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2019 DIGILAW 1455 (ALL)

Sanjay Chaudhari v. State of U. P.

2019-05-28

J.J.MUNIR

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JUDGMENT : J.J. MUNIR, J. 1. Heard learned counsel for the petitioner and the learned Standing Counsel appearing on behalf of the State. 2. The petitioner holds two fire arms licenses, being Arms License No.174 entitling him to the use of a Non-Prohibited Bore Rifle and Arms License No.2028, which was for the use of a Non-Prohibited Bore Revolver. It is submitted that the petitioner is politically active and on account of political rivalry in the village, some fictitious cases came to be registered against him which total a figure of seven as per the details depicted in tabular form: Sr.No. Case Crime No. Offences charged under Section Police Station Result of case 1 2 of 1989 324, 323, 504 IPC Walterganj, District Basti Pending 2 78 of 1990 457, 380 IPC Walterganj, District Basti Final report 3 128 of 1991 323, 506 IPC Walterganj, District Basti Acquitted vide judgment and order dated 3.1.2013 passed in Case No.2465 of 2005 by the Judicial Magistrate, First, Court No.12, Basti 4 256 of 2001 147, 352, 504, 506, IPC Walterganj, District Basti Final report submitted after investigation 5 44 of 2003 110 Cr.P.C., Walterganj, District Basti Proceedings dropped 6 444 of 2006 143, 336, 332, 341, 427 IPC and 7 Criminal Law Amendment Act, Walterganj, District Basti Walterganj, District Basti 7 179 of 2007 426, 427 IPC and 125 Representation of Peoples Act Walterganj, District Basti Pending 3. On the basis of the pendency of the aforesaid cases, it is claimed that a baseless report was submitted by the Superintendent of Police, Basti, to the District Magistrate, Basti, who issued a show-cause notice dated 26.11.2012, why both fire arms licences of the petitioner, above detailed, may not be cancelled in view of the pendency of the aforesaid criminal cases, from which alone, and without any tangible evidence an apprehension was expressed that the possibility of misuse of the two fire arms cannot be denied and that to permit the licences to remain in force, would not be in public interest. 4. The petitioner filed objection to the show-cause notice aforesaid dated 3.4.2013. The District Magistrate, vide his order dated 11.7.2013 cancelled both the licences of the petitioner, passed in two cases, separately registered, related to the two licences being Case No.33 of 2012 under Section 17 Arms Act and Case No.34 of 2012 under Section 17 Arms Act. 4. The petitioner filed objection to the show-cause notice aforesaid dated 3.4.2013. The District Magistrate, vide his order dated 11.7.2013 cancelled both the licences of the petitioner, passed in two cases, separately registered, related to the two licences being Case No.33 of 2012 under Section 17 Arms Act and Case No.34 of 2012 under Section 17 Arms Act. Case No.33 of 2012 relates to licence No.174 for the Non-Prohibited Bore Rifle whereas Case No.34 of 2012 relates to licence No.3072, for the Non-Prohibited Bore Revolver. 5. Aggrieved by the orders passed by the District Magistrate, cancelling the petitioner's fire arms licences, the petitioner preferred two appeals being Appeal No.460 of 2012-13 and Appeal No.459 of 2012-13 to the Commissioner, Basti Division Basti, both of which have come to be dismissed by separate orders of the same day, dated 25.10.2018. It is against these two orders passed in two separate cases by the District Magistrate and their affirmation in appeal, in two separate appeals decided by the Commissioner that the present writ petition has been filed. 6. The short question involved in the present writ petition is whether on account of mere pendency of criminal cases and without any further or other tangible evidence to show that holding of a fire arms license by a licencee would be detrimental to public peace and security, can a fire arm licence be cancelled?. 7. Learned Standing Counsel has waived his right to file a counter affidavit looking to the fact that a pure question of law is involved and facts, whatever involved are set out in the orders of the two authorities below. Accordingly, this petition is being decided finally after hearing learned counsel for both sides. 8. Learned counsel for the petitioner submits that the District Magistrate has proceeded to cancel the petitioner's fire arms licences on the ground alone that there are criminal cases pending against him, without there being any satisfaction recorded with reference to any tangible evidence, that may show threat to breach of public peace or tranquility on account of the continued possession of the two fire arms held under the licences. 9. Learned Standing Counsel has submitted that looking to the criminal propensity of the petitioner, the inference drawn by the two authorities below cannot be faulted. 9. Learned Standing Counsel has submitted that looking to the criminal propensity of the petitioner, the inference drawn by the two authorities below cannot be faulted. He submits that it is the subjective satisfaction of the authorities under Section 17 of the Arms Act to form an opinion that continuance of a fire arms licence with a person would be a threat to public peace or public safety. He submits that pendency of seven criminal cases notwithstanding acquittal in one, a final report in two and dropping of security proceedings in another, does not make the conclusions drawn by the authorities below perverse in any manner so as to invite interference by this Court. 