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2019 DIGILAW 2785 (ALL)

Ajay Kumar Singh v. State Of U. P.

2019-12-16

PIYUSH AGRAWAL

body2019
JUDGMENT : Piyush Agrawal, J. 1. Heard Shri Shashi Kant Dwivedi, learned counsel for the petitioner, learned standing counsel for the State -respondents and Shri Raj Kumar, learned counsel for the respondent no. 4. 2. The present writ petition has been filed for a writ of certiorari quashing the order dated 08.02.2016 passed by the District Magistrate, Deoria and order dated 12.08.2010 passed by the Commissioner, Gorakhpur Division, Gorakhpur (i.e., the respondent no. 2). By the order dated 12.08.2010, the District Magistrate cancelled the firearm licence of the petitioner; whereas, by the subsequent order dated 08.02.2016, the appeal of the petitioner against the order of the District Magistrate has been dismissed. 3. Learned counsel for the petitioner submits that the petitioner is licence holder of firearm (revolver) bearing Licence No. 3366/II, which was issued in favour of his father on 05.04.1999 and after the death of petitioner's father, the said firearm licence was transferred in the name of the petitioner on the basis of legal heir. It is stated that on 10.01.2006, the petitioner's firearm was forcibly taken by the Inspector, In-charge. Thereafter, a false report was submitted by the Inspector concerned before the Superintendent of Police. On the basis of the report submitted by the Inspector, the Superintendent of Police, Deoria submitted a report before the District Magistrate on 21.01.2006. 4. It is further stated that in the report of the Superintendent of Police, two cases have been mentioned against the petitioner, i.e., Case Crime No. 1032/2000 under sections 394 & 411 IPC and Case Crime No. 748/2000 under sections 457 & 380 IPC and on the basis of the said report, the District Magistrate, vide order dated 12.08.2010, cancelled the firearm licence of the petitioner without considering the evidence on record. 5. It is further submitted that out of the aforesaid two criminal cases, the petitioner has been acquitted in Case Crime No. 748/2000 under sections 457 & 380 IPC and in respect of Case Crime No. 1032/2000 under sections 394 & 411 IPC, the complainant of the said case has filed an affidavit stating therein that the petitioner was not involved in the case and it was his brother who was involved in the incident. It is further submitted that merely pendency of a criminal case will not give right to the authority to cancel the firearm licence and therefore, the impugned orders are bad in the eyes of law and are liable to be quashed. 6. Rebutting the submissions of the learned counsel for the petitioner, learned standing counsel has submitted that the impugned orders are totally justified as there was an apprehension of public peace and safety in permitting the petitioner's firearm licence to continue. He further submits that a criminal case is also pending against the petitioner and therefore, the firearm licence has rightly been cancelled by the lower authorities. 7. The Court has perused the records. 8. The impugned orders reveal that the firearm licence has been suspended on account of there being threat to public peace and security. Moreover, a Case Crime No. 1032/2000 under sections 394 & 411 IPC is pending against the petitioner. The record reveals that there is no allegation that the firearm, possessed by the petitioner, has been used for disturbing any public peace or safet. Neither any incident has been stated, where the petitioner participated and misused his firearm resulting in breach of public peace and safety, nor there is any evidence on record to establish that the petitioner was involved in an act resulting in disturbance of public peace or safety. 9. Further, merely pendency of a criminal case cannot be a ground for cancellation of firearm licence; unless & until, a finding is recorded by the competent authority that the possession of firearm has a tendency of threatening the public peace and safety. 10. This Court in Ram Charan Vs. State of U.P. & 2 Others, 2016 (11) ADJ 185 , has held as under:- "11. The distinction between the concept of public order and that of law and order has been adverted to by the Apex Court in a catena of decisions. The question whether a man has only committed a breach of law and order or acted in a manner leading to disturbance of public order is a question of degree of the reach of the act upon society is no more res integra. The question whether a man has only committed a breach of law and order or acted in a manner leading to disturbance of public order is a question of degree of the reach of the act upon society is no more res integra. In the case reported in AIR 1966 SC 740 , Dr Ram Manohar Lohia v. State of Bihar it was observed that the contravention 'of law' always affects 'order' but before it could be said to affect 'public order', it must affect the community or the public at large. One has to imagine three concentric circles, the largest representing "law and order", the next representing "public order" and the smallest representing "security of State". An act may affect "law and order" but not "public order", just as an act may affect "public order" but not "security of the State". 