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2024 DIGILAW 573 (ALL)

Shravan Kumar v. Commissioner Division Lucknow

2024-02-23

ALOK MATHUR

body2024
JUDGMENT : ALOK MATHUR, J. 1. Heard Shri Manoj Kumar Yadav, Advocate holding brief of Shri Ganesh Kumar Gupta, learned counsel for petitioner, learned Standing Counsel for the State and perused the material available on record. 2. By means of the present writ petition, the petitioner has challenged the order dated 20.09.2012 passed by the District Magistrate, Lakhimpur Kheri whereby in exercise of powers under Section 17 of the Arms Act, 1959, he has cancelled the arm licence of the petitioner as well as order dated 03.11.2015 wherein the appeal filed against the order of the cancellation has been rejected by the Commissioner, Lucknow Division, Lucknow. 3. It has been submitted by learned counsel for the petitioner that he was issued an Arm Licece No. 659/95 DBBL Gun No. 7402115. Subsequently, an FIR was lodged against the petitioner and his cousin namely, Sheo Pujan in Case Crime No. 842 of 2010, under Section 3/25/30 of the Arms Act at Police Station Phool Behad, District Kheri where it was alleged that the licensed gun of the petitioner was recovered from Sheo Pujan. Merely on account of recovery of the gun, notice was issued to the petitioner as to why his licence be not cancelled. The petitioner replied to the show cause notice and denied the allegations therein and further submitted that there is no criminal case lodged against the petitioner and only for a short period of time had kept the gun at a particular place and left. When he returned back he found that the gun has been taken away by the police parties and an first information report was lodged. It seems that the petitioner did not participate any further in the proceedings before the Licensing Authority/District Magistrate. Consequently, the impugned order dated 20.09.2012 was passed by the District Magistrate holding that the allegations against the petitioner were correct and cancelled his arm licence. 4. The petitioner, being aggrieved by the order of cancellation of his arm licence, filed an appeal before the Commissioner, Lucknow Division, Lucknow. Before the Commissioner, the petitioner has submitted that the allegations levelled against him were false and that the gun was never given in the custody of Sheo Pujan and it is only the fact that the said gun was kept at a plot under the control of Sheo Pujan fromwhere the police team raided and recovered the said weapon. Before the Commissioner, the petitioner has submitted that the allegations levelled against him were false and that the gun was never given in the custody of Sheo Pujan and it is only the fact that the said gun was kept at a plot under the control of Sheo Pujan fromwhere the police team raided and recovered the said weapon. He stated that there was no misuse of any condition of the arm licence and merely on conjectures and hypothesis, the said licence has been cancelled. He further submits that there is no material before the Licensing Authority to come to a conclusion that there was any violation of the condition of the licence and consequently, prayed for allowing of the appeal and setting aside the order of the District Magistrate. The Commissioner has duly recorded the contention of the petitioner and reiterated the findings recorded by the Licensing Authority and rejected his appeal. 5. Learned counsel for the petitioner has submitted that firstly merely even if the allegations levelled against him are found to be correct then also it does not construe as a violation of the condition of the arm licence. He further submitted that there was no material before the Licensing Authority to have come to a conclusion that there was violation of the condition of the licence necessitating cancellation of licence. In this regard, he has submitted that though he objected to the allegations levelled against him but none of the objections were considered. He further submitted that the allegations were never proved as no one appeared before the Licensing Authority to prove that the licensed weapon issued to the petitioner was found in the custody of Sheo Pujan. 6. He further submits that along with the show cause notice no material or any statement was made available to the petitioner from which it could be ascertained that there was sufficient material in support of the allegations levelled against the petitioner. 7. I have heard learned counsel for respective parties and perused the record. 8. The only point for consideration as to whether with the allegations levelled against the petitioner were sufficient to enable the Licensing Authority to cancel the arm licence of the petitioner. Undisputed facts are that on 02.04.2010 on the basis of information, the police had raided the plot of one Sheo Pujan, who was closely related to the petitioner. 