Gujarat High Court
Ashokkumar Bhikhaji Thakor vs State Of Gujarat & 2 on 12 June, 2017
Author: Vipul M. Pancholi
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/290/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 290 of 2016
In SPECIAL CIVIL APPLICATION NO. 1169 of 2016
With
CIVIL APPLICATION NO. 3172 of 2016
In
LETTERS PATENT APPEAL NO. 290 of 2016
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ASHOKKUMAR BHIKHAJI THAKOR....Appellant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
ABHIMANYU RATHOD, ADVOCATE for the Appellant(s) No. 1
MR KM ANTANI, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 12/06/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. This appeal is filed under Clause 15 of Letters Patent against an order dated 26.02.2016 passed by learned Single Judge in Special Civil Application No.1169 of 2016 by which the learned Single Judge has dismissed the petition.
2. It is the case of the appellant - original petitioner that he is a businessman carrying on the business of sale and purchase of land and is appointed as Vice-President of Palanpur Municipality. The petitioner applied for licence for NP Bore Revolver Pistol on the ground of self Page 1 of 12 HC-NIC Page 1 of 12 Created On Tue Jun 13 02:18:23 IST 2017 C/LPA/290/2016 ORDER defence as he is active in political life and he has to travel alone on frequent occasions for his business purpose. The respondent No.3 issued arms licence on 11.08.2006 in favour of the petitioner. Thereafter, on 26.11.2007, FIR being C.R.No.I-110/07 came to be registered against the petitioner and other persons before Palanpur City Police Station for the offences punishable under Sections 201, 406, 409, 420, 465, 467, 468, 471,477(A) and 34 of the IPC and Sections 13(1)
(c) and (d) of the Prevention of Corruption Act,1988. The Investigating Officer filed the charge-sheet and Special Case No.181 of 2007 has been registered before the Fast Track Court, B.K. In the said proceedings the petitioner has filed application for discharge.
3. It is the say of the petitioner that because of the registration of the aforesaid FIR, the respondent No.3 issued show cause notice dated 10.09.2008, whereby the petitioner was asked to show cause as to why the arms licence granted in favour of the petitioner should not be revoked/cancelled. Thereafter, the respondent No.3 by an order dated 27.04.2009 revoked the arms licence issued in favour of the petitioner and therefore petitioner preferred appeal before the respondent no.2. The respondent No.2 by an order dated 07.06.2011 quashed and set aside the order dated 27.04.2009 passed by the respondent No.3 and matter was remanded back to the Page 2 of 12 HC-NIC Page 2 of 12 Created On Tue Jun 13 02:18:23 IST 2017 C/LPA/290/2016 ORDER respondent No.3 for fresh consideration. However, once again the respondent No.3 passed an order on 29.06.2013, whereby, once again the licence of the petitioner has been cancelled and the application of the petitioner came to be rejected. Once again the petitioner filed an appeal before the respondent No.2 under Section 18 of the Arms Act, 1959 (hereinafter referred to as the Act for short). The respondent No.2, by an order dated 24.08.2015, confirmed the order passed by the respondent No.3 and thereby rejected the appeal.
4. The petitioner has, therefore, filed the captioned petition before this Court. The learned Single Judge by the impugned order dismissed the petition. Hence, the present appeal is filed by the original petitioner.
5. Heard learned advocate Mr. Abhimanyu Rathod for the appellant - original petitioner and learned AGP Mr. K. M. Antani for the respondents.
6. Learned advocate Mr. Rathod mainly contended that the respondent No.3, while revoking the licence and while exercising the powers under Section 17 of the Act has not properly considered the grounds on which the licence can be revoked. It is submitted that the Appellant Authority has also failed to consider the aforesaid important aspects and the learned Single Judge while Page 3 of 12 HC-NIC Page 3 of 12 Created On Tue Jun 13 02:18:23 IST 2017 C/LPA/290/2016 ORDER dismissing the petition has also failed to consider the provisions contained in Section 17 of the Act. It is submitted that merely because FIR is registered, licence issued by the respondent No.3 cannot be revoked/cancelled. In the present case, it is submitted that FIR is filed for the alleged offences punishable under the provisions of the Prevention of Corruption Act and under the provisions of the IPC and it is not alleged that the petitioner has used the revolver and thereby disturbed the public peace or public safety. The FIR which is registered has nothing to do with the continuation of licence of the petitioner.
