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2024 DIGILAW 838 (GUJ)

Desai Mulajibhai Virsangbhai v. State Of Gujarat

2024-04-09

VAIBHAVI D.NANAVATI

body2024
ORDER : 1. By way of the present Petition, petitioner herein has prayed for the following reliefs : “(A) YOUR LORDSHIP may be pleased to admit and allow this petition. (B) YOUR LORDSHIP may be pleased to issue writ of certiorari or writ in the nature of certiorari quashing and setting the order dated 09.11.2020 passed by the respondent no. 2 herein in D/MAG/1/HTHP/RAD/Vashi. 19261-264 as well as the order passed by the section Officer, Home Department dated 20.04.2022 in HVD/1220/484/M and direct the respondent authorities to renew the license no. B.K. 02/2012. (C) Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to stay implementation, operation and execution of the order dated 09.11.2020 passed by the respondent no.2 herein in D/MAG/1/HTHP/RAD/Vashi. 19261-264 as well as the letter/order passed by the section Officer, Home Department dated 20/04/2022 in HVD/1220/484/M. (D) YOUR LORDSHIP may be pleased to pass such other order and further orders as may be deemed just and proper in the interest of justice.” 2. Heard Mr. Tushar Chaudhary, learned advocate appearing for the petitioner and Mr. Ayaan Patel, learned Assistant Government Pleader appearing for the respondent- State authorities. 3. Brief facts leading to the filing of the present Petition reads thus: 3.1. The petitioner herein was in receipt of a valid arms license being No. BK/02/2012 (UIN No. 122610000137322013) which was issued to the petitioner herein in the year 2012. The same has been renewed from time to time. The petitioner was issued a Notice on 17.10.2020 by the respondent no.2 as to why the petitioner’s arms license should not be cancelled/revoked, taking into consideration the petitioner’s age. Thereafter, the petitioner herein approached the competent authority clarifying the fact that the petitioner is having land in Aadivasi area. The petitioner is required to deal in cash, the petitioner has also plantation of sandalwood trees, there was a theft of wild animal and in view thereof, though petitioner is aged 83 years, the health condition of the petitioner is good. Though, the aforesaid was submitted by the petitioner herein, petitioner’s arms license came to be cancelled, for the reasons stated in the order dated 09.11.2020, passed by the respondent no.2 herein. 3.2. Being aggrieved by the impugned order dated 09.11.2020, the petitioner herein preferred an Appeal before the respondent no.1 authority. Though, the aforesaid was submitted by the petitioner herein, petitioner’s arms license came to be cancelled, for the reasons stated in the order dated 09.11.2020, passed by the respondent no.2 herein. 3.2. Being aggrieved by the impugned order dated 09.11.2020, the petitioner herein preferred an Appeal before the respondent no.1 authority. There was delay in filing the appeal before the competent authority and in light of the aforesaid, the respondent no.1 authority rejected the appeal on the ground of delay vide letter/order dated 05.01.2021. 3.3. In view thereof, the petitioner approached this Court, wherein, by an order dated 08.02.2021 passed in Special Civil Application No. 2409 of 2021, the Hon’ble Court declined to condone the delay and the respondent no.1 was directed to decide the petitioner’s appeal on its own merits. The appellate authority also rejected the appeal of the present petitioner on the same ground. One more ground weighed with the appellate authority for rejecting the appeal was that in the course of hearing, it was stated by the petitioner that the license that may be granted/considered to the petitioner for a lighter weight and on such submission, the appellate authority came to a conclusion that the petitioner himself has accepted that the petitioner has aged around 80 years and is not in a position to handle an arms license and also that there is no personal threat to the petitioner and in view thereof, there is no concrete reason to renew the arms license of the petitioner. 3.4. In light of the aforesaid, being aggrieved and dissatisfied with the order impugned passed by the competent authority, the petitioner herein has approached this Court with the reliefs as stated herein-above. 