Allahabad High Court
Dinesh Kumar Pandey vs State Of U.P. Thru Secy. And Others on 25 July, 2012
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- WRIT - C No. - 16565 of 2012 Petitioner :- Dinesh Kumar Pandey Respondent :- State of U.P. Thru Secy. And Others Petitioner Counsel :- Riyajuddin Ansari,J.A. Azmi Respondent Counsel :- C.S.C. And Case :- WRIT - C No. - 15883 of 2012 Petitioner :- Rajesh Pandey Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Riyajuddin Ansari,J.A. Azmi Respondent Counsel :- C.S.C. Hon'ble Sudhir Agarwal,J.
1. Should a person be granted a firearm licence only if he or his family or property has been subjected to a serious crime but has been fortunate enough to survive? Can it be said that "personal safety and security" does not constitute by itself a good ground for demanding a firearm licence unless identity of the person or the persons from whom the applicant apprehends threat to life or property and also specifies the time, place etc. of such incident likely to occur or he or his family must have been a victim of crime endangering the life of himself or his family members or safety of his property which would fortify his claim of personal safety and security and not otherwise ? Can the requirement of "good reasons" for grant of firearm licence under Section 13 of Arms Act, 1959 (hereinafter referred to as "Act, 1959") be restricted or narrowed down by an executive order issued by Government, Central or State, as the case may be, and consideration on the part of Licensing Authority be circumscribed accordingly?
2. These are a few questions which are engaging attention of this Court in these cases. These issues are visiting this Court very frequently and almost everyday, therefore they are of multi-importance to the litigating public at large.
3. The facts in both the writ petitions are very simple and straight. The petitioners applied for grant of firearm licence giving reason therefor "personal safety and security". Their applications have been rejected by District Magistrate, Deoria and the appeal preferred by them have been rejected by Commissioner, Gorakhpur Division, Gorakhpur.
4. To be more precise, in Writ Petition No.16565 of 2012 (hereinafter referred to as "first petition") Dinesh Kumar Pandey, Son of Laxmikant Pandey, R/o Village Harnahi, Police Station-Madanpur, Tehsil Rudrapur, District-Deoria and in Writ Petition No.15883 of 2012 (hereinafter referred to as "second petition") Rajesh Pandey Son of Laxmikant Pandey, R/o Village Harnahi, Police Station-Madanpur, Tehsil Rudrapur, District-Deoria both have come to this Court under Article 226 of Constitution aggrieved by District Magistrate's order dated 18th July, 2011 and Commissioner's order dated 14th November, 2011.
5. Both these petitioners applied for grant of firearm licence, as already said, for the purpose of their personal safety, security as also their agricultural property. The applications were submitted by Dinesh Kumar Pandey on 21st February, 2006 and by Rajesh Pandey on 22nd December, 2009 respectively on prescribed proforma under Rule 51 of Arms Rules, 1962 (hereinafter referred to as "Rules, 1962"). In the first petition the nearest Police Station Madanpur submitted a report that petitioner has no criminal history and hence it recommended for grant of firearm licence. The said recommendation was also confirmed by Sub Divisional Officer, Rudrapur but the Licensing Authority i.e. District Magistrate, Deoria did not find enough time to take a final decision on the aforesaid application and the same remained pending for almost five years. The petitioner in first petition ran from pillar to post just to have a decision on his application. Similarly, in second petition also nothing proceeded further in the last two years leaving no option to both these petitioners but to approach this Court in Writ Petition No.7696 of 2011 and 7698 of 2011 respectively seeking a direction to the Licensing Authority to take a final decision on their applications for grant of firearm licence within a reasonable time. Both these writ petitions were disposed of vide separate judgments dated 10th February, 2011 directing Licensing Authority to pass final order on applications within a period of three months from the date of production of a certified copy of the order.
6. After service of order dated 10th February, 2011, a police report was called in respect to Rajesh Pandey. In-charge Police Station Madanpur submitted report on 31st March, 2011/9th May, 2011 that there is no criminal history of the said petitioner and he may be granted firearm licence. The said report was duly accepted and forwarded by Sub-Divisional Officer on 19th May, 2011. Even Superintendent of Police, Deoria submitted a report on 27th May, 2011 recommending grant of firearm licence to the petitioner Rajesh Pandey.
7. The respondent no. 3 however, passed orders dated 18.07.2011 rejecting both the applications and refusing to grant firearm licence on the ground that petitioners have failed to specify any special threat to personal security and have also not disclosed any extraordinary circumstance(s) or incident which may justify necessity of keeping a firearm with them; and hence, there is no reasonable ground to grant a licence for possessing a non-prohibited firearm.
8. The petitioners preferred separate appeals which have been considered and decided/rejected by the Appellate Authority vide orders dated 14.11.2011. The Appellate Authority has also upheld Licensing Authority's orders on the ground that petitioners having failed to point out any specific problem or circumstances relating to security which may justify grant of firearm licence, the applications have rightly been rejected. He has also observed that it is only a privilege. To show the precise words of authorities below, I may quote relevant extract from the orders of Licensing Authority and Appellate Authority respectively as under:
**izR;kosnd dh lqj{kk lEcU/kh fdlh fof'k"V leL;k dk ifjfLFkfr lEcU/kh vkSfpR; dk vk[;k esa mYys[k ugh gS] ftlls lkekU; tu lqj{kk dh n`f"V ls ;kph@izR;kossnd dks 'kL= ykblsUl dh vko';drk dk vHkkl gksrk gSA ;kph }kjk Lo;a Hkh fdlh ,slh vlk/kkj.k ifjfLFkfr ;k ?kVuk dk mYys[k ugha fd;k x;k gS ftlls mls Lo;a dksbZ 'kL= ykblsUl dh vko';drk ifjyf{kr gksrh gksA** (Licensing Authority) ''The report has no mention of any circumstantial justification as to any security related particular problem of the representationist which may give rise to the need of granting arms licence to the petitioner/ representationist. No such extra-ordinary circumstance or incident has been mentioned by the petitioner himself which may reflect the necessity of granting arms licence to him.'' (English Translation by the Court) **vihydrkZ }kjk lqj{kk laca/kh fdlh fof'k"V leL;k ;k ifjfLFkfr laca/kh vkSfpR; dk mYys[k ugh fd;k gSA blfy, vfHkys[kksa ,oa ifjfLFkfr ij fopkj djus ds mijkUr vihykFkhZ dks 'kL+= ykbZlsUl iznku djus dk dksbZ ;qfDr;qfDr vk/kkj ugh gSA blfy, vihykFkhZ dk 'kL= ykbZlsUl vkosnu i= fnukad 18-07-2011 dks fujLr fd;k x;k gSA vihykFkhZ us dksbZ ,slk izek.k i= Hkh izLrqr ugha fd;k x;k gSA ;g ek= ,d lqfo/kk gSA** (Appellate Authority) "No security related particular problem or circumstantial justification has been mentioned by the appellant. So, after consideration of documents and circumstances, there is no reasonable ground for granting arms licence to the appellant. Hence, the appellant's application dated 18.07.2011 for arms licence is rejected. The appellant has not produced any such certificate as well. It is just a facility." (English Translation by the Court)
9. This Court while entertaining writ petitions on 04.04.2012 heard counsel for the petitioners at length who submitted that grounds on which application has been rejected are wholly arbitrary, nonest and irrelevant. The authorities are under the impression that unless some major incident/crime affecting life and/or property of petitioners and their family has already occurred, and they are fortunate enough to remain alive, only then they would be granted firearm licence and not otherwise. This assumption on the part of respondents is wholly unreasonable, arbitrary, unjust, and illegal. He further submitted that under the statute, there is no requirement that a licence shall be granted when there is a specific problem or reason relating to security and not otherwise. It is not the case of respondents that petitioners' claim to possess and carry firearm for personal security is false and/or is incorrect or a camouflage. Hence, on flimsy and imaginary grounds the applications cannot be rejected.
10. Prima facie, this Court found substance, hence, vide order dated 4th April 2012 granted opportunity to respondents no. 2 and 3 to inform the Court, what actually they wanted from petitioners to disclose when basic reason for obtaining firearm licence is "personal safety and security". The aspect which the respondents no. 2 and 3 were required to explain was detailed in the order vide para 2, which reads as:-
It is really surprising that in the matter of personal safety and security these authorities expect that a person must give as to what will happen in future or may happen in future. Nobody can anticipate the manner in which his security may be apprehended in future. It is not the case of respondents that the law and order situation in the State is so well that there is no threat or apprehension to anybody's life and liberty and district administration would be personally responsible if any such apprehension is found to be correct. This Court failed to understand as to what actually is needed by aforesaid authorities to be demonstrated by applicants to justify their applications for grant of firearm licence when they are requesting such licence on the ground of their personal safety and security. In all these cases it is not mentioned anywhere that the ground taken by applicants that they need firearm licence for personal safety and security is false or incorrect. At least the orders impugned in this writ petition do not mention anything in this regard."
11. On the next date i.e. 12.04.2012, Sri. S.P. Gupta, learned Advocate General assisted by Sri M.C. Chaturvedi, the then Chief Standing Counsel appeared representing respondents. The respondents no. 2 and 3 were also present. However, they did not take interest in giving any clarification/explanation on the aspect they were granted opportunity vide order dated 04.04.2012. The Court observed their interest more in getting rid of their personal appearance than of assistance. Learned Advocate General, however, stated that the matters involve serious issues and he would assist the Court but sought some time. The Court thus granted two weeks' time to file counter affidavits and exempted personal appearance of the concerned officers.
