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2019 DIGILAW 901 (CHH)

JASWANT SINGH TYAGI v. STATE OF CHHATTISGARH

2019-09-06

P.R.RAMACHANDRA MENON, PARTH PRATEEM SAHU

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JUDGMENT Parth Prateem Sahu, J. -The appellant has questioned the legality and validity of the order dated 20.04.2017 passed by learned writ court declining to interfere with the order passed by Commissioner Raipur Division, Raipur. 2. Brief facts of the case in a nutshell are that the appellant has been granted Arms license for a fire arm (English Gun bearing No.10558 having licence No. 19898/12/74) in the year 1974 by the competent authority. A Show Cause notice was issued to the appellant for cancellation of license on 06.04.1991 and on the same date, another letter for suspension of the said Arms license was also issued to him. Show Cause notice was replied by the appellant on 18.04.1991 and thereafter, considering all the material available on record, the District Magistrate, Durg vide order dated 01.08.1997 passed an order of cancellation of Arms license of the appellant and was intimated with a copy of cancellation of license by the Office of District Magistrate, Durg vide order dated 05.08.1997. 3. The appellant has challenged the order of intimation before the Commissioner, Education Division, Raipur on the grounds mentioned therein. The Commissioner after hearing the parties, vide order dated 07.04.2000, dismissed the appeal by a detailed order after examining the reasons assigned in the order of cancellation order dated 01.08.1997 and the ground raised by the appellant in his plea. The order of commissioner rejecting the appeal of the appellant vide order dated 07.04.2000 was challenged before the High Court in a Writ-Petition-670/2002 which also came to be dismissed by impugned order dated 20.04.2017. The order of writ court is under challenge in this appeal on the grounds that cancellation of license was on vague allegations, there was no satisfaction recorded by the licensing authority before cancellation of the arms license granted to him; there is no allegation of provocation of any provision under Arms Act; the appellant was acquitted in all cases alleged on him with respect to the theft cases of two wheelers, there was no instance available in the police record that the appellant was endangering security of public peace or safety and also that he was not afforded any opportunity to file rejoinder before the writ court. 4. 4. Learned counsel for the appellant apart from the aforementioned grounds in the writ appeal, further submitted that the District Magistrate while passing the order of cancellation, not afforded proper opportunity of hearing to him and the order of cancellation was passed on the same date i.e. 6.4.1991 before submitting his reply and there was no allegation on him with respect to use of fire arm for which the license was issued in his favour. He placed his reliance in the matters of Shesh Nath Singh Vs State of Bihar and others, (1985) CriLJ 1601 ; Gurudayal Singh Vs Divisional Commissioner, Patiala Division and others, (2004) 136 PunLR 463 ; the judgment passed by the MP High Court in Writ Appeal No.511 of 2012 in Dileep Singh Vs State of MP decided on 26.09.2013; in the matter of State Vs Sahab Ram in Civil Special Appeal No.11 of 2010 decided on 10.01.2011 by the Rajasthan High Court in support of his contention. 5. Per contra learned counsel for the Respondent submitted that there are about 26 criminal cases of different nature of offences pending against the appellant as per the police records and therefore the Superintendent of Police made an application before the District Magistrate, Durg for initiating proceedings for cancellation of arm license of the appellant. A detailed show-cause notice was issued to the appellant on 06.04.1991 in which the act of commission of offences and its nature was mentioned in detail. He also submitted that the appellant was provided with an opportunity to submit his reply and thereafter the order of cancellation was passed on 01.08.1997, after a period of more than 6 1/2 years from the date of issuance of show-cause notice. He supported the impugned order passed by learned writ court as well as the order of Commissioner passed in appeal. In view of the above, he further submits that the ground raised by the appellant that he was not afforded proper opportunity of hearing by the District Magistrate Durg before passing the cancellation order is not sustainable. 6. We have heard Learned Counsel for the parties and also perused the records. 7. Grant of license is provided under section 13 of the Arms Act, 1959 (for short, "1959 Act") and the relevant of portion of Section-13 in the facts of the case is reproduced herein for ready reference : "13. 6. We have heard Learned Counsel for the parties and also perused the records. 7. Grant of license is provided under section 13 of the Arms Act, 1959 (for short, "1959 Act") and the relevant of portion of Section-13 in the facts of the case is reproduced herein for ready reference : "13. Grant of licences.-(1)An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed. (2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time. (2A) The licensing authority, after such inquiry, if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same: Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.]" 