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Allahabad High Court · body

2016 DIGILAW 3560 (ALL)

RAM CHARAN v. STATE OF U. P.

2016-10-25

RAKESH SRIVASTAVA

body2016
JUDGMENT Hon’ble Rakesh Srivastava, J.—The order dated 4.2.2009 whereby the fire-arm licence of the petitioner has been cancelled, and the order dated 30.11.2013 whereby the appeal preferred by the petitioner against the said order has been dismissed, are under challenge in the present writ petition. 2. The petitioner held a licence for D.B.B.L. Gun 9400-860. On the basis of an FIR dated 5.7.2007 lodged by one Smt. Prema Devi, a criminal case was registered against the petitioner as Case Crime No. 130 of 2007 under Sections 323, 294, 504, 506, 427 IPC at Police Station Paschim Sharira, District Kaushambi. On 22.6.2008, the Superintendent of Police, Kaushambi submitted a report to the District Magistrate, Kaushambi - the respondent No. 2 recommending revocation of fire-arm licence of the petitioner. The relevant portion of the report dated 22.6.2008 is extracted below: ^^vuqKkih jkepj.k iq= vo/kÁlkn feJ 23-6-2007 dks 4 cts 'kke dks ';keukjk;.k iq= lnkf'ko feJ fuoklh ljloka ds njokts ij tkdj mldh iRuh Áseknsoh dks xkyh xykSt djds tku ls ekjus dh /kedh nsrs gq, idM+dj v'yhy gjdr fd;k vkSj ekjkihVk] ftldk eq-v-la-&130@07 /kkjk 323@294@504@506 @427 Hkk-n-fo- iathÑr gqvk gSA 'kL= dk nq:i;ksx djrk gS rFkk ng'kr QSyk;s gq, gS] 'kL= cuk jgk rks dksbZ laxhu ?kVuk,a djsxk vkSj ng'kr QSyk,xkA blfy, 'kL= dk cuk jguk tufgr esa ugha gSA** 3. On 21.7.2009 the respondent No. 2 passed an order under sub-section (3) of the Arms Act, 1959 (for short the ‘Act’) suspending the fire-arm licence of the petitioner till the disposal of the criminal case mentioned above and requiring the petitioner to show-cause as to why his fire-arm licence be not cancelled. On 10.8.2008, the petitioner filed his reply to the show-cause notice refuting the allegations made against him. The respondent No. 2, thereafter passed the impugned order dated 4.2.2009, by means of which the fire-arm licence of the petitioner was cancelled/revoked. On 10.8.2008, the petitioner filed his reply to the show-cause notice refuting the allegations made against him. The respondent No. 2, thereafter passed the impugned order dated 4.2.2009, by means of which the fire-arm licence of the petitioner was cancelled/revoked. The relevant part of the said order is extracted below: ^^eSaus i=koyh ij miyC/k leLr vfHkys[kksa dk fof/kor voyksdu fd;kA i=koyh ij miyC/k leLr vfHkys[kksa ds voyksdu ds i'pkr eSa bl fu"d"kZ ij igq¡prk gw¡ dh foi{kh ,d ncax fdLe dk O;fDr gSA ftlds fo:) Fkkuk LFkkuh; esa eq-v-la- 130@07 /kkjk 323@294@504@506@427 vkbZ-ih-lh- esa vijk/k iathÑr gSA ,sls vkijkf/kd fdLe ds O;fDr ds ikl tufgr esa ykblsal j[kus ;ksX; ugha gSA foi{kh ds bl ÑR; dks n`f"Vxr j[krs gq, 'kL= ykblsal j[kus ;ksX; ugha gSA foi{kh ds bl ÑR; dks n`f"Vxr j[krs gq, 'kL= ykblsal dk cuk jguk tufgr] U;k;fgr ,oa 'kkafr O;oLFkk dh n`f"V ls mfpr ugha gSA** 4. The order dated 4.2.2009 passed by respondent No. 2 was assailed by the petitioner before the Commissioner, Allahabad Mandal, Allahabad - the respondent No. 3. During the pendency of appeal, by judgment and order dated 27.6.2013 passed by Sri Lal Babu Yadav, Judicial Magistrate, Kaushambi the petitioner was acquitted of the charges levelled against him in Case Crime No. 130 of 2007. On 30.11.2013, the respondent No. 3 rejected the appeal preferred by the petitioner. During the pendency of appeal, by judgment and order dated 27.6.2013 passed by Sri Lal Babu Yadav, Judicial Magistrate, Kaushambi the petitioner was acquitted of the charges levelled against him in Case Crime No. 130 of 2007. On 30.11.2013, the respondent No. 3 rejected the appeal preferred by the