12. Later, respondent no.3 filed an affidavit sworn by Sri Hrishikesh Bhaskar Yashod, District Magistrate, Deoria, stating that he is not the person who had passed order refusing to grant firearm licence to petitioners, since he has been posted at Deoria only on 23.09.2011. However, justifying orders dated 18.07.2011 passed by the then District Magistrate, he has placed reliance on Central Government's orders dated 20.03.2009 and 31.03.2010, (copies whereof have been filed as Annexures 3 and 4 to the counter affidavit). Respondent no. 3 has also relied on State Government's orders dated 03.06.1998 and 05.06.1999 (Annexures 1 and 2 to the counter affidavit). He also admits that though in police report and also in the recommendation made by the Sub Divisional Magistrate, there is a recommendation in favour of petitioners but they have not given any specific reasons/causes showing any apprehension or danger to their lives or that of family. Further, facts and circumstances, the events and antecedents etc. endangering petitioners or their family are also missing in their affidavits, thus, their applications were rightly rejected.
13. On behalf of respondent No.2 an affidavit has been filed sworn by Sri Khatravath Ravinder Naik, the then Commissioner Gorakhpur Division, Gorakhpur. He has also repeated that no specific reasons/causes about danger to life and property of petitioners were given either by the police or by petitioners themselves, hence, grant of firearm licence was not found justified.
14. There is however no reply or explanation whatsoever on the aspects mentioned in Court's order dated 04.04.2012. In fact, the learned Advocate General appearing before the Court on 14.05.2012 himself said that the manner in which impugned orders have been passed may not justify refusal to grant firearm licence by the respondents, but it has to be examined by Court in detail, particularly, the issues indicated in order dated 04.04.2012.
15. Today, this writ petition was heard along with other connected writ petitions but since there are some factual differences in all these matters though the issues are common I find it appropriate to pass separate orders in writ petitions having different facts. This judgment, therefore, governs two writ petitions having almost similar facts.
16. I have heard learned counsel for the petitioners and learned Chief Standing Counsel-II for the respondents.
17. The counsel for petitioners reiterated his arguments already noticed hereinabove. On behalf of the respondents, learned Chief Standing Counsel placed reliance on the orders issued by Government of India and State Government (Annexures 1 to 4 to the counter affidavit of respondent No.3) and contended that unless there are facts available to show an imminent danger or extra risk to the life of individual seeking grant of firearm licence, the same cannot be granted on mere asking for personal safety and security. He said that in case firearm licences are allowed to be granted on such mere asking, the entire society shall be flooded with weapons which may cause serious law and order problem for the respondents. The grant of firearm licence is not a "right" but a "privilege" depending upon sheer discretion of concerned authorities. An attempt was made by the learned Chief Standing Counsel to contend that grant of firearm licence being a privilege of the State and not a right of the individual, the Court, unless finds patent violation of some statutory provision, ought not interfere. He further contended that "subjective satisfaction" of District Magistrate, i.e., licensing authority, in forming opinion whether firearm licence to an individual should be granted or not, cannot be interfered by this Court unless it is found that the procedure prescribed in the statute has been violated and for no other reason.
18. I have considered rival submissions advanced by the parties in the light of statutory provisions as also various authorities on the subject dealing with the matter. Besides the issues referred above, this Court also has to consider the extent, licensing authority can claim or exercise its alleged uncontrolled discretion with immunity from judicial review, considering the width of argument of learned Chief Standing Counsel with widest amplitude to protect the impugned orders from judicial review.
19. In the light of Act, 1959 and the provisions thereof, it is no doubt true that a firearm licence cannot be claimed by a person/citizen as a matter of right. In absolute terms, it cannot be treated to be a "fundamental right" of a person or citizen to obtain a firearm licence or to possess or carry a firearm. The prohibition comes from the statute. Possession and carrying of a firearm is valid only when one possesses a licence granted by the competent authority under the statute. However, if a person seeks grant of a firearm licence for his "personal safety and security", it cannot be doubted that possession and carrying a weapon embolden the prospect of preserving one's person and property in case of any assault etc. by an unsocial and bad element or attack by a miscreant like a robber, Dacoit etc. It thus helps a person to keep himself safe. It constitutes a supporting means to keep oneself safe from any onslaught on one's person or property.
20. It cannot be disputed that Article 21 of the Constitution of India enshrines and recognises a fundamental right of a person to "life and liberty". Of late it has been given a very wide and enlarged scope. The only controlling factor is the procedure prescribed in law. It reads:
"21. Protection of life and personal liberty.--No person shall be deprived of his life or personal liberty except according to procedure established by law.
21. In the last more than two decades, the Apex Court in various ways has expanded, the meaning of "right to life and liberty" guaranteed under Article 21 of the Constitution so as to achieve real and cherished objective of said provision.
22. A restricted interpretation was given earlier in A.K. Gopalan Vs. The State of Madras, AIR 1950 SC 27 as also in Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC1 207. In I.R. Coelho (Dead) By LRs. v. State of Tamil Nadu and Ors., 2007(2) SCC 1, however, the Apex Court said that the judgments giving restricted interpretation are impliedly overruled by various subsequent judgements. The relevant observations in regard to Additional District Magistrate Jabalpur (supra) are:
"During emergency, the fundamental rights were read even more restrictively as interpreted by majority in Additional District Magistrate, Jabalpur Vs. Shivakant Shukla 1976 CriLJ 945. The decision in Additional District Magistrate, Jabalpur about the restrictive reading of right to life and liberty stood impliedly overruled by various subsequent decisions."
23. In para 17 the Court held that a strict textual meaning was given in A.K Gopalan (supra) but it received an enlarged interpretation in Maneka Gandhi Vs. Union of India, 1978(2) SCR 621. It further said:
"A.K. Gopalan was no longer good law. In Menaka Gandhi a Bench of Seven Judges held that the procedure established by law in Article 21 had to be reasonable and not violative of Article14 and also that fundamental rights guaranteed by Part III were distinct and mutually exclusive rights."
24. The proposition of entertaining cases in public interest litigation is one of such expanded facet. The Court while exercising jurisdiction of judicial review realized that a large section of society due to extreme poverty, ignorance, discrimination and illiteracy had been subjected to denial of justice from time immemorial. In fact, they have no access to justice. In other words, they lacked means to invoke the system of justice. Predominantly, to provide access to justice to the poor, deprived, vulnerable, discriminated and marginalized sections of society, the Apex Court encouraged, initiated, and propelled the public interest litigation. This is what has been observed as an expansion of Article 21 to the field of public interest litigation by Apex Court in State of Uttaranchal Vs. Balwant Singh Chaufal and others, JT 2010(1) SC 329.
25. Speedy trial has been held as an integral and essential part of fundamental right to life and liberty under Article 21 in Hussainara Khatoon and Ors. Vs. Home Secretary, State of Bihar, Patna, AIR 1979 SC 1360; Abdul Rehman Antulay etc. etc. Vs. R.S. Nayak and another etc. etc., AIR 1992 SC 1701; and, recently in Vakil Prasad Singh Vs. State of Bihar, 2009(3) SCC 355.
26. In R. Rajagopal alias R.R. Gopal and Another Vs. State of Tamil Nadu and Others, AIR 1995 SC 264 right to privacy was held implicit in right to life and liberty under Article 21. The Court said that it is a right to be let alone. This has been followed in People's Union of Civil Liberties (PUCL) Vs. Union of India and another, AIR 1997 SC 568; Sharda Vs. Dharmpal, AIR 2003 SC3 450; Distt. Registrar and Collector, Hyderabad and Anr. Vs. Canara Bank Etc., 2005(1) SCC 496; and, Mr 'X' Vs. Hospital 'Z', 1998(8) SCC 296.
27. Similarly, right to wages of an employee has been held integral to Article 21 of the Constitution in O. Konavalov Vs. Commander, Coast Guard Region and Ors., JT 2006 (3) SC 567. It is a right to earn livelihood and live a decent and dignified life.
28. In Vishaka and Others v. State of Rajasthan and Others, AIR 1997 SC 3011 sexual harassment of a woman at workplace is held a violation of fundamental right of gender equality and is treated to be a violation of right to life and liberty under Article 21. This view has been reiterated in Union of India Vs. Association for Democratic Reforms and Another, JT 2002(4) SC 501.
29. In Unni Krishnan, J.P. and others etc. etc. v. State of Andhra Pradesh and others etc. etc., 1993(1) SCC 645 the Court refers to certain earlier decisions expanding right to life and liberty under Article 21 to various facets of life namely, the right to go abroad (Satwant Singh Sawhney Vs. D. Ramarathnam A.P.O., New Delhi, 1967 (3) SCR 525); right to privacy, (Gobind Vs. State of M.P., 1975 Cr.L.J. 1111); right against solitary confinement (Sunil Batra v. Delhi Administration, 1978 Cr.L.J. 1741); right against bar fetters, (Charles Sobraj v. Supdt. Central Jail 1978(4) SCC 104); right to legal aid (M. H. Hoskot v. State of Maharashtra, 1978(3) SCC 544); right against handcuffing (Prem Shankar Shukla v. Delhi Administration 1980(3) SCC 526); right against delayed execution (T. V. Vatheeswaran v. State of T.N. 1983(2) SCC 68); right against custodial violence (Sheela Barse v. State of Maharashtra, 1983(2) SCC 96); right against public hanging (A.G. of India v. Lanchama Devi AIR 1986 SC 467); Doctor's assistance (Paramanand Katra v. Union of India 1989(4) SCC 286); Shelter (Shantistar Builders v. N. K. Totame 1990(1) SCC 520); and, right to primary education for children up to 14 years of age in Unni Krishnan (supra).
30. In Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors., AIR 1986 SC 180 right to life and liberty was interpreted so as to include right to livelihood and also right to sue for violation of rights. The right to life guaranteed by Article 21 was held to mean that all that makes life liveable in all its fullness. It was also held in S.M.D. Kiran Pasha Vs. Government of Andhra Pradesh and Ors., 1990(1) SCC 328 that right to life and liberty imposes a corresponding duty on the rest of the society, including the State, to observe that right, that is to say, not to act or do anything which would amount to infringement of that right, except in accordance with the procedure prescribed by law.
