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2022 DIGILAW 1550 (GUJ)

Baldevsinh Virsangbhai Parmar v. State Of Gujarat

2022-11-10

BIREN VAISHNAV

body2022
ORDER : 1. Heard Mr.Kaushal Modi, learned counsel appearing for Mr.Ashish Dagli, learned counsel for the petitioner and Mr.Rohan Shah, learned AGP, for the Staterespondent. 2. Challenge in this petition is to the order of the District Magistrate dated 21.04.2012 passed by the District Magistrate, Surendranagar, confirmed in appeal by the order dated 16.09.2014 by which the petitioners application for procuring arm license has been rejected. 3. Facts in brief would indicate that the petitioner is a resident of Sayla. He made an application for procuring a license for N.P.Bore Revolver/Pistol. That application was rejected by the District Magistrate, Surendranagar on 21.02.2012 and an appeal preferred to the authorities and the Home Department also stood rejected. 3.1 It is the case of the petitioner that the rejection of the application is not on the grounds germane to the cause. It is his case that the monthly turn over of the petitioner’s business which is of supplying building materials has a monthly turn over of Rs.50,00,000/-(Rs.50 lakhs only). He needs to travel from one place to another for business with cash. The ground for rejection of he paying nominal income tax and that due to the banking sector providing number of facilities for transferring funds is not a ground which has any reasonable nexus with the application made. 4. Mr.Modi, learned counsel for the petitioner, would rely on an order passed by a Co-ordinate Bench of this Court rendered in Special Civil Application No. 1521 of 2015. He would submit that reading the order would indicate that the Court has held that the Appellate Authority cannot refuse license on non germane grounds which are in fact not available to the authorities. The aspect of the applier for the license of income and that he does not venture to take any risk in the business is not a ground available under Sec.14 of the Arms Act, 1959. Reliance is also placed on an order dated 05.01.2016 passed in Special Civil Application No.14369 of 2015 and an order dated 07.07.2022 passed in Special Civil Application No. 9318 of 2021. 5. Mr.Rohan Shah, learned Assistant Government Pleader, would support the orders passed by the authorities below and submit that subjective satisfaction arrived at by the authorities cannot be faulted and this Court should not interfere with the orders when the cause advanced by them is just and proper. 5. Mr.Rohan Shah, learned Assistant Government Pleader, would support the orders passed by the authorities below and submit that subjective satisfaction arrived at by the authorities cannot be faulted and this Court should not interfere with the orders when the cause advanced by them is just and proper. He would submit that the petitioner has failed to show any direct or indirect threat to his life and as indicated in the affidavit-in-reply, if the recent development of demonitization and the economic policy of the State Government is to boost non cash transactions justifies the passing of the order. He would also rely on an order passed by this Court in Special Civil Application No. 4780 of 2022, wherein, the Court affirmed the orders of the authority below holding that it is a situation best assessed by the authorities based on the material and such assessment cannot be substituted by this Court. 6. Having perused the orders passed by the authorities below, reading of the order of the Magistrate indicates that primarily the influence for rejecting the application is on account of the fact that the authority has opined that since there is large scale availability of bank transactions through ATM, Demand Drafts and transactions can be done through the medium, there is no reason why the petitioner would need an arm license in order to protect himself. The Appellate Authority too has affirmed the order and also opined that looking to the Income Tax Returns filed by the appellant-original petitioner indicates that he would not need a license to carry an arm. Perusal of the orders of this Court in the case of Ghanshyambhai Zaverbhai Sonani vs. State of Gujarat & Ors., rendered in SCA No. 1521 of 2019, and in the case of Rameshbhai Jethabhai Malakiya vs. State of Gujarat., rendered in SCA No. 14369 of 2015, indicate that the provisions of Sec.14 have been set out and the Court has opined on the contingencies wherein the license may be refused under Sec.14 of the Act. Reading of the reasons assigned by the authorities in the present case in light of the law enunciated in the case of Malakiya (supra), indicates that merely because the petitioner may not have been dealing with cash transactions or income being under a valid consideration, did not weigh with the authorities. Reading of the reasons assigned by the authorities in the present case in light of the law enunciated in the case of Malakiya (supra), indicates that merely because the petitioner may not have been dealing with cash transactions or income being under a valid consideration, did not weigh with the authorities. The reasons therefore are not commensurate with the provisions of the Act and the section which requires the authority to decide the application on the yardstick setout therein. Relevant paragraphs of the said decision read as under: “8. Considering the submissions made by the learned advocates appearing for the respective parties and on perusal of the order impugned passed in appeal, it clearly bornes out that the appellate authority has predominantly considered the income aspect of the petitioner. It appears that even though the appellate authority has believed that the petitioner is a business man and has to deal with it, relying upon the income which is shown as taxable income. It is an admitted fact that the Police authorities of Surat City had given a positive opinion. This Court in the case of Sorab Jehangir Bamji (supra) has examined and dealt with the contingencies under which a licence can be refused by the licensing authority as set out in Section 14 of the Act and has observed thus: “15. The contingencies wherein a licence may be refused by the licencing authority are set out in Section 14, which reads as below: “14. 