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2022 DIGILAW 402 (ALL)

Amar Singh v. State of U. P.

2022-03-21

J.J.MUNIR

body2022
JUDGMENT : J.J. Munir, J. The petitioner's fire-arm licence has been cancelled by the District Magistrate of Kaushambi vide order dated 3.12.2008 in exercise of powers under Section 17 of the Arms Act. That order has been upheld in appeal by the Commissioner, Allahabad Division, Allahabad (now Prayagraj) by his order dated 1.7.2015. It is these orders depriving the petitioner of his fire-arms licence that he impugns through the present writ petition. 2. The petitioner was granted a fire-arm licence in the year 1997 bearing No. 9050, entitling him to hold a D.B.B.L. Gun. The licence was granted by the Licensing Authority under the Arms Act, 1959 in accordance with law. The petitioner purchased a D.B.B.L. bearing No. 94400486. It appears that acting on a report by the Police of Police Station Saini, District Kaushambi, recommending cancellation of the petitioner's fire-arms licence, Case No. 102/167 of 2007-08 was registered before the District Magistrate, Kaushambi. The petitioner was put to notice. At one stage of proceedings, the case proceeded ex parte but later on before orders could be passed, upon the petitioner's application dated 18.7.2007 the order to proceed ex parte was set aside and the petitioner was granted opportunity to object. The petitioner filed objections to the show-cause notice on 31.7.2008. It was said in their report by the Police that the petitioner had misused his fire-arm held on the licence leading to registration of Case Crime No. 61 of 1995, under Sections 147, 148, 307, 427 IPC, P.S. Saini, District Kaushambi, and further, another Crime No. 199 of 2007 under Sections 352, 406, 506 IPC, P.S. Saini, District Kaushambi. 3. The petitioner filed his objections as aforesaid saying that the fire-arms licence, subject-matter of proceedings for cancellation, was issued in the year 1997, and therefore, Crime No. 61 of 1995 could not at all relate to a possible misuse of his fire-arm held on the subject licence. The report of the Police on this score was castigated as baseless. It was also said by the petitioner that going by the principles of settled law laid down by this Court, a fire-arm licence could not be cancelled because a case had been registered against him by the Police or even a charge-sheet filed. The report of the Police on this score was castigated as baseless. It was also said by the petitioner that going by the principles of settled law laid down by this Court, a fire-arm licence could not be cancelled because a case had been registered against him by the Police or even a charge-sheet filed. It was in particular pointed out that so far as Case Crime No. 199 of 2007 was concerned, the petitioner had been tried in the case arising from the said crime and acquitted by the learned Chief Judicial Magistrate, Kaushambi vide his judgment and order dated 31.10.2014. The other crime, that is Case Crime No. 61 of 1995, related to a period of time when the petitioner did not hold the fire-arms licence at all, obviating any possible misuse of the weapon in the said crime. It is on the basis of these facts and defences that the petitioner asked the Licensing Authority to discharge the notice for cancellation. 4. The licensing Authority by its order dated 3.12.2008 proceeded to opine that Case Crime No. 61 of 1995, under Sections 147, 148, 307, 427 IPC and Case Crime No. 199 of 2007 under Sections 352, 406, 506 IPC are heinous offences registered against the petitioner. Therefore, it was not in 'public interest ( tufgr )', 'interest of justice ( U;k;fgr )' and 'point of view of peace and order ( 'kkfUr O;oLFkk )' that the petitioner may continue to hold the fire-arms licence in question. Whatever kind of findings these are, recording them the District Magistrate/Licensing Authority proceeded to cancel the petitioner's fire-arms licence. The petitioner preferred an appeal to the Commissioner of the Division, that came up before the Appellate Authority/the Commissioner, Allahabad Division, Allahabad. 