31. In Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., 2011(1) SCC 694 the importance of above right has been recognised by observing "Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the State but an essential requirement of any civilized society." (para 54)
32. Then again the Court Siddharam Satlingappa Mhetre (supra) said in para 58 of the judgment that phrase 'personal liberty' is very wide and includes all possible rights which come to constitute "personal liberty" including those which are mentioned in Article 21. It further said in para 64 that "object of Article 21 is to prevent encroachment upon personal liberty in any manner". Article 21 is repository of all human rights essential for a person or a citizen. A fruitful and meaningful life presupposes full of dignity, honour, health and welfare. In the modern "Welfare Philosophy", it is for the State to ensure these essentials of life to all its citizens, and if possible, to non-citizens. The Court also reiterated observations made in earlier decisions and in para 83 of the judgement said that in every civilised democratic country, liberty is considered to be a most precious human right of every person.
33. Thus time and again it has been said by Apex Court as also various High Courts including this Court, while considering the phrase "right to life and liberty" in Article 21 of the Constitution that all human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty. Life bereft of liberty would be without honour and dignity and would lose all significance and meaning and the life itself would not be worth living. That is why "liberty" is called the very quintessence of a civilized existence. Liberty has many facets and meanings. It may be defined as, "the affirmation by an individual or group of his or its own essence". It needs the presence of three factors, namely, harmonious balance of personality, the absence of restraint upon the exercise of that affirmation and organization of opportunities for exercise of a continuous initiative. It may be defined as a power of acting according to the determination of will. Liberty generally means prevention of restraint and providing such opportunities, denial of which would result in frustration and ultimately disorder. Restraints on man's liberty are laid down by power used through absolute discretion, which when used in this manner brings an end to "liberty" and freedom is lost. At the same time, "liberty" without restraints would mean liberty won by one and lost by another. So "liberty" means doing of anything one desires but subject to the desire of others.
34. These decisions leave no doubt in the mind of the Court that right to life and liberty under Article 21, as it stands today, in the light of plethora of authorities, some of which referred hereinabove, includes each and everything which makes the life happy, healthy, dignified and liveable. Obviously, this right would also include to keep one's life safe and secure, otherwise, if life itself goes, the question of availing any fundamental right to life cannot arise.
35. The individual's security is the responsibility of such individual, the society as also the State. The prime responsibility of maintaining law and order and also keeping its subject safe and secure lies upon the State. There cannot be any denial of this fact but one can have and take all permissible steps for preserving his life safe and secure.
36. It takes us to the proposition that "right to life and liberty" though has been widened in its scope within Article 21 but it is further restricted with words that there can be a check or denial or restraint or obstruction/restriction in accordance with the procedure prescribed in law. If something is done in accordance with procedure prescribed in law, which is otherwise valid and just, the right under Article 21 cannot be claimed beyond that.
37. It is in this context, the Courts have held that right to carry a firearm to ensure safety and security of a person is not included in Article 21 as such, for the reason that there is a valid statute which prohibits open and wide availability of firearm with individuals since it involve safety and security of others, the society in particular and the State in general. The individuals may protect their life and liberty taking all such measures as are permissible in law but so far as availability of firearm for the said purpose is concerned, it depends on the decision of Government or State, permitting a person to keep firearm or not, by granting a licence. This decision of competent authority is not unguided, unbridled but is controlled by the statute.
38. A person granted licence to carry on or possess a firearm shifts in a different category comparing others who have no such permission. It makes him a privileged person to this extent. When we consider such a privileged person as a class, they constitute a privileged class having facility of protecting their life and liberty by possessing and carrying a firearm with them. The State's authority in this matter has been held to be so pervasive and authoritative that the matter of possessing and carrying firearm for personal safety and security, instead of coming within the realm of a right of a person, has become a "privilege of such person" granted by the State. This is how it has been read and held by the Courts, time and again, and I am in respectful agreement thereto. However, to construe the term 'privilege', as if it amounts to sheer arbitrary discretion and fancy of the licensing authority is neither correct nor can be allowed to be so construed nor is otherwise valid else it may infringe Article 14 of the Constitution of India.
39. The grant of alleged privilege presently is governed by a statute "Act, 1959". Before coming to Act, 1959 as in force now, it would also be worthwhile to have a little idea of its historical background which would reflect upon the foundational basis for such enactment.
40. In British India, there were two enactments, namely, Act No. 18 of 1841 and Act No. 30 of 1854 for regulating export of arms, ammunitions and military stores without licence. Just before the first War of Independence, Act 28 of 1857 was enacted to supplement the Act of 1841 and covered additional aspect like import, manufacture, possession and use. It is a matter of common knowledge that first war of independence was fought by the natives of erstwhile territory of present India in 1857 with the army of a foreign corporate ruler, namely, East India Company. The British called it a "mutiny of 1857". the attempt of natives failed. But its upsurge surprised and shocked Britishers. Immediately thereafter, the rule of erstwhile British Indian Territory stood transferred to British Government and East India Company lost its reign. To disarm the natives of Indian continent, the British Legislature enacted Act XXXI of 1857, i.e., Arms Act, 1857. The need for this statute obviously arose due to army revolt of 1857 followed by people's declaration of war. A huge experiment in mass disarmament was tried after 1857 battle of independence. To consolidate the gains of that experiment and to ensure no further uprising of masses, the need was felt for having a consolidated Act which gave rise to Act of 1860. Initially, Act, 1860 was enacted for a period of five years but was extended by one year more under Act, 6 of 1865 and then extended till further orders vide Act, 6 of 1866. There existed several defects in this statute. Moreover in carrying the provisions of Act, 1860 lots of difficulties arose before British Indian Government compelling for a new enactment which came in 1878 vide Arms Act, 1878 (Act XI of 1878). It provided for exemption to European, Anglo-Indians, Local Chiefs, Jagirdars and other natives whom the Government wanted to exempt. It also provided for possession of firearm under licence in both disarmed and undisarmed districts to prevent arms passing from undisarmed districts to disarmed ones. The definition of "arms" in Act, 1878 included knives, spears, bows and arrows.
41. The validity of Arms Act 11 of 1878 on the anvil of Article 19(1)(f) came to be considered in P. Narasimha Reddy Vs. District Magistrate, Cuddapah, AIR 1953 Madras 476. Hon'ble Subba Rao, J. (as His Lordship then was) held that restrictions imposed under Arms Act and Rules are in the interest of general public and accordingly challenge to validity of aforesaid statute failed.
42. After independence, the elected Government under the new Constitution given by people of India to themselves in 1950, followed a liberal policy in administration of Arms Act and rules framed thereunder. To give effect to the said liberation policy, Act, 1959 was enacted which received the assent of President on 23.12.1959 and published in Gazette of India on 24.12.1959. It modified the definition of 'arms' and classified "firearm" in the category of "prohibited", "non-prohibited" etc.
43. It is thus evident that legislation relating to arms is a colonial legacy. The then Government considered it safe to disarm the native people for obvious political and administrative reasons. However, with the independence also, this country faced unfortunate pain of partition. There was a sudden upsurge in law and order situation. Probably, for this reason the new Government retained this legacy though very shortly made a new enactment liberalising its provision to some extent. Vires of Section 3 sub-section (1), (2) and (3) of Act, 1959 was assailed before Patna High Court in Tata Iron and Steel Company Limited Vs. The State of Bihar, 1993(1) PLJR 718 and the same was held constitutionally valid.
44. There have been four major amendments in Act, 1959 by Arms (Amendment) Act 55 of 1971, Arms (Amendment) Act 25 of 1983, Arms (Amendment) Act 39 of 1985, Arms (Amendment) Act 42 of 1988. In the Statement of Objects and Reasons (hereinafter referred to as the "SOR") of all these statutes the basic intention and objective of legislature is that firearms may not be available to unsocial and criminal elements so that the very existence of society may not be endangered and there should be an adequate vigilance on possession, sale and transfer etc. of firearms.
45. In SOR of Act, 42 of 1988 the legislature also recognised the fact that anti-national elements and terrorists, despite the statute, possess and have acquired automatic firearms, machine-guns of various types, rockets and rocket launchers etc.; and in order to make such possession, a more serious offence attracting stringent punishment, the amendment of statute is required by providing stringent punishment for possessing such illegal arms and ammunitions.
46. Chapter II of Act, 1959 contains provisions imposing various kinds of restrictions on acquisition and possession of firearms, manufacture and sale thereof, shortening or conversion of firearms, sale or transfer of firearms, import, export and transport of firearms etc. Chapter III deals with provisions relating to licence, i.e., the procedure for licence including the provisions relating to refusal of licence, duration and renewal as also the fee and then the provisions relating to suspension and revocation of such licence. It has six provisions, i.e., Sections 13 to 18 and the last one, in fact, is a kind of review of order passed by licensing authority by higher authority in hierarchy hearing appeal.
47. For my purpose, there are three sections significant and relevant to be considered, i.e., Sections 13, 14 and 17. The earlier two provisions relate to initial grant of privilege of possession etc. of firearm. In other words, it relates to grant or refusal of licence. The third one relates to power of suspension/revocation of licence.
48. Section 13 as enacted in 1959 underwent an amendment in 1983 w.e.f. 22.06.1983 whereby sub-section (2) was substituted and sub-section (2-A) was inserted. Section 13 reads as under:
"13. Grant of licences.--(1) An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed.
(2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time.
(2-A) The licensing authority, after such inquiry, if any, as it may, consider necessary, and after considering the report received under sub-section (2), shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same:
Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.
