Gujarat High Court
Kanaksinh Mohansinh Mangrola vs State Of Gujarat on 1 December, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/6193/2019 JUDGMENT DATED: 01/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6193 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KANAKSINH MOHANSINH MANGROLA
Versus
STATE OF GUJARAT
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Appearance:
MR. B.B.NAIK, SENIOR ADVOCATE WITH MR PARTHIV A BHATT(5331)
for the Petitioner(s) No. 1
MS. SHRUNJAL SHAH, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 01/12/2022
ORAL JUDGMENT
1 Rule returnable forthwith. Ms.Shrunjal Shah, learned Assistant Government Pleader, waives service of notice of rule on behalf of the respondent- State.
Page 1 of 10 Downloaded on : Sat Dec 24 01:09:40 IST 2022C/SCA/6193/2019 JUDGMENT DATED: 01/12/2022 2 Heard Mr.B.B.Naik, learned Senior Counsel with Mr.Parthiv Bhatt, learned advocate for the petitioner and Ms.Shrunjal Shah, learned AGP for the respondent -
State.
3 By way of this petition under Article 226 of the Constitution of India, challenge is to the order dated 09.08.2016 passed by the respondent No.3 as well as the order dated 20.12.2018 passed by the respondent No.2 in Appeal No. 362 of 2016, by which, the application for granting an Arms License to the petitioner has been rejected.
4 Mr.B.B.Naik, learned Senior Counsel with Mr.Bhatt, learned counsel, would submit that the orders under challenge are bad, inasmuch as, the grounds on which the same has been rejected have no nexus to the need of the petitioner for license. He would submit that the parameters for grant of license and refusal thereof have been set out in Sections 13 and 14 of the Arms Act, 1959 and the reasons assigned by the authorities below do not Page 2 of 10 Downloaded on : Sat Dec 24 01:09:40 IST 2022 C/SCA/6193/2019 JUDGMENT DATED: 01/12/2022 fall within the frame work of the law so stated by several decisions of this Court. In support of his submission, Mr.Naik, learned Senior Counsel, would rely on a decision in the case of Ranchoodbhai Hamirbhai Samand vs. State of Gujarat., reported in 2016 JX(Guj) 1376, and on a decision rendered in the case of Bhupatbhai Bhikhabhai Mankad vs. State of Gujarat., reported in 2016 JX (Guj) 88.
5 Ms.Shrunjal Shah, learned AGP, would vehemently oppose the petition and support the order of the authorities, inasmuch as, in accordance with the submissions, the authorities have even found that there was no threat perception for the petitioner to seek a license. That the Income Tax Returns have been assessed and it has been found that in the past there has been no untoward incident for which it would be necessary for the petitioner to possess an arm license. Even otherwise, what the authorities have recorded was that the petitioner was involved in one criminal case for the offences punishable under Sections 406, 409, 463, 468, Page 3 of 10 Downloaded on : Sat Dec 24 01:09:40 IST 2022 C/SCA/6193/2019 JUDGMENT DATED: 01/12/2022 471 and 477-A of the Indian Penal Code.
6 Considering the submissions made by the learned counsels for the respective parties and reading the provisions of Sec.13 and 14 of the Act indicate that a licensing authority shall refuse to grant a license if the authority has reason to believe that which have been set out in sub-sections of Sec.14. In the case of Bhupatbhai Bhikhabhai Mankad (supra), this Court, after having set out the provisions of the Act has held thus:
"7 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, after narrating the contents, which are raised before it, has just reiterated the reasons, which are given by respondent No.2 while passing the order dated 28.6.2012. 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-Page 4 of 10 Downloaded on : Sat Dec 24 01:09:40 IST 2022
C/SCA/6193/2019 JUDGMENT DATED: 01/12/2022
(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 Page 5 of 10 Downloaded on : Sat Dec 24 01:09:40 IST 2022 C/SCA/6193/2019 JUDGMENT DATED: 01/12/2022 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 per Section 14(1)(b)(ii), the licencing authority shall refuse to grant a licence, among other reasons mentioned Page 6 of 10 Downloaded on : Sat Dec 24 01:09:40 IST 2022 C/SCA/6193/2019 JUDGMENT DATED: 01/12/2022 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 Page 7 of 10 Downloaded on : Sat Dec 24 01:09:40 IST 2022 C/SCA/6193/2019 JUDGMENT DATED: 01/12/2022 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.
8.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. 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, sub-section (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 own sufficient property. It clearly transpires that the appellate authority has not considered the vital aspect and has not even properly considered the assessment of threats.
9.In opinion of this Court therefore, the reliance placed for by the appellate authority on the income and the conclusion arrived at is de hors the provisions of Section 14 of the Act."
6.1 Even in the case of Ranchhodbhai Hamirbhai (supra), after having referred to a decision in the case of Bhupatbhai Bhikhabhai Mankad (supra), the Co-
Page 8 of 10 Downloaded on : Sat Dec 24 01:09:40 IST 2022C/SCA/6193/2019 JUDGMENT DATED: 01/12/2022 ordinate Bench of this Court has opined that when the authorities refused to provide a license and the consideration which weighed with the authorities are other than the one which have been set out in the provisions, such orders are vitiated by non application of mind and can also be set aside on so having been passed on extraneous consideration. Relevant paragraphs 12 and 13 of the decision read as under:
"12. It is true that the licensing authority has to rely upon the police report while considering the application made by the individual for issuance of licence under Section - 13 of the Act.
13. If the above referred police report is perused, it appears that the Police Sub Inspector, Thangadh within whose jurisdiction, the petitioner is residing, opined in favour of the petitioner and has also opined that the licence be issued for his self protection. If the subsequent report of the Deputy Superintendent of Police, Surendranagar is perused, which discloses that the petitioner can deal with the transactions by banking as well as ATM facilities and the same is opined by the District Superintendent of Police, Surendranagar. Neither it is the case of the respondent nor it has been observed by the respondent that the petitioner is a head strong person or he is having any antecedents nor it has been observed by the respondent that if the licence is issued in favour of the petitioner, there would be threats to public at large and therefore, in my opinion, the authorities below have rejected the application on the extraneous ground under Section Page 9 of 10 Downloaded on : Sat Dec 24 01:09:40 IST 2022 C/SCA/6193/2019 JUDGMENT DATED: 01/12/2022 14(b)(i)(3) of the Act, which empowers the authority to refuse to grant the license for such reasons, which would make the petitioner unfit for getting the licence under the Act. However, I do not find any just reason for rejecting the application submitted by the petitioner. It is true that getting license is not a right of an individual as held by the Division Bench of the Allahabad but the authority concerned has to decide the case considering the facts and circumstances in each case. Therefore, I hold that the orders passed by the authorities below are unreasonable and without any substance. Hence, the petition is allowed. The orders dated 31.05.2012 passed by the District Magistrate, Surendranagar refusing to grant license for NP bore revolver / pistol for his personal safety under the provisions of the Arms Act, 1959 as well as the order dated 10.03.2015 passed by the Deputy Secretary, Home Department, State of Gujarat is hereby quashed and set aside. Rule is made absolute."
7 Accordingly, the orders dated 09.08.2016 passed by the respondent No.3 as well as the order dated 20.12.2018 passed by the respondent No.2 in Appeal No. 362 of 2016 are hereby quashed and set aside. The petition is allowed, accordingly. Rule is made absolute to the above extent.
(BIREN VAISHNAV, J) BIMAL Page 10 of 10 Downloaded on : Sat Dec 24 01:09:40 IST 2022