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2017 DIGILAW 788 (ALL)

Rekha Singh v. State of U. P.

2017-03-20

ANIL KUMAR

body2017
JUDGMENT : Anil Kumar, J. 1. Heard Shri Pradeep Kumar Singh, learned counsel for the petitioner, learned Standing Counsel and perused the record. 2. By means of the present writ petition, the petitioner has challenged the impugned order dated 04.12.2014 passed by opposite party no.3/District Magistrate, District-Pratapgarh by which licence of D.B.B.L. Gun of the petitioner has been cancelled and order dated 07.10.2015 passed by opposite party no.2/The Commissioner, Allahabad Mandal, Allahabad by which petitioner's appeal has been dismissed. 3. Facts in brief of the present case are that petitioner who is an holder of arms licence of D.B.B.L. Gun has issued a show cause notice on 25.06.2014 on the ground that Vivek Singh/son of the petitioner used the rifle of the petitioner and the same was recovered by the concerned police. In this regard, Case Crime No.07 of 2014 under Section 302 I.P.C., P.S.-Manikpur, District-Pratapgarh has been registered against him. After receiving the said show cause notice, petitioner submitted his reply stating therein that his licensee gun was not used in the incident in question in which criminal case has been registered and due to enmity, case has been lodged. 4. However, by means of the order dated 04.12.2014, license of the petitioner has been cancelled by the opposite party no.3/District Magistrate, District-Pratapgarh invoking the provisions as provided under Section 17 (3) (b) (d) of Arms Act, challenged by the petitioner by filing an appeal, also dismissed by order dated 07.10.2015 passed by the Appellate Authority. 5. Learned counsel for the petitioner while challenging the impugned order submits that the action on the part of the opposite party no.3 thereby rejecting the arms licence of the petitioner on the ground that criminal case is pending against the petitioner but it cannot be a ground for cancellation of arms licence as per provisions as provided under Section 17 (3) (b) (d) of Arms Act. 6. He further submits that even otherwise, no adequate reason has been given by the opposite party to cancel the arms licence, as such, the impugned order is liable to be set aside. 7. Learned Standing Counsel while defending the impugned order submits that as per reasoning given therein that as criminal case is pending against the petitioner, so if the petitioner is allowed to keep his arms, it will be against the breach of public peace and public safety. 7. Learned Standing Counsel while defending the impugned order submits that as per reasoning given therein that as criminal case is pending against the petitioner, so if the petitioner is allowed to keep his arms, it will be against the breach of public peace and public safety. Hence, there is no illegality or infirmity in the impugned order under challenge in the present writ petition. 8. I have heard learned counsel for the parties and gone through the records. 9. Section 17 of the Act empowers the licensing authority to vary, suspend or revoke any firearm licence. Sub section (3) of section 17 of the Act being relevant is reproduced below:- "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 hiseemingly formed an opinion that it was necessary for the security of the public peace and public safety to deliver up the licence....." " 10. From the perusal of the Section 17 (3) (b) of the Arms Act, the position which emerges out arms licence of a person can be cancelled, if licensing authority is satisfied that it was necessary for the security of the public peace or for the public safety. 11. From the perusal of the Section 17 (3) (b) of the Arms Act, the position which emerges out arms licence of a person can be cancelled, if licensing authority is satisfied that it was necessary for the security of the public peace or for the public safety. 11. In Thakur Prasad v. State of U.P. and others reported in [ 2013 (31) LCD 1460 ], this court propounded that "Public Peace" or "Public Safety" do not mean ordinary disturbance of law and order, but the public safety means safety of the public at large and not safety of few persons only. Relevant paras 9, 10 and 11 of the said case read as under: "9. Further, while passing the impugned order also the licensing authority has not given any adequate finding that if petitioner holds the arms license then the same shall be against the public peace or public safety. "10. Public peace" or "public safety" do not mean ordinary disturbance of law and order public safety means safety of the public at large and not safety of few persons only and before passing of the order of cancellation of arm license as per Section 17(3) of the Act the Licensing Authority is under an obligation to apply his mind to the question as to whether there was eminent danger to public peace and safety involved in the case in view of the judgment given by this Court in the case of Ram Murti Madhukar v. District Magistrate, Sitapur 1998(16) LCD 905, wherein it has been held that license can not be suspended or revoked on the ground of public interest (Jan-hit) merely on the registration of an F.I.R. and pending of a criminal case." 12. 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. 13. In 1998 (16) LCD 905, Ram Murti Madhukar v. District Magistrate, Sitapur, this Court held as under :- "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 5 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 5 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 2002 (44) ACC 783, Habib v. State of U.P. & Ors., this Court held as under :- "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 firearm 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 2009 (10) ADJ 635 , Ashiq Hussain v. Commissioner, Moradabad & Ors., this Court held as under: - "6. The mere involvement in a solitary criminal case cannot be a ground for cancellation of a firearm license as held by this Court in case of Mohd. In 2009 (10) ADJ 635 , Ashiq Hussain v. Commissioner, Moradabad & Ors., this Court held as under: - "6. The mere involvement in a solitary criminal case cannot be a ground for cancellation of a firearm license as held by this Court in case of Mohd. Haroon v. The District Magistrate, Siddharth Nagar reported in 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 6 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 the case of 2011 (29) LCD 1045, Rama Kushwaha v. State of U.P. & Ors., this Court held as under :- "10. In Ram Murti Madhukar v. District Magistrate, Sitapur [1998(16) LCD 905], this Court has held that licence can not 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 v. The District Magistrate, Basti & others, wherein the Division Bench relying upon the earlier decision of Masiuddin v. 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. Reported in 2002 ACC 783, Ram Sanehi v. Commissioner, Devi Patan Division, Gonda & another." 17. In 2011 (29) LCD 829, Hiramani Singh v. State of U.P. & Ors., it was held as under:- "8. The law propounded in the said decisions has been subsequently followed in Habib v. State of U.P. Reported in 2002 ACC 783, Ram Sanehi v. Commissioner, Devi Patan Division, Gonda & another." 17. In 2011 (29) LCD 829, Hiramani Singh v. State of U.P. & Ors., 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 firearm license unless and until finding is returned by the authority concerned that possession of firearm has the tendency of threatening public peace and public safety." 18. In 1994 (12) LCD 1109, Anil Kumar Singh v. Distt. Magistrate, Pratapgarh, this Court held as under :- "6. ...Therefore, it is clear that at the time of passing the order dated 6-2-79 by the Commissioner, there was no ground on which the gun licence of the petitioner could have 7 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. & 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. In the present case, no finding has been given that in what manner if the petitioner is allowed to keep his arms licence, the same is against a breach of public peace and public safety. Further as per settled law, 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 a ground for cancellation of arms licence. 20. Further as per settled law, 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 a ground for cancellation of arms licence. 20. Thus, in view of the above said facts, the impugned orders dated 04.12.2014 and 07.10.2015 passed by the opposite party nos.3 and 2 respectively are liable to be set aside. 21. For the foregoing reasons, writ petition is allowed and the impugned orders dated 04.12.2014 and 07.10.2015 passed by the opposite party nos.3 and 2 respectively are set aside.