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2023 DIGILAW 599 (GUJ)

AHMEDUDDIN ABDULAZIZ SHAIKH v. STATE OF GUJARAT

2023-04-12

VAIBHAVI D.NANAVATI

body2023
ORDER : 1. By way of present writ-application under Article 226 of the Constitution of India the writ-applicant herein is aggrieved by the order dated 17.1.2022 passed by the respondent No. 1 in Appeal No. 258 of 2020 and the order passed by the respondent No. 2 dated 16.6.2020 by which the writ-applicant’s fire arm license was refused to be renewed. 2. Brief facts germane for adjudication of the present writ-application read thus: 2.1 The writ-applicant herein was holding NP Bore Rifle and for that fire arm license came to be issued in favour of the writ-applicant before about 57 years. The said license came to be renewed from time to time under the provisions of the Arms Act. The said license expired on 31.12.2019, however prior to expiry on 23.12.2019 the writ-applicant preferred an application for renewal of the said license. The respondent No. 2 by impugned order dated 16.6.2020 refused to renew the license. 2.2 Being aggrieved by the said order passed by the respondent No. 2 refusing to renew the license the writ-applicant herein preferred an appeal under the provisions of Section 18 of the Arms Act. The respondent No. 1 confirmed the order dated 16.6.2020 passed by the respondent No. 2 and the appeal preferred by the writ-applicant herein came to be rejected by order dated 17.1.2022 passed in Appeal No. 258 of 2020. 3. Being aggrieved by the impugned order dated 17.1.2022 passed by the respondent No. 1 as referred above the writ-applicant herein is constrained to approach this Court invoking Article 226 of the Constitution of India and has prayed for the following reliefs: “(A) Admit this petition. (B) Allow this petition by quashing and setting aside the order dated 17.01.2022 passed by the respondent no. 1 in Appeal No. 258 of 2020 and thereby quash and set aside the order passed by the respondent no. 2 dated 16.06.2020 by which the petitioner's fire arm license was refused to renewal. (C) Allow this petition by directing the respondent no. 2 to renew the fire arm license of the petitioner forthwith. (D) Grant the interim relief by staying implementation, operation and execution of the order passed by the respondent no. 1 in Appeal no. 258 of 2020 dated 17.01.2022 and also by staying the execution, implementation and operation of the order dated 16.06.2020 passed by the respondent no. 2 to renew the fire arm license of the petitioner forthwith. (D) Grant the interim relief by staying implementation, operation and execution of the order passed by the respondent no. 1 in Appeal no. 258 of 2020 dated 17.01.2022 and also by staying the execution, implementation and operation of the order dated 16.06.2020 passed by the respondent no. 2, pending admission and till final disposal of this petition. (E) Award the cost throughout. (F) Grant such other and further relief/s which may deem fit to this Honourable Court in the interest of justice.” 4. Mr. M.A. Kharadi, the learned advocate appearing for the writ-applicant herein submitted that the orders impugned passed by the respondent authority are against the provisions of the Arms Act. It was submitted that the writ-applicant herein has been refused renewal of arm license merely on the ground that the writ-applicant herein is aged about 82 years and there is no requirement of arm license to the writ-applicant herein. 4.1 Mr. Kharadi, the learned advocate also submitted that the aforesaid is against the well settled principles of law as laid down by this Court in various decisions. Reliance was placed on the decision in the case of Kanaksinh Mohansinh Mangrola vs. State of Gujarat, AIR 2023 (Guj.) 33 . 4.2 It was submitted that as such the writ-applicant herein never contravened any of the conditions while in possession of the said license and, therefore, the order passed by the respondent authority declining to renew the arm license possessed by the writ-applicant herein are required to be quashed and set aside. 5. Mr. Trupesh Kathiriya, the learned AGP appearing for the respondent – State submitted that no error could be said to have been committed by the respondent authority in rejecting the renewal of arms license as prayed for by the writ-applicant herein. It was submitted that the respondent authorities have passed the order impugned considering the provisions of Section 14(3) of the Act which empower the respondent authority to refuse the license, if so deem fit. Placing reliance on the aforesaid it was submitted that the writ-application be dismissed. Analysis: 6. The writ-applicant herein was in receipt of an arm license since 57 years. The said license came to be renewed from time to time. Placing reliance on the aforesaid it was submitted that the writ-application be dismissed. Analysis: 6. The writ-applicant herein was in receipt of an arm license since 57 years. The said license came to be renewed from time to