(3) The licensing authority shall grant--
(a) a licence under section 3 where the licence is required--
(i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection:
Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection, or
(ii) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government;
(b) a licence under section 3 in any other case or a licence under section 4, section 5, section 6, section 10 or section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same." (emphasis added)
49. Sub-section (1) talks of application by the person seeking grant of a licence of firearm. Sub-section (2) of Section 13 makes it obligatory upon licensing authority to call for a report of officer in charge of nearest police station on the application submitted by a person for grant of licence under Chapter-II. A corresponding obligation is laid on the officer in charge of nearest police station to submit his report within the prescribed time. Though Rules have been framed, i.e., Arms Rules, 1962 but as contemplated in sub-section (2) of Section 13, no time limit has been prescribed within which officer in charge of nearest police station must submit his report. It goes without saying that when no time is prescribed in the statute, it would mean that the authority concerned shall be obliged to perform its duty within a reasonable time. What that reasonable time would be, has to be considered in each and every case, in the facts and circumstances of that case and no thumb rule can be applied in this regard.
50. The inference I have drawn is fortified from proviso to sub-section (2-A) of Section 13 which says, if the officer in charge of nearest police station fails to submit his report on the application within prescribed time, the licensing authority may, if deems fit, pass such order without waiting for that report, after expiry of prescribed time. This shows that submission of report within time, namely, either the prescribed time or within a reasonable time is obligatory on the part of officer in charge of nearest police station but if he fails to do so, the licensing authority is still under an obligation to pass his order about grant or refusal, as the case may be.
51. Sub-section (2-A) of Section 13 then provides that the licensing authority shall pass an order in writing either by granting licence or refusing to grant the same. Before doing so, he may make such inquiry, if any, as he may consider necessary. Here, besides report contemplated under sub-section (2), the licensing authority is enabled and empowered to make any other inquiry himself or otherwise, so as to satisfy himself of the existence of justification for either grant of licence or refusal thereof. Such inquiry is not mandatory and depends on the necessity felt by the licensing authority, if any, in a particular case. Unlike the report contemplated in sub-section (2), the inquiry contemplated under sub-section (2-A) depends on the discretion of licensing authority and not obligatory. The purpose and objective is quite obvious. The licensing authority is entitled to find out entire information wherefrom he may form opinion objectively about genuity and justification of grant of licence or its refusal and may act thereupon. But before passing the order, either for grant or refusal of licence, he is under an obligation to consider "the report" if received under sub-section (2).
52. The grant or refusal of licence by licensing authority is not his absolute discretion but is further subjected to other provisions of Chapter III. It takes the Court to sub-section (3) of Section 13 and Section 14. Sub-section (3) of Section 13 obliges the licensing authority to grant a licence if the conditions contemplated therein exist and are satisfied. One of such contingencies is, where the person applying for grant of licence under Section 3 wants to possess or carry a smooth bore gun having a barrel of not less than twenty inches in length. Here it refers to the kind of weapon which the applicant seeking licence intends to possess or carry. The second part of this clause, i.e., sub-section (3)(a)(i) is the user of such weapon. It must be either for protection or sport or in respect of muzzle loading gun to be used for bona fide crop protection. There are three kinds of purposes and objectives provided; and one of it is protection. If an applicant seeks a licence in respect to a weapon, i.e., smooth bore gun having a barrel of not less than twenty inches of gun for protection, the licensing authority is obliged to grant such licence under Section 3 of Act, 1959. Similarly, if the aforesaid kind of weapon is required for sport the licensing authority is to grant it and it is mandatory. The third is a different kind of firearm, namely, a muzzle loading gun and if it is required for bona fide crop protection, the licence under Section 3 shall be granted. Proviso to sub-section (3)(a)(i) of Section 13 gives a discretion to licensing authority where the licence is required for bona fide crop protection, that instead of muzzle loading gun if he finds that it is not sufficient for crop protection, he may, in that case, grant licence in respect of any other smooth bore gun having a barrel of not less than twenty inches in length for such protection. In the present time, this provision is virtually otiose and redundant.
53. The next clause, i.e., sub-section (3)(a)(ii) of Section 13 obliges licensing authority to grant licence under Section 3 in respect to a point twenty two bore rifle or an air rifle if sought to be used for target practice by a member of a rifle club or rifle association, licensed or recognised by Central Government.
54. Sub-section (3)(b) of Section 13 talks of residuary cases and provides that in a licence under Section 3 in any other case which necessarily would mean that the cases not covered by sub-section (3)(a) and in respect to licences under other provisions of Chapter-II, namely, 4, 5, 6, 10 or 12, he shall grant the same if he is satisfied that the person by whom licence is required had a "good reason" for obtaining the same. The word "good reason" obviously has not been defined under the Act 1959. It is this phrase which leaves a very wide area of discretion or scope of consideration upon the licensing authority which has been used in various ways and construed to the level of an absolute and unbridled discretion and sheer subjective satisfaction of licensing authority to decide whether the licence should be granted or not.
55. Now I come to Section 14 which provides certain conditions, existence whereof makes it obligatory upon licensing authority to refuse grant of a licence. This is a negative provision restricting power of licensing authority and making obligatory for him to deny licence, if conditions therein are satisfied.
56. The rigour of this provision is writ large from the fact that it has been given overriding effect over Section 13, meaning thereby, if the situation contemplated in Section 14 exists and even if something under Section 13 comes in favour of person seeking licence, the licensing authority would have no option but to refuse to grant a licence. However, a complete reading of Section 14 reveals that heading of provision is "refusal of licences" but it contains two types of situations, one, where refusal is mandatory, and, secondly, the conditions on the basis whereof refusal shall not be founded. It also controls the procedure i.e. the contents of the order of the licensing authority if he refuses to grant a licence.
57. Section 14 reads as under:
"14. Refusal of licences.-(1) Notwithstanding anything in section 13, the licensing authority shall refuse to grant--
(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." (emphasis added)
58. A perusal of above shows that no licence under Sections 3, 4 or 5 shall be granted if asked for any prohibited arms or prohibited ammunition. In other cases, which obviously would include non-prohibited arms and non-prohibited ammunitions, if the licensing authority has reason to believe that grant of licence is "prohibited by the Act or by any other law for the time being in force" he shall refuse licence. In other words, if Act, 1959 or any other law operating at the relevant time prohibits acquisition, possession or carrying on arms or ammunitions, in such case, the licence shall be refused. Next condition is, if the applicant is of "unsound mind". Further if the licensing authority has reason to believe that a person seeking licence under Section 3, 4 and 5 in respect to a non prohibited arms or non-prohibited ammunitions is "unfit" for a licence under Act, 1959 for any reason, then also the licence shall be refused. Here the word "unfit" is of importance and licensing authority shall be obliged to decline licence if he has reason to believe for any reason that the person seeking licence is "unfit".
59. Then comes residuary kind of provision, namely, sub-section (1)(b)(ii) of Section 14 which provides, if licensing authority deems necessary for "security of public peace or for public safety" in that case also, he shall refuse grant of licence under Sections 3, 4 or 5 in respect tp non-prohibited arms or non-prohibited ammunitions.
60. However, the mere financial status of a person seeking licence shall not be a ground to refuse licence by itself. The poor and downtrodden people shall not be denied grant of licence only on the consideration of their poverty. Though the word has been used "sufficient property" but it takes within its ambit every kind of such discretion based on financial condition and licensing authority is clearly mandated not to deny grant of licence only on such consideration. It is a different thing that those who are struggling with hunger for their survival shall never find any occasion to take shelter of this provision since they themselves would not find any occasion to become an applicant under Section 13.
61. Lastly, sub-section (3) of Section 14 protects from a sheer arbitrary and whimsical exercise on the part of licensing authority in denying licence, by making it obligatory upon him to record, in writing, "reasons" for refusal. This provision is in two parts. Recording of reasons for refusal of grant of licence is mandatory and this is one condition which cannot be ignored, omitted or dispensed with. The second aspect is, the communication of such reasons to the concerned person. Statute says, if the person who has been refused grant of licence, so demands, a brief of statement of recorded reasons shall be supplied to him. This is the general requirement of statute but an exception is where the licensing authority forms opinion that communication of those reasons shall not be in public interest, it may not convey those reasons to the person concerned. Sub-section (3) of Section 14 incorporates within itself the observance of one of the principle of natural justice, making application of mind and consideration of application on the part of licensing authority objective, so that no decision may be taken in a sheer arbitrary manner. The principle of speaking order is incorporated herein.
62. I have no hesitation thus in observing that a cumulative and harmonious reading of Sections 13 and 14 leave no manner of doubt that an objective consideration is mandated on the part of licensing authority. He cannot deny grant of license to a person on his sheer whims, caprices, imagination etc. Here it answers the requirement of reasonableness also. The procedure is consistent with the requirement of principle of natural justice. To some extent, it brings into consideration Article 14 of the Constitution. One cannot say that under the garb of the words, "any reason", "unfit for grant of licence", or the absence of a "good reason" for obtaining license, a licensing authority is empowered to deny licence on sheer flimsy grounds, namely, he will grant it only to those who have white hair or blue eyes or having a particular height and like. Similarly, the licensing authority cannot discover within "good reasons" for obtaining licence certain ex facie absurd reasons, namely, if a person belongs to a particular political party, or, that a person if belongs to a particular class or caste, and so on. These considerations are impermissible and cannot be construed a "good reason". In the garb of "good reason" for obtaining licence, one also cannot stretch to a situation which would be virtually impossible to be performed or placed on record.
63. The second part, i.e. Section 17 deals with a case where a licence has already been granted and then the licensing authority finds existence of certain facts or situations arising or otherwise, which justify either some variance in conditions subject to which licence was granted or suspension and/or revocation thereof. The variance in the conditions of licence is permissible even on the application of licence holder. The restriction put by Section 17(1) and (2) of Act 1959 in respect of variance of conditions subject to which the licence is granted, is that such variance is not contrary to any condition(s) etc. already prescribed, that is, contained in the Rules.
64. Now, I proceed to more important part of Section 17 that runs from sub-section (3) to (10) thereof. Sub-section (3) confers power upon licensing authority to "suspend a licence for such period as he thinks fit" or "revoke a licence". Such power can be exercised if licensing authority is satisfied of existence of certain conditions. Sub-clause (a) of sub-section (3) of Section (17) contemplates existence of conditions similar to what are prescribed in Section 14(b)(i)(1) to (3) i.e. if the holder of licence is prohibited by Act 1959 or any other law for the time being in force for acquiring, possessing or carrying any arms or ammunitions or is of unsound mind or for any reason, is unfit for the licence.
