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2019 DIGILAW 3 (ALL)

Arun Pandey v. State of U. P.

2019-01-02

SAUMITRA DAYAL SINGH

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JUDGMENT : Saumitra Dayal Singh, J. The present petition has been filed against the order dated 14.08.2012 passed by the District Magistrate-Kanpur Nagar by which that authority had rejected the petitioner's application for grant of fire arm license under section 14 of The Arms Act, 1959 (hereinafter referred to as the Act), and the order dated 06.11.2013 passed by the Commissioner, Kanpur Zone, by which the petitioner's appeal against the order dated 14.08.2012 was also dismissed. 2. Perusal of the order passed by the licensing authority reveals that the petitioner's application had been rejected solely on account of the fact that a police report had been received by the licensing authority with regard to the registration of Case Crime No. 89 of 2005 under Sections 332, 342, 384 IPC. It has thus been concluded, if the fire arm license was to be granted to the petitioner, he was likely to misuse the same. 3. Learned counsel for the petitioner states that the petitioner is a Manager of an Educational Institution being Vishwa Nath Pandey Inter College, Surar since 2002 and he had also been elected as the Village Pradhan in the year 2005-10. In such circumstances, it has been stated, a wholly false and fabricated FIR had been lodged against the petitioner motivated by personal animosity of his political rivals and that there is no credible evidence or material existing against the petitioner as may lead to the conclusion of likelihood or misuse of fire arm by the petitioner. In any case, it has been submitted, there is no allegation of misuse of any fire arm by the petitioner in the false criminal case that had been lodged against him. 4. Learned Additional Chief Standing Counsel has opposed the present writ petition and submitted, inasmuch as the petitioner had been named as an accused person in a criminal case involving offence under Section 384 IPC, that itself entailed an ineligibility for grant of fire arm license to the petitioner. Also, it has been submitted, besides the general grounds disclosed, the petitioner had not disclosed any specific ground for issuance of a fire arm license. 5. Having considered the argument so advanced by the learned counsel for the parties, the issuance of fire arm license is governed by the provisions of Sections 13, 14, 15, 16 and 17 of the Arms Act, 1959 (hereinafter referred to as the Act). 5. Having considered the argument so advanced by the learned counsel for the parties, the issuance of fire arm license is governed by the provisions of Sections 13, 14, 15, 16 and 17 of the Arms Act, 1959 (hereinafter referred to as the Act). An applicant must satisfy the requirements of Section 13 of the Act read with the Rules. The grant of fire arm license may not be refused arbitrarily or subjectively, but such action may be taken upon existence of reasons specified under Section 14 of the Act. 6. Principally, merely because a criminal case had been registered against the petitioner it could not lead to the cancellation of the fire arm license to the petitioner as held by full bench decisions of this Court in Chhanga Prasad Sahu Vs. State of Uttar Pradesh, (1984) 10 AllLR 223 and Kailash Nath and others Vs. State of U.P. and others, (1985) 22 AllCriC 353 and division bench decisions of the Court in Sheo Prasad Mishra V. District Magistrate, (1978) AWC 122, following an earlier division bench in the case of Masi Uddin V. Commissioner Allahabad, (1972) AllLJ 573. 7. In view of the similarity of the language used in sections 14(1)(b)(i)(1), (2) and, (3) of the Act and section 17(3)(a) of the Act as also in section 14(1)(b)(ii) of the Act and section 17(3)(b) of the Act, on the above noted rule laid down by the full bench, the grant of fire arm licence also cannot be refused unless the fact allegation and the material on record lead to a reason to believe as to existence of any of the ineligibilities under section 14 (1) (b) of the Act. 8. Also, to refuse issue of fire arm license, a reason to believe is necessary to be recorded in writing by virtue of sections 14(1)(b)(i) read with 14(3) of the Act. The belief must be as to existence of one or more factor enumerated under section 14(1)(b) of the Act. At the same time the belief may not be purely subjective, but reasonable. 9. Insofar as the phrase "reason to believe" appears in Section 14(1)(b)(i) of the Act, though not defined under the Act, the same appears in different statutes by way of a safeguard against arbitrary action by statutory authorities under different enactments. It has been interpretation by the Supreme Court under different statutes. 9. Insofar as the phrase "reason to believe" appears in Section 14(1)(b)(i) of the Act, though not defined under the Act, the same appears in different statutes by way of a safeguard against arbitrary action by statutory authorities under different enactments. It has been interpretation by the Supreme Court under different statutes. Sufficient for the present purpose, as to the nature of the belief the Supreme Court in S. Narayanappa v. CIT, (1967) AIR SC 523 held as below: "Again the expression "reason to believe" in Section 34 of the Income Tax Act does not mean a purely subjective satisfaction on the part of the Income Tax Officer. The belief must be held in good faith: it cannot be merely a pretence. To put it differently it is open to the court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the section". (emphasis supplied) 10. Then, the belief must be founded on reasonable grounds. In Sheo Nath Singh v. Appellate CIT, (1972) 3 SCC 234 it was held: "10. .............................There can be no manner of doubt that the words "reason to believe" suggest that the belief must be that of an honest and reasonable person based upon reasonable grounds and that the Income Tax Officer may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour. The Income Tax Officer would be acting without jurisdiction if the reason for his belief that the conditions are satisfied does not exist or is not material or relevant to the belief required by the section. The Court can always examine this aspect though the declaration or sufficiency of the reasons for the belief cannot be investigated by the Court". (emphasis supplied) 11. The above position was further explained in CST v. Bhagwan Industries (P) Ltd., (1973) 3 SCC 265 , thus: "11. The controversy between the parties has centered on the point as to whether Assessing authority in the present case had reason to believe that any part of the turnover of the respondent had escaped assessment to tax for Assessment Year 1957-58. Question in the circumstances arises as to what is the import of the words "reason to believe", as used in the