Allahabad High Court
Nar Singh Yadav vs State Of U P And 3 Others on 15 September, 2021
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 36 Case :- WRIT - C No. - 28821 of 2018 Petitioner :- Nar Singh Yadav Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Umesh Prasad Singh Counsel for Respondent :- C.S.C. Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
Learned counsel for the petitioner submitted that petitioner was issued arms licence of pistol by the District Magistrate, Gorakhpur vide order dated 14.6.2013 and accordingly, he purchased the pistol. He next submitted that District Magistrate, Gorakhpur-respondent no. 3 issued show cause notice under Section 17(3) of the Arms Act, 1959 (hereinafter referred to as the Act, 1959) to the petitioner on 12.10.2015 as to why his licence may not be cancelled, against which petitioner filed reply on 9.3.2016. Ultimately respondent no. 3 vide impugned order dated 10.5.2016 cancelled the arms licence of the petitioner only on the ground of apprehension. Petitioner is a law abiding person and during course of Panchayat Election, 2015, he deposited his pistol in the Malkhana of Police Station Gagaha. He next submitted that in the impugned order, it has been observed that in an incident, petitioner himself has received injury, but contrary to that, his arms licence has been cancelled on the ground of apprehension only. Against the said order, petitioner preferred an appeal under Section 17 (3) of the Act, 1959 which was also dismissed by the Divisional Commissioner vide order dated 17.02.2018 affirming the order of the respondent no. 3. He next submitted that petitioner is having no criminal case except challan under Sections 107/116 Cr.P.C. and 151 I.P.C. in which he was released on furnishing the bail bond. The term of challan under the aforesaid sections expires after six months.
Learned counsel for the petitioner relied upon the judgments of this Court in the cases of Satyendra Bahadur Singh @ Guddu Singh Vs. State of U.P. and others, reported as 2016 0 Supreme (All) 358, Hiramani Singh Vs. State of U.P. and another reported as 2010 LawSuit (All) 3030 decided on 15.12.2010, Rajendra Singh Vs. Commissioner, Lucknow Division, Lucknow and others reported as 2011 LawSuit(All) 2876 decided on 10.03.2011 and Mulayam Singh Vs. State of U.P. and others reported as 2012 LawSuit(all) 1651 decided on 14.05.2012.
Learned counsel for the petitioner next submitted that in the matter of Satyendra Bahadur Singh (supra) which is based on same facts, the Court has taken the view that on the ground of apprehension, arms licence cannot be cancelled. He next submitted that in the aforesaid three other judgments, the Court has also taken the view that even in case of pendency of solitary criminal case, arms licence cannot be cancelled, therefore, the impugned orders dated 10.5.2016 and 17.2.2018 are bad in law and liable to be quashed.
Learned Standing Counsel vehemently opposed the submissions raised by learned counsel for the petitioner, but could not dispute the aforesaid facts.
I have considered the submissions advanced by learned counsel for the parties and perused the record, impugned orders as well as judgments relied upon by learned counsel for the petitioner. The undisputed fact is that petitioner is having no criminal case except challan under Sections 107/116 Cr.P.C. and 151 I.P.C. Further he himself received gun shot injury from his rivals and he has also been released under Sections 107/116 Cr.P.C. and 151 I.P.C. after furnishing the bail bond even otherwise its a preventive measure. In the impugned order, reason for cancellation of arms licence is only apprehension and there is no finding to demonstrate that continuance of arms licence is harmful for public peace or safety. The appellate authority has also affirmed the order of the District Magistrate-respondent no. 3 without considering this fact that apprehension cannot be a ground for cancellation of arms licence coupled with no criminal incident of licence holder i.e. petitioner.
In the first judgment relied upon by learned counsel for the petitioner in the case of Satyendra Bahadur Singh (Supra) the Court has held that on the ground of apprehension, arms licence cannot be cancelled. Paragraphs 10 and 11 of the said judgment are quoted below:-
"10. I have gone through the entire counter affidavit and in none of the paragraph, it is stated that after giving a show cause notice to the petitioner, the petitioner's fire arms licence has been cancelled. Further in view of Sub-Section 3 (a to e) of Section 17 of the Act, the licensing authority may cancel the licence provided he is satisfied that in case license is not cancelled and fire arms licence is allowed to be in possession of licensee, it may break the public peace and safety but for recording the satisfaction regarding breach of public peace and safety, there must be concrete material to show that there is strong likelihood of breach of public peace and safety.