petitioner. The relevant portion of the order dated 30.11.2013 passed by the respondent No. 3 is extracted below: ^^vihydrkZ ds fo}ku vf/koDrk rFkk fo}ku 'kkldh; vf/koDrk ¼QkStnkjh½ dh cgl dks lquk rFkk voj U;k;ky; dh i=koyh esa miyCèk vfHkys[kksa o lk{;ksa dk voyksdu ,oa v/;;u fd;kA i=koyh ds voyksdu ls ;g Li"V gS fd iqfyl v/kh{kd dkS'kkEch fd vk[;k fnukad 22-6-2008 ds vk/kkj ij voj U;k;ky; }kjk uksfVl fuxZr dh x;hA vihydrkZ }kjk mDr uksfVl dk ÁR;qŸkj voj U;k;ky; ds le{k ÁLrqr fd;k x;kA vihydrkZ }kjk vius ÁR;qŸkj esa dgk x;k fd uksfVl esa of.kZr ?kVuk iw.kZr;k QthZ gS D;ksafd bl rjg fd dksbZ ?kVuk ugha gqbZ gSA vihydrkZ dks ijs'kku djus o mlds 'kL= ykblsal fujLr djk;s tkus gsrq >wBh ?kVuk dk lgkjk fy;k x;k gSA iqfyl v/kh{kd dh fjiksVZ esa Hkh 'kL= ds nq:i;ksx dk mYys[k ughs fd;k x;k gSA vihydrkZ }kjk xzke Á/kku ljloka] xzke Á/kku dqfe;kaoka rFkk xzke Á/kku vjkSyh rFkk xzke Á/kku vU/kkoka }kjk fuxZr i= Hkh ÁLrqr fd;k x;k ftlesa ;g mYys[k fd;k x;k fd vihydrkZ dk dHkh Hkh fdlh ls dksbZ fookn ugha gqvk gSA vihydrkZ dk dksbZ vkijkfèkd bfrgkl ugha gS vkSj u gh vkijkfèkd fdLe ds yksxksa ls ukrk gSA i=koyh ds voyksdu ls ;g ckr Li"V gS fd vihydrkZ ,d ncax fdLe dk O;fDr gS mlds fo:) 130@07 vUrxZr /kkjk 232@294@504@506@427 Hkk-n-fo- ntZ gqvk] ftlesas le{k U;k;ky; ds vkns'k fnukad 27-6-2013 }kjk mls nks"keqDr dj fn;k x;k gSA vkijkf/kd Áo`fr ds ikl 'kL= ykblsal cus jgus ls 'kL= ds nq:i;ksx dh lEHkkouk cuh jgrh gS] ftlds n`f"Vxr yksd 'kkafr ,oa yksd lqj{kk ds [krjk mRiUu gksus ds badkj ugha fd;k tk ldrkA mijksDr ds n`f"Vxr vihydrkZ dk vkjp.k tufgr esa yksd lqj{kk ,oa yksd O;oLFkk ds n`f"Vxr 'kL= j[kus ;ksX; u ik, tkus ds dkj.k voj U;k;ky; }kjk Á'uxr vkns'k ikfjr fd;k x;k gS] ftlesa fdlh Hkh Ádkj ls gLr{ksi dh vko';drk Árhr ugha gksrh gSA vr% voj U;k;ky; }kjk ikfjr mijksDr vkns'k ;Fkkor dk;e j[kk tkrk gSA vihydrkZ }kjk ÁLrqr vihy vk/kkjghu] rF;ghu gksus ds dkj.k fujLr dh tkrh gSA voj U;k;ky; dh i=koyh bl U;k;ky; }kjk ikfjr vkns'k dh Áekf.kr Áfr ds lkFk okil dh tk; ,oa vihy i=koyh jktLr vfHkys[kky; esa lafpr dh tk;A** Hence this writ petition. 5. Sri Vishesh Kumar, learned counsel for the petitioner, has submitted that the petitioner was implicated in a false criminal case in which he was ultimately acquitted. The counsel submits that mere involvement in a criminal case cannot in any way affect the public security or public safety and as such the fire-arm licence of the petitioner could not be cancelled. Consequently, the counsel submits, the impugned orders cancelling the fire-arm licence of the petitioner cannot be sustained and are liable to be set aside. 6. Per contra, learned Standing Counsel has supported the impugned order and has submitted that the writ petition is devoid of merit and deserves to be dismissed. 7. Heard learned counsel for the parties and perused the record. 8. Section 17 of the Act empowers the licensing authority to vary, suspend or revoke any fire-arm licence. Sub-section (3) of Section 17 of the Act being relevant is reproduced below : 17. Variation, suspension and revocation of licenses.— (1) & (2) (omitted as unnecessary) (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) to (10) (omitted as unnecessary) 9. (4) to (10) (omitted as unnecessary) 9. A perusal of sub-section (3) of Section 17 of the Act would show that the fire-arm licence could be suspended or revoked by the licensing authority inter alia on the following grounds : (i) if the licensing authority is satisfied that it was necessary for the security of the public peace or for the public safety to suspend or revoke the licence. (ii) if any of the conditions of the licence has been contravened. 10. Before dealing with the rival contentions advanced by the counsel for the parties, it will be appropriate to refer to the law bearing on the matter. 