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2020 DIGILAW 351 (ALL)

Suneel v. State of U. P.

2020-02-03

SHAMIM AHMED

body2020
JUDGMENT : 1. The present writ petition has filed by petitioner under Article 226 of the Constitution of India with the following prayers: “(i) To issue a writ order or direction in the nature of certiorari for quashing the order dated 10.04.2017 (Annexure No.3) passed by District Magistrate, Bareilly and 1.11.2019 ( Annexure No.4) passed by Commissioner, Bareilly Region, Bareilly. (ii) To issue a writ order or direction in the nature of mandamus staying the operation of the order dated dated 10.04.2017 (Annexure No.3) passed by District Magistrate, Bareilly and 1.11.2019 ( Annexure No.4) passed by Commissioner, Bareilly Region, Bareilly. (iii) To issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in this circumstances of the case to mee the ends of justice. (iv) To award cost of the petition to the petitioners.” 2. The learned counsel for the petitioner submits that the petitioner was having a fire arms licence No.1132/2013 on which N.P.P. Rifle No.AB-84-2136 is registered and a first information report dated 28.07.2015 was lodged against the petitioner and a Case Crime No.123/2015, under sections 307/504 IPC, P.S. Bhamana, District Bareilly was registered and on the basis of the aforesaid F.I.R, Senior Superintendent of Police, Bareilly sent a show cause notice dated 25.08.2016 to the petitioner for cancelling the fire arms licence of the petitioner and the petitioner was directed to submit his reply. In response to the said show cause notice, petitioner has submitted his reply on 16.12.2016 and it was stated in the reply of the petitioner that he was enlarged on bail in the case and his fire arms was not used in that incident and the session trial is pending before the Court of Additional Session Judge, Court No.13, Bareilly. 3. Learned counsel for he petitioner further submitted that on the basis of the above allegations and notice a case was registered against the petitioner, under Section 17(3) of the Arms Act, 1959 (State Vs. Sunil) before the Court of District Magistrate, Bareilly, the District Magistrate, Bareily by his order dated 10.04.2017 cancelled the firm arms licence of the petitoner. Thereafter the petitioner challenged the above order by filing an appeal under Section 18 of the Arms Act before the Commissioner, Bareilly Region, Bareilly. 4. Sunil) before the Court of District Magistrate, Bareilly, the District Magistrate, Bareily by his order dated 10.04.2017 cancelled the firm arms licence of the petitoner. Thereafter the petitioner challenged the above order by filing an appeal under Section 18 of the Arms Act before the Commissioner, Bareilly Region, Bareilly. 4. Learned counsel for the petitioner further submitted that the petitioner was acquitted by order dated 21.09.2017 passed by learned Additional Sessions Judge, Court No.13, Bareilly in Case No.191 of 2016 (State Vs. Rishipal and others). The copy of the judgment and order dated 21.09.2017 was filed before the Court of Commissioner, Bareilly Region, Bareilly, but without considering the judgment and order dated 21.09.2017, the learned Commissioner, Bareilly Region Bareilly vide order dated 01.11.2019 dismissed the appeal of the petitioner. 5. The petitioner's counsel further submits that the impugned orders passed by the District Magistrate, Bareilly and the Commissioner, Bareilly Region, Bareilly are arbitrary, perverse, without jurisdiction and based on surmises and conjecture. 6. Learned counsel for the petitioner further submitted that merely named in the criminal case is not a good ground for cancellation of the arms licence and it is clear cut case of the petiitoner that the fire arms was not used in the alleged incident on the basis of which the first information report was lodged against the petitioner and in the appeal the Commissioner has not considered the judgment and order dated 21.09.2017 passed in Case No.191 of 2016 by the Additional Sessions Judge, Court No.13, Bareily, by which, the petitioner was acquitted in the criminal case. The finding recorded by the learned Commissioner that the petitioner was acquited on the basis of benefit of doubt and his involvement in the criminal case cannot be denied and is not bound to consider the order passed by the Criminal Court once the order is passed, under Section 17(3) of the Arms Act,1959 and the arm license is cancelled, is a perverse finding. 7. Learned counsel for the petitioner further submits that while dismissing the appeal of the petitioner, the learned Commissioner has discussed about the incident, on the basis of which, he presumed that the petitioner is a person of criminal manner and he may be involved in some other criminal activities after being acquitted in the criminal case. 7. Learned counsel for the petitioner further submits that while dismissing the appeal of the petitioner, the learned Commissioner has discussed about the incident, on the basis of which, he presumed that the petitioner is a person of criminal manner and he may be involved in some other criminal activities after being acquitted in the criminal case. The order passed by the learned Commissioner is totally criptic and based on surmises and conjuctures and against the provisions of Section 17 of the Arms Act, 1959 therefore, the arms licence of the petitioner may be restored and the impugned orders may be quashed. 