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, 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.” Section 14 sets out the grounds on which a firearm licence may be refused. The reason for refusal to grant a firearm licence to the petitioner is not that he is prohibited by any provision of the Act or any other law from holding a licence, or that he has asked for a licence in respect of a prohibited firearm, or is of unsound mind or, is unfit for grant of licence under the Act for any other reason. Further, the application of the petitioner has not been rejected on the ground that such refusal would be necessary for the security of the public peace, or for public safety. The reason for rejection of the application is that the petitioner was aged 63 years, which does not find mention in Section 14 of the Act. There is no other provision in the Act that states that a licence cannot be granted to a person who attains a particular age. 17. In light of the statutory provisions and decisions referred to above, it would be necessary to revert to the impugned orders. A perusal of the impugned orders indicates that the sole reason for rejection of the application of the petitioner, is based upon the opinion of the Police authorities that the licence may not be granted as the petitioner is aged 63 years. Apart from that, the District Magistrate and the State Government have concluded in their respective orders, that no reasonable ground exists for granting a licence to the petitioner. As has been noticed hereinabove, Section 13(2A) vests the licencing authority with power to either grant a licence or refuse the same, as thought necessary, after considering the report of the officer in charge of the nearest Police Station, as provided under Section 13(1)(2). As has been noticed hereinabove, Section 13(2A) vests the licencing authority with power to either grant a licence or refuse the same, as thought necessary, after considering the report of the officer in charge of the nearest Police Station, as provided under Section 13(1)(2). As per Section 14(1)(b)(ii), the licencing authority shall refuse to grant a licence, among other reasons mentioned in Section 14(1), if it is found necessary to refuse it for the security of the public peace or public safety. As already discussed above, the report of the Police authorities in the case of the petitioner, does not indicate that he has any criminal antecedents, or that granting the licence to him will endanger the security and safety of the public or hinder public peace. In fact, the Police authorities have not given any adverse opinion in the case of the petitioner. The only ground mentioned is that the petitioner is 63 years of age which, in the view of this Court, cannot be considered as being a prohibition, as it is nowhere so stated in the Act. 18. Though Section 9 prohibits a person, who has not completed the age of 21 years, from acquiring, possessing or carrying a firearm or ammunition, there is no prohibition regarding a person of any age above the age of 21 years from doing so. The grounds for refusal of a licence under Section 14 do not apply to the petitioner in any manner. The discretion for exercise of power vested in the licencing authority by virtue of Section 13(2A) is to be exercised in relation to, and in the context of, the provisions of the Act, in a reasonable and rational manner. The reasons for refusal of a licence would have to have a nexus to, and be in context with, the provisions of the Act. Merely refusing to issue a licence for a reason not prohibited by the Act, such as being aged 63 years, is unjustified and not in consonance with the provisions of the Act. It is stated in the impugned orders passed by the District Magistrate and the State Government, that there are no reasonable grounds for grant of licence to the petitioner. On the contrary, in view of the relevant provisions of the Act, it is evident that the respondents have failed to show any valid grounds for refusal of the licence.” 9. It is stated in the impugned orders passed by the District Magistrate and the State Government, that there are no reasonable grounds for grant of licence to the petitioner. On the contrary, in view of the relevant provisions of the Act, it is evident that the respondents have failed to show any valid grounds for refusal of the licence.” 9. Similarly, this Court in Special Civil Application No.1521 of 2015 by judgment and order dated 30/10/2015 has also taken a similar view while referring to Section 14(2) of the Act. The learned Assistant Government Pleader has not been able to point out anything from the record except the fact that some instructions have been given to the State Government by the Central Government. However, the fact remains that no such contingency is provided in Section 14 of the Act and more particularly, the reasons for which a licence can be refused does not exist in the case on hand. On the contrary, subsection (2) of Section 14 of the Act clearly provides that the licencing authority shall not refuse to grant any licence to any person merely on the ground that such person does not have sufficient income. The appellate authority cannot refuse a licence discarding the positive opinion given by the authorities as well. 11. In view of the above, the impugned order dated 10/03/2015 passed by the Deputy Secretary, Home Department, Gujarat State is hereby quashed and set aside and the proceedings of the said appeal is remanded back to the appellate authority for its rehearing on merits. The appellate authority shall consider all such contentions that may be raised by the petitioner. 12. As the issue is pending since 2012, the appellate authority shall endeavour to dispose of the aforesaid appeal as expeditiously as possible after giving an opportunity of being heard to the petitioner without in any manner being influenced by any of the observations made in the impugned order and shall decide the appeal de novo.” 7. However, what also needs to be appreciated to the application for license so made in the year 2011, the application was rejected in the year 2012 and the appeal was decided in the year 2014, petition was filed two years thereafter in the year 2016. However, what also needs to be appreciated to the application for license so made in the year 2011, the application was rejected in the year 2012 and the appeal was decided in the year 2014, petition was filed two years thereafter in the year 2016. Eleven years have gone by, and therefore, in case the petitioner is in need of an arms license, it is open for him to apply afresh. On an application being so made, the authorities shall consider the case for arms license without being influenced by the present orders which are under challenge in this petition considering the same in light of the observations made herein. With the aforesaid observations and directions, the petition is disposed of. Notice stands discharged.