11. The only ground under which petitioner's fire arm licence has been cancelled is apprehension of annoyance of the family of the complainant, in whose family, murder took place and the petitioner has been acquitted in the criminal trial. After acquittal of the petitioner by no stretch of imagination it can be assumed that having license by the petitioner in any manner may lead to disturbance of public peace and public safety or put the members of the complainant family in danger, likelihood of anger and anguish of a third person cannot be ground on which fire arm licence can be cancelled by the licensing authority."
In the matter of Hiramani Singh (supra) the Court has held that mere pendency of criminal case cannot be ground for cancellation of fire arm. Paragraphs 6 and 7 of the said judgment are quoted below:-
"6. Countering the said submission learned Standing counsel on the other hand contended that rightful view has been taken in the matter and no interference should be made.
After respective arguments have been advanced factual position which is emerging in the present case that petitioner has been arrayed as an accused in Case Crime No. 391 of 2008, P.S. Colonelganj district Allahabad under sections 419, 420, 447, 448, 120-B I.P.C. . In the said criminal case charge sheet has been filed and the matter is pending before the concerned court and even before this Court for quashing of the same. Show cause notice was issued to the petitioner to which he submitted his reply. Accepted position is that there has been civil dispute in between the parties and fire arm in question has not at all been used in the criminal case wherein he has been arrayed as accused, then merely on account of pendency of the said criminal case, fire arm could not have been cancelled as has been done in the present case as it is not at reflected as to in what way and manner public peace and public safety has been endangered rather on apprehension such an action has been initiated.
7. This Court in the case of Ashok Rao Vs. State of U.P. and others reported in 2010 (68) ACC 441 while considering the authority to be exercised under Section 17 of the Indian Arms Act has taken the view that mere pendency of criminal case cannot be ground for cancellation of fire arm license unless and until finding is returned by the authority concerned that possession of firearm has the tendency of threatening public peace and public safety."
In the case of Rajendra Singh (supra), the Court has taken the same view that mere involvement in a criminal case or pendency of solitary criminal case, cannot be a ground for cancellation of arms licence. Paragraph 6 of the said judgment is quoted below:-
"6. It is well settled in law that mere pendency of criminal case or apprehension of abuse of arms Act are not sufficient grounds for passing the order of suspension or revocation of licence under Section 17 (3) of the Act. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of licence under Arms Act, has been dealt with by a Division Bench of this Court in Sheo Prasad Misra v. The District Magistrate, Basti and others, wherein the Division Bench relying upon the earlier decision of Masiuddin v. Commissioner Allahabad, found that mere involvement in criminal case cannot in any way affect the public security or public interest. The law propounded in the said decisions has been subsequently following in Habib v. State of U.P. 2002 44 ACC 783.
In the matter of Mulayam Singh (supra), the court has taken the view that mere involvement in a criminal case is no ground for cancelling a arms licence under Section 17 of the Act, 1959. Paragraphs 8 and 12 of the said judgment are quoted below:-
"8. Even otherwise, it is well settled that mere involvement in a criminal case is no ground for cancelling a licence under Section 17 of the Act."
After considering the fact and judgments relied upon, it is held that only apprehension or pendency of solitary criminal case not coupled with factum of fraud can be a ground for cancellation of arms licence. In the present case, petitioner has neither obtained arms licence fraudulently nor having any criminal history, but it has been cancelled only on the ground of apprehension, which is bad and not sustainable in the eye of law.
Therefore, the impugned orders dated 10.5.2016 passed by respondent no. 3-District Magistrate, Gorakhpur and 17.2.2018 passed by Divisional Commissioner, Gorakhpur-respondent no. 2 are hereby quashed. The writ petition is allowed. The District Magistrate, Gorakhpur is directed to issue the arms licence in favour of the petitioner within a period of two months from the date of production of computer generated copy of this order after verifying the same from official website of Allahabad High Court. In case term of arms licence has been expired, he shall also renew the same in accordance with law within the same period.
After issuance of arms licence his pistol shall also be released from the Malkhana of Police Station Gagaha forthwith.
Order Date :- 15.9.2021 Rmk.