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2019 DIGILAW 77 (GAU)

Kamal Kishore Kanoo v. State of Assam

2019-01-22

UJJAL BHUYAN

body2019
ORDER : UJJAL BHUYAN, J. 1. Heard Mr. G. Choudhury, learned counsel for the petitioner; Mr. R. Dhar, learned Govt. Advocate, Assam for respondent Nos. 1 and 2; and Mr. P. Katakey, learned counsel for respondent No. 3. 2. By filing this petition under Article 226 of the Constitution of India, petitioner has assailed the legality and validity of the order dated 05.05.2012 passed by the District Magistrate, Kamrup (Metro), Guwahati directing M/s. Raj Gun House, Panbazar, Guwahati and North-Eastern Arms Company, Panbazar, Guwahati to stop selling arms/ammunitions with immediate effect till clearance was received from the Government, i.e., the licensing authority. 2.1. The aforesaid order was issued on the basis of a complaint received from CID, Assam in connection with CID PS Case No. 60/2011 registered under Sections 120B/420/468/471 IPC read with Sections 29/30 of the Arms Act, 1959. 3. Case of the petitioner is that he is the proprietor of both M/s. Raj Gun House and North-Eastern Arms Company. According to the petitioner, he has property dispute with his younger brother Shri Ujjal Kanu who is also an arms and ammunition dealer being the proprietor of M/s. East India Arms Company. CID PS Case No. 60/2011 was registered on the basis of allegation that gun licences were issued by the then Additional District Magistrate, Kangpokpi, Manipur for the years 2004, 2006 and 2009 to persons who were not residents of the State of Manipur. Licence holders were mostly from Assam and other places. Further allegation made was that petitioner had sold arms and ammunitions to such licence holders without proper verification. 4. This Court vide order dated 27.6.2012 had issued notice. Thereafter this Court vide order dated 08.08.2012 stayed the impugned order dated 05.05.2012 subject to the condition that petitioner should submit daily statement of sale before the District Magistrate, Kamrup (Metro), Guwahati. Thereafter, vide order dated 24.08.2012 case was admitted for final hearing. However, case was dismissed for non-prosecution on 13.09.2018. By a subsequent order dated 03.12.2018 passed in an interlocutory application filed by the petitioner, which was registered as IA(C) No. 3825/2018, the writ petition was restored to file. 5. In the course of the hearing today, Mr. Thereafter, vide order dated 24.08.2012 case was admitted for final hearing. However, case was dismissed for non-prosecution on 13.09.2018. By a subsequent order dated 03.12.2018 passed in an interlocutory application filed by the petitioner, which was registered as IA(C) No. 3825/2018, the writ petition was restored to file. 5. In the course of the hearing today, Mr. Choudhury submits that though the writ petition was restored to file in the absence of any specific order restoring the interim order, District Magistrate, Kamrup (Metro), Guwahati has directed the petitioner to keep in abeyance selling of arms and ammunitions. In due deference, petitioner has not sold any arms and ammunitions thereafter. 6. Mr. Choudhury has taken the Court to the pleadings on record to show that action against the petitioner is not only motivated but also discriminatory. East India Arms Company had sold arms and ammunitions to licencees who were granted licence by the licensing authorities in the States of Nagaland and Manipur including by the Additional District Magistrate, Kangpokpi. He has also referred to Section 17 of the Arms Act, 1959 as well as the provisions of the Arms Rules, 1962 to contend that State of Assam is the licensing authority. Therefore, District Magistrate, Kamrup (Metro) had no jurisdiction to issue the impugned order dated 5.5.2012. That apart, nothing has been placed on record to show as to what decision licensing authority had taken after the impugned order was passed. On the contrary, he submits that licence of the petitioner was renewed by the Government of Assam in the Home Department for 2 years with effect from 01.01.2015 to 31.12.2017 vide letter dated 17.12.2015. He further submits that by a recent letter dated 10.01.2019, petitioner has been informed that his arms dealership licence and arms repairing licence have been renewed with effect from 01.01.2018 to 31.12.2020. In such circumstances, impugned order dated 05.05.2012 cannot be sustained being legally and factually untenable and should be set aside. 6.1. In support of his submission that an order passed without jurisdiction is a nullity, Mr. Choudhury has placed reliance on a decision of the Supreme Court in the case of National Institute of Technology Vs. Niraj Kumar Singh, (2007) 2 SCC 481 . 6.1. In support of his submission that an order passed without jurisdiction is a nullity, Mr. Choudhury has placed reliance on a decision of the Supreme Court in the case of National Institute of Technology Vs. Niraj Kumar Singh, (2007) 2 SCC 481 . To buttress his argument that cancellation or suspension of licence is a drastic measure affecting life and livelihood of the licencee which would therefore require compliance to the principles of natural justice, he has placed reliance on a decision of this Court in Santanu Medhi Vs. State of Assam, 2014 (3) GLT 253. 