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2017 DIGILAW 844 (HP)

Vibhu Benal v. State of H. P.

2017-07-25

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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Dharam Chand Chaudhary, J (Oral) The judgment under challenge has been passed by learned Single Judge in CWP No. 3610 of 2011 on May 27, 2016, whereby the writ petition has been dismissed and the prayer to allow him to carry his pistol to any place in India declined. 2. He being an Advocate by profession submits that in discharge of his professional duties and obligations, had to travel outside the state. In support of his case documentary evidence i.e. Annexure P-15 (Colly.) to the writ petition and railway tickets have been pressed into service. The order, Annexure P-10 (Colly.) passed by the Secretary (Home) to the Government of Himachal Pradesh on 2.8.2010 on the basis of instructions dated 31.3.2010 by the Ministry of Home Affairs, Government of India has also been sought to be quashed and set aside. 3. Learned Single Judge after having considered the case of the parties on both sides and taking into consideration the instructions so referred to in the order, Annexure P-10 (Colly.) and also the provisions contained under the Arms Act, 1959 has dismissed the writ petition with the observations that Central Government has framed the rules known as Arms Rules, in exercise of its statutory powers under Section 44 of the Act. It is these rules which empower the Central Government to impose restrictions with regard to the validity of the licenses outside the territorial limits of the State qua which it is granted. The issuance of the instructions referred to in the order, Annexure P-10, therefore, in the opinion of learned Single Judge, was not ultra vires nor unreasonable. Learned Single Judge has further observed that request for issuance of all India license has rightly been rejected by the respondents as there is no threat perception to the petitioner nor does the non-issuance thereof affect his right of livelihood in any manner whatsoever. 4. On going through the impugned judgment and also the material available on record, the petitioner admittedly, is an Advocate. The possibility of he has to visit several places in connection with his professional activities cannot be ruled-out. This part even is supported by the documents, Annexure P-13 (Colly.) i.e. cause lists etc. to the writ petition. 5. 4. On going through the impugned judgment and also the material available on record, the petitioner admittedly, is an Advocate. The possibility of he has to visit several places in connection with his professional activities cannot be ruled-out. This part even is supported by the documents, Annexure P-13 (Colly.) i.e. cause lists etc. to the writ petition. 5. Now if coming to the instructions referred to in the order, Annexure P-10, in the matter of Arms license, all India validity is permissible only in the cases of (i) Sitting Union Minister/M.P’s (ii) Personnel of Military, Para-Military, (iii) Officers of All India Services and (iv) Officers with liability to serve anywhere in India and (v) Sports Persons. The cases which are not covered under either of category; the Government is required to seek prior concurrence of the Ministry of Home Affairs, Government of India by making a reference with full justification in deserving cases. 6. It is emphasized on behalf of the petitioner that he being an Advocate is Officer of the Court and covered by Clause 4 supra. Be it stated that the Advocates are the Officers of the Court. They are required to travel throughout the country and sometime to abroad also in connection with the duties attached to their profession. 7. Otherwise also, even if the petitioner’s case for grant of all India license was not covered under category (iv) supra, in our considered opinion, the respondent-State should have sought the concurrence of Ministry of Home Affairs, Government of India, in view of the present a deserving case for issuance of a license with all India validity as the nature of petitioner’s professional obligations and duties justifies issuance of such license. On the ground of parity also, the petitioner is entitled to the issuance of all India validity license. The information he obtained under the Right to Information Act amply demonstrates that during the year 2007 to 25.11.2010, out of 14 arms licenses, 9 were issued having all India validity. The explanation as set-forth qua this aspect of the matter in para 14 of the reply to the writ petition is that the licenses to nine persons having all India validity were issued prior to 31.03.2010, the day when the above-said instructions were issued. The explanation as set-forth qua this aspect of the matter in para 14 of the reply to the writ petition is that the licenses to nine persons having all India validity were issued prior to 31.03.2010, the day when the above-said instructions were issued. Whereas, in the case of remaining two namely, Praveen Kumar and Colonel Vijay Kumar Patyal, they being army personnel were covered under the policy for issuance of armed licenses having all India validity. The explanation so set-forth may be correct, however, the petitioner who has applied on 12.03.2007 vide application, Annexure P- 3 should have also been considered along with those seven persons to whom all India validity licenses were issued prior to coming into force the instructions i.e. 31.03.2010, especially when vide judgment dated 13.10.2009 passed by a Division Bench of this Court in CWP No. 2555/09, instituted by the petitioner previously, the respondent-State was directed to re-consider his case within a period of three weeks. Therefore, in our opinion, the petitioner has been discriminated against the similarly situated persons in the matter of issuance of all India validity license. 8. In view of the above position, we allow this appeal. The impugned judgment is quashed and set aside. Consequently, the writ petition is allowed. There shall be a direction to the 1st respondent to consider the application, Annexure P-3 of the petitioner for issuance of armed license, uninfluenced by the instructions issued on 31.03.2010 by the Central Government within two months from today, as per instructions prevalent at the relevant time. 9. The appeal is accordingly allowed and stands disposed of. Pending application(s), if any, shall also stand disposed of.