11. The distinction between the concept of public order and that of law and order has been adverted to by the Apex Court in a catena of decisions. The question whether a man has only committed a breach of law and order or acted in a manner leading to disturbance of public order is a question of degree of the reach of the act upon society is no more res integra. In the case in Dr. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740 , it was observed that the contravention ‘of law’ always affects ‘order’ but before it could be said to affect ‘public order’, it must affect the community or the public at large. One has to imagine three concentric circles, the largest representing “law and order”, the next representing “public order” and the smallest representing “security of State”. An act may affect “law and order” but not “public order”, just as an act may affect “public order” but not “security of the State”. 12. The principles settled way back in the year 1966 in the case of Dr. Ram Manohar Lohia (Supra) has been repeatedly quoted with respect and approval. 13. In Ram Murti Madhukar v. District Magistrate, Sitapur, 1998 (16) LCD 905, in paragrah 8 & 9 of the said report this Court has held as follows : “8. It is also well-settled in law that mere pendency of criminal case or apprehension of abuse of Arms Act, are not sufficient ground for passing of the order of suspension or revocation of licence under Section 17 of the Act. A reference in this regard may be made to the decisions of this Court in Ganesh Chandra Bhatt v. D.M. Almora (AIR 1993 Allahabad-291). 9. A reference in this regard may be made to the decisions of this Court in Ganesh Chandra Bhatt v. D.M. Almora (AIR 1993 Allahabad-291). 9. It is also well-settled in law that before passing of the order of suspension or revocation, under clause (b) of sub-section (3) of Section 13 of the Act, the licensing authority must apply its mind to the question as to whether there was eminent danger to public peace and safety involved in the case. Licence cannot be suspended or revoked on the ground of ‘Jan Hit’.” 14. In Habib v. State of U.P. and others, 2002 (44) ACC 783, in paragraph 3 & 4 of the said report it has been held as follows : “3. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of the licence under Arms Act, has been dealt with by a Division Bench of this Court reported in Sheo Prasad Misra v. The District Magistrate, Basti and others, wherein the Division Bench relying upon the earlier decision reported in Masi Uddin v. Commissioner, Allahabad, found that mere involvement in criminal case cannot in any way affect the public security or public interest and the order cancelling or revoking the licence of fire-arm has been set aside. The present impugned orders also suffer from the same infirmity as was pointed out by the Division Bench in abovementioned cases. I am in full agreement with the view taken by the Division Bench that these orders cannot be sustained and deserve to be quashed and are hereby quashed. 4. There is yet another reason that during the pendency of the present writ petition, the petitioner has been acquitted from the aforesaid criminal cases and at present there is neither any case pending, nor any conviction has been attributed to the petitioner, as is evident from Annexure SA-1 and II to the supplementary-affidavit filed by the petitioner. In this view of the matter, the petitioner is entitled to have the fire-arm licence. It is submitted by petitioner’s counsel that the petitioner has been acquitted of the charges.” 15. In Ashiq Hussain v. Commissioner, Moradabad and others, 2009(10) ADJ 635 in paragraph 6 of the report it has been held as under : “6. In this view of the matter, the petitioner is entitled to have the fire-arm licence. It is submitted by petitioner’s counsel that the petitioner has been acquitted of the charges.” 