5. Before the Appellate Authority, it was pointed out that the petitioner has been acquitted in the case arising out of Case Crime No. 199 of 2007 (supra), but the Commissioner remarked that a perusal of the judgment passed by the Criminal Court acquitting the petitioner showed that he had been acquitted giving him the benefit of doubt. This remark was made in relation to the case arising out of Crime No. 61 of 1995 on account of an error apparent. This remark was made in relation to the case arising out of Crime No. 61 of 1995 on account of an error apparent. In the other case i.e. Case Crime No. 199 of 2007 (supra), the case was noted to be still sub judice though it had been decided by time the appeal came up before the Commissioner. It was also the Appellate Authority's opinion that it was not in 'public interest', 'interest of justice' and 'point of view of peace and order ( 'kkfUr O;oLFkk )' that the petitioner may continue to hold the fire-arms licence. It was on the basis of these findings that the Appellate Authority affirmed the Licensing Authority's order. 6. Aggrieved, this petition has been filed. 7. Parties have exchanged affidavits. 8. Admit. 9. Heard forthwith. 10. Heard Mr. Sudhanshu Pandey, learned Counsel for the petitioner and Mr. Anuj Pratap Singh, learned Standing Counsel appearing on behalf of the respondents. 11. This Court has no hesitation to say that the orders impugned passed by both the Authorities below are grossly flawed. It is by now well-settled that mere registration of a criminal case or pendency of a criminal case is no ground under Section 17 of the Arms Act to cancel a fire-arms licence. This Court may refer to with immense profit the essence of judicial opinion on this point that finds eloquent mention in the judgment of this Court in Vishwanath Singh v. Commissioner Lucknow and others, 2015(7) ADJ 393 (LB), where it was held: ''7. Thus, the trivial question involved in this writ petition is as to whether licensing authority is vested with the power under the Arms Act to revoke/cancel the license of a public person mere on involvement in a criminal case or pendency of a criminal case. 8. To answer the aforesaid question, it would be apt to refer relevant paragraphs of Rakesh Kumar v. District Magistrate, Raebareli and others, 2013(31) LCD 1313 , wherein it has been held that merely because of pendency of a criminal case, the arms-licenses of the petitioner cannot be cancelled. Relevant paras 12, 13, 14 and 15 read as under: ''12. 8. To answer the aforesaid question, it would be apt to refer relevant paragraphs of Rakesh Kumar v. District Magistrate, Raebareli and others, 2013(31) LCD 1313 , wherein it has been held that merely because of pendency of a criminal case, the arms-licenses of the petitioner cannot be cancelled. Relevant paras 12, 13, 14 and 15 read as under: ''12. Further, this Court in the case of Sahab Singh v. Commissioner Agra Region, Agra and others, 2006 (24) LCD 374, in paragraph No. 3 held as under : The submission of the petitioner is That merely because of pendency of a criminal case, the arms licence of the petitioner cannot be cancelled in support of the said submission, learned counsel for the petitioner has placed reliance on two decisions of this Court in the case of Hausla Prasad Tiwari v. State of U.P. and Ishwar @ Bhuri v. State of U.P. It has further been submitted that in view of the Full Bench decision of this Court in the cases of Balaram Singh v. State of U.P. and others; Kailash Nath v. State of U.P., 1985 AWC 493 , as well as the Division Bench decision of this Court in the case of Sadri Ram v. District Magistrate, Azamgarh and others, the arms licence of the petitioner cannot be placed under suspension pending enquiry.'' 13. In the case of Mulayam Singh v. State of U.P., 2013 (80) ACC 786 in paragraph Nos. 11 and 12 held as under : ''Para No. 11 - 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 the Arms Act, has been dealt with by a Division Bench of this Court in Sheo Prasad Mishra v. District Magistrate, 1978 AWC 122 . The division Bench relied upon the earlier decision of another Division Bench of this Court in the case of Masi Uddin v. Commissioner, Allahabad, 1972 ALJ 573 wherein it has been held: ''A licence may be cancelled, inter alia, on the ground that it is ''necessary for the security of public peace or for public safety, to do so. The District Magistrate has not recorded a finding that it was necessary for the security of the public peace or for public safety to revoke the licence. The District Magistrate has not recorded a finding that it was necessary for the security of the public peace or for public safety to revoke the licence. The mere existence of enmity between a licencee and another person would not establish the ''necessary'' connection with security of the public peace or public safety. In the case before us also the District Magistrate has not recorded any finding that it was necessary to cancel the licence for the security of public peace or for public