section. Question in the circumstances arises as to what is the import of the words "reason to believe", as used in the section. In our opinion, these words convey that there must be some rational basis for the assessing authority to form the belief that the whole or any part of the turnover of a dealer has, for any reason, escaped assessment to tax for some year. If such a basis exists, the assessing authority can proceed in the manner laid down in the section. To put it differently, if there are, in fact, some reasonable grounds for the assessing authority to believe that the whole or any part of the turnover of a dealer has escaped assessment, it can take action under the section. Reasonable grounds necessarily postulate that they must be germane to the formation of the belief regarding escaped assessment. If the grounds are of an extraneous character, the same would not warrant initiation of proceedings under the above section. If, however, the grounds are relevant and have a nexus with the formation of belief regarding escaped assessment, the assessing authority would be clothed with jurisdiction to take action under the section. Whether the grounds are adequate or not is not a matter which would be gone into by the High Court or this Court; for the sufficiency of the grounds which induced the assessing authority to act is not a justiciable issue. What can be challenged is the existence of the belief but not the sufficiency of reasons for the belief. At the same time, it is necessary to observe that the belief must be held in good faith and should not be a mere pretence". (emphasis supplied) 12. The belief in such cases must also be shown to be based on material on the record. It was so held in N. Nagendra Rao & Co. v. State of A.P., (1994) 6 SCC 205 : "5. .....The expression "reason to believe" has been interpreted by this Court to mean that even though formation of opinion may be subjective but it must be based on material on the record. It cannot be arbitrary, capricious or whimsical. .............". (emphasis supplied) 13. v. State of A.P., (1994) 6 SCC 205 : "5. .....The expression "reason to believe" has been interpreted by this Court to mean that even though formation of opinion may be subjective but it must be based on material on the record. It cannot be arbitrary, capricious or whimsical. .............". (emphasis supplied) 13. Applying that rule, the belief that must be found existing with the licensing authority to refuse issue of fire arm license must be - either that there exists a prohibition in law to issue the license sought for or; the applicant is of unsound mind or; the applicant is otherwise unfit for grant of such licence or; refusal of license is necessary to secure public peace or public safety. Further, mere formation of such belief would never be enough to refuse grant of firearm license. The belief so formed must be an honest one and/or in good faith, such as may be drawn by a prudent person, rationally i.e. based on reasonable grounds that are germane to the formation of that belief, arising from the material (direct or circumstantial) on record, but not on mere gossip, rumour or suspicion. The grounds must always have a direct nexus with the proposed refusal and not be extraneous thereto. 14. By virtue of sub-section (3) of Section 14 of the Act, such reason to believe must not only exist, but normally must also be recorded in writing, unless exceptional circumstances exist that may warrant otherwise. Such is not the case here. 15. Examined from that legal stand point, by merely stating that a criminal case had been registered against the petitioner, the licensing authority could not have refused issue of the fire arm license. It also cannot be said that any "reason to believe" had been recorded by the licensing authority for the purpose of Section 14(1)(b)(i) of the Act. For a "reason to believe" to exist, the licensing authority had to apply his mind to the facts and material placed before him in the shape of police report etc. and then to form and record his own reasons (arising from fair perusal of the record of the case), germane to his belief as to existence of one or more of the ineligibilities contemplated under section 14(1)(b) of the Act. 16. and then to form and record his own reasons (arising from fair perusal of the record of the case), germane to his belief as to existence of one or more of the ineligibilities contemplated under section 14(1)(b) of the Act. 16. In the facts of the present case, neither the nature of allegation made against the petitioner nor any other material or evidence has been examined as may lead to formation of the necessary reason to believe nor such reason to believe has been shown to have arisen or recorded - as to existence of any ineligibility on the part of the petitioner or as to any of the negative conditions contemplated under section 14(1)(b) of the Act. Allegation of involvement in a crime, without anything more is itself not an ineligibility in itself, under the Act. Then, no material has been shown to exist and no reason to believe has been shown to have been recorded, that the petitioner was either prohibited or unfit to obtain the license or that refusal of license was necessary to secure public peace or public security. In such matters, no adverse presumption may exist or be allowed to arise as it would defeat the objectivity that the Act seeks to enforce by requiring the licensing authority to record his "reasons to believe" to refuse grant of fire arm license to the applicant. 17. Thus the impugned orders leave a lot to be desired. They are wholly subjective, inasmuch as, no "reason to believe" emerge from the plain reading of the impugned orders and they only refer to certain facts that had been alleged against the petitioner without any objective consideration of the material. Therefore, the impugned orders cannot be sustained and are hereby set aside. 18. However in view of the fact, meanwhile Arms Rules 2016 have been enforced prescribing a new form and requiring further in formations, instead of remanding the matter to the licensing authority or to the appellate authority, it is provided to the petitioner may make a fresh application under Arms Rules, 2016. If such application is filed within a period of two weeks' from today, along with a certified copy of this order, the same may be dealt with and decided in accordance with law, in light of the observations made above, keeping in mind the timelines provided under the Arms Rules, 2016. 19. If such application is filed within a period of two weeks' from today, along with a certified copy of this order, the same may be dealt with and decided in accordance with law, in light of the observations made above, keeping in mind the timelines provided under the Arms Rules, 2016. 19. With the aforesaid observation, the present petition is allowed. No order as to costs.