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2019 DIGILAW 157 (GUJ)

Hareshkumar Pranshankar Mehta v. State of Gujarat

2019-02-25

VIPUL M.PANCHOLI

body2019
JUDGMENT : Vipul M. Pancholi, J. This petition is filed under Article 226 of the Constitution of India in which the petitioner has prayed that the order dated 18.05.2016 passed by respondent No.2 as well as order dated 30.10.2018 passed by respondent No.1 be quashed and set aside. 2. Heard learned advocate Mr. Abhimanyu Rathod for the petitioner and learned Assistant Government Pleader Ms. Asmita Patel for the respondents. 3. Learned advocate for the petitioner submits that petitioner is a businessman carrying on the business of electric motor rewinding. He is also Vice President of All India Anti Corruption and Crime Preventive Council (Gujarat State), which is a registered Trust. In the year 2001, licence was granted to the petitioner by the Commissioner of Police, Ahmedabad City under the provisions of the Arms Act. Thereafter, in the year 2004, FIR being C.R.No.I-93 of 2004 is registered against the petitioner before Karanj Police Station. Thereafter, show cause notice was issued to the petitioner by the respondent No.2 as the FIR is registered against him. Petitioner submitted his reply. However, by order dated 03.11.2004, licence issued in favour of the petitioner was suspended/revoked. Petitioner, therefore, filed appeal under Section 18 of the Arms Act before the Appellate Authority. The Appellate Authority, vide order dated 13.10.2006, quashed and set aside the order passed by the respondent No.2 and matter was remanded back to the respondent No.2 for taking fresh decision after giving opportunity of hearing to the petitioner. 4. It is contended that thereafter no proceedings were initiated by the respondent No.2 after the matter was remanded. Petitioner, therefore, filed petition being Special Civil Application No. 1033 of 2016 before this Court. This Court, vide order dated 18.03.2016, directed the respondent No.2 to decide the case of the petitioner as per the remand order dated 13.08.2006. Respondent No.2, therefore, passed order on 18.05.2016 and rejected the request of the petitioner, against which, the petitioner preferred petition being Special Civil Application No.9449 of 2016 before this Court. However, the said petition was withdrawn as the petitioner is having alternative remedy of filing an appeal before the Appellate Authority. After withdrawal of the petition, petitioner filed an appeal under Section 18 of the Arms Act. The said appeal is also rejected by the respondent No.1 vide order dated 30.10.2018. Petitioner has, therefore, filed this petition. 5. Learned advocate Mr. After withdrawal of the petition, petitioner filed an appeal under Section 18 of the Arms Act. The said appeal is also rejected by the respondent No.1 vide order dated 30.10.2018. Petitioner has, therefore, filed this petition. 5. Learned advocate Mr. Rathod submits that FIR is filed against the petitioner under Sections 170, 171, 419 and 114 of the Indian Penal Code in the year 2004. However, the said offence is not under the provisions of the Arms Act. The respondent authorities, without appreciating the said aspect, rejected the request of the petitioner merely because the said FIR is pending against the petitioner, which is not permissible. Learned advocate has referred the provisions contained in the Arms Act for cancellation of licence and also placed reliance upon the order dated 12.06.2017 passed by the Division Bench of this Court in Letters Patent Appeal No.290 of 2016. Learned advocate has referred paragraph 13 of the said order and contended that the issue involved in the present case is squarely covered by the aforesaid decision. He, therefore, urged that this petition be allowed and impugned orders be quashed and set aside. 6. On the other hand, learned Assistant Government Pleader has opposed this petition and submitted that it is not in dispute that FIR being C.R.No.I-93 of 2004 is filed against the petitioner. The said criminal case is still pending and therefore the respondent authority has rightly not entertained the request of the petitioner. He, therefore, urged that this petition be dismissed. 7. Having considered the submissions canvassed by learned advocates appearing for the parties and having gone through the material produced on record, it transpires that the petitioner was issued licence in the year 2001. However, the proceedings were initiated against him for revocation of the said licence on the basis of the registration of the FIR filed against him in the year 2004. If the impugned orders are carefully examined, it is revealed that the request of the petitioner is not entertained merely because the criminal proceedings pursuant to the said FIR are still pending. 8. At this stage, provisions contained in Section 17 of the Arms Act is required to be referred to. Sub-section (3) of Section 17 of the Arms Act provides as under: "17. 8. At this stage, provisions contained in Section 17 of the Arms Act is required to be referred to. Sub-section (3) of Section 17 of the Arms Act provides as under: "17. Variation, suspension and revocation of licences.- (1) xxx xxx (2) xxx xxx (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 subsection (1) requiring him to deliver-up the licence." 9. Thus, from the aforesaid provision, it is clear that if the licencing authority deems it necessary to suspend or revoke the licence for the security of the public peace or public safety or if there is any breach of condition of the licence, licence can be suspended or revoked by the licencing authority. 10. In the present case, the FIR is filed under Section 170, 171, 419 and 114 of the Indian Penal Code and not connected with the Arms Act or there is no allegation of breach of public peace or public safety. 