8. The refusal to grant license is provided under Section-14 of the Act of 1959. Section-14 of the 1959 Act is reproduced herein for ready reference: "14. Refusal of licences.-(1) Notwithstanding anything in section 13, licensing authority shall refuse to grant- (a) a licence under section 3, section 4 or section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition; (b) a licence in any other case under Chapter II,- (i) where such licence is required by a person whom the licensing authority has reason to believe- (1) to be 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 (2) to be of unsound mind, or (3) to be for any reason unfit for a licence under this Act; or (ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence. (2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property. (3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement." 9. The aforementioned two provisions envisaged the procedure to be adopted by the licensing authority for granting or refusing the license. It is also mentioned therein that as soon as an application for grant of license is received, the licensing authority will call for the report of the officer in-charge of nearest local police station. The licensing authority will record its satisfaction that the person applying for licence is not involved in any criminal offence, and the Section-14 of the Act of 1959 envisages for want of ground refusing to grant licence. If it is in the interest of security of public peace or safety, the authority may refuse to grant license. Section17 of 1959 Act en-visages the variation, suspension or revocation of license. The relevant portion of the said section is reproduced here below for ready reference: "17. Variation, suspension and revocation of licences.-(1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the licence-holder by notice in writing to deliver-up the licence to it within such time as may be specified in the notice. (2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed. (2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed. (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. (4) The licensing authority may also revoke a licence on the application of the holder thereof. (5) Where the licensing authority makes an order varying a licence under sub-section (1) or an order suspending or revoking a licence under sub-section (3), it shall record in writing the reasons therefor and furnish to the holder of the licence on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement." 10. Section-17 provides for revocation of license if the licensing authority deems it necessary for security of public peace or safety to revoke the same and sub-section-5 of section-17 provides for the authority varying or revoking a license. Under Sub-section-3 it shall record in writing the reasons there for. 11. Section-17 provides for revocation of license if the licensing authority deems it necessary for security of public peace or safety to revoke the same and sub-section-5 of section-17 provides for the authority varying or revoking a license. Under Sub-section-3 it shall record in writing the reasons there for. 11. Perusal of the records of the case at hand would show that on 06.04.1991 the Competent Authority i.e. District Magistrate, Durg issued a show-cause notice for cancellation of arms license of the appellant and by a separate order his license was suspended on the same day i.e. 06.04.1991. Notice for cancellation of license is different and suspension of arms license is a different action. Suspension of license is a consequential action in pursuance of the show-cause notice for cancellation of arms license. Because show-cause notice to cancel the arms license is issued only when the licensing authority was having prima facie reason that the variation, suspension or cancellation of license is required for the reasons provided under Sub-section-3 of Section-17 of the Act of 1959 of course, rebuttable and therefore the argument raised by learned counsel for the appellant that on the date of the issuance of the show cause notice, his license was cancelled does not appear to be correct. In fact the proceeding of the cancellation of license is a different proceeding and order of suspension of license is an order which was being passed during the pendency of the proceeding of cancellation of license. 12. We have perused the show cause notice dated 06.04.1991 wherein the District Magistrate assigned the reasons in detail for issuing the same for cancellation of license. In the notice, it has been mentioned that about 26 criminal cases of varying nature are pending against the appellant on the date of issuance of the show cause notice, his relationship with the hardcore criminals and also his nature in keeping a tenant who is involved in criminal activities. 13. The show-cause notice was also replied by the appellant and thereafter, after lapse of more than 6 1/2 years the Competent Authority i.e the District Magistrate passed an order of cancellation of the arms license on 01.08.1997. 14. 13. The show-cause notice was also replied by the appellant and thereafter, after lapse of more than 6 1/2 years the Competent Authority i.e the District Magistrate passed an order of cancellation of the arms license on 01.08.1997. 