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2017 DIGILAW 254 (ALL)

Lalu v. State of U. P

2017-01-18

ANIL KUMAR

body2017
JUDGMENT Anil Kumar, J. Heard Sri N.K. Singh, learned counsel for petitioner, Sri Pankaj Nath, learned State counsel and perused the record. 2. By means of the present writ petition the petitioner has challenged the impugned order dated 06.07.2015 passed by District Magistrate, Sultanpur thereby cancelling the petitioner's arms license and appellate order dated 28.11.2015 passed by respondent No. 2/Commissioner Lucknow Division, Lucknow thereby dismissing the petitioner's appeal. 3. Facts in brief of the present case are that petitioner has petitioner has been granted an arms licence No. 722 of 2009 for S.B.B.L. Gun No. 21946 (12 Bore). 4. On 22.11.2012, respondent No. 3/District Magistrate, Hardoi-Licensing Authority has received a report from Senior Superintendent of Police that the petitioner has misused his gun, accordingly, a notice has been issued to petitioner to which petitioner has submitted his reply on 28.11.2015. Thereafter by order dated 06.07.2015, District Magistrate, Hardoi/Licensing Authority has cancelled the petitioner's arms licence on the ground that on 25.05.2012, petitioner has misused his gun in a barat/marriage procession only in order to kill Chhote S/o Iqbal on account of which a criminal case has been registered against him having Criminal Case No. 583/2012 under Section 307 IPC read with Sections 27 & 30 of the Arms Act and also taken into consideration that the reply filed by the petitioner in which petitioner has categorically stated that he has been acquitted in the said criminal case. 5. In the impugned order dated 06.07.2015, District Magistrate, Hardoi/Licensing Authority has also stated that as the petitioner has misused the gun in barat/marriage procession, so according to his opinion, he is not fit person to hold a licence in the public interest. Aggrieved by the said order, petitioner filed an appeal before appellate authority under Section 18 of the Arms Act, 1959, dismissed by order dated 28.11.2015 passed by respondent No. 2/Commissioner, Lucknow Division, Lucknow . 6. Aggrieved by the said order, petitioner filed an appeal before appellate authority under Section 18 of the Arms Act, 1959, dismissed by order dated 28.11.2015 passed by respondent No. 2/Commissioner, Lucknow Division, Lucknow . 6. Learned counsel for petitioner while challenging the appellate order dated 28.11.2015 (Annexure No. 1) and order dated 06.07.2015 (Annexure No. 2) submits that the sole and main ground of cancellation of the petitioner's arms licnece is to the effect that he has misused his gun in a barat/marriage procession on 25.05.2012 and a criminal case has been registered against him i.e. Criminal Case No. 583/2012 under Section 307 IPC read with Sections 27 & 30 of the Arms Act, however, in the said case he has been acquitted by order dated 19.07.2014 passed by competent criminal court, so there is no justification or reasons whatsoever to cancel the petitioner's arms licence, as such the impugned order is liable to be stayed. 7. Sri Pankaj Nath, learned State counsel while on the other hand defending the impugned orders submits that as the petitioner has misused his gun in a barat/marriage procession on 25.12.2012,, so taking into consideration the said fact, the District Magistrate has rightly cancelled the petitioner's arms licence on the ground of public peace and safety, so there is no illegality and infirmity in the impugned orders under challenge in the present writ petition. 8. I have heard learned counsel for parties and perused the record. 9. In order to decide the controversy involved in the present writ petition, it is appropriate to go through the provisions as provided under Section 17(7) of the Arms Act, 1959, which on reproduction reads as under: - "Section 17(7) - A court convicting the holder of a license of any offence under this Act or the rules made thereunder may also suspend or revoke the license." 10. Accordingly, as per the said Section 17(7) of the Arms Act, legislature has clearly provided that if a person misuse his gun and he has been convicted then in that circumstances his license should be revoked, however proviso to the said Section provides that is the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void. As in the Criminal Case No. 583/2012 under Section 307 IPC read with Sections 27 & 30 of the Arms Act, the petitioner has been acquitted by means of judgment and order dated 19.07.2014 passed by competent criminal court in view of the said facts, cancellation order of petitioner's arms license dated 06.07.2015 passed by District Magistrate, Hardoi/Licensing Authority automatic become void. 11. Further, a plain reading of Section 17 indicates that the arms licence can be cancelled or suspended on the ground that the licensing authority deems it necessary for security of the public peace or the public safety. In the present case, while passing the impugned order, neither the District Magistrate nor the appellate authority has recorded the finding as to how and under what circumstances, the possession of arms licence by the petitioner, is detrimental to the public peace or the public security and safety. Merely because criminal case is pending more so, based on an accidental firing resulting in accidental death of a person, does not seems to attract the provisions of Section 17 of the Arms Act. To attract the provisions of Section 17 of the Arms Act with regard to public peace, security and safety, it shall always be incumbent on the authorities to record a finding that how, under what circumstances and what manner, the possession of arms licence shall be detrimental to public peace, safety and security. In absence of such finding merely on the ground that a criminal case is pending without any mitigating circumstances with regard to endanger of public peace, safety and security, the provisions contained under Section 17 of the Arms Act, shall not satisfy. 12. Right to life and liberty are guaranteed under Article 21 of the Constitution of India and the arms licenses are granted for personal safety and security after due inquiry by the authorities in accordance with the provisions contained in Arms Act, 1959. The provisions of section 17 of the Arms Act with regard to suspension or cancellation of arms licence cannot be invoked lightly in an arbitrary manner. The provisions contained under section 17 of the Arms Act should be construed strictly and not liberally. The conditions provided therein, should be satisfied by the authorities before proceeding ahead to cancel or suspend an arms licence. 13. The provisions contained under section 17 of the Arms Act should be construed strictly and not liberally. The conditions provided therein, should be satisfied by the authorities before proceeding ahead to cancel or suspend an arms licence. 13. At present time, in the society, for any reason whatsoever, the crime rate is raising day by day. The Government is not in a position to provide security to each and every person individually. Right to possess arms is statutory right but right to life and liberty is fundamental guaranteed by Article 21 of the Constitution of India. Corollary to it, it is citizen's right to possess firearms for their personal safety to save their family from miscreants. It is often said that ordinarily in a civilised society, only civilised persons require arms licence for their safety and security and not the criminals. Of course, in case the Government feels that arms licence are abused for oblique motive or criminal activities, then appropriate measures may be adopted to check such mal-practice. But arms licence should not be suspended in a routine manner mechanically, without application of mind and keeping in view the letter and spirit of section 17 of the Arms Act. 14. In the case of Ram Sanehi v. Commissioner Devi Patau Division, Gonda and Another, 2004 (22) LCD 1643, this Court after placing reliance upon earlier judgment reported in Habib v. State of U.P. 2002 (44) ACC 783 (HC), and in one another judgment Fakir Chand v. Commissioner, Meerut Mandal, Meerut, 2002 (44) ACC 518 (HC) held that merely because criminal case is pending, it shall not create a ground for suspension or cancellation of arms licence in pursuance of powers conferred by section 17 of the Arms Act. The authorities have to record finding based on material evidence with regard to breach of public peace, safety and security while cancelling the arms licence. 15. In view of the abovesaid facts, the writ petition is allowed, impugned orders date 28.11.2015 passed by respondent No. 2 and 06.07.2015 passed by respondent No. 3 are set aside.