Allahabad High Court
Indra Pratap @ Ram Pratap vs State Of U.P Thru Prin Secy Home Lko & Ors on 15 February, 2019
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 19 Case :- MISC. SINGLE No. - 28781 of 2017 Petitioner :- Indra Pratap @ Ram Pratap Respondent :- State Of U.P Thru Prin Secy Home Lko & Ors Counsel for Petitioner :- Ram Kumar Singh,Sachida Nand,Vivek Pratap Singh Sengar Counsel for Respondent :- C.S.C Hon'ble Abdul Moin,J.
Heard learned counsel for the petitioner and Standing counsel appearing for the State-respondents.
The sole controversy which is involved in the present petition is as to whether the licensing authority could cancel the arms license of the petitioner on the ground of pendency of the criminal case by observing that there is every possibility and probability of breech of peace and tranquility.
The issue in this regard is no longer res-intergra having been settled by judgment of this Court in the case of Pramod Kumar Vs. State of U.P reported in 2010 (5) ADJ 594 as well as in the case of Mukesh Kumar Yadav Vs. Commissioner, Lucknow Division, Lucknow reported in 2017 (35) LCD 2017. For the sake of convenience, the relevant observations in the case of Pramod Kumar (supra) are reproduced as under:-
"8. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of the licence under Section 17 of the Arms Act has been considered by a Division Bench of this Court in Sheo Prasad Misra Vs. District Magistrate Basti and others, 1979 (16)ACC 6 (sum), wherein the Division Bench relied upon an earlier decision in Mast Uddin Vs. Commissioner, Allahabad, 1972 ALJ 573. In both the aforesaid cases it has been held that mere involvement in a criminal case cannot in any way effect the public security or public interest. In view of this proposition of law the order cancelling or revoking the licence of the petitioner on the aforesaid ground of involvement and pendency of a criminal case is not tenable.
9. In Full Bench Decision of this Court rendered in Chhanga Prasad Sahu Vs. State of Uttar Pradesh, 1984(10) ALR 223 and Kailash Nath and others Vs. State of U.P. and others, 1985 (22) ACC 353 and in the case of Rana Pratap Singh Vs. State of U.P. 1994 JIC 72 (All); 1995 (Supp) ACC 235, it has been held that mere pendency of a criminal case (s) is no ground for cancellation of arms licence. The effect of the aforesaid Full Bench decisions was also considered in Sadri Ram Vs. District Magistrate, Azamgarh and others, 1998 (3) AWC 2102: 1998 (37) ACC 830.
10. This court in the case of Harprasad (supra) held as hereunder:
" involvement and pendency of a case crime is no ground for cancellation of fire-arm licence. It is settled law that after acquittal the very basis for cancellation of the arm licence stands vitiated. In this regard reference of the decision rendered in Lalji Vs. Commissioner, Kanpur and another, 1999 (4) AWC 2952, has been made."
11. Thus in view of the admitted facts and the settled legal position that a fire arm licence can not be cancelled on the ground of mere involvement of licensee in a criminal case, the impugned orders cannot be sustained. Even otherwise the petitioner has been acquitted in the criminal case in which he was involved and hence there is no justification for the continuance of the cancellation of the petitioner's fire arm licence."
Likewise, the relevant observations in the case of Mukesh Kumar Yadav (supra) are reproduced as under:-
"10. The said section has come up for judicial scrutiny in the case of C.P. Sahu Vs. State, 1984 AWC 145; Kailashnath Vs. State of U.P. and another, 1985 AWC 493; Balram Singh Vs. State of U.P. and others, 1988 AWC 14814; Rana Pratap Singh Vs. State of U.P., 1995 ACJ 200 and as per the judicial provocation given, there on the following points:-
(a) the licensing authority has no power to suspend the arms licence pending enquiry into its cancellation/suspension nor has it the power to suspend the licence for indefinite period;
(b) licensing authority has the power to suspend for specified period a fire-arm licence on being satisfied as to existence of all or any of the conditions visualised by clauses (a) to (e) of sub-section (3) of Section 17 of the Act sans any prior opportunity of hearing being given to the licence holder but such order of suspension shall not attain finality until the aggrieved party has been heard and his objections, if any, adjudicated. In other words, suspension of arms licence for specified period or its revocation under Section 17(3) of the Act, if ordered without affording opportunity of hearing, would endure in suspended animation until the aggrieved party has been heard by the licensing authority and his objections, if any, are adjudicated:
(c) the licensing authority can also for the furtherance of the immediate remedial actions, exercise in facts and circumstances of a given case, an incidental power of directing the licence holder to surrender his licence until objections have been decided ; and
(d) suspension under Section 17(3) of the Act must be for definite period to be specified in the order by the licensing authority.
11. Further, this Court in the case of Sahab Singh Vs. Commissioner Agra Region, Agara and others 2006 (24) LCD 374, in paragraph No. 3 held as under:-
"The submission of the petitioner is that merely because of pendency of a criminal case, the arms licence of the petitioner cannot be cancelled. in support of the said submission, learned counsel for the petitioner has placed reliance on two decisions of this Court in the case of Hausla Prasad Tiwari v. State of U.P. and Ishwar @ Bhuri v. State of U.P. . It has further been submitted that in view of the Full Bench decision of this Court in the cases of Balaram Singh v. State of U.P. and Ors. Kailash Nath v. State of U.P. 1985 A.W.C. 493 as well as the Division Bench decision of this Court in the case of Sadri Ram v. District Magistrate, Azamgarh and Ors., the arms licence of the petitioner cannot be placed under suspension pending enquiry."