10. The submission of learned Standing Counsel would virtually come down to the proposition that if a person has criminal cases registered against him, that would be ground enough for the Licensing Authority to infer that it is necessary for the security of public peace or public safety to cancel his licence. The question whether the mere registration of a criminal case can form a valid basis to cancel a fire arm license has been considered in a number of decisions of this Court and it has been held that merely because criminal cases have been registered against a man, is no ground to cancel his fire arm licence. It is not that possession of a fire arm by such a person by itself is a threat to public peace or public safety, or as inferred in this case by the District Magistrate, not in public interest. 11. In this connection, reference may be made to the decision of this Court in Surya Narain Mishra Vs. State of U.P. and Others, (2015) 91 AllCriC 186 where after review of a wealth of authority on the point, answering the precise question that is involved in this case and on facts almost similar, it was held thus: "5. Thus, the trivial question involved in this writ petition is as to whether licensing authority is vested with the power under the Arms Act to revoke/cancel the license of a public person mere on involvement in a criminal case or pendency of a criminal case. ............. 7. Thus, the trivial question involved in this writ petition is as to whether licensing authority is vested with the power under the Arms Act to revoke/cancel the license of a public person mere on involvement in a criminal case or pendency of a criminal case. ............. 7. The aforesaid view has been reiterated in Hridaya Narain Tiwari v. State of U.P. and others, (2014) 4 ADJ 744 (LB) Rama Kushwaha vs. State of U.P. & others, (2011) 29 LCD 1045 Hiramani Singh vs. State of U.P. & others, (2011) 29 LCD 829 and Rajendra Singh vs. Commissioner, Lucknow Division, Lucknow and others, (2011) 29 LCD 1041 wherein it has been propounded that involvement in criminal case or pendency of criminal case cannot be a ground for cancellation/revocation of firearm license. 8. In the case of Jageshwar Vs. State of U.P. and others, (2009) 67 AllCriC 157 it has been held that mere involvement in criminal case cannot in any way affect the public Security or public interest. .............. 12. As averred above, in the case at hand, 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, 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 of 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) of the Act." 12. The same view was expressed by this Court in Harprasad Vs. State of U.P. and Others, (2005) 5 AWC 4939 it was held thus in paragraph-5 of the judgment: "5. 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 Section 17 of the Arms Act has been considered by a Division Bench of this Court in Sheo Prasad Misra Vs. District Magistrate, Basti and others, (1979) 16 AllCriC 6 (sum), wherein the Division Bench relied upon the earlier decision in Masi Uddin v. Commissioner, Allahabad, (1972) AllLJ 573. District Magistrate, Basti and others, (1979) 16 AllCriC 6 (sum), wherein the Division Bench relied upon the earlier decision in Masi Uddin v. Commissioner, Allahabad, (1972) AllLJ 573. In both the aforesaid cases it has been held that mere involvement in a criminal case cannot in any way affect the public security or public interest. In view of this proposition of law the order cancelling or revoking the licence of the petitioner on the aforesaid ground of involvement and pendency of a criminal case is not tenable." 13. Now, a reading of the impugned orders passed in the two cases by the District Magistrate show that the Licensing Authority has acted entirely on a report of the Superintendent of Police, Basti dated 2.1.2012. The only material carried there is to the effect that the seven cases under reference are pending against the petitioner and from that fact alone, an apprehension is expressed that it cannot be denied that the petitioner may misuse his fire arm licences. There is a further inference from that inference that it is not in public interest that the petitioner's fire arms licences may be permitted to continue. A perusal of the order further shows that the District Magistrate has taken into consideration the fact that one of the cases have ended in acquittal and in two of these, a Final Report has been filed whereas the case relating to security proceedings has been dropped. He has also taken into consideration the fact that the petitioner is active in politics and the cases registered against him bear more of a political complexion. He has noticed further the petitioner's case that he has never misused his fire arm, but in reaching his findings, the District Magistrate has inferred merely on the basis that there are five cases registered against him that the petitioner is a shrewd man who has a long criminal history and against him; some cases related to assault are pending, even if he has some political rivalry. From this, he has inferred that it is not in public interest that the fire arms licences may be permitted to continue and has ordered both licences to be cancelled by separate orders that have been affirmed, as already said, in appeal by the Commissioner. 