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2020 DIGILAW 825 (TS)

Eluri Sreenivasa Rao v. State of Telangana

2020-12-02

P.NAVEEN RAO

body2020
ORDER : 1. Heard learned counsel for petitioner and learned Assistant Government Pleader for Home. 2. Petitioner is working as Mandal Parishad Development Officer, Chandragonda mandal, Kothagudem district. Facts as averred in the writ petition would disclose that in the year 2008 petitioner was elected as President of Khammam District Telangana Non Gazetted Officers' House Building Cooperative Society Limited for a period of 5 years. In the year 2019, he was elected as President of Telangana Non Gazetted Officers' Association (Central Association, Hyderabad) for a period of 3 years. In the year 2017, he was elected as President of Khammam District Government Employees' Cooperative Credit and Thrift Society, Khammam. On 17.8.2009 he has submitted application to grant Arm license for self protection and vide orders dated 12.11.2009 Arm License was granted to the petitioner for a period of one year from 12.11.2009. The Arm License was renewed from time to time; vide orders dated 25.3.2011 for a period of 3 years; vide orders dated 2.1.2014 for a period of further three years and vide orders dated 20.12.2016 it was renewed for a further period of 3 years i.e. from 13.11.2016 to 12.11.2019. On 26.8.2019 petitioner applied for renewal of his Arm License. As there was no response to his request, he submitted reminders dated 3.3.2020, 29.6.2020 and 25.8.2020. By decision dated 15.9.2020, impugned in this writ petition, the Commissioner of Police rejected the request of the petitioner to renew the Arm Licence on the ground he was involved in two crimes i.e. Crime No. 128 of 2011 under Sections 186, 506 read with 34 IPC of Khammam I Town Police Station and Crime No. 92 of 2019 under Sections 120B, 415, 428, 420, 468, 469, 470, 406, 508 read with 34 IPC and Section 156 (3) of Cr.P.C. of Khammam II Town Police Station. 3. According to learned counsel for petitioner, rejection of the request of the petitioner to renew the Arm License is ex-facie illegal. Mere involvement in a crime is not a ground to refuse renewal of Arm License. He further submitted that out of two crimes registered against the petitioner in Crime No. 128 of 2011 petitioner was already acquitted, therefore, it cannot be referred to any more and Crime No. 92 of 2019 is the only one crime which is pending and pendency of said crime is not a ground to refuse renewal. He further submitted that out of two crimes registered against the petitioner in Crime No. 128 of 2011 petitioner was already acquitted, therefore, it cannot be referred to any more and Crime No. 92 of 2019 is the only one crime which is pending and pendency of said crime is not a ground to refuse renewal. According to learned counsel still there is threat perception on petitioner and to protect his life, he needs Arm License and denying the same is ex-facie illegal. By referring to the averments made in paragraph-11 of the counter affidavit, he submits that for the first time a new reason is assigned in support of the decision to reject the request of the petitioner for renewal of Arm License. In paragraph-11 of the counter affidavit, deponent refers to Vigilance Enquiry report submitted to the Government in the year 2016 by the Director General (Vigilance and Enforcement) on the allegations in TNGOs Housing Board Cooperative Society of Khammam. He would submit that after this report, Arm License was renewed by proceedings dated 20.11.2016. Thus, it cannot be the basis to reject the request for renewal. He further submitted that even assuming that said reason is valid, as the same was not stated in the order impugned, it cannot be stated to validate the decision by supplementing the reasons in the counter affidavit and same is not permissible in law. 4. In support of his contention that decision to reject the renewal is ex-facie illegal and contrary to the settled principles of law, learned counsel placed reliance on two decision rendered by this Court in L. Raghunath Reddy vs. District Collector, Anantapur District, 2012 (1) ALT 579 and Vegi Jagadish Kumar vs. State of A.P. 2017 (5) ALT 12 . 5. According to learned Assistant Government Pleader, writ petitioner without availing the remedy of appeal instituted the writ petition. Thus, writ petition is not maintainable. Against the order of Commissioner of Police, remedy of appeal is available under Section 18 of the Arms Act, 1959 (for short ‘Act, 1959’) and same is effective and efficacious remedy. He submits that all the contentions urged herein can be raised in the appeal. 6. Thus, writ petition is not maintainable. Against the order of Commissioner of Police, remedy of appeal is available under Section 18 of the Arms Act, 1959 (for short ‘Act, 1959’) and same is effective and efficacious remedy. He submits that all the contentions urged herein can be raised in the appeal. 6. In reply, learned counsel for petitioner submitted that very objection was raised in Vegi Jagadish Kumar (supra), but this Court having found patent illegality in the rejection of the request for renewal of Arm License, considered the writ petition on its merits. He further submits that as rejection is ex-facie contrary to Section 14 of the Act, 1959 petitioner need not be compelled to avail the remedy of appeal. There is no bar in entertaining the writ petition merely on the ground of availability of statutory remedy of appeal. 