65. Next is sub-clause (b) of Section 17 (3). It provides that the licensing authority if deems necessary for "security of public peace" or "public safety" to suspend or revoke a licence, he can do so. Sub-clause (c) is attracted where the licensing authority finds that licence was obtained by suppression of material information or on the basis of wrong information conveyed by holder of licence or any other person on his behalf at the time of applying for licence. Sub-clause (d) of Section 17(3) empowers licensing authority to suspend or revoke licence if any of the conditions thereof have been contravened. Sub-clause (e) is a follow up action of sub-section (1) of Section 17, inasmuch as, if a notice under sub-section (1) has been given to licence holder by licensing authority for making variance in the conditions subject to which the licence was granted and if he was required to deliver licence but has not so delivered, the licensing authority may suspend or revoke the licence.
66. Section 17(4) enables a licence holder to seek revocation of his licence by making an application. It is a voluntary act of licence holder if he wants to give up his licence.
67. Sub-sections (5) and (6) provide procedure for action which may be taken by the licensing authority under sub-sections (1) to (3).
68. The position emerging from the above discussion is that possession or carrying of firearm or ammunition is completely prohibited under Section 3(1) of Act, 1959 unless one holds a licence issued in accordance with provisions of Act, 1959 and Rules framed thereunder. In other words, one can possess and/or carry firearm or ammunition only when he holds a licence granted under Act, 1959 and the Rules framed thereunder. That is how the right to possess firearm and/or to carry it by the persons who are granted licence under Act, 1959 is treated to be a "privilege" else the people in common have been denied such a right by the statute.
69. Now the question comes, whether grant of licence by competent authority is like a grant of privilege at par with distribution of State's largess or an indiscreet permission resulting in no interest of the applicant. Whether its grant by an authority depends on sheer whims and caprice, totally unguided and unbridled discretion of such authority or he is bound to act reasonably, fairly, impartially and in accordance with certain norms applicable to all equally, treating all the persons applying for grant of such licence without any discrimination, favour etc.
70. The Court's observations that nobody has a right to possess a firearm but it is a privilege which can be granted in the discretion of licensing authority has been construed and interpreted by licensing authorities as if it is their totally unbridled, uncontrolled and absolute discretion to which they are not answerable to anyone. In this context, the orders are being passed frequently day-after-day resulting in a spate of litigation in the Courts throughout the country. This has necissitated to find out whether the right of equality and fairness under Article 14 would be attracted to judge the correctness of an order of licensing authority when he considers application for licence or in the matter of suspension or cancellation of a firearm licence, already granted.
71. To put the things straight, it would also be useful to refer some of such decisions wherein these words "no right", "privilege", "discretion of licensing authority" etc. have been used and the context wherein the Courts have mentioned those words. However, before referring to those authorities, I may remind that a judgement is not to be read as a statute. When a judgement is written by a Judge, he normally concentrates on the facts involved in that particular case, up for consideration before him, and the relevant provisions applicable to those facts. Sometimes while making discussion, some observations are made, even going beyond those facts and the relevant provisions and many a times certain words are mentioned which the Judge concerned may not have intended to convey such meaning as is subsequently gathered by readers having no inkling of the thoughts and deliberations with which the judgement is written. Though due care is normally taken but many a times selection of word(s) is also not in that context in which the subsequent readers take. What I have said here would be reflected from various judgements also if we consider those judgements in the light of real issue which was up for consideration before the Court and the exact provisions, interpretation whereof was involved.
72. On behalf of the respondents reliance is basically on a larger Bench decision of this Court in Rana Pratap Singh & Ors. Vs. State of U.P. & Ors., 1995 All.C.J. 200 while on behalf of the petitioners reliance has been placed on the judgments of Hon'ble Single Judges in individual cases where denial of grant of firearm licence has been held illegal and arbitrary. It would be appropriate first to consider judgments of larger Bench and thereafter to proceed with others.
73. This Court finds that the cases considered by Larger Benches of this Court were basically those where the question of suspension or revocation of licence was involved. The scope and ambit of the cases falling within Sections 13 and 14 is obviously different to what has to be considered and dealt with in the cases involving suspension and revocation of licence and governed by Section 17 of Act 1959.
74. So far as this Court is concerned, Sections 13 and 14 came to be considered by a Division Bench in State of U.P. And others Vs. Jaswant Singh Sarna, AIR 1968 All 383. Having referred to Section 13, the Court said:
"It is clear that section 13 recognises a right to a licence. Apart from cases where the fire arm is required for protection or sport or crop protection or for target practice in a Rifle Club or Rifle Association, any one is entitled to it if he has good reason for obtaining it. There must be good reason for obtaining the licence, and that condition regulates the grant of a licence. The requirement has been imposed to prevent an abuse of the right by members of the public. Nonetheless, as soon as the condition is satisfied the grant is obligatory and it is not open to a licensing authority to refuse a licence arbitrarily." (para 8) (emphasis added)
75. Then the Court also referred to Section 14 and says:
"The licensing authority is forbidden to grant a licence where it is required in respect of any prohibited arms and prohibited ammunition. That is Section 14(1)(a). Section 14 provides: . . . . . Section 14(2) enjoins upon the licensing authority not to refuse a licence merely on the ground that the applicant does not own or possess sufficient property. Limited as the power to refuse a licence is by virtue of section 14(1)(b) and section 14(2), the licensing authority refusing to grant a licence is, by section 14(3), required to record in writing the reasons tor such refusal and to furnish to the applicant on demand a brief statement of the same unless public interest renders it inexpedient to furnish such statement." (para 8)
76. Further in para 13 of the judgement the Court said:
"In the matter of the grant of a licence or its renewal, S. 14(1)(b)(i) contains sufficient safeguard for ensuring that a licence is not entrusted to irresponsible hands. The grounds upon which a licence may be refused under that provision extend over a sufficiently wide area. A licence may be refused to a person prohibited by the Act or by any other law from acquiring, possessing or carrying on arms and ammunition. It may be refused to a person of unsound mind. It may also be refused to a person who for any reason is considered unfit for a licence. It is worthy of note that this last class is wide enough to cover a multitude of cases where a licence can be reasonably refused. It is difficult to conceive of a wider envelope of power within which a licence may be refused."
77. This decision sought to be relied on in support of certain issues raised in respect to Section 17 of Act, 1959 and was considered by a Larger Bench of three Judges in Chhanga Prasad Sahu Vs. State of U.P. And others, AIR 1986 All 142. The questions referred for opinion of Full Bench were as under:
"(1) Whether there is power to suspend an arms licence pending enquiry into its cancellation or suspension?
(2) Whether in view of the statutory provisions is it incumbent upon the authorities to afford an opportunity of hearing prior to suspension pending enquiry?"
78. In support of submission that while proceeding to revoke or suspend a firearm licence, the licensing authority is bound to observe principles of natural justice of giving notice etc. i.e. application of audi alterem partem, reliance was placed on Division Bench decision in Jaswant Singh Sarna (supra) but the Full Bench distinguished it by referring to the observations made in paras 9 and 14 of the judgement in Jaswant Singh Sarna (supra) and held that different considerations may prevail while interpreting Sections 14 and 17 of Act, 1959.
79. It would be useful to refer hereat paras 11 and 12 of the Full Bench judgement in Chhanga Prasad Sahu (supra):
"11. It is no doubt true that there is considerable similarity in the procedure prescribed for consideration of an application for grant/renewal of an arms licence, as laid down in Section 14, and that for its revocation/suspension laid down in Section 17 of the Act. But then the Division Bench itself has in the case of State of U. P. v. Jaswant Singh Sarna (supra) made following observations in paragraph '9' of the judgment :--
"We may now consider the merits of the question raised before us. While doing so, we may point out that we are concerned essentially with Section 14(1)(b)(i) by reference to which the respondent has been denied, renewal of his licences."
and thereafter it went on to observe in paragraph 14 of the judgment : --
"It is said that a threat to the security of the public peace and public safety may arise rendering it necessary to exclude a hearing to the applicant before a licence is refused. That argument can be appreciated when it is raised in respect of the suspension or revocation of a Licence. But when it is sought to be employed in respect of the grant or refusal of a licence it is not intelligible. Until a licence is granted there is no right to the possession of fire arms and ammunition or to a business in them. We find it difficult to comprehend how the public peace or public security can be endangered merely because there is an application for the grant of a licence."
12. It thus appears that notwithstanding the apparent similarity in the provisions contained in Sections 14 and 17 of the Act the Bench clearly brought it out that different considerations may prevail while interpreting the two provisions. Accordingly, we are unable to project the ratio of the decision in State of U. P. v. Jaswant Singh Sarna's case (supra) while considering the scope and ambit of the provisions contained in Section 17 of the Act." (Emphasis added)
80. The Full Bench held, if the circumstances as contemplated under Section 17(3) exist and licensing authority is satisfied thereto, he is empowered to suspend an arms licence or to revoke it but where the licensing authority does not come to the conclusion that the facts stated in clauses (a) to (e) of Section 17(3) exist and intends to make inquiry about existence or not of those facts, during course of such inquiry, he has no power to suspend the licence. This is evident from para 14 of the judgement, which reads as under:
"14. The object of the enquiry that a licensing authority may, while proceeding to consider the question as to whether or not an arms licence should be revoked or suspended, like to make, clearly is to enable the licensing authority to come to a conclusion as to whether or not the facts stated in Clauses (a) to (e) of Section 17(3) exist and as already explained it is not obliged to before considering that a case for revocation/ suspension of licence has been made out, associate the licensee in such enquiry. In this view of the matter it can safely be taken that where a licensing authority embarks upon such an enquiry it is, till then, not convinced about existence of the conditions mentioned in Clauses (a) to (e) of Section 17(3) of the Act. So long as it is not so convinced no case to make an order either revoking or suspending an arms licence as contemplated by the section will be made out." (Emphasis added)
81. Hence, Full Bench in Chhanga Prasad Sahu (supra) refers to Division Bench in Jaswant Singh Sarna (supra) and distinguished it since Division Bench judgment was in respect of Section 14 of Act, 1959 while the issue before Full Bench was with regard to Section 17.
