Madhya Pradesh High Court
Kishorilal Agarwal vs State Of Madhya Pradesh And Ors. on 28 August, 1998
Equivalent citations: 2000CRILJ234
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. Being dissatisfied with the order dated 23-8-86 Annexure-B, passed by the Commissioner, respondent No. 2 herein, in appeal No. 3-Arms/1985-86 affirming the order passed by the District Magistrate, Raigarh canceling the license granted in favour of the petitioner in respect of weapon (Gabilondoy CM. Elgoi Bar (Espana) Cal 9 m.m. (380) LLAMA) the petitioner has visited this Court for quashment of the aforesaid orders.
2. The facts leading to filing of the present writ petition are that the petitioner hails from Jind City in Haryana State where his family and relations reside and he holds movable and immovable properties at that place. It is also stated that he has immovable properties in the State of Madhya Pradesh at Raigarh. For the purpose of security he applied for grant of licence of a pistol to the competent authority who after being satisfied issued a valid licence bearing No. 27/ S.D.M./Jind/January, 1981 which was valid upto 9-6-85. As the said licence was misplaced he could not file an application for renewal 30 days prior to the expiry of the period of licence. However, he filed an application with requisite fees for renewal before the S.D.M., Jashpurnagar who granted the renewal of the licence. Thereafter, respondent No. 3, District Magistrate, Raigarh issued a show cause notice to the petitioner on 30th September, 1985 asking why the licence granted in his favour should not be cancelled and pistol be confiscated. In the show cause notice (Annexure-C) it is stated that he was involved in the activities of smuggling of rice and mahua and Crime No. 46/84 had been registered against him for the offence punishable under Section 451 and 303 of the Indian Penal Code and retention of weapon with him would affect the peace and tranquility; the weapon in question was covered within the category 1 -1 (c) of Schedule-I (Rule 3) of the Arms Rules, 1962, and therefore, the grant of licence was improper. It was also stipulated in the show-cause that obtaining licence from S.D.M. is also contrary to Rule 3, Schedule-I (1) (c) of the Arms Rules, 1962. Petitioner filed his show-cause before the said authority wherein he has indicated the reasons for not filing his application for renewal as mandated under the Rules. As far as the prohibited arms is concerned, a stand was taken by the petitioner that he had not obtained the licence illegally as the same does not fall under the prohibited category. On consideration of the show-cause learned Magistrate passed an order vide Annexure-A directing cancellation of the licence and for confiscation of the pistol in question. On appeal being preferred, the appellate authority affirmed the order and dismissed the appeal.
3. No counter affidavit has been filed by the answering respondents.
4. Assailing the impugned order it is contended by Mr. Sanjay, K. Agrawal, learned counsel for the petitioner, that the District Magistrate while exercising the jurisdiction under Section 17(3)(b) has not kept in view the requirements of that provision and, therefore, the order is vulnerable in the eye of law. It is also canvassed that the allegations against the petitioner have not been established as the registration of the crime was categorically disputed by the petitioner. It is his submission that the police report collected behind his back has been relied upon and such step is violative of principles of natural justice which makes the order susceptible in law. It is also submitted by Mr. Agrawal that allegations against the petitioner with regard to the prohibited arms has not been adequately dealt with by the competent authority, hence finding recorded on that score is not sustainable. It is also argued by the learned counsel for the petitioner that the licensing authority has not been reposed with the power to pass an order of confiscation as the same is in domain of the Court under Section 32 of the Act. The last submission of Mr. Agrawal is that the District Magistrate at the relevant time had no authority to proceed for cancellation of the licence of the pistol as at that time the State Government alone was competent to cancel.
Mr. P. D. Gupta, learned Government Advocate, in support of the order passed by the authority has contended that as a crime was registered against the petitioner and he was involved in unlawful activities, the competent authority revoked the licence and such exercise of power cannot be faulted. His further submission is that the weapon in question squarely comes within the definition as enjoined under Section 2(1) of the Act read with Schedule-I of the Arms Rules, 1962, and hence the impugned order deserves the stamp of approval by this Court. Lastly it is submitted by Mr. Gupta, that the lack of jurisdiction was not raised before the competent authority, and therefore, the same should not be gone into in absence of any material on record.
5. To appreciate the rival submissions raised at the Bar it is necessary to refer to Section 17(3)(b) which reads as under :
17(3)(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.
The ground taken in the show-cause is that the petitioner was involved in Crime No. 46/84 instituted for the offence punishable under Section 451 and 303 of the Indian Penal Code. The order passed by the District Magistrate also reflects that the petitioner has been involved in smuggling of rice and mahua. The aforesaid allegations were disputed by the petitioner though the District Magistrate has not recorded any finding. Moreover, the petitioner had disputed the registration of such a crime against him. That being the matter of record the District Magistrate should have made the prosecution records available for verifying the same and thereafter should have proceeded according to law after affording the petitioner an opportunity of being heard. Instead of doing that, he relied on the police report which was collected behind the back of the petitioner. The submission of Mr. Agrawal that this procedure is unknown to accepted norms. Mr. Gupta, learned Government Advocate, though has labored to justify the order of the competent authority, failed to substantiate the allegations against the petitioner under Section 17(3)(b) of the Act. Mr. Agrawal referred to the provision relating to public peace. I need not dilate on the same for the simple reason nothing has been brought on record in that regard and the issue had become academic at this stage.