safety. All that he has done is to have referred to some applications and reports lodged against the petitioner. The mere fact that some reports had been lodged against the petitioner could not form basis for cancelling the licence. The order passed by the District Magistrate and that passed by the Commissioner cannot, therefore, be upheld on the basis of anything contained in Section 17(3)(b) of the Act.'' Para No. 12- Similar view has been taken by this Court in various decisions relying upon the Division Bench judgment passed in Sheo Prasad Mishra (supra). There is no doubt that the District Magistrate and the Commissioner i.e. administrative authorities are bound to take appropriate action in the matter of grant of licence and also its cancellation for the purpose of maintaining peace and harmony in the society. The assessment of administrative authorities with regard to grant or cancellation of licence should not be interfered in usual Courtse by the Court in its extraordinary jurisdiction unless there is illegality or arbitrariness.'' 14. In the case of Raj Kumar Verma v. State of U.P., 2012(7) ADJ 230 (LB), this Court in paragraph No. 4 held as under: ''The ground for issue of show-cause notice, suspension and ultimately cancellation of the licence is that one and precisely one criminal case was registered against the petitioner. The District Magistrate has also held that the petitioner has been enlarged on bail. He has gone further to observe that if the licence remained intact, the petitioner, may disturb public peace and tranquility. The same findings have been given by the Commissioner, Unmindful of the fact that this Court is repeating the law of the land, but the deaf ears of the administrative officers do not ready to succumb the law of the land. The same findings have been given by the Commissioner, Unmindful of the fact that this Court is repeating the law of the land, but the deaf ears of the administrative officers do not ready to succumb the law of the land. The settled law is that mere involvement in a criminal case without any finding that involvement in such criminal case shall be detrimental to public peace and tranquility shall not create the ground for the cancellation of Armed Licence. In Ram Suchi v. Commissioner, Deuipatan Division, 2004 (22) LCD 1643, it was held that this law was relied upon in Balram Singh v. State of U.P., 2006 (24) LCD 1359. Mere apprehension without substance is simply an opinion which has no legs to stand. Personal whims are not allowed to be reflected while acting as a public servant. '' 15. Further, in the case of C.P. Sahu v. State, 1984 AWC 145 , this Court while interpreting the provisions of Section 17(3) of the Act held as under : ''The object of the enquiry that a licensing authority may, while proceeding to consider the question as to whether or not an arms licence should be revoked or suspended, like to make, clearly is to enable the licensing authority to come to a conclusion as to whether or not the facts stated in clauses (a) to (e) of Section 17(3) exist and as already explained, it is not obliged to before considering that a case for revocation/suspension of license has been made out, associate the licensee in such enquiry, in this view of the matter it can safely be taken that where a licensing authority embarks upon such an enquiry it is, till then not convinced about existence of the conditions mentioned in clauses (a) to (e) of Section 17(3), of the Act. So long as it is not so convinced no case to make an order either revoking or suspending an arms licence as contemplated by the Section will be made out.'' 9. So long as it is not so convinced no case to make an order either revoking or suspending an arms licence as contemplated by the Section will be made out.'' 9. The aforesaid view has been reiterated in Hridaya Narain Tiwari v. State of U.P. and others, 2014(4) ADJ 744 (LB); Rama Kushwaha v. State of U.P. and others, 2011 (29) LCD 1045; Hiramani Singh v. State of U.P. and others, 2011(29) LCD 829 and Rajendra Singh v. Commissioner, Lucknow Division, Lucknow and others, 2011 (29) LCD 1041, wherein it has been propounded that involvement in criminal case or pendency of criminal case cannot be a ground for cancellation/revocation of fire-arm license. 10. In the case of Jageshwar v. State of U.P. and others, 2009 (67) ACC 157, it has been held that mere involvement in criminal case cannot in any way affect the public Security or public interest. 