7. On the other hand, Mr. Dhar, learned Govt. Advocate, Assam has referred to the counter affidavit filed by respondent No. 1. Adverting to the pleadings in paragraph-6 of the counter affidavit, Mr. Dhar submits that perhaps Government of Assam in the Home Department had delegated the power of suspension of licence to the District Magistrate, Kamrup (Metro), Guwahati. 8. Mr. Katakey, learned counsel for respondent No. 3 submits that respondent No. 3 has been unnecessarily made a party in the writ proceeding. Assailment in the writ proceeding is to an administrative decision with regard to which respondent No. 3 had no role to play. However, since he has been made a party, he has filed an affidavit bringing on record what transpired during the investigation of CID PS Case No. 60/2011. 8.1. On a query by the Court, he submits that investigation into CID PS Case No. 60/2011 had concluded which culminated in filing of charge-sheet No. 22/2013 on 17.12.2013 and additional charge-sheet No. 1/2014 filed on 15.12.2014. On a further query by the Court, he submits that learned Chief Judicial Magistrate, Kamrup (Metro) had taken cognizance whereafter GR Case No. 8130/2013 relating to CID PS Case No. 60/2011 proceeded for trial. However, trial proceedings have been stayed on orders of this Court in a quashing petition filed by the petitioner. 9. Submissions made by learned counsel for the parties have received the due consideration of the Court. 10. At the outset, it needs to be clarified that this Court is concerned only with the legality and validity of the impugned order dated 05.05.2012 and is not concerned with the related criminal proceeding where law will take its own course. 11. 9. Submissions made by learned counsel for the parties have received the due consideration of the Court. 10. At the outset, it needs to be clarified that this Court is concerned only with the legality and validity of the impugned order dated 05.05.2012 and is not concerned with the related criminal proceeding where law will take its own course. 11. Impugned order dated 05.05.2012 is extracted hereunder:- "In view of gross complaint against your firm received from CID, Assam in connection with CID PS Case No. 60/11 u/s. 120B/420/468/471 IPC read with Section 29/30 of Arms Act, you are hereby asked to stop selling of arms/ammunition with immediate effect till any clearance is received from the Govt., the licensing authority." 12. The Arms Act, 1959 (Arms Act) was enacted by the parliament to consolidate and amend the law relating to arms and ammunitions. Section 2(f) defines 'licensing authority' which means an officer or authority empowered to grant or renew licences under rules made under the Arms Act and includes the Government. 13. Section 17 of the Arms Act is relevant but before adverting to Section 17, it may be useful to mention that Arms Rules, 1962 were framed by the Central Government in exercise of powers conferred by various sections of the Arms Act including Section 17. 13.1. As per Rule 4, licences under the Arms Act may be granted or renewed by such authorities in such forms and to be valid for such period and in such areas as are specified in Schedule II. As per the proviso, licences granted or renewed by a licensing authority may be signed by such officer subordinate to that authority as may be specially empowered in this behalf by the State Government. Clause III of Schedule I deals with fire arms, such as, revolvers and pistols, breech-loading rifles other than .22 bore rifles, .22 bore (low velocity) rifles using rim-fire cartridges, breech-load smooth bore guns and air rifles, air guns and air muzzle-loading guns. 14. As per of clause 7 of Schedule II, licensing authority for such arms and ammunitions is the Central Government in the Ministry of Home Affairs and District Magistrate or any other officer specially empowered in this behalf by the State Government. The renewing authority is the State Government or same as licensing authority. 15. There is no dispute at the Bar that State Government is the licensing authority. The renewing authority is the State Government or same as licensing authority. 15. There is no dispute at the Bar that State Government is the licensing authority. In fact, in the impugned order dated 05.05.2012, District Magistrate had directed the petitioner to stop selling arms and ammunitions with immediate effect till clearance was received from the Government, licensing authority, meaning thereby the State Government. 16. Having said that, Section 17 of the Arms Act may now be adverted to. It deals with variation, suspension and revocation of licences. As per Sub-Section (3), the licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence if the licensing authority is satisfied that the licence holder is prohibited by law from acquiring, having in his possession or carrying any arms or ammunition; or is of unsound mind; or if he for any reason is found to be unfit for a licence under the Arms Act; 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 if the licence was obtained by furnishing incorrect information or by suppression of material information; or if there is violation of any of the conditions of the licence; or if the licence holder fails to comply with a notice issued by the licensing authority for variation of the conditions of licence. 