4.1. Mr. Tushar Chaudhary, learned advocate appearing for the petitioner submits that in view of the threat or theft, the the arms license of the petitioner is required to be renewed. Further, the petitioner herein was constrained to file an F.I.R. on 01.09.2021, which was duly produced at Annexure-G. Reliance is also placed by Mr. Chaudhary, learned advocate on the Certificate dated 03.08.2019 issued by the forest department with respect to the crop plantation (pg.41), certificate dated 11.04.2022 issued by the Rampura (V) Group Gram Panchayat, Tal.: Amirgadh, Dist.: Banaskantha to the effect that the petitioner resides in the said area and certificate of Dr. Chaudhary, learned advocate on the Certificate dated 03.08.2019 issued by the forest department with respect to the crop plantation (pg.41), certificate dated 11.04.2022 issued by the Rampura (V) Group Gram Panchayat, Tal.: Amirgadh, Dist.: Banaskantha to the effect that the petitioner resides in the said area and certificate of Dr. Lalji A. Patel dated 06.07.2022, duly produced at Page.44, wherein, it is certified that the petitioner went through all the tests and though the petitioner is aged 85 years, is having good health conditions. 4.2. Placing reliance on the aforesaid, Mr. Chaudhary, learned advocate submits that the petitioner’s license could not have been cancelled on the ground of age of the petitioner i.e. being 83 years of age. It is submitted that the aforesaid issue is no longer res-integra, wherein, it is held that considering the age factor is a subjective satisfaction of the competent authority and it is not open for the competent authority to decline such arms license, placing reliance on the age of the petitioner. It was also submitted that the aforesaid is also against the provisions of Section 17 of the Arms Act. 5.1. Per contra, Mr. Ayaan Patel, learned Assistant Government Pleader appearing for the respondent-State submits that the petitioner herein himself has accepted that the petitioner is aged person and arms license be considered for a lighter weight, in view of the health of the petitioner. 6. At this stage it is apposite to refer to the order dated 23.08.2022 passed by the Hon’ble Division Bench in Letters Patent Appeal No. 485 of 2022, wherein, relevant Paras-5 and 6 read thus: “[5] In the instant case, it would emerge from the records that both Dy.S.P. and the Police Inspector of Valsad City/Division have opined in favour of weapon license being issued to the writ applicant. It is apt to note at this juncture itself that applicant is not only claiming to be animal activist but he has also ensured that violators of the law are brought to book, namely, at the intervention of the petitioner, the law enforcing agencies have been able to book nearly 50 FIRs against the offenders. This obviously swayed in the mind of the Dy. S. P. as well as the Police Inspector to forward a favourable report, namely, a report recommending for grant of arms license in favour of the petitioner. This obviously swayed in the mind of the Dy. S. P. as well as the Police Inspector to forward a favourable report, namely, a report recommending for grant of arms license in favour of the petitioner. However, the jurisdictional Superintendent of Police seems to have opined that applicant need not be issued the license. It is this negative opinion of Superintendent of Police which weighed in the mind of the District Magistrate to reject the application of the petitioner. Neither the copy of the said report of the Superintendent of Police was furnished to petitioner nor the order of the District Magistrate would disclose as to what is the basis on which the Superintendent of Police, Valsad arrived at such a decision. This Court while examining such issues would not embark upon conducting a roving inquiry. In other words, it is not the decision which would be looked into but it is only the decision making process, and if found same is flawed, this Court would interfere in writ jurisdiction as not otherwise. In the instant case, the decision making process is flawed, and we say so, for the simple reason that neither the decision of the Superintendent of Police, Valsad was furnished to the applicant/ petitioner nor the order of the District Magistrate is disclosing as to what was the opinion of the Superintendent of Police, Valsad which swayed or weighed with the District Magistrate to reject the affirmative opinion rendered by the Dy. S. P. and the Police Inspector of the same division who had forwarded the report as required under sub- section (2) of section 13 of the Act recommending issuance of license to writ application. [6] In that view of the matter, the impugned order cannot be sustained. Yet another factor is, the fact that District Magistrate has arrived at a conclusion that income tax returns of the petitioner for the last three years would not disclose that petitioner having carried on substantial business in sand, the basis on which the petitioner had also pressed for grant of arms license. The moot question would be whether the financial