7. It is further contended that the licence issued under the Act by the respondent No.3 in favour of one Mrs. R. H. Trivedi was also cancelled by the respondent No.3. It is submitted that said Mrs. R. H. Trivedi is also a co-accused along with the petitioner in the aforesaid FIR. However, when Mrs. Trivedi has filed an appeal before the respondent No.2, the respondent No.2 has quashed the order passed by the respondent No.3 and restored the licence in her favour on payment of requisite fees. Thus, it is contended that when the respondent No.2 has allowed the appeal of Mrs. R. H. Trivedi and restored her licence by setting aside the order passed by the respondent No.3, the respondent No.2 ought to have passed similar type of order in favour of Page 4 of 12 HC-NIC Page 4 of 12 Created On Tue Jun 13 02:18:23 IST 2017 C/LPA/290/2016 ORDER the petitioner. It is clarified that in case of Mrs. R. H. Trivedi also the respondent No.3 has placed reliance upon the negative opinion of the Superintendent of Police as well as pendency of the FIR against her, inspite of that the respondent No.2 has allowed her appeal.
8. In support of his submissions, learned advocate has placed reliance upon the decision rendered by the learned Single Judge of this Court in the case of Kumarbhai Laljibhai Malhotra v. State of Gujarat, reported in 2007(1) GLR 166 as well as decision rendered by the learned Single Judge of Allahabad High Court in the case of Ram Murti Madhukar v. District Magistrate, Sitapur, reported in 1999 CriLJ 3712.
9. On the other hand, learned AGP has mainly submitted that the respondent No.3 has revoked the licence of the petitioner while exercising powers under Section 17(3)(a) of the Act. It is submitted that if the licensing authority is satisfied that the holder of the licence, for any reason, is unfit for a licence under the Arms Act, his licence can be revoked by the licensing authority. Thus, because of the registration of FIR against the petitioner, the licensing authority was satisfied that petitioner is unfit to have licence under the Act and therefore the licence was revoked by the respondent No.3 and therefore he has not committed any illegality. It Page 5 of 12 HC-NIC Page 5 of 12 Created On Tue Jun 13 02:18:23 IST 2017 C/LPA/290/2016 ORDER is contended that the Appellate Authority as well as the learned Single Judge while not entertaining the appeal as well as the petition respectively have also not committed any error. He, therefore, requested that this appeal be dismissed.
10. Learned AGP has submitted that case of Mrs. Trivedi cannot be compared with the case of the petitioner, as being a lady, the Appellate Authority has thought it fit to restore the licence in her favour. Thus, no error is committed by the learned Single Judge while dismissing the petition of the petitioner.
11. Learned AGP has lastly submitted that the petitioner has requested the learned Single Judge that the Trial Court be directed to expedite the hearing of the discharge application and therefore the petitioner was agreeable with the order passed by the learned Single Judge. In fact, the learned Single Judge has accepted the request of the petitioner and directed the learned Trial Court to give priority to the discharge application filed by the petitioner and therefore it is submitted that once such request is made, it would not be proper for the petitioner to file present appeal and therefore on this ground also the same be dismissed.
12. The learned AGP has placed on record the Page 6 of 12 HC-NIC Page 6 of 12 Created On Tue Jun 13 02:18:23 IST 2017 C/LPA/290/2016 ORDER guidelines issued by the Ministry of Home Affairs on 31.03.2010 in which it has been stated that no licence may be granted without police verification, which will include report on antecedents of the applicant, assessment of the threat, capability of the applicant to handle arms and any other information which the police authority might consider relevant for the grant or refusal of licence. Relying upon the aforesaid guidelines issued by the Union of India, it is submitted that looking to the antecedents of the petitioner, the respondent No.3 is justified in revoking the licence of the petitioner and therefore learned Single Judge has rightly not interfered with the orders passed by the respondent authorities. Hence, this appeal be dismissed.
13. Having considered the submissions canvassed on behalf of the learned advocates appearing for the parties and having gone through the material produced on record, it is clear that the respondent No.3 issued Arms Licence No.BK/42/03 for NP Bore Revolver Pistol in favour of the petitioner on 11.08.2006. Thereafter, on 26.11.2007, FIR being CR No.I-110/2007 came to be registered against the petitioner and other accused before Palanpur Police Station for the offences punishable under Section 409, 477(A) and 34 of the IPC as well as under Sections 13(1)(d) of the Prevention of Corruption Act. Thus, on the Page 7 of 12 HC-NIC Page 7 of 12 Created On Tue Jun 13 02:18:23 IST 2017 C/LPA/290/2016 ORDER basis of the registration of the FIR against the petitioner, the respondent No.3 after issuance of the show cause notice, revoked the licence of the petitioner on the ground of public interest. The said order was quashed by the Appellate Authority i.e. the respondent No.2 and matter was remanded to the respondent No.3. However, when the matter was remanded back to the respondent No.3, the respondent No.3 rejected the application of the petitioner mainly on the ground that against the licence holder, FIR came to be registered for the offences punishable under the provisions of the IPC as well as Prevention of Corruption Act and Superintendent of Police has given his negative opinion and the trial of the said criminal proceeding is still pending and therefore it is not proper to restore the licence of the petitioner. It is further recorded by the respondent No.3 that the petitioner has failed to produce any documentary evidence in favour of his claim that risk is involved in his business and therefore Arms licence is required. Thus, on the aforesaid grounds, the respondent No.3 has not entertained the application of the petitioner and once again confirmed his order by revoking the licence of the petitioner. The aforesaid order came to be confirmed by the respondent No.2 in the appeal and the learned Single Judge has also dismissed the petition.