11. In Thakur Prasad v. State of U.P. and others, 2013 (31) LCD 1460 , this Court propounded that ''Public Peace'' or ''Public Safety'' do not mean ordinary disturbance of law and order, but the public safety means safety of the public at large and not safety of few persons only. Relevant paras 9,10 and 11 of the said case read as under: ''9. Further, while passing the impugned order also the licensing authority has not given any adequate finding that if petitioner holds the arms license then the same shall be against the public peace or public safety. ''10. Public peace'' or ''public safety'' do not mean ordinary disturbance of law and order public safety means safety of the public at large and not safety of few persons only and before passing of the order of cancellation of arm license as per Section 17(3) of the Act the Licensing Authority is under an obligation to apply his mind to the question as to whether there was eminent danger to public peace and safety involved in the case in view of the judgment given by this Court in the case of Ram Murli Madhukar v. District Magistrate, Sitapur, 1998(16) LCD 905, wherein it has been held that license cannot be suspended or revoked on the ground of public interest (Jan-hit) merely on the registration of an F.I.R. and pending of a criminal case. 11. 11. Further, this Court in the case of Habib v. State of U.P., 2002 ACC 783, held as under: ''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 in Sheo Prasad Misra v. District Magistrate, Basti and others, 1978 AWC 122 , wherein the Division Bench relying upon the earlier decision in Masi Uddin v. Commissioner, Allahabad, 1972 ALJ 573, 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 fire-arm has been set aside. The present impugned orders also suffer from the same infirmity as was pointed out by the Division Bench in the above-mentioned 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. There is yet another reason that during the pendency of the present writ petition, the petitioner has been acquitted from the aforesaid criminal case and at present there is neither any case pending, nor any conviction has been attributed to the petitioner, as is evident from Annexure SA-I and II to the supplementary-affidavit filed by the petitioner. In this view of the matter, the petitioner is entitled to have the fire-arms licence. It is submitted by petitioner's counsel that the petitioner has been acquitted of the charges.'' 12. The aforesaid position of the law clearly distinguishes the mere registration of a criminal case or pendency of one from what is relevant under Section 17(3) for the Licensing Authority to exercise its power to cancel a fire-arms licence. Section 17(3)(b) empowers the Licensing Authority to suspend or revoke a licence, if it is deemed necessary for 'security of the public peace', or for 'public safety'. These expressions convey a widespread and broad based threat to the public at large or a threat to the prevalent all found equanimity and peace in society. The connotation of the words employed in Section 17(b) do not refer to mere cases of violation of law and order, but an impending threat to the general safety of the public or to public peace. The connotation of the words employed in Section 17(b) do not refer to mere cases of violation of law and order, but an impending threat to the general safety of the public or to public peace. If a licence is to be cancelled on any of these grounds, some objective material has to be there on record to form an opinion that the continued possession of a fire-arm held under the licence would imperil public peace or public safety. The mere registration of a criminal case is certainly not a relevant fact, on the basis of which, an inference may be drawn about vitiation, either of public peace or public safety. 13. If the holder of a licence has misused his fire-arm in a crime targeting an individual, the licence may be liable to be cancelled for the breach of one of the conditions of the licence under Section 17(3)(d), or may be on the ground that the licensee is held for that reason unfit to hold a licence under the Act, as envisaged under sub-Section (3)(a) of Section 17. It is possible that because of the petitioner's involvement in some crime, the Licensing Authority after considering the circumstances of the crime, the evidence about the petitioner's involvement for the limited purpose of exercise of powers by him under the Act might have opined to hold the licensee unfit, but that is not the case here. The findings recorded by the Licensing Authority and those by the Appellate Authority seem to proceed on a reasoning where the registration of a