14. From this, he has inferred that it is not in public interest that the fire arms licences may be permitted to continue and has ordered both licences to be cancelled by separate orders that have been affirmed, as already said, in appeal by the Commissioner. 14. This Court finds that there is no tangible material in the sense of any act done by the petitioner contemporaneous in time when the Superintendent of Police, Basti submitted his report dated 2.10.2012, recommending cancellation of the petitioner's fire arm licences. It appears that the Superintendent of Police, Basti went through the record of the criminal cases pending against the petitioner and felt like reporting him to the District Magistrate for the cancellation of his fire arm licences. The Superintendent of Police, Basti did not have before him any contemporaneous report of any act done by the petitioner, that could be regarded as one posing threat to public security, safety or tranquility. The District Magistrate also on his part acted on the said report of the Superintendent of Police, mechanically and returned a finding that continuance of the two fire arm licences with the petitioner was against public interest, without any tangible basis to the said finding. 15. In the opinion of this Court, the impugned orders passed by the District Magistrate, Basti, are, therefore, not sustainable and it is a case where he must look at the matter afresh after considering the material on record bearing in mind the legal position adumbrated in this judgment regarding his right to cancel a subsisting arms licence. 16. Now, a word about the two appeallate orders approving the District Magistrate. The Commissioner in appeal, while disposing of the same, has done so in the absence of the learned counsel for the petitioner and the petitioner himself. He has dismissed the two appeals after going through the records, holding by a cryptic order that considering that cases against the petitioner are pending in Court, the order of the Licensing Authority appears to be just and proper. It has also been held that the petitioner was given adequate opportunity of hearing but he did not appear. He has dismissed the two appeals after going through the records, holding by a cryptic order that considering that cases against the petitioner are pending in Court, the order of the Licensing Authority appears to be just and proper. It has also been held that the petitioner was given adequate opportunity of hearing but he did not appear. Then there is a apparently erroneous finding and order recorded by the Commissioner, that translated into English from Hindi vernacular, reads thus: "In view of the above, for want of prosecution (presumably of the appeal) and evidence, the appeal is dismissed." (Emphasis by Court) 17. This Court fails to understand what evidence the Commissioner expected to be led in appeal. Everything was before the Commissioner on record, coming to him from the Licensing Authority, which was the foundation of the appeals filed before him under Section 18 of the Arms Act. The Commissioner was required to decide the appeals on a perusal of the records of the case summoned from the Licensing Authority, and after hearing learned counsel for the appellant. Even if the Commissioner chose to decide the appeal on merits in the absence of counsel for the appellant, there may be nothing inherently wrong about it (considering that the learned counsel was not turning up), so long as he decided those appeals after considering materials on record and adopting an approach in the disposition of the appeals, that accords with the law. However, the more advisable course to adopt in an appeal of this kind should be not to decide on merits in the absence of counsel, though the appeal may be dismissed in default. 18. Bearing in mind what the Commissioner has done in the appeals, even if those orders are to be regarded as orders not passed on merits where the matter could be remanded to the Appellate Authority, this Court is of clear opinion that no useful purpose would be served in sending back the matter to the Appellate Authority, now, that the two orders impugned passed by the Authority of first instance/ the Collector have been examined on merits and found to be utterly flawed. 19. In the result, the writ petition succeeds and is allowed in part. 19. In the result, the writ petition succeeds and is allowed in part. Both the impugned orders dated 25.10.2018 passed by the Commissioner, Basti Division Basti, in Appeal No.459/2012-13 and in Appeal No.460/2012-13 and the impugned orders dated 11.7.2013 passed by the District Magistrate, Basti in Case No.33/2012 and in Case No.34/2012 under Section 17 of the Arms Act are hereby quashed with a remit of the matter to the District Magistrate, Basti to decide the matter afresh in accordance with the guidance in this judgment, within a period of one month from the date of receipt of a certified copy of this order. Costs easy.