14. At this stage, provision contained under Page 8 of 12 HC-NIC Page 8 of 12 Created On Tue Jun 13 02:18:23 IST 2017 C/LPA/290/2016 ORDER Section 17 of the Arms Act, 1959 is required to be considered. Sub-section (3) of Section 17 provides as under:
"17. Variation, suspension and revocation of licences.--
(1) xxx xxx (2) xxx xxx (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; or
(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; or
(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; or
(d) if any of the conditions of the licence has been contravened; or
(e) if the holder of the licence has failed to comply with a notice under sub-
section (1) requiring him to deliver-up the licence."
15. From the aforesaid provision, it is clear Page 9 of 12 HC-NIC Page 9 of 12 Created On Tue Jun 13 02:18:23 IST 2017 C/LPA/290/2016 ORDER that the licensing authority is empowered to suspend or revoke the licence under the circumstances which are enumerated in aforesaid sub-section (3) of Section 17. As observed hereinabove the respondent No.3 has placed reliance upon the negative opinion given by the Superintendent of Police and pendency of the criminal proceedings against the petitioner. However, the respondent No.3 has not considered whether the registration of FIR against the petitioner and pendency of criminal proceedings for the offence of criminal breach of trust, forgery and under the provisions of the Prevention of Corruption Act in any way affect the public safety, security or public peace. Further, the respondent No.3 has also committed an error by observing that the petitioner has failed to produce any documentary evidence in favour of his claim that risk is involved in his business and therefore arms licence is required. It is required to be noted that the respondent No.3 was not for the first time issuing the licence in favour of the petitioner but he was exercising the powers under Section 17 of the Act for revocation of the licence and therefore also the order passed by the respondent No.3 is required to be set aside. From the order passed by the respondent No.3 it is not reflected that he has exercised the powers under Section 17(3)
(a) of the Act on the ground that petitioner is unfit to have licence. Thus, the submission Page 10 of 12 HC-NIC Page 10 of 12 Created On Tue Jun 13 02:18:23 IST 2017 C/LPA/290/2016 ORDER canvassed by learned AGP is misconceived.
16. Further, the respondent No.3 has revoked the licence of the petitioner on the basis of pendency of criminal proceedings as discussed hereinabove. However, arms licence of the co- accused of the same FIR against whom the criminal proceeding is still pending has been restored by the Appellate Authority.
17. So far as the guidelines dated 31.03.2010 are concerned, we are of the view that the said guidelines would be applicable at the time of grant of licence and would not be applicable for revocation of the licence. Thus, the reliance placed by the learned AGP on the aforesaid guidelines is also misconceived.
18. Having gone through the order under challenge passed by the respondent No.3, we are of the opinion that respondent No.3 has not properly considered the provisions contained in sub- section (3) of Section 17 of the Act. Similarly, while dismissing the appeal of the petitioner, the respondent No.2 has also not properly considered the aforesaid provision of the Act and the order passed in favour of Mrs. R. H. Trivedi.
19. In view of the aforesaid discussions, the appeal is partly allowed. Order dated 26.02.2016 passed by the learned Single Judge in Special Page 11 of 12 HC-NIC Page 11 of 12 Created On Tue Jun 13 02:18:23 IST 2017 C/LPA/290/2016 ORDER Civil Application No.1169 of 2016 is set aside. The orders dated 24.08.2015 and 29.06.2013 passed by the respondent Nos. 2 and 3 are also set aside. In the facts and circumstances of the case, we deem it appropriate to remand the matter back to the respondent No.3 for considering it afresh by considering the provisions contained in Section 17 of the Arms Act, 1959. Such exercise shall be completed within a period of three months from the date of receipt of the order of this Court. Civil application stands disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 12 of 12 HC-NIC Page 12 of 12 Created On Tue Jun 13 02:18:23 IST 2017