8. Learned counsel for the petitioner further drawn the attention of the Court towards the provisions of Section 17 (3) and 17 (7) of the Arms Act, 1959 and submits that as per Section 17(3) of the Arms Act, there is no ground exists against the petitioner for cancellation of arms licence, once the acquittal order is passed in his favour. 9. Learned Standing Counsel who appears on behalf of all the respondents countered the arguments raised by the learned counsel for the petitioner and submitted that there is no illegality in the impugned orders by which the Arms licence of the petitioner was cancelled and if the petitioner possesses the arms licence, it is not in the interest of public safety and the petitioner may further involved in any other criminal activity and may use his fire arm. 10. Heard learned counsel for the parties and perused the record. 11. From perusal of the record, this Court finds that only one criminal case was lodged against the petitioner being Case Crime No.123 of 2015, under Sections 307, 504 IPC, P.S. Bhamana, District Bareilly and on the report submitted by the authorities concerned, the arms licence was canceled by the District Magistrate, Bareilly. Thereafter, in the criminal case, the petitioner was acquitted by the judgment and order dated 21.09.2017 passed by the learned Additonal Sessions Judge, Court No.13, Bareilly in Case No.191 of 2016 (State Vs. Rishipal and others). The Appellate Court also not considered this fact that the petitioner was already acquitted by the Session Court and no adverse finding was recorded by the Court, therefore, the order rejecting the appeal by the Commissioner Bareilly Region, Bareilly was passed without application of mind and was a cryptic order. Rishipal and others). The Appellate Court also not considered this fact that the petitioner was already acquitted by the Session Court and no adverse finding was recorded by the Court, therefore, the order rejecting the appeal by the Commissioner Bareilly Region, Bareilly was passed without application of mind and was a cryptic order. It is also not out of place to mention here that after the acquittal order dated 21.09.2017, nothing has been mentioned in the counter affidavit filed by the respondent Nos. 2 and 3 that the petitioner was thereafter involved in any criminal activities causing danger to public peace or public safety or has used his fire arm. 12. From perusal of Section 17(3) and proviso to Section 17(7) of the Arms Act, 1959, it is crystal clear that not a single ground of Section 17(3) of the Arms Act, 1959 is applicable in the case of the petitioner, undisputedly petitioner was involved only in one criminal case and the respondents could not brought on record any material to show that the petitioner was involved in any other criminal case except the present one. 13. It is also relevant to mention here that in sole criminal case petitioner has already got the order of acquital passed by the Additional Sessions Judge, Court No.13, Bareilly vide order dated 21.09.2017. It is not out of place to mention here that as per proviso of Section 17(7) of the Arms Act, 1959 which providing that if the conviction is set aside in appeal or otherwise the suspension or revocation shall become void. It is not out of place to mention here that as per proviso of Section 17(7) of the Arms Act, 1959 which providing that if the conviction is set aside in appeal or otherwise the suspension or revocation shall become void. It is necessary to quote Sections 17(3) and 17(7) of the Arms Act, 1959 herein as under:- "Section 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." "Section 17(7)-A court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence: Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void." 14. In the facts of the present case, this Court come to the conclusion that none of the ground mentioned in section 17(3) of the Arms Act 1959, is applicable in the petitioner case. In the facts of the present case, this Court come to the conclusion that none of the ground mentioned in section 17(3) of the Arms Act 1959, is applicable in the petitioner case. The petitioner was involved in only one criminal case and was finally acquitted by order dated 21.09.2017 passed by Additional Sessions Judge, Court No.13, Baeilly in Case No.191 of 2016, further as provided under section 17(7) of the Arms Act, if the conviction is set aside on appeal or otherwise, the suspension or revocation shall became void, therefore in that case too also the petitioner is entitled for restoration of his fire arm licence by the Authority concerned, in view of the above, the impugned orders are not sutainable in the eyes of law. 15. It is undoubtedly to say that merely pendency of the criminal case or with the apprehention that the petitioner may be involved in future in any other criminal case cannot be a ground for cancellation of the arms licence under the Arms Act, 1959, unless and until a clear cutt finding is recorded by the Competent Authorities that the possession of the fire arms caused threatening of the public peace and is danger for the safety of human being which the Competent Authorities fail to record any such finding in the impugned orders. 