14. The above facts would clearly show that the competent authority before passing an order for cancellation of license granted opportunity of hearing to the appellant and therefore the argument raised by the learned counsel for the appellant that he was not afforded any opportunity of hearing is without any basis and it is not sustainable. 15. The perusal of order of the commissioner would reveal that the appellant herein has not challenged the original order dt.01.08.1997 of cancellation of the license, but he only challenged the order / information dated 05.08.1997 in his appeal. Even before the writ court or this court, the appellant has not placed on record initial order of cancellation of license dated 01.08.1997 and therefore also the appellant cannot be permitted to raise argument that he was not provided proper opportunity of hearing by the competent authority before passing an order of cancellation of license or the licensing authority has not applied its mind properly before cancelling his arms license vide order dated 01.08.1997. 16. The writ court while dismissing the writ petition, considered the judgment passed by the Allahabad High Court and the High Court of MP for holding that obtaining or possessing an arms license under the Act of 1959 is a privilege and not a right. 17. (Allahabad High Court) in the matter of Rana Pratap Singh Vs State of UP, (1996) CriLJ 665 18. (Gwalior Bench) in the matter of Ramprakash and others Vs State of Madhya Pradesh and others, (1992) AIR M.P. 151 . 19. The above case laws relied upon by the learned counsel for the appellant are on the ground that the petitioner/ appellant in those cases had not used / mis-used the arms in commission of the offence, where as in the case at hand the licensing authority clearly recorded in show-cause notice about the involvement of appellant in different nature of offences of about 26 cases, involvement of appellant in the company of hardcore criminals and also specifically mentioned that the possession of license may cause danger to security of public peace or safety. The circumstances taken into consideration forming part of order of the Commissioner are sufficient to invoke jurisdiction under the provisions of Section 17 of the Act of 1959 and to pass order of cancellation of arms license. 20. As the initial order of cancellation of license passed by the competent authority has not been challenged and also not placed on record before his court or before the writ court, we can only rely upon the order of the Commissioner which appears to be well reasoned order in dismissing the appeal preferred by the appellant. Misuse of the license or its use in any offence is one of the grounds provided under Section17 of Act of 1959, apart from others and therefore, the appellant could not succeed on the ground that there is no allegation of the use or misuse of arms license in any offence. Even otherwise appellant cannot be entitled for any relief in absence of the challenge to the main order of cancellation of license. 21. In view of the above the appeal being devoid of any substance, it is liable to and it is hereby dismissed. 22. The other arguments raised by learned counsel for the appellant that his gun was taken by one Assistant Sub-inspector namely LB Singh in his absence and as per the report submitted by nearby police stations of Bhilai it has been reported that the gun details of which he has mentioned in records of the writ appeal are not available in any of the police station or in its records. The documents annexed along with the writ petition would show that since the initiation the appellant has very specifically mentioned that his gun was taken away by Assistant Sub-Inspector LB Singh, after passing of the order of the cancellation of license, any property or fire arm deposited or seized, becomes the property of the state and therefore looking to the report received by the concerned police stations of District Durg i.e. Police Station, Bhilai Bhatti, Supela, Bhilainagar, Nevayi, Durg, Mohan Nagar, Pulgaon, Bori, Dhamdha, Patan, Utayi, Anda, Ranitarai, Amleshwar, Chawni, Jamul, Khursipar, Old Bhilai, Nandini and Kumhari, as to non-availability of the gun in the Police Station, the issue raised by appellant requires an enquiry as to where abouts of the gun. 23. 23. If any arms or property is seized or taken into custody by any of the police officer, then, it should form part of the record and the property must be kept in the Malkhana. The aforementioned facts that the fire arm taken over by the Police authority in its custody and not depositing the same in the police station are finding place in its records is a serious act which requires an enquiry. 24. Considering the aforementioned facts available on record, we direct that the Superintendent of Police, District Durg shall hold an enquiry with respect to the whereabouts of English Gun bearing No.10558 having License No.19898/12/74 within a period of two months from the date of receipt of copy of this judgment and to submit its report before the Registrar General of High Court of CG, positively. 25. Copy of this judgment be sent to the Superintendent of Police, District Durg, Chhattisgarh, as well as to the 1st respondent for its implementation.