7. The reason for refusal of renewal of Arm License is on the ground of involvement of petitioner in two crimes. Respondents do not dispute that petitioner was acquitted in Crime No. 128 of 2011. Once acquittal is granted by competent Court, it cannot be relied upon. Thus, as of now only one crime i.e. Crime No. 92 of 2019 is pending at the stage of investigation. In other words, rejection of the renewal is only on the ground of his involvement in Crime No. 92 of 2019. Section 13 of the Act, 1959 deals with grant of license and Section 141 of the Act, 1959 deals with refusal to grant license. According to Clause-(b) of Sub-Section (1) of Section 14 of the Act, 1959, request to grant license can be rejected, firstly when the licensing authority has reason to believe that he is prohibited by the Act or by any other law for the time being in force from acquiring or having in possession or carrying any Arm or Ammunition; secondly, if person is found to be of unsound mind and thirdly for any reason, the person is found to be unfit for a License under the Act. Sub-Clause (ii) of Clause-(b) vests power in the Licensing Authority to reject the license on the ground of security of public peace or for public safety. 8. Juxtaposing the requirements of Section 14(1)(b) of the Act, 1959 with reasons assigned in the impugned order, it is apparent that reason for rejection is not on the grounds mentioned in Section 14. Sub-Clause (ii) of Clause-(b) vests power in the Licensing Authority to reject the license on the ground of security of public peace or for public safety. 8. Juxtaposing the requirements of Section 14(1)(b) of the Act, 1959 with reasons assigned in the impugned order, it is apparent that reason for rejection is not on the grounds mentioned in Section 14. Mere involvement in a crime, it cannot be assumed that he is a bad person. Section 14 does not envisage rejection on that ground. It is not the case of respondents that petitioner misused gun license. It is also not the case of respondents that giving Arm License to petitioner would be detrimental to security of public peace or public safety would be disturbed. 9. In L. Raghunath Reddy, learned single Judge of this Court considered this aspect and held as under: “7......It, therefore, follows that there should be credible material before the licensing authority, for him, to come to the conclusion that the security of public peace or public safety, is likely to be disturbed by a person to whom a license is granted and only in such circumstances, a license can be refused to such a person, even if such a person does not attract any of the rest of the prohibitions contained in the Act for being granted the license. Public peace and public safety are not liable to be allowed to be shattered by anyone, all the more so, because he has been granted a license to carry or possess a firearm or ammunition. The assessment of the potential threat to public peace and public safety at the hands of the applicant, cannot be assumed as a matter of course. There should be a valid and reasonable basis for such an apprehension in the mind of the licensing authority to exist, but a mere involvement in a criminal case or cases is no pointer to the potential threat to public peace or public safety. Viewed from this perspective, the fact that in 7 criminal cases, the petitioner has already been acquitted, must enure to the benefit of the applicant/petitioner.” 10. It is thus seen that the reason assigned for not accepting the request of the petitioner to renew arm license is ex-facie illegal and unsustainable. 11. Viewed from this perspective, the fact that in 7 criminal cases, the petitioner has already been acquitted, must enure to the benefit of the applicant/petitioner.” 10. It is thus seen that the reason assigned for not accepting the request of the petitioner to renew arm license is ex-facie illegal and unsustainable. 11. Even assuming that reason for decision can be supplemented in the form of counter affidavit, by bringing out a new fact, as rightly contended by the learned counsel for petitioner, after the said Vigilance Report, license was renewed for a further period of three years. It has nothing to do with renewal of arm license. Thus, same also cannot be the basis to refuse renewal of arm license. 12. It is thus seen that the reasons assigned in support of the decision to reject request for renewal of arm license is unsustainable and ex-facie illegal. 13. In Vegi Jagadish Kumar, learned Government Pleader raised objection on the maintainability of the writ petition on the ground that Section 18 of the Act, provides efficacious remedy in the form of appeal. The Court having found that the order of refusal to grant license was vitiated, it has brushed aside the objection and allowed the writ petition. In that case, rejection was on the ground that petitioner was involved in three crimes. In L. Raghunath Reddy, learned single Judge considered two writ petitions filed by father and son challenging the order of refusal to renew the Arm License on the ground that they were involved in crimes and held the decision as illegal. I am in respectful agreement with the said view. 14. Following the above decisions, the objection on not availing the remedy of appeal, in the facts of this case, is rejected as the order impugned is found ex-facie illegal and unsustainable. 15. Accordingly, the Writ Petition is allowed. Pending miscellaneous petitions if any shall stand closed. 16. Refusal of licences: “(1) Notwithstanding anything in section 13, the 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. 15. Accordingly, the Writ Petition is allowed. Pending miscellaneous petitions if any shall stand closed. 16. Refusal of licences: “(1) Notwithstanding anything in section 13, the 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. (2) to be of unsound mind. (3) to be for any reason unfit for a licence under this Act. (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.”