issued to the petitioner, there would be imminent danger to public at large and therefore, the authority have committed grave error in rejecting the application. He would further submit that the authority can refuse to issue the licence, for which the reasons provided under Section - 14 of the Act. He would further submit on the contrary, in Sub-section - 2 of Section - 14 of the Act, it is made mandatory for the authority not to refuse to grant the licence to any common person merely on the ground that such person does not hold or possess such property. In the present case, he is having huge land in the village and doing business as referred herein above and therefore, the reasons assigned by both the authorities below are arbitrary, unreasonable and not in accordance with law and therefore, the orders passed by both the authorities below are required to be quashed and set aside. 7. In support of his case, he has relied upon the decision of this Court in case of Sohrab Jehangir Bamji V. State of Gujarat through Deputy Secretary & Anr. 7. In support of his case, he has relied upon the decision of this Court in case of Sohrab Jehangir Bamji V. State of Gujarat through Deputy Secretary & Anr. reported in 2011 (3) GCD 2621 (Guj), in case of Sweety Kumari @ Rekha V. State of Bihar of Patna High Court reported in 2001 (4) PLJR 79 and also relied upon unreported decision of this Court in case of Bhupatbhai Dahabhai Khachar V. Stated of Gujarat passed in Special Civil Application No. 10045 of 2013 dated 25.03.2014 and would submit that the petition be allowed and the orders passed by both the authorities below be quashed and set aside. 8. On the other hand, Mr. K.M. Antani, learned AGP, has opposed this petition and submitted that both the authorities below have not committed any error in passing the impugned orders. He would further submit that though the case is put forward by the petitioner that he is dealing with crores of rupees, the income tax returns do not support the case of the petitioner. He would further submit that it is the case of the petitioner that he is dealing with the agricultural produce by cash transactions, however, nothing is produced in support of his application. Therefore, the authorities below have rightly rejected the application submitted by the petitioner. He would further submit that it is the case of the petitioner that he is having huge agricultural land but the same is not only the ground, for which the petitioner can ask for license under the Arms Act. By taking me through the impugned orders, he would submit that the appellate authority has dealt with the case of the petitioner in detail and has considered the bank statement and income tax returns and has come to the conclusions that there is no imminent requirement of the petitioner for licence. He would further submit that the Ministry of Home Affairs, Union of India has issued guidelines on 31.03.2010 and has directed the concerned officer/s to follow the same before issuance of licence. He would further submit that the Police Sub Inspector and Deputy Superintendent of Police, Surendranagar have forwarded their opinion to concerned District Superintendent of Police, Surendranagar about the say of the petitioner with regard to dealing with cash transactions but the same is not correct for issuance of the licence to the petitioner. He would further submit that the Police Sub Inspector and Deputy Superintendent of Police, Surendranagar have forwarded their opinion to concerned District Superintendent of Police, Surendranagar about the say of the petitioner with regard to dealing with cash transactions but the same is not correct for issuance of the licence to the petitioner. The opinion of the Deputy Superintendent of Police, Surendranagar has been confirmed by the District Superintendent of Police, Surendranagar. He would further submitted that the authorities below have followed the guidelines issued by the Union of India. He would further submit that under the said guidelines, it has been categorically observed that no licence be issued without police verification and report about the antecedent and threats under the Arms Act. 9. In support of his case, he has relied upon unreported decision of the Allahabad High Court in case of State of Uttar Pradesh & Ors. V. Mahipat Singh passed in Special Appeal No. 62 of 2014 dated 15.01.2014, wherein it has been held by the Division Bench that a person cannot ask for licence as a right and the authority has to consider the case considering the facts and circumstances put forward in the matter. He, therefore, submit that the petition be dismissed. 10. I have heard learned advocates appearing for the respective parties. Before dealing with the case on hand, I would like to state that learned AGP, Mr. K.M. Antani, has today produced the reports from the police personnel i.e. one from Police Sub Inspector, Thangadh Police Station, second from Deputy Superintendent of Police, Surendranagar and third from District Superintendent of Police, Surendranagar. The undisputed facts appear from the record are that the agricultural land admeasuring H. Aare-Sq. mtrs. 14.03.26 situated at village Mandasar, is in joint ownership of the petitioner and his mother and the same is being cultivated by the petitioner himself and after harvesting the crops, the petitioner has to visit the market yards at different places in the State of Gujarat for selling the said crops. It is of a common knowledge that such transactions of agricultural produce do take place by cash transactions and therefore, in my opinion, I find substance in the say of the petitioner that he has to travel at different places by carrying cash with him. It is of a common knowledge that such transactions of agricultural produce do take place by cash transactions and therefore, in my opinion, I find substance in the say of the petitioner that he has to travel at different places by carrying cash with him. He is having a truck and is also maintaining JCB machine, which are being taken to interior parts of the district and therefore, the authority, without dealing with the important aspect, has rejected the application only on the ground of availability of the internet banking and ATM facilities etc. to the petitioner. 11. The relevant provisions of Sections - 13 and 14 of the Act read as under: "13. Grant of licences:- (1) An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed. (2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time. (2A) The licensing authority, after such inquiry, if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same: Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report. (3) The licensing authority shall grant- (a) a licence under section 3 where the licence is required- (i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection: Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection, or (ii) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognized by the Central Government; (b) a licence under section 3 in any other case or a licence under section 4, section5, section 6, section 10 or section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same." 14. Refusal of licences.- (1) Notwithstanding anything in section 13, the licensing authority shall refuse to grant- (a) a licence under section 3, section 4or section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition; (b) a licence in any other case under Chapter II,- (i) where such licence is required by a person whom the licensing authority has reason to believe- (1) to be 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 (2) to be of unsound mind, or (3) to be for any reason unfit for a licence under this Act; or (ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence. (2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property. (2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property. (3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person 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." 12. It is true that the licensing authority has to rely upon the police report while considering the application made by the individual for issuance of licence under Section -13 of the Act. 13. If the above referred police report is perused, it appears that the Police Sub Inspector, Thangadh within whose jurisdiction, the petitioner is residing, opined in favour of the petitioner and has also opined that the licence be issued for his self protection. If the subsequent report of the Deputy Superintendent of Police, Surendranagar is perused, which discloses that the petitioner can deal with the transactions by banking as well as ATM facilities and the same is opined by the District Superintendent of Police, Surendranagar. Neither it is the case of the respondent nor it has been observed by the respondent that the petitioner is a head strong person or he is having any antecedents nor it has been observed by the respondent that if the licence is issued in favour of the petitioner, there would be threats to public at large and therefore, in my opinion, the authorities below have rejected the application on the extraneous ground under Section 14(b)(i)(3) of the Act, which empowers the authority to refuse to grant the license for such reasons, which would make the petitioner unfit for getting the licence under the Act. However, I do not find any just reason for rejecting the application submitted by the petitioner. It is true that getting license is not a right of an individual as held by the Division Bench of the Allahabad but the authority concerned has to decide the case considering the facts and circumstances in each case. Therefore, I hold that the orders passed by the authorities below are unreasonable and without any substance. Hence, the petition is allowed. Therefore, I hold that the orders passed by the authorities below are unreasonable and without any substance. Hence, the petition is allowed. The orders dated 31.05.2012 passed by the District Magistrate, Surendranagar refusing to grant license for NP bore revolver/pistol for his personal safety under the provisions of the Arms Act, 1959 ass well as the order dated 10.03.2015 passed by the Deputy Secretary, Home Department, State of Gujarat is hereby quashed and set aside. Rule is made absolute.