16. The Division Bench of this Court in the case of Sheo Prasad Mishra Vs. District Magistrate, Basti and others, 1978 AWC 122 was pleased to held that merely involved in the criminal case or pendency of criminal case cannot be the ground for cancellation of arms licence and the pendency of criminal case cannot in any way effect the public security or public interest. 17. This Court in the case of Rajendra Deo Pandey Vs. State of U.P. And others, reported in 2012 (4)ADJ 716 was pleased to held that merely due to pendency of criminal case or after acquittal in the criminal case, arms licence cannot be cancelled, the same view was followed in the case of Rajendra Pandit Vs. State of U.P. And others, 2012(10) ADJ 435 . It is relevant to mention that in the above referred case, the acquittal order was passed in three cases and in the fourth case, a final report was submitted by the police, even though, the licence was cancelled. State of U.P. And others, 2012(10) ADJ 435 . It is relevant to mention that in the above referred case, the acquittal order was passed in three cases and in the fourth case, a final report was submitted by the police, even though, the licence was cancelled. The High Court finally allowed the writ petition and the District Magistrate was directed to re-issue the arms licence to the petitioner. 18. This issue was further dealth with in the case of Ram Charan Vs. State of U.P. And two others, 2016 (11) ADJ 185 and the Hon'ble Court was pleased to consider all the previous judgment in this regard and was pleased to observe in paragraph nos. 11, 12, 13, 14, 15, 16, 17 and 18 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. 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 judgment, 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. District Magistrate, Sitapur, in paragrah 8 & 9 of the judgment, 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 judgment, this Court has 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. 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 firearm 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 judgment, this Court has 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. 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 judgment of this Court 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 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., this Court in paragraph no.8 of the judgment has held as follows:- "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. 6 of the judgment, this Court has been held as follows:- "6. ...Therefore, it is clear that at the time of passing the order 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." 19. 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." 19. This Court after considering the arguments advanced by the learned counsel for the parties and from perusal of record and considering the case laws on the issue involved observed here that in the present case the petitioner was involved in sole criminal case and has been acquitted by the order dated 21.09.2017 in Case No.191 of 2016 passed by Additional Sessions Judge, Court No.13, Bareilly and as per the provision contained under section 17(7) of the Arms Act, 1959, if the conviction is set aside in appeal or otherwise the suspension or revocation shall become void, therefore the arm licence has to be restored considering the provisions contained under Sections 17(3) and 17(7) of the Arms Act, 1959. The fire arm licence of the petitioner could not have been cancelled in public interest as has been done in the present case, 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 previous 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 fire arm during the said incicent, no such averment was made by the authorities concerned. There is nothing on record to establish that petitioner was involved in the act resulting in disturbance to public peace or public safety. 20. In view of the well-settled legal proposition and the relevant case law referred above and the provisions contained under Sections 17(3) and 17(7) of the Arms Act, 1959 and going through the entire facts, this Court is of the view that the impugned order dated 10.04.2017 passed by District Magistrate, Bareilly and order dated 01.11.2019 passed by the Commissioner, Bareilly Region, Bareilly are not sustainable in the eyes of law, therefore both the orders are hereby quashed. The writ petition is allowed. 21. The writ petition is allowed. 21. The matter is remitted back to the District Magistrate, Bareily, respndent No.3 to pass a reasoned and speaking order afresh, for restoring the arms licence of the petitioner in accordance with law, preferrably within a period of two months from the date of production of a certified copy of this order before him and communicate the same to the petitioner forthwith. No order as to costs.