82. Then came a Larger Bench decision of five Judges in Kailash Nath and others Vs. State of U.P. and another, AIR 1985 All 291. Here also the matters which were referred for opinion of Larger Bench had arisen out of orders passed by licensing authority cancelling gun licence and directing licence holders to deposit weapons. These cases, therefore, related to Section 17 of Act, 1959. The District Magistrate passed orders without any show cause notice to licence holders, relying on the observations of Full Bench in Chhanga Prasad Sahu (supra) that the licensing authority if satisfied of the existence of facts enumerated in clauses (a) to (e) of Section 17(3), he can pass order of suspension or revocation of licence without issuing any notice and without holding any inquiry. These observations of Full Bench are quoted in Kailash Nath (supra) in para 1 of the judgement. The Court held that before refusing to grant licence, the principle of natural justice, i.e., principles relating to opportunity or notice, would not apply since the process of grant of licence is not such so as to have the effect of infringing any civil right of an individual and, therefore, it would have no application. In other words, the Court observed that so long as a licence has not been granted there is no question of infringement of any existing right and, therefore, principle of natural justice relating to show cause notice i.e. audi alteram partem would not apply at the stage when licensing authority refused to grant licence but it would be a different case when a licence, already granted, is sought to be cancelled. This is evident from the following observations:
"A right is distinct from a mere privilege. The case of a licencee to possess or use firearm is materially different from a case of licence to deal in or sell firearms. . . . . . . . . . . .In my opinion the above analysis cannot be legitimately extended to the exercise of such discretionary power or grant of privileges such as the initial issuing of a firearm licence. The shift in the cases is reflected only where the question determined is one "affecting the rights of subjects"." (para 3) "But the orders refusing to renew a licence or withdrawal or cancellation of an existing licence share an entirely different legal complexion.. . . . . . . . . . . To equate a decision summarily to revoke a licence with a decision not to, grant a licence in the first instance may be still more unrealistic. Here the "privilege" concept may be peculiarly inapposite, and its aptness has not been enhanced by the manner in which it has been employed." (para 4)
83. While comparing status of an applicant seeking licence and a licence holder whose licence has been cancelled, the Court observed that in the former, principle of audi alteram partem is not applicable since the essence of rule is that a right of a party, if sought to be adversely affected involving civil consequences, only then such principle would apply and not otherwise. The Court said that a right is distinct from a mere privilege. The case of a licensee to possess or use firearm is materially different from a case of licence to deal in or sell firearms. It further says in para 3 as under:
"The licence for acquisition and possession of firearms is materially different from a licence for manufacture, sale etc. While the latter confers a right to carry on a trade or business and is a source of earning livelihood, the former is merely a personal privilege for doing something which without such privilege would be unlawful. In my opinion the obtaining of a licence for acquisition and possession of firearms and ammunition under the Arms Act is nothing more than a privilege and the grant of such privilege does not involve the adjudication of the right of an individual nor does it entail civil consequences. I may, however, hasten to add that even an order rejecting the application for grant of licence may become legally vulnerable if it is passed arbitrarily or capriciously or without application of mind." (Emphasis added)
84. The judgment delivered by Hon'ble M.N. Shukla, J. for himself and three other Hon'ble Judges, however,further gave Section 17 an interpretation so as to make it consistent with the principles of natural justice and said that the licensing authority may pass an order of suspension or revocation of licence but that shall be treated "a provisional order" requiring immediate action. The authority then shall issue a notice to the licence holder giving him an opportunity to file objections against such preliminary order and after hearing him, may pass final order which may either affirm or revoke the provisional order. The Court says that, in other words, it is incumbent upon the licensing authority to refrain from attaching finality to the order of suspension/cancellation until the aggrieved licence holder has been heard by such authority and his objections have been adjudicated. The Court permitted the licensing authority that it can also, in furtherance of his immediate remedial action, exercise incidental power of directing licence holder to surrender his licence until objections are decided.
85. Hon'ble Justice H.N. Seth in the separate judgement also held that licensing authority while revoking/suspending an arm licence under the Act should act in accordance with principle of natural justice but it does not mean that such an opportunity must be afforded before revoking or suspending arms licence. His Lordship applied the concept of post decisional hearing and observed that licensee has, at his option, two remedies, and, in para 22 said as under:
"the licensee has at his option, two remedies, namely, one to apply for post-decisional remedial hearing to the licensing authority itself, and the other by going up in appeal against the order revoking/suspending his licence. It is open to the licensee to follow either of the two remedies or even to claim a post-decisional remedial hearing before the licensing authority followed by an appeal in accordance with the provisions of S. 18 of the Arms Act."
86. Again the Full Bench and Larger Bench decisions in Chhanga Prasad Sahu (supra) and Kailash Nath (supra) were referred for consideration by another Bench of three Judges, noticing some conflicting observations. It came to be considered by a Full Bench of three Judges in Balram Singh Vs. State U.P. and others, 1990 Cr.L.J. 409. The Court observed that the Full Bench in Chhanga Prasad Sahu (supra), in so far as it says about suspension or revocation pending inquiry so as to satisfy licensing authority about existence of facts enumerated in sub-clause (a) to (e) of Section 17(3) is concerned, it has been demolished in Kailash Nath (supra) for the reason that by treating suspension/revocation order as a provisional order, it has recognised a kind of suspension pending inquiry and to that extent Full Bench in Chhanga Prasad Sahu (supra) stands reversed by Five Judges Bench in Kailash Nath (supra) and licensing authority is vested with the power to suspend licence during proceeding for suspension or revocation under Section 17 of the Act, 1959.
87. The correctness of this decision came to be considered by another Five judges Bench in Rana Pratap Singh and others (supra). Here the reference was also made to the order of Hon'ble Bahuguna, J. disagreeing with Hon'ble Katju, J. (as His Lordship then was) in taking a view of deemed grant of licence, if no order is passed within three month, in Ganesh Chandra Bhatt Vs. The District Magistrate, Almora, 1993 All CJ 394 and the Division Bench judgment in Devendra Pratap Singh Vs. District Magistrate, (Writ Petition No. 29963 of 1993), decided on 27.10.1993 and also the observations made by His Lordship, Hon'ble Katju, J. that the Full Bench judgement is not correct. The five Judges Bench in Rana Pratap Singh (Supra) found it seriously objectionable that learned Single Judge has brushed aside binding precedent of Full Bench by terming it incorrect. The judgments in Ganesh Chandra Bhatt (Supra) and Devendra Pratap Singh (Supra) have been held not a good law.
88. The Bench further reversed the decision in Balram Singh (supra) that the licensing authority may suspend a firearm licence while making inquiry about the existence of circumstances mentioned in Section 17(3)(a) to (e) and held that Full Bench in Chhanga Prasad Sahu (supra) taking this view has not been reversed in Kailash Nath (supra).
89. Be that as it may, what discerns from the above discussion in the context of Sections 13, 14 and 17 of Act 1959 and right to possess and carry a firearm may be summarized as under:
(i) No person has a right, fundamental or otherwise, to carry or possess a firearm unless he is permitted to do so under a licence granted by a competent authority under the Act 1959.
(ii) It is a personal privilege of the person who obtains it. The licensing authority cannot treat it as its own privilege to indiscreetly grant or refuse it.
(iii) Considerations on which licence of firearm would be granted or refused is governed strictly by Sections 13 and 14 of Act 1959.
(iv) The factors relevant for grant or refusal of firearm licence travel in a distinct field. Hence the principle of audi alteram partem is inapplicable. But once licence is granted, any power to take away such a right would depend on distinct considerations and would attract the said principle.
(v) An order refusing to grant firearm licence can be reviewed by Courts if passed arbitrarily, capriciously, by non-application of mind, on irrelevant considerations or due to mala fide etc.
(vi) Considerations relevant for cancellation or revocation of firearm licence are governed by Section 17 of Act 1959.
(vii) If the licensing authority is satisfied prima facie, that grounds enumerated in sub section (3) (a) to (e) of Section 17 exist, he can suspend or revoke firearm licence immediately. Such an order however would be "a provisional order".
(viii) Having passed the provisional order the licensing authority is obliged to give an opportunity of show cause to the licence holder i.e. a post decisional hearing and he (licensee) will have a right to submit his objection(s) against such provisional order.
(ix) The licence holder also has option of filing appeal against provisional order as above under Section 18 instead of filing objection before licensing authority.
(x) Where the licence holder submits his objection, licensing authority shall consider the same and pass a reasoned order. Such an order may be either for revocation of licence or suspension. In case final order passed is that of suspension, it shall be for a specified period.
(xi) If against provisional order, licence holder straightaway avails remedy of appeal, question of final order to be passed by licensing authority may not arise since thereafter it is the appellate order which shall hold the field.
(xii) Where the licensing authority has any doubt about the existence of grounds referred in Section 17(3)(a) to (e) of Act 1959 and proceed to make inquiry into existence of such grounds, during this interregnum period of inquiry, he can neither exercise power of suspension of firearm licence nor that of revocation. This view has been reiterated by Larger Bench in Rana Pratap Singh (Supra) after overruling otherwise observations in Balram Singh (Supra).