8. The only point for consideration as to whether with the allegations levelled against the petitioner were sufficient to enable the Licensing Authority to cancel the arm licence of the petitioner. Undisputed facts are that on 02.04.2010 on the basis of information, the police had raided the plot of one Sheo Pujan, who was closely related to the petitioner. During the raid, the licensed weapon of the petitioner was found in the premises of Sheo Pujan and consequently, an FIR under the Arms Act was registered. The said Sheo Pujan was also taken into custody and he was released on bail on 05.05.2010. Simultaneously a notice was given to the petitioner as to why his arm licence be not cancelled. 9. It is also admitted that there is no allegation that the said weapon was ever used by Sheo Pujan or that he had fired from the said weapon. Mainly it is the case of the prosecution that the recovery of the weapon was made from the premises under control of Sheo Pujan. No evidence was recorded by the Licensing Authority to ascertain the aforesaid facts, which were the very basis of the cancellation of the arm licence. No police official, who was the part of the raid party, was ever examined before the District Magistrate to record a satisfaction with regard to the location from which the weapon was recovered, neither was Sheo Pujan examined nor given notice to appear before the Licensing Authority. Apart from the First Information Report, there was no other material available with the District Magistrate. 10. It is at this stage that Licensing Authority must be reminded of the findings by a Division Bench of this Court in the case of Satish Singh vs. District Magistrate, Sultanpur, 2009 (4) ADJ 33 (LB), has observed in paragraph nos. 6 and 7 as under: “6. Needless to say that right to life and liberty are guaranteed under Article 21 of the Constitution of India and the arms licenses are granted for personal safety and security after due inquiry by the authorities in accordance with the provisions contained in Arms Act, 1959. The provisions of section 17 of the Arms Act with regard to suspension or cancellation of arms licence cannot be invoked lightly in an arbitrary manner. The provisions contained under section 17 of the Arms Act should be construed strictly and not liberally. The provisions of section 17 of the Arms Act with regard to suspension or cancellation of arms licence cannot be invoked lightly in an arbitrary manner. The provisions contained under section 17 of the Arms Act should be construed strictly and not liberally. The conditions provided therein, should be satisfied by the authorities before proceeding ahead to cancel or suspend an arms licence. 7. We may take notice of the fact that for any reason whatsoever, the crime rate is raising day by day. The Government is not in a position to provide security to each and every person individually. Right to possess arms is statutory right but right to life and liberty is fundamental guaranteed by Article 21 of the Constitution of India. Corollary to it, it is citizen's right to possess firearms for their personal safety to save their family from miscreants. It is often said that ordinarily in a civilized society, only civilized persons require arms licence for their safety and security and not the criminals. Of course, in case the Government feels that arms licence are abused for oblique motive or criminal activities, then appropriate measures may be adopted to check such mal-practice. But arms licence should not be suspended in a routine manner mechanically, without application of mind and keeping in view the letter and spirit of section 17 of the Arms Act.” 11. Though in the entire order passed by the Licensing Authority, there is no mention of the particular condition but assuming that the condition relates to an injunction of giving weapon to anyone else possession, then merely because the weapon was found in someone's possession cannot be construed as a violation of condition of licence unless and until it is proven that the particular individual in whose possession the weapon was found had full control and custody of the weapon coupled with the fact the licencee had given the custody voluntarily Further it has also to be considered that the Licencee did not even retain constructive possession of the said weapon. 12. Hon'ble the Supreme Court has discussed “possession” in the case of Superintendent and Remembrancer of Legal Affairs vs. Anil Kumar Bhunja and Others, (1974) 4 SCC 274 and has held in paragraph nos. 13, 14, 15, 16 and 28 as under: “13. “Possession” is a polymorphous term which may have different mean-ings in different contexts. 12. Hon'ble the Supreme Court has discussed “possession” in the case of Superintendent and Remembrancer of Legal Affairs vs. Anil Kumar Bhunja and Others, (1974) 4 SCC 274 and has held in paragraph nos. 13, 14, 15, 16 and 28 as under: “13. “Possession” is a polymorphous term which may have different mean-ings in different contexts. It is impossible to work out a completely logical and precise definition of “possession” un-formally applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much the-rising it is that of “possession.” Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Ed. 1966) caused by the fact that possession is not purely a legal concept. “Possession” implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid.) 14. According to Pollock and Wright: “When a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing.” 15. While recognising that “possession” is not a purely legal concept but also a matter of fact, Salmond (12th Ed. Page 52) describes “possession, in fact” as a relationship between a person and a thing. According to the learned author the test for determining “whether a person is in possession of anything is whether he is in general control of it.” 16. Page 52) describes “possession, in fact” as a relationship between a person and a thing. According to the learned author the test for determining “whether a person is in possession of anything is whether he is in general control of it.” 16. In Gunwantlal vs. State of M.P. (1973) 1 SCR 508 , this Court while noting that the concept of possession is not easy to comprehend, held that, in the context of Section 25(a) of the Arms Act, 1959, the possession of a firearm must have, firstly, the element of consciousness or knowledge of that possession in the person charged with such offence, and secondly, he has either the actual physical possession of the firearm, or where he has not such physical possession, he has nonetheless a power or control over that weapon. It was further recognised that whether or not the accused had such control or dominion to constitute his possession of the firearm, is a question of fact depending on the facts of each case. In that connection, it was observed: In any disputed question of possession, specific facts submitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question. 28. Then, in three of these cases, namely, Manzur Husain vs. Emperor, Sadh Ram vs. State and Emperor vs. Harpal Rai, the licence-holder sent his licensed firearm for repairs through a person who had the licence-holder's oral authority, expressly or impliedly given, to carry it to the repairer. It was held that the carrier, though he held no licence to keep the firearm, could not be said to be in “possession” of it, nor could the licence-holder be said to have parted with the “possession” of the firearm or delivered its possession to an unauthorised person. Similarly, in one of the cases cited, the licence-holder sent his fire- arm to the Magistrate through his servant or agent for getting the licence renewed. In that case also, it was held that the servant was not guilty of any offence for having in his possession or “carrying” a gun wihout a licence. The possession was held to be still with the licence-holder-owner of the weapon.” 13. In that case also, it was held that the servant was not guilty of any offence for having in his possession or “carrying” a gun wihout a licence. The possession was held to be still with the licence-holder-owner of the weapon.” 13. Merely because the weapon was found in the possession of other individual cannot be a ground sufficient itself to construe violation of terms and conditions of the licence, inasmuch as, there may be embodied occasions where the licencee has to part away temporarily with the possession of the weapon for retaining constructive possession of the said weapon. 14. For Example, if a person goes to visit a temple or any other place where he is not allowed to carry the weapon, he is under compulsion to part with the possession of the weapon temporarily for a short period of time and during his time another individual has custody but the licencee would certainly have constructive custody of the weapon. In such a situation, though the physical possession of the weapon had been given to another individual but at all point of time, he retained the constructive possession and in such a case it cannot be said that there was a violation of condition of the licence. 15. It is therefore, in the aforesaid circumstances, this Court is of the considered view that when the Licensing Authority/Prescribed Authority has reason to proceed to consider the case where there is a violation of condition of the licence where the weapon has been found in the possession of other person, then there has to be a satisfaction that the licencee did not even have the constructive possession of the weapon at the point of time when the weapon was recovered. 16. Accordingly, this Court is of the considered view that merely because the weapon was found in the premises, which were controlled by cousin brother of the petitioner, cannot lead to a conclusion that the petitioner was not in control of the licensed weapon issued to him. There is no allegation that the petitioner or Sheo Pujan had ever misused the licensed weapon and accordingly, the findings recorded by the District Magistrate as well as the order passed by the appellate authority are arbitrary and accordingly set aside. 17. The writ petition is allowed. There is no allegation that the petitioner or Sheo Pujan had ever misused the licensed weapon and accordingly, the findings recorded by the District Magistrate as well as the order passed by the appellate authority are arbitrary and accordingly set aside. 17. The writ petition is allowed. The order dated 20.09.2012 passed by the District Magistrate, Lakhimpur Kheri as well as order dated 03.11.2015 passed by the appellate authority are hereby quashed.