time. The writ-applicant herein prior to the expiry of the arm license which was due to expire on 31.12.2019 preferred an application seeking renewal of license. However, the said application seeking renewal came to be rejected concurrently by both the authorities below i.e. respondents No. 1 and 2. The order passed by the respondent No. 2 dated 16.6.2020, paragraph-3 rejecting the application seeking renewal of the arm license reads thus: “Order: Shri Ahmeduddin Abdulaziz Shaikh, reside at Mangrol holds valid Arms License No. DM/JND/ODR/III/29 of N.P. Bore rifle for all over India (except Jammu and Kashmir) upto 31/12/2019. Upon expiry of renewal period of this license, the applicant has made representation to this Office by way of his registered application dated 23/12/2019 to renew this license for additional period of three years. Original Challan making renewal fee payment and other enclosures are enclosed with the application. With regard to representation of the licensee for Arms Renewal, upon making inquiry through Police Department under Section-15(3), 13(2) of the Arms Act-1959 and Rule- 14(1) of Arms Rules-16, Positive Report has been submitted, vide letter under reference submitted by Police Inspector, Police Station, Mangrol. In case of License Renewal request made by the Licensee, after fixing hearing of the matter at this Office on 11/06/2020, the applicant was informed accordingly. The applicant personally appeared before the Office on the date of hearing and submitted that he has neither indulged into any offence nor fined/punished in any offence and he complies with all the rules and regulations of the Government and further requested to renew the said license for additional period. In view of the details revealed during course of hearing, Investigation Report submitted and application/evidence submitted by Licensee, the age of the applicant is 79 years on the date of application. Period of about 57 years has passed since the issuance of license. Arms License might have been issued to the applicant at the relevant point of time considering his situation/risk/requirement. The applicant is passing life as a Senior citizen at present. As per statement given by the applicant before P.S.I., Police Station, Mangrol, he declares that he is leading retired life. Arms License might have been issued to the applicant at the relevant point of time considering his situation/risk/requirement. The applicant is passing life as a Senior citizen at present. As per statement given by the applicant before P.S.I., Police Station, Mangrol, he declares that he is leading retired life. Thus, it does not appear that the licensee is associated with particular social/professional practices. Any financial risk can be avoided/ prevented by using banking facilities like cheque/draft. It does not appear that any untoward incident has happened to the applicant in the past or that he has received any threats from any person or institution. The area of licensing Arms License is all over India (except Jammu and Kashmir), but he has not produced any evidence that he requires to travel all over India. The concerned Police Station Officer has submitted Positive Report regarding submission of License Renewal. However, after careful consideration of the aspects including present age of the applicant, period of issuing license, present application, evidence produced and submission made during hearing, etc., cogent/sufficient reasons have not been produced that the applicant presently requires Arms/Arms License. Thus, I do not find the ground cogent/sufficent to continue or renew the said License for additional period. Considering all the aforesaid facts, it is hereby ordered to reject the request made by Shri Ahmeduddin Abdulaziz Shaikh, reside at Mangrol to renew Arms License No. DM/JND/ ODR/III/29 for self protection for additional period. The Licensee shall have to deposit all Arms and ammunitions registered under the aforesaid License forthwith at Mangrol Police Station and this office is to be reported immediately alongwith the evidence thereof. Further, all Arms/ammunitions are to be disposed of in accordance with the law after obtaining prior approval from this office within time-limit as prescribed under Rule-14 of Arms Act-16 or these Arms/ammunitions shall be liable to be confiscated by the Government. If the applicant is aggrieved by this decision, an appeal may be preferred to the Appellate Officer and Deputy Secretary (Establishment), Home Department, “M”-Branch, Block No. 2, First Floor, New Sachivalaya, Gandhinagar within 30 days from the date of issuance of this order. If the applicant is aggrieved by this decision, an appeal may be preferred to the Appellate Officer and Deputy Secretary (Establishment), Home Department, “M”-Branch, Block No. 2, First Floor, New Sachivalaya, Gandhinagar within 30 days from the date of issuance of this order. Appeal Application is to be made in two copies and Appeal can be made with the original challan after depositing Rs.1,000/- towards Appeal fee under the head of “0055 Police.” Entry of this order is to be made in Arms License and Arms License Register. Dispatched. Sd/- illegible Dy. Chitnis to Home, Junagadh. Sd/- Dr. Saurabh Pardhi District Magistrate, Junagadh District, Junagadh.” 