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2017 DIGILAW 1205 (ALL)

Ambar Sharan Jaiswal v. D. M. Barabanki

2017-05-05

ANIL KUMAR

body2017
JUDGMENT : Anil Kumar, J. Heard learned counsel for the petitioner and learned Standing Counsel and perused the record. 2. With the consent of learned counsel for the parties, who are present today, the present writ petition is being decided at the admission stage. 3. By means of present writ petition, petitioner has challenged the order dated 30.11.2016 passed by opposite party no. 1/District Magistrate, Barabanki whereby a show cause notice under section 17 (3) of the Arms Act, 1959 has been issued requiring him to submit his explanation as to why his arm license should not be cancelled. I have heard learned counsel for parties and perused the record. 4. Section 17 of the Arms Act, 1959, provides for variation, suspension and revocation. I have heard learned counsel for parties and perused the record. 4. Section 17 of the Arms Act, 1959, provides for variation, suspension and revocation. And Section 17(3) reads as under:- Section 17(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 he seemingly formed an opinion that it was necessary for the security of the public peace and public safety to deliver up the licence....." The said section has come up for judicial scrutiny in the case of C.P. Sahu v. State, 1984 AWC 145 ; Kailash Nath v. State of U.P. and another, 1985 AWC 493 ; Balram Singh v. State of U.P. and others, 1988 AWC 1481 4; Rana Pratap Singh v. State of U.P., 1995 ACJ 200 and as per the judicial provocation given, there on the following points:- (a) the licensing authority has no power to suspend the arms licence pending enquiry into its cancellation/suspension nor has it the power to suspend the licence for indefinite period; (b) licensing authority has the power to suspend for specified period a fire-arm licence on being satisfied as to existence of all or any of the conditions visualised by clauses (a) to (e) of sub-section (3) of Section 17 of the Act sans any prior opportunity of hearing being given to the licence holder but such order of suspension shall not attain finality until the aggrieved party has been heard and his objections, if any, adjudicated. In other words, suspension of arms licence for specified period or its revocation under Section 17(3) of the Act, if ordered without affording opportunity of hearing, would endure in suspended animation until the aggrieved party has been heard by the licensing authority and his objections, if any, are adjudicated: (c) the licensing authority can also for the furtherance of the immediate remedial actions, exercise in facts and circumstances of a given case, an incidental power of directing the licence holder to surrender his licence until objections have been decided ; and (d) suspension under Section 17(3) of the Act must be for definite period to be specified in the order by the licensing authority. 5. Further, this Court in the case of Sahab Singh v. Commissioner Agra Region, Agra and others,2006 (24) LCD 374, in paragraph No. 3 held as under:- "The submission of the petitioner is That merely because of pendency of a criminal case, the arms licence of the petitioner cannot be cancelled in support of the said submission, learned counsel for the petitioner has placed reliance on two decisions of this Court in the case of Hausla Prasad Tiwari v. State of U.P. and Ishwar @ Bhuri v. State of U.P. It has further been submitted that in view of the Full Bench decision of this Court in the cases of Balram Singh v. State of U.P. and Ors. Kailash Nath v. State of U.P. 1985 A.W.C. 493 as well as the Division Bench decision of this Court in the case of Sadri Ram v. District Magistrate, Azamgarh and Ors., the arms licence of the petitioner cannot be placed under suspension pending enquiry." 6. In the case of Mulayam Singh v. State of U.P., 2013 (80) ACC 786, in paragraph Nos. 11 and 12 held as under:- "Para No. 11 - 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 the Arms Act, has been dealt with by a Division Bench of this Court reported in 1978 AWC, 122 (Sheo Prasad Mishra v. District Magistrate). The division Bench relied upon the earlier decision of another Division Bench of this Court in the case of Masi Uddin v. Commissioner, Allahabad, 1972 ALJ 573 wherein it has been held:- "A licence may be cancelled, inter-alia, on the ground that it is "necessary for the security of public peace or for public safety, to do so. The District Magistrate has not recorded a finding that it was necessary for the security of the public peace or for public safety to revoke the licence. The mere existence of enmity between a licencee and another person would not establish the "necessary" connection with security of the public peace or public safety. In the case before us also the District Magistrate has not recorded any finding that it was necessary to cancel the licence for the security of public peace or for public safety. All that he has done is to have referred to some applications and reports lodged against the petitioner. The mere fact that some reports had been lodged against the petitioner could not form basis for cancelling the licence. The order passed by the District Magistrate and that passed by the Commissioner cannot, therefore, be upheld on the basis of anything contained in Section 17(3)(b) of the Act." Para No. 12 - Similar view has been taken by this Court in various decisions relying upon the Division Bench judgment passed in Sheo Prasad Mishra (supra). There is no doubt that the District Magistrate and the Commissioner i.e. administrative authorities are bound to take appropriate action in the matter of grant of licence and also its cancellation for the purpose of maintaining peace and harmony in the society. The assessment of administrative authorities with regard to grant or cancellation of licence should not be interfered in usual course by the Court in its extraordinary jurisdiction unless there is illegality or arbitrariness." 7. In the case of Raj Kumar Verma v. 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 tranquillity. 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 tranquillity. 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 tranquillity shall not create the ground for the cancellation of Armed Licence. In Ram Sanehi v. Commissioner, Devipatan Division reported in 2004 (22) LCD 1643, it was held that this law was relied upon in Balram Singh v. 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. " 8. Further, in the case of C.P. Sahu (Supra), this Court while interpreting the provisions of Section 17(3) of the Act held as under:- "The object of the enquiry that a licensing authority may, while proceeding to consider the question as to whether or not an arms licence should be revoked or suspended, like to make, clearly is to enable the licensing authority to come to a conclusion as to whether or not the facts stated in clauses (a to (e) of Section 17(3) exist and as already explained, it is not obliged to before considering that a case for revocation/suspension of licence has been made out, associate the licensee in such enquiry, in this view of the matter it can safely be taken that where a licensing authority embarks upon such an enquiry it is, till then not convinced about existence of the conditions mentioned in clauses (a) to (e) of Section 17(3), of the Act. So long as it is not so convinced no case to make an order either revoking or suspending an arms licence as contemplated by the section will be made out." 9. So long as it is not so convinced no case to make an order either revoking or suspending an arms licence as contemplated by the section will be made out." 9. In the instant matter, from the perusal of the record, the position which emerges out is to the effect that the Licensing Authority/District Magistrate, Barabanki has issued show cause notice vide order dated 30.11.2016 for suspending the arm license of the petitioner by invoking the provisions as provided under section 17(3) of the Arms Act, 1959 only on the basis of report dated 16.11.2016 received from Prabhari Nirikshak police-station Lonikatra which has been recommended and forwarded by the opposite party no. 4 vide order dated 17.11.2016 and same has been recommended by order dated 18.11.2016 by Additional Superintendent of Police, South, Barabanki and also recommended by order dated 19.11.2016 by Superintendent of Police, Barabanki and sent it to Licensing Authority/District Magistrate, Barabanki and he has no applied his mind whether it is necessary for suspending the arm license of the petitioner for the security of public peace and public safety which is a mandatory condition for suspending the same as per the provisions of section 17(3) (b) of the Arms Act, 1959. 10. For the foregoing reasons, the impugned order/show cause notice dated 30.11.2016 passed by opposite party no. 1 is set aside and the Licensing Authority is at liberty to proceed afresh for cancellation of the arms licence of the petitioner in accordance with law. 11. With the above observations, the writ petition is allowed.