criminal case and the petitioner's trial on the relative charges have been regarded facts ipso facto relevant to cancel his fire-arm licence. This is certainly not what the law envisages while empowering the Licensing Authority to cancel a fire-arm licence. There is not an iota of material that has been taken into consideration by the two Authorities below to opine any threat to public safety or security of public peace. The inference that has been drawn, if at all it can be said to be one related to security of public peace or to public safety, is based solely on the fact of registration of a criminal case and trial in that connection. The inference that has been drawn, if at all it can be said to be one related to security of public peace or to public safety, is based solely on the fact of registration of a criminal case and trial in that connection. This is against so consistent a judicial opinion that this Court may venture to say that the Authorities below have passed orders that suffer from mala fides in law. 14. It must also be remarked that the Authorities below have been so callous in their reasoning that they have not cared to notice the relevant words used in the Statute on the foundation of which power may be exercised to cancel. While the Statute refers to 'security of the public peace' or 'public safety' as relevant considerations on the basis of which power may be exercised, both the Authorities below have employed similar sounding expressions that are foreign to the Statute, while exercising the power to cancel. The words employed in the order impugned are tufgr (public interest)', U;k;fgr (interest of justice)' and 'kkafr O;oLFkk (peace and order)'. 'Public interest' and 'interest of justice' are words not even remotely employed by Section 17(3)(b) of the Arms Act, furnishing them to be grounds for cancellation. 15. So far as the words 'peace and order' are concerned, that too do not find place in form or substance under Section 17(3)(b) aforesaid. The grounds mentioned in Section 17(3)(b) of the Arms Act are 'security of the public peace' and 'public safety'. Public safety is a word too remote from the Hindi word 'kkafr O;oLFkk that the impugned order mentions. Security of the public peace may bear a vague resemblance, but is essentially different. While 'kkafr O;oLFkk would translate in English to 'peace and order', which is not a ground under Section 17(3)(b), 'security of the public peace' translates in Hindi to ^^yksd 'kkfUr dh lqj{kk that the Hindi translation of the Statute employs. Clearly, ^^yksd 'kkfUr dh lqj{kk is an expression that envisages a completely different ground from 'kkafr O;oLFkk n`f"Vdks.k ls or 'from the point of view of peace and order', the precise ground mentioned in both the orders impugned. Considerations of 'peace and order' or 'point of view of peace and order' are very different from the expression 'security of the public peace'. Considerations of 'peace and order' or 'point of view of peace and order' are very different from the expression 'security of the public peace'. The expression 'security of the public peace' is an idea that envisages a far wider and deeper impact on the maintenance of general public peace than what is envisaged by the expression 'point of view of peace and order'. The essential difference in the two expresses or the idea behind the two expressions is the degree of threat to public peace by the action of the licensee involved. 16. The authorities entrusted with power under Section 17 of the Arms Act to cancel a fire-arms licence, notwithstanding the subjective satisfaction that the Statute postulates while exercising the power, cannot exercise it on a ground not envisaged under the Act. Simply put, mere infractions of public peace or violations of law and order do not constitute that degree of a exacerbated threat or violation of public peace that the expression 'security of the public peace' connotes. The Licensing Authority, therefore, must have on record material on the basis of which a reasonable conclusion can be drawn that the act of the licensee is one that is not a mere infraction of public peace or a violation of law and order. There has to be material on the basis of which the Licensing Authority can be credited with subjective satisfaction that the act of the licensee is a threat to security of the public peace. Certainly, this kind of an inference cannot be drawn on the mere registration of a criminal case against a licensee. 