7. The writ-applicant herein preferred an appeal challenging the said order dated 16.6.2020 before the Appellate Authority being Appeal No. 258 of 2020 which came to be confirmed by the Appellate Authority by order dated 17.1.2022 which reads thus: “(1) The plaintiff owns seven Bigha of agricultural land. The monthly income of the same is 10 to 12 thousand rupees. His sons reside in Mumbai. He resides alone in a bungalow with an area of eight thousand square feet at Mangarol. His house is located on the national highway in the outskirts. As he is 80 years old, he lives a lonely life. Hence, the need for weapon. The plaintiff has not established any strong and sufficient reason that he actually needs an arms license. The fact shown by the plaintiff applies equally to older people living in that area. If the arms license is renewed only on this ground, then all the people living near the residential area of the plaintiff will demand the renewal of the arms license or the arms license which is not in the interest of public peace and safety. The contention of the plaintiff that the weapon is required on the basis of mere imaginary fear does not appear to be justified. (2) The plaintiff is a member of the former royal family. He has been holding arms license for last 57 years. Earlier he had five weapons out of which four have been surrendered. At present there is only one weapon. The plaintiff must have been granted the license 57 years ago based on the situation and risk at that time. In these 57 years, there has been no incident of theft or loot with the plaintiff nor he has been threatened. Earlier he had five weapons out of which four have been surrendered. At present there is only one weapon. The plaintiff must have been granted the license 57 years ago based on the situation and risk at that time. In these 57 years, there has been no incident of theft or loot with the plaintiff nor he has been threatened. Therefore, the decision of the District Magistrate, Junagadh not to renew the arms license appears to be reasonable as the plaintiff does not appear to be in any danger in the present situation. (3) The plaintiff is not filing income tax returns since 1982. The income of the plaintiff appears to be ordinary. Also, the plaintiff has not stated any business/financial risk to him either in the personal hearing or in the appeal. Further, according to the plaintiff, the plaintiff lives a solitary life at Mangarol. He has not stated that he has to travel for business or other reasons nor he has produced any evidence regarding the same. (4) The plaintiff states that, on 04/10/2021 four persons entered into the area of his bungalow. A janvajog (note worthy) was lodged, FIR was not registered. Considering the same, the fact stated by the plaintiff does not appear to be serious. If an incident creating danger or fear had actually occurred, then the plaintiff would have lodged an F.I.R. Considering the peaceful situation of the law and order prevailing in the state of Gujarat, there is no fear for the plaintiff. (5) According to Threat Assessment, there is no personal threat to the plaintiff. In these circumstances, it appears that the plaintiff only wants to get the arms license as a status symbol. There is no specific reason for renewal of arms license to the plaintiff. Considering the above issues, it appears that, there is no need to renew the self defense arms license to the plaintiff.” 8. It is apposite to refer to Sections, 13, 14 and 17 of the Arms Act: “SECTION 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. It is apposite to refer to Sections, 13, 14 and 17 of the Arms Act: “SECTION 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 reports received under sub-section (2), shall subject to the other provisions of his 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. (3) The licensing authority shall grant: (a) a licence under Section 3 where the licence is required: (i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection: Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection. (ii) in respect of a 22 “firearm” to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government. (b) a licence under section 3 in any other case or a licence under Section 4, Section 5, Section 6, Section 10 or Section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same. (b) a licence under section 3 in any other case or a licence under Section 4, Section 5, Section 6, Section 10 or Section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same. SECTION 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. (2) to be of unsound mind. (3) to be for any reason 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.” “SECTION 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 