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Allahabad High Court · body

2018 DIGILAW 1550 (ALL)

BABAR HUSSAIN v. STATE OF U. P.

2018-07-16

NEERAJ TIWARI

body2018
JUDGMENT : Hon'ble Neeraj Tiwari, J. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents. By way of present petition, petitioner is challenging the order dated 30.1.2008 passed by the respondent No.3 cancelling the arms license of the petitioner and appellate order dated 4.6.2016 passed by respondent no. 2 whereby the respondent no. 2 dismissed the appeal filed by the petitioner and affirmed the order passed by respondent no. 3. The case of petitioner is that he was given Arms License by the District Magistrate, Pratapgarh. A notice dated 29.03.2007 under Section 17(3) of Arms Act, 1959 was issued by the District Magistrate, Pratapgarh to the petitioner on the basis of a single case which was registered in Case Crime No. 37 of 2007, under Section 302 IPC., Police Station Kandhai, District Pratapgarh to show cause as to why his licence may not be cancelled. The petitioner submitted his reply to show cause notice dated 29.03.2007. Thereafter, the license of the petitioner was cancelled by the District Magistrate vide order dated 30.01.2008. After that, trial of the petitioner was concluded in Case Crime No.37 of 2007 and he was acquitted by the Court of Additional District Judge (Ex Cadre), Court No. 9, Pratapgarh vide order dated 30.4.2011. After acquittal from the criminal case, petitioner preferred an appeal alongwith stay application under Section 17(3) before the Commissioner, Allahabad Division, Allahabad which was dismissed vide order dated 4.6.2016. It is submitted by learned counsel for the petitioner that during pendency of the appeal, petitioner had been acquitted in Case Crime No.37 of 2007 and he has also placed the acquittal order before the Commissioner, Allahabad Division, Allahabad. It is further submitted that the respondent no. 2 has taken note of the acquittal order but without considering the claim of the petitioner dismissed the appeal on the ground that he was acquitted on the basis of benefit of doubt and considering the nature of case lodged against him, it cannot be denied that he is a person of criminal nature. It is further submitted by learned counsel for the petitioner that the respondent no. 2 has not mentioned even a single incident or ground on the basis of which, the petitioner could be a person of criminal nature and even after acquittal, he is involved in criminal activities, therefore, his license may be restored. It is further submitted by learned counsel for the petitioner that the respondent no. 2 has not mentioned even a single incident or ground on the basis of which, the petitioner could be a person of criminal nature and even after acquittal, he is involved in criminal activities, therefore, his license may be restored. He has further relied upon Section 17 of Arms Act, 1959 and argued that by perusal of the Section 17(3) of Arms Act, 1959, it is absolutely clear that none of the ground in Section 17(3) is available for cancellation of licence of petitioner after his acquittal. He further states that Section 17(7) itself provides that if the case of conviction, if it is set aside on appeal or otherwise, the suspension or revocation shall become void. He placed reliance upon a catena of judgments of this Court in which under the similar facts and circumstances of the case, this Court was pleased to remand the matter to District Magistrate for passing a fresh order in accordance with law. Learned Standing Counsel has disputed the submissions made by learned counsel for the petitioner and submitted that continuance of arms license with petitioner is not in public interest on account of his indulgence in criminal activities. I have heard and considered the rival submissions advanced by the learned counsel for both the parties and perused the record. From perusal of the record, this fact is undisputed that only one criminal case was lodged against the petitioner being Case Crime No.37 of 2007 in which he had been acquitted by the Additional District Judge (Ex Cadre), Court No. 9, Pratapgarh vide order dated 30.4.2011 and there is no mention in the impugned order or in counter affidavit about involvement of the petitioner in any other criminal case, therefore, order passed by the respondent no. 2 suffers from non application of mind. I have perused the Section 17 of the Arms Act of 1959. 2 suffers from non application of mind. I have perused the Section 17 of the Arms Act of 1959. Section 17 provides for variation, suspension and revocation of licence and Section 17(3) and 17(7) are relevant for revocation of licence, same are being quoted here:- "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 him to deliver-up the licence." "Section 17(7)- A court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence: Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void." So far as facts of the case is concerned, none of the grounds mentioned in Section 17(3) of the Arms Act, 1959 is applicable in the case of the petitioner for the reason that it is not disputed that only one criminal case was lodged against him and ultimately he is acquitted for the same. Further, as provided in Section 17(7) of Arms Act, 1959, if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void, therefore, in that case too, petitioner is entitled for restoration of licence. Further, as provided in Section 17(7) of Arms Act, 1959, if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void, therefore, in that case too, petitioner is entitled for restoration of licence. Therefore, in light of Section 17(3) and Section 17(7) of Arms Act, 1959, order passed by the Divisional Commissioner dated 14.6.2016 is not sustainable in the eyes of law. It is well-settled in law that mere pendency of criminal case or apprehension of abuse of Arms Act is not sufficient ground 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 & Ors., reported in 1978 AWC 122 , wherein the Division Bench relying upon the earlier decision of Masiuddin Vs. Commissioner, Allahabad reported in 1972 ALJ 573 found that mere involvement in criminal case or pendency of criminal case cannot in any way affect the public security or public interest and licence cannot be cancelled on this ground. The law propounded in the said decisions has been subsequently followed in Habib Vs. State of U.P., 2004(1) JIC 414 (All) and Ram Sanehi Vs. Commissioner, Devi Patan