12. The principles settled way back in the year 1966 in the case of Dr. Ram Manohar Lohia (Supra) has been repeatedly quoted with respect and approval. 13. In 1998 (16) LCD 905, Ram Murti Madhukar Vs. District Magistrate, Sitapur, in paragrah 8 & 9 of the said report this Court has held as follows:- "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 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 Vs. State of U.P. & Ors. in paragraph 3 & 4 of the said report it has been held as follows:- "3. Licence cannot be suspended or revoked on the ground of 'Jan Hit'." 14. In 2002 (44) ACC 783, Habib Vs. State of U.P. & Ors. in paragraph 3 & 4 of the said report it has been held as follows:- "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 Vs. Commissioner, Moradabad & Ors., in paragraph 6 of the report it has been 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 Vs. 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. Haroon Vs. 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 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 2011 (29) LCD 1045, Rama Kushwaha Vs. State of U.P. & Ors., a Single Judge of this Court in paragraph 10 & 11 of the said report has held as follows:- "10. In Ram Murli Madhukar Vs. 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 Vs. The District Magistrate, Basti & others, wherein the Division Bench relying upon the earlier decision of Masiuddin Vs. 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 Vs. State of U.P. Reported in 2002 ACC 783, Ram Sanehi Vs. Commissioner, Devi Patan Division, Gonda & another." 17. In 2011 (29) LCD 829, Hiramani Singh Vs. 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 Vs. Distt. Magistrate, Pratapgarh, in paragraph no. In 1994 (12) LCD 1109 , Anil Kumar Singh Vs. Distt. Magistrate, Pratapgarh, in paragraph no. 6 of the said report it has been held as follows:- "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 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." 11. Further, in paragraph nos. 20, 21 & 22, this Court has held thus:- "20. A perusal of the impugned order dated 4.2.2009 would show that the licence of the petitioner has been cancelled only on the ground of pendency of a solitary criminal case mentioned in the said order. It is no more res integra that mere pendency of a criminal case or apprehension of abuse of arms is not a sufficient ground for passing of an order of suspension or revocation of licence under section 17 of the Act. 21. The firearm licence of the petitioner could not have been cancelled in "public interest" as has been done in the present case. In view of the settled legal position, a finding on the question of disturbance of law and order has to proceed before the firearm licence is cancelled under section 17(3)(b) of the Act. 22. No incident of breach of security of the public peace or public safety at the behest of the petitioner has been pointed out. The petitioner has no criminal history. The police report on the basis of which the proceedings were initiated against the petitioner does not indicate that the petitioner had utilized the firearm during the said occurrence. 22. No incident of breach of security of the public peace or public safety at the behest of the petitioner has been pointed out. The petitioner has no criminal history. The police report on the basis of which the proceedings were initiated against the petitioner does not indicate that the petitioner had utilized the firearm during the said occurrence. There is no averment in the FIR or in the counter affidavit that the gun possessed by the petitioner was used by the petitioner. There must be some positive incident in which the petitioner participated and used his gun which led to the breach of public peace and public safety. There is nothing on record to establish that the petitioner was involved in any act resulting in disturbance to public peace or public safety." 12. In view of the well-settled legal position mentioned above, the writ petition is allowed. The impugned order dated 08.02.2016 passed by the District Magistrate, Deoria and the impugned order dated 12.08.2010 passed by the Commissioner, Gorakhpur Division, Gorakhpur (i.e., the respondent no. 2) are hereby quashed. 13. The matter is remitted back to the respondent no. 3 for fresh consideration. Since the matter pertains to the year 2006, the respondent no. 3 is directed to decide the matter afresh, in accordance with law, preferably, within a period of three months from the date of production of a certified copy of this order before him.