90. Having said so, I proceed to consider the aspects relevant for grant or refusal of firearm licence which is governed by Sections 13 and 14 of the Act 1959. The above discussion makes it clear that no person, as a matter of right, can claim that he must be granted firearm licence. Similarly, no person has fundamental or legal right to possess or carry on a firearm without first possessing a licence under Act 1959 for the reason that the Act prohibits such possession or carrying on a firearm unless licence thereunder has been granted. The validity of the Act is not under challenge. It imposes reasonable restrictions upon the citizens in the interest of law and order providing procedure when a firearm can be possessed or carried. Hence, nothing can be conceived other than what is provided in the Act 1959. The Larger Bench decision in Kailash Nath (supra) has also made it clear that refusal to grant of licence cannot be founded on arbitrary and whimsical reasons. In other words, Article 14 of the Constitution to this extent would be attracted. The grant of firearm licence does not depend on arbitrary, unbridled, unguided discretion of licensing authority but is controlled by statutory provisions. It cannot be treated to be a privilege of the licensing authority in the sense as if an absolute subjective whimsical discretion having no objective consideration whatsoever.
91. It appears that the authorities while construing the judgment of this Court observing that "firearm licence is a privilege and not right" have misconstrued the term 'privilege' without realizing actual sense, spirit, object and purpose for which it was said so.
92. The term 'privilege' has various shades and may indicate different things depending on the context and the subject. This can be elucidated by referring to its meaning in various dictionaries (general and legal) as under:
(I) Oxford advanced learner's dictionary New 7th Edition 2005, (page 1200):
Privilege/ noun/ verb Noun 1 (countable noun) a special right or advantage that a particular person or group of people has; 2 (uncountable noun) (disapproving) the rights and advantages that rich and powerful people in a society have: 3 (singular) something that your are proud and lucky to have the opportunity to do: 4 (countable and uncountable noun) (technical) a special right to do or say things without being punished: parliamentary privilege.
Verb (Verb+Noun)(formal) to give somebody/something special rights or advantages that others do not have.
(II) The New Lexicon Webster's Dictionary:(1987), page 796.
Privilege n. a benefit or advantage possessed by one person only or by a minority of the community,//any of the fundamental rights common to all persons under a modern constitutional government//(law) a right or power conferred by a special law.
(III) Chambers Dictionary: (1995) page 1163.
Privilege 1. An advantage, right or favour granted to or enjoyed by an individual, or a few : freedom from burdens borne by others: a happy advantage: a prerogative: a sacred and vital civil right advantage yielded (Shak.): right or sanctuary (Shak:)- v.t. to grant a privilege to : to exempt: to authorise, license.
(IV) The Law Lexicon by P. Ramanatha Aiyar, Second Edition Reprint 2007 page 1519.
Privilege is an exemption from some duty burden, or attendance to which certain persons are entitled; from, a supposition of law, that the stations they fill, or the offices they are engaged in, are such as require all their care; that therefore, without this indulgence, it would be impracticable to execute such offices, to that advantage which the public good requires. (Tomilins Law Dic.) A right or immunity granted as a peculiar benefit: advantage or favour: a peculiar or personal advantage or right, especially when enjoyed in derogation of a common right.
Privilege is a legal freedom on the part of one person as against another to do a given act or a legal freedom not to do a certain act.
Immunity from civil action may be described also as a privilege, because the word "privilege" is sufficiently wide to include and immunity.
PRIVILEGES, are liberties and franchises granted to an office, place, town, or manor, by the King's great charte,:, letters patent, or Act of Parliament. (Termes de la Ley.) PRIVILEGE As used in its broad and commonly accepted sense is a peculiar advantage; a personal benefit or favour; a private or personal favour enjoyed. It means also , in connection with the context, a particular and peculiar benefit or advantage, enjoyed by a person, company, or class, beyond the common advantage of other citizens; some peculiar right or favour granted by law contrary to the general rule; the enjoyment of some desirable right; special enjoyment of good; an exemption from some general burden, obligation.
Other Definitions. A privilege is a peculiar advantage- an immunity.
A privilege is a peculiar benefit or advantage: a right of immunity not enjoyed by others or by all ; special enjoyment of a good or exemption from an evil.
A privilege is a particular and peculiar benefit or advantage enjoyed by a person, company, or class beyond the common advantage of other citizens.
The word 'privilege' according to one definition given by standard lexicographers, means that which one has a legal claim to do; legal power; authority; immunity granted by authority; the investure with special or peculiar rights.
PRIVILEGE, PREROGATIVE, EXEMPTION, IMMUNITY: Privilege, in its most extended sense comprehends all the rest: for every prerogative, exemption and immunity are privileges, inasmuch as they rest upon certain laws or customs, which are made for the benefit of certain individuals; but in the restricted sense privilege is used only for the subordinate parts of society and prerogative for the superior orders; as they respect the public, privileges belong to or are granted to the subject; prerogatives belong to the crown. It is the privilege of a member of parliament to escape arrest for debt; it is the prerogative of the crown to be irresponsible for the conduct of its ministers.
Privileges are applied to every object which it is desirable to have; prerogative is confined to the case of making one's election, or exercising any special power; exemption is applicable to cases in which one is exempted from any tribute, or payment; immunity is peculiarly applicable to cases in which one is freed from a service; all chartered towns or corporations have privileges, exemptions, and immunities.
PRIVILEGES AND IMMUNITIES OF CITIZENS include all those fundamental privileges and immunities which belong essentially to the citizens of every free government among which are the right of protection; the right to pursue and obtain happiness and safety ; the right to pass through and reside in any place within state for purposes of trade, agriculture, professional pursuit, or otherwise; to claim the benefit of the right of habeas corpus; to institute and maintain actions of any kind in the courts of the state, and to take, hold and dispose of property, either real or personal.
(V) Black's Law Dictionary, Fifth Edition, page 1077.
Privilege. A particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens. An exceptional or extra-ordinary power or exemption. A right, power, franchise, or immunity held by a person or class, against or beyond the course of the law.
An exemption from some burden or attendance, with which certain persons are indulged, from a supposition of law that the stations they fill, or the offices they are engaged in, are such as require all their time and care, and that, therefore, without this indulgence, it would impracticable to execute such offices to that advantage which the public good requires. That which releases one from the performance of a duty or obligation, or exempts one from a liability which he would otherwise be required to perform, or sustain in common with all other persons.
(VI) Bouvier's Law Dictionary and Concise Encyclopaedia by John Bouvier, Third Revision,(Eighth Edition) Volume III , page 2715.
PRIVILEGE. Exemption from such burden as others are subjected to.
IN Civil Law. A right which the nature of a debt gives to a creditor, and which entitles him to be preferred before other creditors.
Privilege is "a real right in a thing (jus in re) springing from the nature of a debt which has been contracted with reference to that thing, and securing the debt by a preference on the proceeds of the thing when it is sold under legal process."
A mortgage under the civil law is to all intents and purposes what it is in equity in the English law or the law of Connecticut, a security for a debt given by the agreement of the debtor. But a debtor cannot, by his mere agreement, proprio vigore, confer a privilege.
" If he contracts a debt, which by its nature has a privilege under the law, then the privilege exists, as a method of securing the debt. It inheres in the thing with reference to which the debt has been contracted, follows it into the hands of third persons (in the absence of some law of recordation providing to the contrary), and as a rule would prime a mortgage of the same property." " The one is legal : the other conventional. This former is sometimes called by the civilians a privileged hypothecation; the latter a mere hypothecation."
(VII) Jowitt's Dictionary of English Law Second Edition, Volume 2, page 1430.
Privilege, an exceptional right of advantage: and exemption from some duty, burden, or attendance, to which certain persons are entitled, from a supposition of law that the stations they fill or the offices they are engaged in are such as require all their care, and that, therefore, without this indulgence, it would be impracticable to execute such offices so advantageously as the public good requires.
With reference to the persons who enjoy them, personal privileges are of various kinds: the principal are those belonging to the royal family, the Houses of Parliament, peers, ambassadors, barristers, solicitors and clergymen. With reference to the nature of the right or exemption, the principal privileges are the freedom from arrest enjoyed by ambassadors (q.v.) and peers; the exemption from serving on juries enjoyed by peers, members of parliament, ministers, barristers, solicitors, medical practitioners, etc.; the privileges exempting barristers, solicitors and patent agents from giving discovery or evidence of matters communicated to them by their clients in professional confidence, etc. With reference to their duration, privileges are either permanent or temporary: thus, a member of Parliament is privileged from arrest on civil process during the sitting of the House, and for forty days before and after a prorogation: a barrister has a similar privilege while he is on circuit, and a peer always possesses a similar privilege.
A statement is said to be privileged when it is made in such circumstances that it does not render the person making it liable to proceedings for slander or libel, although it would have that effect in the absence of those circumstances.
93. The concept of "privilege" from the above dictionary meanings demonstrate and are referable to the person with whom it is conferred and not the person who confer it or grant it. In terms of advantage, favour, freedom from certain burden all goes to show that once a person is granted licence to possess or carry a firearm, prohibition contained in Act 1959 from doing so would stand excluded and in that term 'privilege' applies here in respect of firearm licence obtained by a person. It does not mean that whether it should be granted or not is the sole privilege of licensing authority. The licensing authority is bound to act within four corners of the statute while exercising statutory powers. He cannot invent or discover or find out his own flimsy, imaginary and unrealistic fancies under cloak of reasons to find out a way to deny a firearm licence which otherwise deserves to be granted within four corners of the statute.
94. The lack of clarity on the part of Licensing authorities is writ large from the fact that many a times this Court finds that the grounds under Section 17 of Act 1959 for suspension or cancellation of a firearm licence are being applied for refusal to grant firearm without looking into the fact whether such reason is within the scope of Sections 13 or 14 or not. To my mind, Section 17 cannot be taken recourse of for the purpose of exercising power under Section 13 and 14. Here I am fortified besides Full Bench decision in Chhanga Prasad Sahu (Supra) with a decision of Full Bench of Patna High Court also in Kapildeo Singh vs. State of Bihar AIR 1987 Patna 122 where a similar argument was advanced on behalf of the State in the context of proceedings under Section 17 by bringing in Sections 13 and 14 also for that purpose, but the Court rejected the same and said "....It has to be kept in mind that the requirements of the original grant or refusal and those of the subsequent suspension or revocation of a licence are not wholly identical. The conditions for suspension and revocation are spelt out under Section 17 and have, indeed to be satisfied. However, there is no gainsaying the fact that as a matter of larger approach the issue of suspension and revocation would take some hue from the provisions of the original grant or refusal of a licence as well." (para 6)
95. The question as to when and which reasons are not justified and can be termed 'arbitrary' or 'illegal' has been considered time and again in a catena of decisions and just to show some of the aspects, I propose to refer a very few of such authorities.