aspect can be the yardstick for granting or refusal of an arms license? The moot question would be whether the financial aspect can be the yardstick for granting or refusal of an arms license? Answer will have to be necessarily in the negative, inasmuch as the financial grading of a person in the society cannot be the basis on which the arms license can be granted or refused as such license is sought by an applicant apprehending danger to his life. It all depends on facts and circumstances obtained in each case. It is the subjective satisfaction, based on objective assessment the licensing authority will arrive at a conclusion to grant or refuse the grant of arms license and paramount consideration would be, whether there is danger to the life of the applicant which warrants grant of Arms License. Even according to the District Magistrate, the income tax returns do disclose that the petitioner was carrying on the business of sand. Be that as it may. The fact that the license having been refused on these two grounds apart from that petitioner can seek protection from jurisdictional police by itself is not a ground inasmuch as there may be myriad circumstances in which the petitioner may be placed and has to defend himself which may warrant such applicant to possess the license. In that view of the matter, we are of the considered view that impugned order cannot be sustained.” 7. Having heard the learned advocates appearing for the respective parties and having gone through the record of the case, in the opinion of this Court, age could not have been a criteria for non-renewal of the arms license. There is nothing on record, to show that the petitioner herein is not fit to hold an arms license. The fact that there are no threats to the petitioner, petitioner is at the fag end of his life, which is a subjective satisfaction arrived at by the competent authority and the same cannot be reason to deny an arms license for a lighter weight. The competent authorities have arrived at the impugned conclusion, based on the subjective satisfaction. The fact that there are no threats to the petitioner, petitioner is at the fag end of his life, which is a subjective satisfaction arrived at by the competent authority and the same cannot be reason to deny an arms license for a lighter weight. The competent authorities have arrived at the impugned conclusion, based on the subjective satisfaction. On perusal of the impugned orders passed by the competent authorities dated 09.11.2020 and 20.04.2022, the reasons assigned by the competent authorities are that, the petitioner herein is an agriculturist and would not require an arms license for his personal use, the age of petitioner is above 80 years, there are no instances of any threat to the petitioner herein and the petitioner herein is at the last phase of his life. While confirming the order passed by the District Magistrate, the Appellate authority further held that the petitioner herein is not filing the income tax return and in view thereof, there is no monetary threat to the petitioner herein. That the petitioner is a retired teacher, aged 85 years and is having arms license since last more than 10 years. Under such circumstances, there cannot be said to be any need of arms license to the petitioner. The petitioner does not require an arms license in the last phase of his life. The reasons assigned by the competent authorities are subjective satisfaction of the authorities. However, such reasons cannot be a reason not to consider the petitioner’s case for grant of arms license, more particularly, when the petitioner submits that the petitioner’s case be considered for lighter weight arms’ license. In absence of any prohibitory orders qua the petitioner herein seeking an arms license, the impugned orders dated 09.11.2020 and 20.04.2022 are required to be quashed and set aside. 8. In light of the aforesaid, impugned orders dated 09.11.2020 and 20.04.2022 are quashed and set aside. The respondent authority is directed to issue Notice to the petitioner and call upon the petitioner and consider the case of the petitioner for renewal/issuance of the fresh arms license, in accordance with the requirement of the petitioner as also under the provisions of the Arms Act. The same be decided by the respondent authority, preferably within a period of eight weeks from the receipt of the order. 9. In view of above, the present Petition stands allowed, to the aforesaid extent. The same be decided by the respondent authority, preferably within a period of eight weeks from the receipt of the order. 9. In view of above, the present Petition stands allowed, to the aforesaid extent. Direct service is permitted.