12. From the perusal of the Section 17 (3) (b) of the Arms Act, the position which emerges out is that arms licence of a person can be cancelled, if licensing authority is satisfied that it was necessary for the security of the public peace or for the public safety.
13. In Thakur Prasad Vs. State of U.P. and others reported in [2013 (31) LCD 1460], this court propounded that "Public Peace" or "Public Safety" do not mean ordinary disturbance of law and order, but the public safety means safety of the public at large and not safety of few persons only. Relevant paras 9, 10 and 11 of the said case read as under:
"9. Further, while passing the impugned order also the licensing authority has not given any adequate finding that if petitioner holds the arms license then the same shall be against the public peace or public safety.
"10. Public peace" or "public safety" do not mean ordinary disturbance of law and order public safety means safety of the public at large and not safety of few persons only and before passing of the order of cancellation of arm license as per Section 17(3) of the Act the Licensing Authority is under an obligation to apply his mind to the question as to whether there was eminent danger to public peace and safety involved in the case in view of the judgment given by this Court in the case of Ram Murli Madhukar Vs. District Magistrate, Sitapur [1998(16) LCD 905], wherein it has been held that license can not be suspended or revoked on the ground of public interest (Jan-hit) merely on the registration of an F.I.R. and pending of a criminal case."
14. In the present case, no finding has been given that in what manner if the petitioner is allowed to keep his arms licence, the same is against a breach of public peace and public safety. Further as per settled law, mere involvement in a criminal case without any finding that if the petitioner is allowed to keep his arms, then it shall be detrimental to public peace and tranquility cannot be a ground for cancellation of arms licence."
Being armed with the aforesaid proposition of law, this Court now proceeds to consider the orders that have been passed in the present case.
Under challenge is the order dated 18.10.2017 passed by the Commissioner, Devi Patan Division, Gonda, by which the appeal preferred by the petitioner against the order of cancellation of his arms license vide order dated 05.06.2017 passed by the District Magistrate, Shrawasti, was dismissed. Also under challenge is the order dated 05.06.2017 passed by the District Magistrate, Shrawasti, by which the arms license of the petitioner has been cancelled. Copies of the said orders have been annexed as Annexure Nos. 1 and 2 respectively to the petition.
A perusal of the order dated 05.06.2017 passed by the District Magistrate, Shrawasti, a copy of which is annexure 2 to the petition indicates that the District Magistrate while cancelling the arms license of the petitioner has recorded that an FIR had been lodged against the petitioner which resulted in case crime no. 3099 of 2015 which case is pending against the petitioner. The incident which led to the lodging of the FIR has also been reproduced in the said order. It is also indicated that continuance of the arms license with the petitioner would result in breach of peace and public tranquility and, consequently the arms license has been cancelled.
Being aggrieved with the said order, the petitioner had preferred an appeal and the appellate authority vide order dated 18.10.2017, copy of which is annexure 1 to the petition rejected the appeal by primarily reiterating the grounds taken by the District Magistrate in the order dated 05.06.2017.
Having indicated the two orders, as above, what this Court finds is that in the aforesaid judgment of Pramod Kumar (supra), this Court has held that mere pendency of a criminal case cannot be a ground for cancellation of fire arms license.
Likewise in the case of Mukesh Kumar Yadav (supra), this Court has considered the words 'Public Peace' and 'Public Safety' while considering the earlier judgment of this Court in the case of Thakur Prasad Vs. State of U.P reported in 2013 (31) LCD 1460.
When the impugned orders dated 18.10.2017 and 05.06.2017 are tested on the touchstone of the law laid down by this Court in the case of Pramod Kumar (supra) and Mukesh Kumar Yadav (supra) it clearly comes out that the District Magistrate has simply considered the pendency of the criminal case against the petitioner and has also indicated that continuance of the arms license with the petitioner would result in breech of public peace and tranquility without recording as to how the public peace and tranquility would be vitiated. Thus, the impugned orders would run foul to the settled proposition of law in this regard.
Even otherwise, it is contended by learned counsel for the petitioner that the petitioner has already been acquitted in Case No.2733 of 2016 in re: State of U.P. vs. Ramesh Yadav and others, arising out of Crime No.3099 of 2015 by the learned trial court vide judgment and order dated 05.01.2017. Copy of the said judgment is Annexure-9 to the petition.
This Court in the case of Pramod Kumar (supra) as well as in the case of Lalji vs. Commissioner, Kanpur and another - 1994 (4) AWC 2952 has held that after acquittal the very basis for cancellation of arms license stands vitiated.
Thus the facts in issue are squarely covered by the aforesaid principle of law as laid down in the cases of Pramod Kumar (supra) and Mukesh Kumar Yadav (supra) as well as Lalji (supra) and, as such, the said orders cannot be sustained in the eyes of law.
Accordingly, keeping in view the aforesaid discussions, the impugned orders dated 18.10.2017 and 05.06.2017, copies of which are annexures 1 and 2 to the petition are quashed and set aside.
Consequences to follow.
Order Date :- 15.2.2019 A. Katiyar