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2019 DIGILAW 315 (ALL)

Bharat Bhati v. State Of U. P.

2019-02-06

SAUMITRA DAYAL SINGH

body2019
JUDGMENT : Saumitra Dayal Singh, J. 1. Heard learned counsel for the petitioner and learned Standing Counsel for the State. 2. The present writ petition has been filed against the order dated 28.06.2014 passed by the Licensing Authority by which the petitioner's firearm license has been cancelled, and the order dated 07.08.2014 passed by the Appellate Authority, by which the aforesaid cancellation order has been upheld. 3. Apparently, the petitioner's firearm license was sought to be cancelled by it's notice dated 31.01.2014 wherein reference had been made to a criminal case registered against the petitioner being Case Crime No. 258 of 2013 under Sections 147, 148, 149, 452, 323, 427, 504 and 506 IPC. It was further stated, upon investigation, the police had submitted a charge-sheet in that case. In that light, it was alleged, the petitioner had misused his firearm and therefore, looking into the criminal acts committed by the petitioner, the continuance of the firearm license of the petitioner was proposed to be cancelled. 4. The petitioner filed his reply to the aforesaid notice and submitted, he was a peace loving citizen, but that a dispute over certain land had arisen involving the petitioner with one Sri Surendra Singh Bhati. It was then submitted solely on account of the property dispute, false allegations had been made against the petitioner in the criminal case. 5. Though allegation of criminal trespass as also of attempted assault and demolition of the house of the informant were made in the FIR, the impugned order passed by the licensing authority, after making reference to such allegations, recorded the petitioner had misused his firearm as alleged in the FIR and that he was not a person of clean reputation. Also, a possibility of misuse of the firearm license was entertained. In the appellate authority also offered a similar reasoning without a detailed discussion as to the objections filed by the petitioner. 6. Learned counsel for the petitioner submits, in the first place, firearm license of the petitioner could not have been cancelled on the mere registration of a criminal case. In the appellate authority also offered a similar reasoning without a detailed discussion as to the objections filed by the petitioner. 6. Learned counsel for the petitioner submits, in the first place, firearm license of the petitioner could not have been cancelled on the mere registration of a criminal case. As to the allegation of misuse of the firearm in the criminal case lodged against the petitioner, it has been submitted that the FIR does not make that allegation, though it has been alleged that the petitioner had carried his firearm at the time of his entering into the dispute that led to the FIR being lodged. It is, therefore, submitted that the conclusions drawn by the Licensing Authority as to misuse of the firearm in that incident, is perverse. Then referring to the other reasoning recorded by the Licensing Authority, it has been submitted mere apprehension of misuse of firearm license may never be a ground to cancel the same. In respect of the above, reliance has also been placed by a learned Single Judge in the case of Vishwanath Singh Vs. Commissioner Lucknow Mandal Lucknow & Others 2015 (7) ADJ 393 . 7. Sri Vijay Pratap Singh, learned Standing Counsel on the other hand submits, looking into the FIR, it is clear the petitioner had committed offence of trespass as also he had along with other accused persons demolished the constructed house of the informant and that he had committed those offences under the threat held out by him by misusing the firearm in such incident. Also, reference has been made to the police report that has been noted by the Licensing Authority, to submit the petitioner is a person of criminal proclivity, and therefore, the reasoning offered by the Licensing Authority is neither erroneous nor perverse. 8. Having heard learned counsel for the parties, in the first place, it cannot be denied, mere registration for a criminal case may not result of the cancellation of firearm license. However, this is also not to say that a firearm license cannot be cancelled after a criminal case had been registered against the petitioner. The nature of allegations would have a crucial bearing on the proceedings for cancellation of the firearm license. For that purpose, the charge must arise and be established under Section 17(3) of the Arms Act, 1959. However, this is also not to say that a firearm license cannot be cancelled after a criminal case had been registered against the petitioner. The nature of allegations would have a crucial bearing on the proceedings for cancellation of the firearm license. For that purpose, the charge must arise and be established under Section 17(3) of the Arms Act, 1959. The pendency of the criminal case or the acquittal of the licensee in that case may not be decisive of the proceedings that may be initiated and concluded under Section 17 of the Act. The proceedings for cancellation of fire arm licence being civil in nature, the Licensing Authority would be entitled to examine all material and evidence that may be available to it to record its independent reason to believe, as to existence or otherwise of the statutory grounds to cancel the fire arm licence. 9. As to presence of any of the condition mentioned under Section 17(3)(a) to (e), needless to add such "reason to believe" may be recorded after issuing a prior notice to the licensee as contemplated by the Act. The power of the Licensing Authority is independent of the power of a criminal court that may convict any licensee for commission of offence under the Act and while passing that order suspend or revoke the firearm license. As to the requirement of recording the reason to believe, in Writ-C No. 67424 of 2013 (Arun Pandey Vs. State of U.P. & Anr.) decided on 02.01.2019, it has been held as below: "13. Applying that rule, the belief that must be found existing with the licensing authority to cancel the 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; cancellation 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 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." 10. Thus, it is seen while the show cause notice had been issued to the petitioner on an allegation of misuse of the firearm license, no material has been shown to exist as may establish that the petitioner had misused the fire arm in the incident narrated in the FIR. The FIR only mentions that the petitioner was carrying his firearm at the time of the incident. However, it did not contain an allegation of that firearm having been used by the petitioner. Then the cancellation order appears to have been passed on new/other reason of apprehension of misuse of firearm in future and bad character reputation of the petitioner, for which no show cause notice appears to have preceded the order. 11. The Appellate Authority has also made a similar mistake in not examining itself whether the Licensing Authority had recorded towards "reason to believe" as to the matters mentioned in the show cause notice. 12. Accordingly without making any observations as to the merits of the matter i.e. whether the petitioner was or was not involved in the criminal incident that forms the basis of the proceedings under the Arms Act, and whether, he had misused his firearm in that incident and without making any observations as to the other reasons contained in the order of the Licensing Authority and the appellate authority, at present it does appear that those orders had not been passed in accordance with law, inasmuch as the reasoning contained in those orders does not flow from or is not connected to the notice that had been issued to the petitioner or the material that may be existing on record.. 13. 13. Accordingly, the orders dated 28.06.2014 passed by District Magistrate/A.D.M., Ghaziabad and 07.08.2014 passed by Learned Commissioner, Meerut Division, Meerut are set aside. The matter is remitted to the Licensing Authority to issue a fresh notice to the petitioner specifically mentioning therein the ground/reasons on which the firearm license of the petitioner is proposed to be cancelled. It will remain open to the Licensing Authority to record more than one reason in that notice which may be referable to one or more of the sub-clauses of Section 17(3)(a)(ii)(e) of the Act. It may also refer to the material giving rise to such reasons. 14. Once such notice is issued, the petitioner may be given one opportunity to furnish his reply thereto, where after a fresh order may be passed. In case the Licensing Authority is inclined to reject the firearm license of the petitioner, it is expected that it will record this "reason to believe" as to the matter/s on which such license is being cancelled and such reasons may necessarily be referable to the notice that he may have issued to the petitioner in compliance of this order. 15. The aforesaid proceedings may be concluded as expeditiously as possible, preferably within a period of four months from the date of production of certified copy of this order. 16. With the above observations, the writ petition is disposed of.