16.1. As per Sub-Section (4), the licensing authority may also revoke a licence on an application of the licence holder himself. Under Sub-Section (5), where the licensing authority makes an order either varying the conditions of licence or suspending or revoking a licence, it shall record in writing the reasons therefore and furnish to the licence holder on demand a brief statement of the same unless licensing authority is of the opinion that furnishing such statement would not be in the public interest. As per Sub-Section (7), if a Court convicts the licence holder for any offence under the Arms Act or under the Arms Rules made thereunder, the same may also lead to suspension or revocation of the licence. However, as per the proviso, if the conviction is set aside, suspension or revocation shall become void. 17. Sub-Section (3) of Section 17 being vital to the present litigation, the same is extracted hereunder:- "17(3). However, as per the proviso, if the conviction is set aside, suspension or revocation shall become void. 17. Sub-Section (3) of Section 17 being vital to the present litigation, the same is extracted hereunder:- "17(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 sub-section (1) requiring him to deliver-up the licence" 18. There is nothing on record to show that there is violation of any of the conditions mentioned in Sub-Section (3) of Section 17 as extracted above by the petitioner. The licensing authority has also not disclosed any satisfaction that petitioner is unfit for a licence under the Arms Act. 19. Respondent No. 2 in his affidavit has made a bald statement that impugned order was passed till final clearance on the issue was received from the Government which is the licensing authority. 20. Respondent No. 1 has filed affidavit through Deputy Secretary in the Home (C) Department. He has narrated the background leading to registration of CID PS Case No. 60/2011. In so far averments made in paragraph 6 are concerned to which Mr. Dhar, learned Govt. Advocate, Assam has referred to, it is seen that on the basis of enquiry report of CID, District Magistrate, Kamrup (Metro) was requested to take necessary action; accordingly, District Magistrate issued the impugned order. This only suggests that based on CID report, District Magistrate, Kamrup (Metro) had issued the impugned order dated 05.05.2012. Dhar, learned Govt. Advocate, Assam has referred to, it is seen that on the basis of enquiry report of CID, District Magistrate, Kamrup (Metro) was requested to take necessary action; accordingly, District Magistrate issued the impugned order. This only suggests that based on CID report, District Magistrate, Kamrup (Metro) had issued the impugned order dated 05.05.2012. 21. Impugned order was passed on 05.05.2012. More than 6½ years have gone by since then. No decision has been placed on record either by respondent No. 1 or by respondent No. 2 regarding the steps taken by the licensing authority post 05.05.2012. 22. Thus from the above, the following propositions are deducible. Firstly, suspension of licence has to be by the licensing authority. Secondly, such suspension cannot be for an indefinite period. Thirdly, while passing an order suspending a licence, reasons have to be recorded. Fourthly, licence may be suspended upon conviction in a criminal case but mere filing of charge-sheet or pendency of a criminal case is no ground for suspension of a licence. 23. In so far the present case is concerned, all the above propositions have been violated. As for the first proposition, it is evident that the impugned order of suspension of licence was not passed by the licensing authority. It was passed by a subordinate authority without jurisdiction. 24. That apart, in so far licensing authority is concerned, it is seen that arms dealership and the arms repairing licence of the petitioner was renewed for the period from 01.01.2015 to 31.12.2017 vide letter dated 17.12.2015 issued by the Deputy Secretary to the Govt. of Assam, Home (C) Department. This letter is on record as an annexure to the rejoinder affidavit filed by the petitioner to the affidavit of respondent No. 3. 24.1. As stated above, in the course of the hearing today, Mr. Choudhury has also placed before the Court a copy of letter dated 10.01.2019 issued by the Under Secretary to the Govt. of Assam in the Home (C) Department informing the petitioner that his arms dealership licence and arms repairing licence in respect of M/s. Raj Gun House and North- Eastern Arms Company have been renewed with effect from 01.01.2018 to 31.12.2020. 25. of Assam in the Home (C) Department informing the petitioner that his arms dealership licence and arms repairing licence in respect of M/s. Raj Gun House and North- Eastern Arms Company have been renewed with effect from 01.01.2018 to 31.12.2020. 25. Such renewal of licence by the licensing authority is a pointer to the fact that licensing authority do not subscribe to the decision of the District Magistrate, Kamrup (Metro) directing the petitioner to stop selling of arms and ammunitions till receipt of clearance from the Government. Evidently, District Magistrate, Kamrup (Metro) had acted beyond jurisdiction in passing the order dated 05.05.2012. It goes without saying that an order passed without jurisdiction or an order passed by an authority who lacks jurisdiction is not an order at all in the eye of law; it is a nullity. Therefore, it was rightly stayed by this Court vide order dated 8.8.2012. 26. Thus, having regard to the discussions made above and on due consideration, Court is of the view that impugned order dated 05.05.2012 cannot be sustained and is accordingly set aside and quashed. 27. Writ petition is allowed. 28. Parties to bear their own costs.