Division, Gonda & Anr reported in 2005 (58) ALR 813. So far as legal position after acquittal is concerned, it is also very well considered and dealt by this Court. In the matter of Rayees Ahmad vs. State of U.P. & Ors. reported in 2002 (2) AWC 1184 , Court clearly held that after the acquittal from the criminal case, petitioner is fully entitled for renewal of his firearm licence and direction to this effect was issued to competent authority. This issue has come time and again before Court for consideration that after acquittal from a criminal case, licence can be restored or not. In the matter of Harprasad Vs. State of U.P. and Others reported in 2005 (5) AWC 4939, this Court after considering the law already pronounced on this point has finally allowed the petition and quashed the impugned order passed by the appellate authority. In the matter of Harprasad Vs. State of U.P. and Others reported in 2005 (5) AWC 4939, this Court after considering the law already pronounced on this point has finally allowed the petition and quashed the impugned order passed by the appellate authority. Relevant paragraphs of this judgment are being quoted here:- "In Full Bench decisions of this Court rendered in Chhanga Prasad Sahu vs. State of Uttar Pradesh, 1984 (10) ALR 223 and Kailash Nath and others vs. State of U.P. and others, 1985 (22) ACC 353 and in the case of Rana Pratap Singh vs. State of U.P., 1994 JIC 72 (All) : 1995 (Supp) ACC 235, it has been held that mere pendency of a criminal case(s) is no ground for cancellation of arms licence. The effect of the aforesaid Full Bench decisions was also considered in Sadri Ram vs. District Magistrate, Azamgarh and others, 1998 (3) AWC 2102 : 1998 (37) ACC 830. After considering the Full Bench and other decisions it has been held in Sadri Ram (supra) that the question whether the licensing authority is clothed with the powers to suspend the licence in the midst of proceedings for suspension or revocation under Section 17 (3) of the Arms Act, 1959 was posed for consideration before another Full Bench of this Court in the case of Balram Singh vs. State of U.P. And others, 1991 JIC 102 (All) : 1989 (26) ACC 31. This case is covered by the decisions in Bibhuti Narain Singh vs. State of U.P. And others, 2002 (3) AWC 2504 : 2002 All CJ 1071 and Hari Kant alias Raja vs. State of U.P. And others, 2002 (44) ACC 669. The appellate authority has renedered the impugned order against law. For the reasons stated above, this writ petition is allowed and the impugned orders are quashed. No order as to costs" This proposition of law was again followed and Court has held that after acquittal from a criminal case, there is no ground for cancellation of firearm license under Section 17 of the Act. In Bhagwan Das Vs. Commissioner, Agra Division Agra reported in 2004(1) JIC 507 , this Court has held that once the licencee has been acquitted, even if it is assumed to be a ground justifying cancellation, the same is no more in existence. In Bhagwan Das Vs. Commissioner, Agra Division Agra reported in 2004(1) JIC 507 , this Court has held that once the licencee has been acquitted, even if it is assumed to be a ground justifying cancellation, the same is no more in existence. Following the aforesaid judgment of Bhagwan Das (supra), this Court again vide order dated 6th July, 2018 passed in Writ-C No. 11637 of 2018 (Dipti Singh vs. Commissioner Kanpur Division & Another) directed the Competent Authority to consider the matter afresh and pass appropriate order. This Court in the matter of Rajendra Deo Pandey vs. State of U.P. and others reported in 2012 (4) ADJ 716 has considered this fact and after referring all relevant judgments holding the field has held that after acquittal from the criminal case or even due to pendency of criminal case arms licence cannot be rejected. Another judgment of this Court in the matter of Rajendra Pandit vs. State of U.P. & others reported in 2012 (10) ADJ 435 where the arms licence of the petitioner for grant of licence was rejected only on the ground of involvement in criminal cases, where the factual position was that four criminal cases were pending against the petitioner, out of which as per police report, petitioner had been acquitted in three criminal cases and in the fourth case, a final report has been submitted by the police, even though licence was rejected. This Court has given well considered judgment referring all relevant judgment on the issue and finally allowed the petition and directing the District Magistrate to issue firearm licence along with a cost of Rs.20,000/-. This Court has taken the same view in its order and judgment dated 30.4.2018 in Writ-C No.41979 of 2015 (Ritesh Vs. State of U.P. & Another) and directed the District Magistrate to consider the renewal application of arms licence after acquittal from the criminal case, on which ground licence was cancelled. In the present case too, the facts are not disputed that earlier licence of the petitioner was cancelled only on the ground of involvement in the criminal case, in which, subsequently he was acquitted by this Court. In the present case too, the facts are not disputed that earlier licence of the petitioner was cancelled only on the ground of involvement in the criminal case, in which, subsequently he was acquitted by this Court. Therefore, in light of the provision 17(3), 17(7) of the Arms Act, 1959 and as per law laid down by this Court, after acquittal from the criminal case, licence has to be restored provided that there is no involvement in other criminal cases. After going through the facts and law laid down by this Court, this Court is of the view that the order passed by the District Magistrate Pratapgarh dated 30.1.2008 as well as order dated 4.6.2016 passed by the Commissioner, Allahabad Division, Allahabad are not sustainable, therefore, both the orders dated 30.1.2008 and 4.6.2016 are hereby quashed. The petitioner is directed to submit a fresh application before the District Magistrate, Pratapgarh for restoration of his license earlier granted to him and District Magistrate, Pratapgarh shall consider the matter afresh and pass appropriate order with regard to restoration of Arms license of the petitioner after calling for a fresh report in accordance with law within two months from the date of production of certified copy of this order. Release of gun to the petitioner would be subject to fresh order passed by licensing authority. Accordingly, the writ petition is allowed.