6. The next submission of Mr. Agrawal is that the competent authority has cancelled the licence on the ground that it comes within the prohibited category under Section 2( l)(c) which reads as under :
2(l)(c) "arms" means articles of any description designed or adapted as weapons for offence or defence, and includes firearms, sharp-edged and other deadly weapons, and part of, and machinery for, manufacturing arms, but does not include articles designed solely for domestic Or agricultural uses, such as, lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or of being converted into serviceable weapons.
The competent authority has referred to Schedule-I of the Rules. The relevant portion reads as under :
SCHEDULE-I Category Arms 1 2 1 (c) Blot action or semi-automatic rifles of .303" or 7.62 mm.
bore or Category Arms or any other bore which can chamber and fire service am-
munition of .303" or 7.62 mm.
caligre; muskets of .410" bore or any other bore which can fire.410"musketammunition;
pistols, revolvers or carbines of any bore which can chamber .380" or .455" rimmed car-
tridges or service 9 mm. or .445" rimless cartridges.
On a plain reading of the aforesaid provision it is noticeable that no proper finding has been recorded keeping the tenor of the language in the schedule. It was incumbent on the District Magistrate to record a specific finding whether the weapon in question was prohibited as per the provisions of the Act or the Rules. In absence of any such specific finding and in absence of ascribing reasons to arrive at such a conclusion, I am of the considered view that the finding on this score is unsustainable and the matter requires redetermination by the authority. As far as submission of Mr. Agrawal with regard to the jurisdiction I find that there was no such plea taken before the competent authority. Question of jurisdiction goes to the root of the question. As the matter is remitted for reconsideration it would be open to the petitioner to agitate the same before the authority concerned who shall deal with the same in accordance with law.
7. The next submission relates to confiscation. It is urged by Mr. Agrawal that it is only the matter of renewal of the licence and even if the licence is revoked the authority concerned has no authority to confiscate the weapon. To buttress his submission he referred to Section 32 of the Act which reads as under :
32. Power to confiscate. (1) when any person is convicted under this Act of any offence committed by him in respect of any arms or ammunition, it shall be in the discretion of the convicting Court further to direct that the whole or any portion of such arms or ammunition, and any vessel, vehicle or other means of conveyance and any receptacle or thing containing, or used to conceal, the arms or ammunition shall be confiscated :
Provided that if the conviction is set aside on appeal or otherwise, the order of confiscation shall become void.
(2) An order of confiscation may also be made by the Appellate Court or by High Court when exercising its power of revision.
On a fair reading of the aforesaid provision it becomes vividly clear that the weapon shall be liable to be confiscated after the person is convicted for any offence under the Arms Act. In absence of any conviction the authority concerned has no right to confiscate the weapon. Mr. Agrawal to substantiate the proposition of law has referred to the decision rendered in the case of Haji Mohammad Hassan Ali v. Commr. of Plains Division, Assam, Gauhati AIR 1969 Assam 50 wherein it has been held as follows :
20. Regarding the order confiscating the gun, there is no provision in the Arms Act for such confiscation on the cancellation of a licence. Confiscation can be ordered only by a convicting Court under Section 32 of the Arms Act.
In the case of Nirman Singh v. Commissioner, Meerut Division, Meerut, 1996 Cri LJ 1473 (All) the Court registered the view as under :
The provision for confiscation of the fire arm is made in Section 32 of the Act and this power can be exercised only when a person is convicted under the Act of an offence committed by him in respect of any arms or ammunition and such a power can only be exercised by the convicting Court. The petitioner has not been prosecuted or convicted under the provisions of the Arms Act nor the District Magistrate while hearing proceedings for cancellation of fire arm licence acts as a Court. In these circumstances, the provisions of Section 32 of the Act have no application and the order for confiscation of the fire arm is illegal and without jurisdiction.
In view of the aforesaid pronouncements, the contention propounded by Mr. Agrawal deserves acceptance.
8. Resultantly, the order passed by the competent authority vide Annexure-A and B are quashed and the matter is remanded to the District Magistrate who shall dispose of the matter within 3 months from the date of receipt of the order. It is needless to emphasize that even if the licence is not renewed the authority would not be in a position to confiscate it unless requirements as enjoined under Section 32 of the Act are not satisfied. It is hereby made clear that if eventually the licence is not renewed, steps shall be taken in accordance with the Station 21 (2) of the Act.
9. The writ petition stands disposed of without any order as to costs.