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2016 DIGILAW 3049 (ALL)

Ghanshyam Gupta v. State of U. P.

2016-09-06

ASHWANI KUMAR MISHRA

body2016
JUDGMENT Ashwani Kumar Mishra, J. 1. This writ petition is directed against order dated 10th September, 2009 passed by the District Magistrate, Maharajganj, cancelling petitioner's firearm licence, as well as the order passed by the Commissioner dated 18.4.2011 affirming it in appeal, filed under Section 18 of the Arms Act, 1959 (hereinafter referred to as the 'Act'). 2. Petitioner claims to be a businessman, residing at Nichlaul Town of District Maharajganj. He was granted Licence No.2208 of a Revolver for his personal security. His firearm licence has been cancelled on the ground that petitioner is an accused in Case Crime No.22 of 2007 lodged under Sections 147, 148, 436, 427, 188 and 120-B IPC read with Section 3(1) of the Prevention of Damage to Public Property Act, 1984, and Section 7 of Criminal Law Amendment Act, Police Station Nichlaul, District Maharajganj. On account of pendency of said case crime against the petitioner, his firearm licence has been cancelled by District Magistrate, Maharajganj on 10.9.2009. 3. According to petitioner, he has been falsely implicated in the aforesaid case crime, and there is no allegation of misuse of firearm, which may justify cancellation of firearm licence. It is also stated that the order is based wholly upon assumptions, and cannot be sustained in view of the provisions contained under Section 17 of the Arms Act. 4. A counter affidavit has been filed stating that petitioner is an accused of Case Crime No.22 of 2007, in which serious allegation of damage to public property etc. have been levelled. It is stated that two UPSRTC Buses and other public property had been damaged in the incident, and trial is pending. 5. I have heard Sri B.K. Tripathi, learned counsel for the petitioner and learned Standing Counsel for the respondents, and have perused the records. 6. From the materials brought on record before this Court, it is apparent that petitioner was issued a licence of Revolver and there is no allegation of misuse of firearm by him. The only ground for cancellation is petitioner's implication in Case Crime No.22 of 2007. This is explained by stating that the local member of Parliament belonging to a particular party had been arrested, and a public agitation took place, in which more than 50 persons were shown as accused. Copy of the First Information Report has been annexed alongwith the counter affidavit. This is explained by stating that the local member of Parliament belonging to a particular party had been arrested, and a public agitation took place, in which more than 50 persons were shown as accused. Copy of the First Information Report has been annexed alongwith the counter affidavit. It is stated that there was no specific allegation levelled against any person. Petitioner also contends that he was falsely implicated at the instance of certain vested political interest. It is also argued that law is settled that mere pendency of a criminal case cannot otherwise be a ground to cancel firearm licence. In this regard, it would be relevant to note that jurisdiction vests in the licensing authority to revoke a firearm licence under Section 17 of the Arms Act. Sub-section (3)(b) of Section 17 of the Arms Act, 1959, which is relevant may be reproduced: - "17(3) The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence-- (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" 7. In the facts and circumstances of the present case, there is no allegation of misuse of firearm by the petitioner. There is further no finding based upon any relevant material or document on record to show that revocation of petitioner's firearm licence is necessary for security of public peace or for public safety. The mere fact that petitioner may misuse his firearm licence cannot be a ground to cancel the firearm licence. Mere pendency of a criminal case also cannot be a ground to cancel the firearm licence. This Court finds substance in the argument of petitioner that the criminal case have involved political implications, as it is claimed that violence broke out upon the arrest of member of Parliament, in which large number of persons including petitioner have been implicated. The trial is pending. There is no allegation of misuse of firearm against the petitioner. Though the licence had continued with petitioner for long, but apart from this incident, there is no other allegation of misuse of firearm by the petitioner. 8. In Illam Singh Vs. Commissioner Meerut Division and others, reported in 1987 ALJ 416, this Court has been pleased to observe as under: - "4. .... Though the licence had continued with petitioner for long, but apart from this incident, there is no other allegation of misuse of firearm by the petitioner. 8. In Illam Singh Vs. Commissioner Meerut Division and others, reported in 1987 ALJ 416, this Court has been pleased to observe as under: - "4. .... In the present case no incident of breach of security of the public peace or public safety at the behest of the petitioner has been pointed out. Even no report was lodged against the petitioner indicating that he used his gun in the incident which led to the breach of public peace or public safety. Even though some reports might have been lodged but that could not be said to be a sufficient reason to cancel the licence. See also Sheo Prasad Misra v. District Magistrate, Basti, 1978 All WC 122 and Sheo Shankar v. Sub-Divisional Magistrate, AIR 1973 All 293 . 5. In the instant case no incident of breach of public peace or public safety has been cited either in the notice or in the impugned orders. Just by making a vague allegation that the petitioner was keeping company with the bad elements of the society would not be covered by the clause "security of public peace" or 'for public safety' under S. 17(3)(b) of the Arms Act. There must be some positive incident in which the petitioner participated and used his gun which led to the breach of the public peace or public safety. In the absence of the use of the gun by the petitioner against the security of public peace or public safety the licence of the gun of the petitioner was not liable either to be suspended or revoked. ....." 9. In a recent decision of Lucknow Bench of this Court in Surya Narain Mishra Vs. State of U.P. and others, reported in 2015 (7) ADJ 510 , similar view has been taken by this Court relying upon subsequent decisions. Para-14 of the judgment is reproduced: - "14. In the case of Raj Kumar Verma Vs. State of U.P. , 2013 (80) ACC 231 this Court in paragraph No. 3 held as under: - "The ground for issue of show-cause notice, suspension and ultimately cancellation of the licence is that one and precisely one criminal case was registered against the petitioner. In the case of Raj Kumar Verma Vs. State of U.P. , 2013 (80) ACC 231 this Court in paragraph No. 3 held as under: - "The ground for issue of show-cause notice, suspension and ultimately cancellation of the licence is that one and precisely one criminal case was registered against the petitioner. The District Magistrate has also held that the petitioner has been enlarged on bail. He has gone further to observe that if the licence remained intact, the petitioner, may disturb public peace and tranquility. The same findings have been given by the Commissioner, Unmindful of the fact that this Court is repeating the law of the land, but the deaf ears of the administrative officers do not ready to succumb the law of the land. The settled law is that mere involvement in a criminal case without any finding that involvement in such criminal case shall be detrimental to public peace and tranquility shall not create the ground for the cancellation of Armed Licence. In Ram Suchi vs. Commissioner, Devipatan Division reported in 2004 (22) LCD 1643, it was held that this law was relied upon in Balram Singh vs. State of UP 2006 (24) LCD 1359 . Mere apprehension without substance is simply an opinion which has no legs to stand. Personal whims are not allowed to be reflected while acting as a public servant."" 10. For the reasons aforesaid, this Court is of the opinion that necessary ingredients to invoke jurisdiction of licensing authority in terms of Section 17 are clearly lacking, and no finding has been returned on the basis of materials produced in that regard by the licensing authority, which may justify passing of the order impugned. 11. In view of the discussions aforesaid, the writ petition succeeds and is allowed. Orders dated 10th September, 2009 and 18th April, 2011 are set aside. The licensing authority is directed to pass a fresh order, within a period of two months from the date of presentation of a certified copy of this order, keeping in view the observations made above.