15. In Ashiq Hussain v. Commissioner, Moradabad and others, 2009(10) ADJ 635 in paragraph 6 of the report it has been held as under : “6. The mere involvement in a solitary criminal case cannot be a ground for cancellation of a fire-arm license as held by this Court in case of Mohd. Haroon v. The District Magistrate, Siddharth Nagar, 2003 (1) ACJ 124, unless and until it is shown on the basis of material on record that there was grave danger to public law and order. In the instant case it is only a solitary incident, which was not arising out of any disturbance of public law and order, that has been made the basis for ordering cancellation.” 16. In Rama Kushwaha v. State of U.P. and others, 2011 (29) LCD 1045, a Single Judge of this Court in paragraph 10 & 11 of the said report has held as follows : “10. In Ram Murli Madhukar v. District Magistrate, Sitapur, 1998(16) LCD 905, this Court has held that licence cannot be suspended or revoked on the ground of public interest (Janhit). 11. It is well-settled in law that mere pendency of criminal case or apprehension of abuse of arms act are not sufficient grounds for passing the order of suspension or revocation of licence under Section 17 (3) of the Act. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of licence under Arms Act, has been dealt with by a Division Bench of this Court Sheo Prasad Misra Vs. The District Magistrate, Basti and others, wherein the Division Bench relying upon the earlier decision of Masiuddin Vs. Commissioner, Allahabad, found that mere involvement in criminal case cannot in any way affect the public security or public interest. The law propounded in the said decisions has been subsequently followed in Habib v. State of U.P., 2002 ACC 783, Ram Sanehi v. Commissioner, Devi Patan Division, Gonda and another.” 17. In Hiramani Singh v. State of U.P. and others, 2011 (29) LCD 829, it was held as under : “8. The law propounded in the said decisions has been subsequently followed in Habib v. State of U.P., 2002 ACC 783, Ram Sanehi v. Commissioner, Devi Patan Division, Gonda and another.” 17. In Hiramani Singh v. State of U.P. and others, 2011 (29) LCD 829, it was held as under : “8. This Court in the case of Ashok Rao v. State of U.P. and others, reported in 2010 (68) ACC 441 while considering the authority to be exercised under Section 17 of the Indian Arms Act has taken the view that mere pendency of criminal case cannot be ground for cancellation of fire-arm license unless and until finding is returned by the authority concerned that possession of fire-arm has the tendency of threatening public peace and public safety.” 18. In Anil Kumar Singh v. Distt. Magistrate, Pratapgarh, 1994 (12) LCD 1109, in paragraph No. 6 of the said report it has been held as follows : “6. ...Therefore, it is clear that at the time of passing the order order dated 6-2-79 by the Commissioner, there was no ground on which the gun licence of the petitioner could have been cancelled. Both the grounds were wiped off before passing of the order of the learned Commissioner and the learned Commissioner could not have passed this order unless there was some fresh material against the petitioner be that date. In this connection it will by useful to refer to the case of Ram Bodh Singh v. State of U.P. and others, 1985 (11) Allahabad Law Reports, 114, in which it has been held that once petitioner was acquitted those cases could not furnish material for cancellation of his licence. Therefore, on the date on which the Commissioner passed his licence. Therefore, on the date on which the Commissioner passed his order, it cannot be said that the cancellation of licence was in the public interest and this fact could not be substantiated by the State.” 