17. No doubt, the grant of a licence under the Arms Act is a concession by the State in favour of the licensee, but the State or its Authority, once regulated in the exercise of that concession by Statute, cannot exercise that power arbitrarily, whimsically or on grounds not envisaged under the law. Here, by referring to expressions, such as 'public interest', 'interest of justice' and 'the point of view of peace and order', the Authorities have exercised power on considerations, not at all relevant under the Arms Act. 18. The reasoning on facts that the Appellate Authority has somewhat made efforts to introduce in order to lend some pretense of legitimacy to the exercise of power to cancel, is also ill-founded. 18. The reasoning on facts that the Appellate Authority has somewhat made efforts to introduce in order to lend some pretense of legitimacy to the exercise of power to cancel, is also ill-founded. This Court has perused the judgment of the 1st Additional Sessions Judge, Kaushambi dated 19.9.2018 in Sessions Trial No. 532 of 2009 (arising out of Case Crime No. 61 of 1995), under Sections 147, 148, 307, 427 IPC, P.S. Saini, District Kaushambi. In the clear opinion of this Court, the judgment passed by the learned Additional Sessions Judge does not acquit the petitioner on a benefit of doubt. It orders an acquittal on merits. May be the Appellate Authority could have drawn that inference because four witnesses for the prosecution were declared hostile, but a reading of the judgment shows that the learned Additional Sessions Judge has entered a verdict of acquittal on merits. It also seems rather incongruous as to how the Appellate Authority could look into the judgment passed by the Criminal Court in relation to the sessions trial arising out of Case Crime No. 61 of 1995, inasmuch as the Appellate Authority has passed the order impugned on 1.7.2015, whereas the judgment in Sessions Trial No. 532 of 2009 (arising out of Crime No. 61 of 1995) has been passed on 19.9.2018 by the learned Additional Sessions Judge, Kaushambi. The findings in this regard by the Appellate Authority, therefore, also seem to be flawed. 19. Possibly, this error has crept in the judgment of the Appellate Authority because he read the judgment passed by the Chief Judicial Magistrate, Kaushambi in Case No. 3651 of 2007, State v. Raju Agrahari and others (Crime No. 199 of 2007), that was passed on 21.10.2014. About this case, the Appellate Authority has remarked that it is still pending. This is also the result of an error apparent, inasmuch as on the date the Appellate Authority decided the appeal, the case arising out of Case Crime No. 199 of 2007, had been decided with a verdict of acquittal in favour of the petitioner. This judgment, no doubt, acquits the petitioner, granting him the benefit of doubt. Therefore, most certainly, the Commissioner had read this judgment thinking it to be one relating to Case Crime No. 61 of 1995, that had led to a sessions trial decided much later. All these incongruities betray lack of application of mind. 20. This judgment, no doubt, acquits the petitioner, granting him the benefit of doubt. Therefore, most certainly, the Commissioner had read this judgment thinking it to be one relating to Case Crime No. 61 of 1995, that had led to a sessions trial decided much later. All these incongruities betray lack of application of mind. 20. In the conspectus of facts that we have found clearly established, the orders impugned passed by the two Authorities below cannot be sustained and must be quashed with consequential relief to the petitioner. 21. In the result, this petition succeeds and is allowed with costs. The impugned order dated 1.7.2015 passed by the Commissioner, Allahabad Division, Allahabad (now Prayagraj) in Appeal No. 33 of 2009, Amar Singh v. State and the order impugned dated 3.12.2008 passed by the District Magistrate, Kaushambi in Case No. 107/167 of 2007-08, State v. Amar Singh, are hereby quashed. The District Magistrate, Kaushambi is ordered to consider granting of renewal of the petitioner's fire-arms licence as if he had before him an application for renewal of licence never cancelled by the order impugned dated 3.12.2008. The non-renewal because of the orders impugned shall be ignored. The District Magistrate, Kaushambi shall facilitate the petitioner in making the necessary application for renewal of the fire-arms licence before passing orders thereon, all of which shall be done within a month of receipt of a copy of this judgment. 22. Let this order be communicated to the Commissioner, Prayagraj Division, Prayagraj and the District Magistrate, Kaushambi by the Registrar (Compliance).