11. The Division Bench of this Court has considered the aforesaid provision and thereafter observed in para 13, 15 and 16 in the order dated 12.06.2017 passed in Letters Patent Appeal No.290 of 2016 as under: "13. 11. The Division Bench of this Court has considered the aforesaid provision and thereafter observed in para 13, 15 and 16 in the order dated 12.06.2017 passed in Letters Patent Appeal No.290 of 2016 as under: "13. Having considered the submissions canvassed on behalf of the learned advocates appearing for the parties and having gone through the material produced on record, it is clear that the respondent No.3 issued Arms Licence No.BK/42/03 for NP Bore Revolver Pistol in favour of the petitioner on 11.08.2006. Thereafter, on 26.11.2007, FIR being CR No.I-110/2007 came to be registered against the petitioner and other accused before Palanpur Police Station for the offences punishable under Section 409, 477(A) and 34 of the IPC as well as under Sections 13(1)(d) of the Prevention of Corruption Act. Thus, on the basis of the registration of the FIR against the petitioner, the respondent No.3 after issuance of the show cause notice, revoked the licence of the petitioner on the ground of public interest. The said order was quashed by the Appellate Authority i.e. the respondent No.2 and matter was remanded to the respondent No.3. However, when the matter was remanded back to the respondent No.3, the respondent No.3 rejected the application of the petitioner mainly on the ground that against the licence holder, FIR came to be registered for the offences punishable under the provisions of the IPC as well as Prevention of Corruption Act and Superintendent of Police has given his negative opinion and the trial of the said criminal proceeding is still pending and therefore it is not proper to restore the licence of the petitioner. It is further recorded by the respondent No.3 that the petitioner has failed to produce any documentary evidence in favour of his claim that risk is involved in his business and therefore Arms licence is required. Thus, on the aforesaid grounds, the respondent No.3 has not entertained the application of the petitioner and once again confirmed his order by revoking the licence of the petitioner. The aforesaid order came to be confirmed by the respondent No.2 in the appeal and the learned Single Judge has also dismissed the petition. xxx xxx xxx 15. From the aforesaid provision, it is clear that the licensing authority is empowered to suspend or revoke the licence under the circumstances which are enumerated in aforesaid sub-section (3) of Section 17. The aforesaid order came to be confirmed by the respondent No.2 in the appeal and the learned Single Judge has also dismissed the petition. xxx xxx xxx 15. From the aforesaid provision, it is clear that the licensing authority is empowered to suspend or revoke the licence under the circumstances which are enumerated in aforesaid sub-section (3) of Section 17. As observed hereinabove the respondent No.3 has placed reliance upon the negative opinion given by the Superintendent of Police and pendency of the criminal proceedings against the petitioner. However, the respondent No.3 has not considered whether the registration of FIR against the petitioner and pendency of criminal proceedings for the offence of criminal breach of trust, forgery and under the provisions of the Prevention of Corruption Act in any way affect the public safety, security or public peace. Further, the respondent No.3 has also committed an error by observing that the petitioner has failed to produce any documentary evidence in favour of his claim that risk is involved in his business and therefore arms licence is required. It is required to be noted that the respondent No.3 was not for the first time issuing the licence in favour of the petitioner but he was exercising the powers under Section 17 of the Act for revocation of the licence and therefore also the order passed by the respondent No.3 is required to be set aside. From the order passed by the respondent No.3 it is not reflected that he has exercised the powers under Section 17(3) (a) of the Act on the ground that petitioner is unfit to have licence. Thus, the submission canvassed by learned AGP is misconceived. 16. Further, the respondent No.3 has revoked the licence of the petitioner on the basis of pendency of criminal proceedings as discussed hereinabove. However, arms licence of the co-accused of the same FIR against whom the criminal proceeding is still pending has been restored by the Appellate Authority." 12. In view of the aforesaid provision and in view of the decision rendered by the Division Bench of this Court, I am of the view that the present case is covered by the aforesaid order. 13. In view of the above discussion, petition is partly allowed. Impugned order dated 18.05.2016 passed by respondent No.2 as well as order dated 30.10.2018 passed by respondent No.1 are hereby set aside. 13. In view of the above discussion, petition is partly allowed. Impugned order dated 18.05.2016 passed by respondent No.2 as well as order dated 30.10.2018 passed by respondent No.1 are hereby set aside. The matter is remitted back to the respondent No.2 for deciding the issue afresh. The respondent No.2 shall decide the request of the petitioner within a period of four weeks from the date of receipt of this order as the proceedings were initiated against him in the year 2004. It is clarified that while passing the order afresh, respondent No.2 shall not consider the pendency of criminal proceedings pursuant to the FIR being C.R.No.I-93 of 2004 pending with Karanj Police Station against the petitioner. Direct service is permitted.