19. The contentions raised by the petitioner are to be now dealt with bearing in mind the above principles of law. 20. A perusal of the impugned order dated 4.2.2009 would show that the licence of the petitioner has been cancelled only on the ground of pendency of a solitary criminal case mentioned in the said order. The contentions raised by the petitioner are to be now dealt with bearing in mind the above principles of law. 20. A perusal of the impugned order dated 4.2.2009 would show that the licence of the petitioner has been cancelled only on the ground of pendency of a solitary criminal case mentioned in the said order. It is no more res integra that mere pendency of a criminal case or apprehension of abuse of arms is not a sufficient ground for passing of an order of suspension or revocation of licence under Section 17 of the Act. 21. The fire-arm licence of the petitioner could not have been cancelled in “public interest” as has been done in the present case. In view of the settled legal position, a finding on the question of disturbance of law and order has to proceed before the fire-arm licence is cancelled under Section 17(3)(b) of the Act. 22. No incident of breach of security of the public peace or public safety at the behest of the petitioner has been pointed out. The petitioner has no criminal history. The police report on the basis of which the proceedings were initiated against the petitioner does not indicate that the petitioner had utilized the fire-arm during the said occurrence. There is no averment in the FIR or in the counter-affidavit that the gun possessed by the petitioner was used by the petitioner. There must be some positive incident in which the petitioner participated and used his gun which led to the breach of public peace and public safety. There is nothing on record to establish that the petitioner was involved in any act resulting in disturbance to public peace or public safety. 23. Moreover, in the case in hand, the petitioner, after the passing of the impugned order dated 4.2.2009, was acquitted in the criminal case lodged against him and, therefore, there was nothing adverse against the petitioner at the time the appeal preferred by the petitioner was decided by the respondent No. 3. The reason for cancelling the fire-arm licence mentioned in the impugned order dated 4.2.2009 had been wiped out and, as such, the Commissioner could not have upheld the order dated 4.2.2009 unless there was some fresh material against the petitioner on the said date. The reason for cancelling the fire-arm licence mentioned in the impugned order dated 4.2.2009 had been wiped out and, as such, the Commissioner could not have upheld the order dated 4.2.2009 unless there was some fresh material against the petitioner on the said date. The respondent No. 3 has committed a grave error in not considering the facts in correct perspective and has failed to appreciate the grounds mentioned in sub-section (3) of Section 17 of the Act regarding revocation or suspension of the licence. The order passed by respondent No. 3 cannot be sustained. 24. In view of the settled legal position mentioned above, the writ petition is allowed. The order dated 4.2.2009 passed by the District Magistrate, Kaushambi and the order dated 30.11.2013 passed by the Commissioner, Allahabad Mandal, Allahabad are hereby set aside. 25. The matter is remitted back to the respondent No. 2 for fresh consideration. Since the matter is pending since 2009, the respondent No. 2 is directed to decide the matter afresh within a period of three months from the date of production of a certified copy of this order before him.