was 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. (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. (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. (d) if any of the conditions of the licence has been contravened. (e) if the holder of the license has failed to comply with a notice under sub-section (1) requiring him to deliverup 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. (6) The authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority. (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. (8) An order of suspension or revocation under sub-section (7) may also be made by an appellate Court or by the High Court when exercising its powers of revision. (9) The Central Government may, by order in the Official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licences granted under this Act throughout India or any part thereof. (10) On the suspension or revocation of a licence under this lection the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation.” 9. Considering the aforesaid provisions of law and the facts of the present case the following emerge: (a) The respondent authorities ought not have declined renewal of license merely on the ground that the writ-applicant herein is aged 79 years that there is no requisition for possession of the arm license and the respondent No. 1 having held that the writ-applicant herein is living a life as senior citizen and leading a retired life. (b) The Appellate Authority considered that the writ-applicant herein owns seven bighas of agriculture land and having monthly income amount to Rs.10,000/- to Rs.12,000/-. The son of the writ-applicant resides in Mumbai and the writ-applicant resides in a bungalow of 8000 Sq. Fts. at Mangrol which is located out the outskirt of the National highway. In view of the aforesaid the writ-applicant herein has failed to establish strong and sufficient reason that the writ-applicant requires an arm license. (c) Both the authorities completely failed to consider the positive opinion which was granted by the police authority. (d) The fact that the writ-applicant herein is not amenable to income-tax returns since 1982 is beyond the consideration for an arm license. It cannot be a reason germane for rejecting the application for renewal. (e) The fact that no FIR is lodged pursuant to the complaint registered by the writ-applicant herein on 4.10.2021 is also not a reason germane for consideration of renewal of arm license. It cannot be a reason germane for rejecting the application for renewal. (e) The fact that no FIR is lodged pursuant to the complaint registered by the writ-applicant herein on 4.10.2021 is also not a reason germane for consideration of renewal of arm license. (f) That no threat to the writ-applicant herein also cannot be a reason for non-consideration of renewal of arm license. 10. Considering the aforesaid reasoning by both the authorities, in view of this Court the orders impugned are required to be interfered with. The order dated 17.1.2022 passed by the respondent No. 1 in Appeal No. 258 of 2020 and the order passed by the respondent No. 2 dated 16.6.2020 are hereby quashed and set aside considering the fact that the impugned orders which according to the learned AGP appearing for the respondent authority is invoking the provisions of Section 14(3) of the Act, which does not appeal to this Court, considering the fact that the said orders are against the provisions of Section 14 of the Act which stipulates the conditions under which the license seeking arm license can be refused. Section 14 of the Act clearly stipulates that such license can be refused, if granting of the same would result against the security of public peace or public safety. Section 14 of the Act clearly provides that licensing authority shall not refuse to grant any license to any person merely on the ground that such person does not own/possess sufficient property. The reasons recorded by the respondent authorities for not granting the license do not appeal to be germane, more particularly while exercising discretion the respondent authorities have failed to consider the police report which is in favour of the writ-applicant and Section 13 of the Act provides for a police report which in view of this Court is germane for adjudication for an application seeking arm license and also considering the fact that the writ-applicant herein being of 79 years of age cannot be considered as prohibition considering the fact that such condition is not stipulated under the Act that a person of 79 years age is not entitled to apply for an arms license as also the reasons stated above. 11. 11. Considering the aforesaid facts the present writ-application is partly allowed with a direction that the application filed by the writ-applicant herein seeking renewal of arms license be considered afresh in accordance with the provisions of law after providing due opportunity of hearing to the writ-applicant herein. 12. Direct service is permitted.