96. In V.K. Thomas Vs. The Revenue Board Member (L.R.) 1988 Cri. L.J.336 the Court went through the statute and its backdrop in detail and observed that issue of licences for possessing deadly arms should be done with great care and caution, and with great circumspection and fuller realisation of changed times.
97. In Arun Kumar @ Arun Kumar Barnwal Vs. State of Bihar and others 2001(2) Crimes 20 (Patna High Court), an application for grant of firearm licence was rejected on the ground that the applicant possessed two firearms which are sufficient for self protection, hence, he cannot be granted another licence for non-prohibited bore revolver. Existing licence which the applicant possessed was for revolver and gun. On behalf of the State the order was attempted to be justified by referring to Section 14(b)(i)(3) of Act 1959, contending that it confers very wide power upon the licensing authority to refuse licence for any reason on account of which licensing authority finds the applicant "unfit" for grant of licence. The Court observed that expression "for any reason" in Section 14(b)(i)(3) of Act 1959 relates to grant of licence being unfit under the Act and not to read it separately so as to confer unbridled absolute powers upon the Collector. The Court also observed that there is no provision under the Act in which licensing authority has been given any discretion to consider the sufficiency of firearms available with the person for his protection.
98. In Bhakti Sharan Vs. Commissioner, Jhansi and others 2002(1) Allahabad Criminal Rulings 980 an application was rejected on the ground that applicant wanted to possess firearm only for status, and, district Banda being sensitive area from crime point of view, licence should be granted only when necessary. The Court held such an order bad and illegal, observing that the application has been rejected for wholly arbitrary reasons and also against the scheme of the Arms Act. The Court held that unless something is found in respect to the applicant himself which justifies denial of firearm licence, it cannot be denied on flimsy and arbitrary basis.
99. In Chandra Pratap Singh Vs. State of U.P. and another 2002 (45)ACC 1000 (Allahabad) this Court held that there cannot be a blanket bar on possessing two or more licences by a person except for sufficient reasons.
100. In Abdul Kafi Vs. District Magistrate, Allahabad 2002(45)ACC 1121 (Allahabad) an application for licence was rejected on the ground that the applicant had not stated in the application from whom he had danger to his life. The court held that the scheme of Act 1959 does not contemplate that licence of firearm shall be granted only if somebody has apprehension to his life from someone and rejection of firearm licence on such ground means an order passed on wholly irrelevant consideration.
101. In Bhanu Pratap Singh vs. Commissioner, Chitrakoot Dham Mandal, Banda and another 2005(31)AIC 671 (Allahabad) , the Court held that rejection of an application for firearm licence on the ground that a large number of firearm licence to the residents of area in which the applicant resides had already been issued, is wholly unjust and arbitrary. The Court observed that a person has a right to protect his life and property and his application for grant of firearm licence for the said purpose cannot be denied on the ground that other persons have already been issued firearm licence residing in the same area which constituted sufficient number.
102. In Abhimanyu Singh Vs. State of Bihar and others 2008(4) Crimes 364 (Patna) the Court observed that a person has to evaluate his own threat perceptions and make arrangement for his own security and safety. The licensing authority while considering the application should consider whether the person is suitable or in other words, he is undesirable to hold firearm.
103. In Brij Nandan Singh Vs. State of U.P. and another 2011(9) ADJ 135 in paras 7 and 8 of the judgment this Court said:
"A fire arm licence cannot be denied only on conjectures and surmises and without appreciating the objective of statute under which the power is being exercised. Right to life and liberty which includes within its ambit right of security and safety of a person and taking, adopting and pursuing such means as are necessary for such safety and security, is a fundamental right of every person. Keeping a fire arm for the purpose of personal safety and security is a mode and manner of protection of oneself and enjoyment of fundamental right of life and liberty under Article 21 of the Constitution. In the interest of maintenance of law and order certain reasonable restrictions have been imposed on such right but that would not make the fundamental right itself to be dependant on the vagaries of executive authorities. It is not a kind of privilege being granted by Government to individual but only to the extent where grant of fire arm licence to an individual would demonstratively prejudice or adversely affect the maintenance of law and order including peace and tranquility in the society, ordinarily such right shall not be denied....." (Para 7) "The authorities empowered to grant licence under the Act ought not to behave as if they are part of the old British sovereignty and the applicant is a pity subject whose every demand deserved to be crushed on one or the other pretext. The requirement of an Indian citizen governed by rule of law under the Indian Constitution deserved to be considered with greater respect and honour. The authorities thus shall have considered the requirement of applicant with more pragmatic and practical approach. Unless they find that in the garb of safety and security, applicant in fact intend to use the weapon by obtaining a licence for a purpose other than self defence, it ought not to have been denied such licence. I am not putting the statutory power of authority concerned in a compartment since there may be more than one reasons for exercising statutory discretion against applicant but then that must justify in the context of purpose and objective of statute and necessarily ought not be whimsical."
104. This Court in Pawan Kumar Jha Vs. State of U.P. and others, 2010(10) ADJ 782 has held that undue restriction on keeping and bearing arms ought not be� based on unfounded fear. Licence is normally to be granted unless there is something adverse.
105. It is in this context and in the light of discussion above, the correctness of the orders impugned in this writ petition need be considered.
106. Licensing and appellate authority both have held that the applicant could not show as to what is the special threat which may justify a firearm licence for their personal safety and security. Learned Chief Standing Counsel could not show any provision under the Act which contemplates that firearm licence can be granted only when a person has special kind of threat perception to his life. The term "special threat" is extremely vague and even the learned Chief Standing Counsel could not explain it. This Court required him to tell as to how a person can predict when, where and at what time and from whom his person and property can be or shall be put in peril. Such a forecast is almost impossible. If one would have known a definite threat and plan, as a prudent citizen, he would immediately approach the police making a complaint and thereafter it shall be responsibility of the State to take appropriate action so that such person or planner may not achieve his vicious goal by committing crime but when the firearm licence is required for personal safety in general, the individual's perception of threat to their life and property has to be considered taking into account general law and order situation in the area, nature of his job and various other factors. It is only a kind of keeping oneself in the State of readiness in case such an exigency of assault etc. on a person and property arises and not otherwise.
107. I specifically required the learned Chief Standing Counsel to explain as to what particulars an applicant must disclose along with his reason of personal safety and security so as to constitute a "good reason" but he failed to give even a single instance in this regard. Very fairly he said that even the concerned officers were not able to tell anything.
108. In my view, the phrase "good reasons" cannot be re-termed to make it "extraordinary reasons", "very good reasons", "outstanding reasons", "extra reasons", etc. When legislature has used certain words, the same must be read, interpreted and applied in their ordinary sense unless such an application renders the provision ambiguous, impracticable or results in wholly unwarranted consequences. It is not the case of respondents that the term "good reason", if read in its ordinary meaning any of such thing is likely to occur. Therefore, the circumstances which would be covered by phrase "good reasons", cannot be excluded in any manner by restricting the aforesaid phrase to a different kind of situation, and that too, either on volition and arbitrary discretion of individual officials or in the hands of Government by issuing an executive order.
109. At this stage, learned Chief Standing Counsel instead of replying to the specific query of the Court directly referred the Government Circulars/orders issued from time to time, filed as Anenxure CA-1 CA-4 to counter affidavit sworn by Sri Hrishikesh Bhaskar Yashod, presently, District Magistrate, Deoria, to contend that it is in the light of guidelines provided therein that licences are not granted to possess or carry a firearm licence unless the licensing authority finds with certainty an imminent apprehension of danger to one's life and liberty.
110. My reading of the above Government Orders (hereinafter referred to as "G.O.") of the Central and State Government shows something different than what has been contended. The earliest G.O. is dated 03.06.1998 issued by the Secretary, Home Department, Government of U.P. to all Commissioners and District Magistrates in the State of U.P. It lays down guidelines as to within what time proceedings shall be completed whenever an application is given under Section 13 for grant of firearm licence. A police report is required to be submitted maximum within twenty days. The aforesaid period can be reduced by District Magistrates in their discretion. The police is required to collect all information as provided in Schedule III of the Arms Rules read with Rule 51. It shall also find out whether the applicant has a criminal history or not. The police station in charge shall submit report through Senior Superintendent of Police or Circle Officer to the District Magistrate. In this regard, necessary instructions shall be issued by the Senior Superintendent of Police/Superintendent of Police and the District Magistrate shall be apprised of the same within a week and till no such instructions are received from the SSP/SP; the Station In Charge shall submit report through seniormost police officer to the District Magistrate. The applications sent to Tehsil from the office of District Magistrate shall proceed through Sub Divisional Magistrate who will also call for a report from Naib Tehsildar and submit his recommendation to District Magistrate latest within one month. Reports by police and Tehsil shall not be forwarded through special messengers. Firearm applications shall be disposed of as far as possible within three months. Members of Legislative Assembly/ Council and Members of Parliament who have no criminal record and have faced an incident of heinous crime and the Government officials, who require firearm licence for discharge of their duties shall be issued licence by licensing authority after following the procedure prescribed in the statute. Persons engaged in large scale business and apprehend their kidnapping, loot, robbery etc., but possess no firearm licence, shall be considered for grant of firearm licence as per the Government policy. Generally, suitability of the applicants shall be examined after obtaining certificates of income tax and trade tax or other documents from them and after assessing threat perception to them and also the factum that they have no other weapon or method or source of security for protection of their lives. Applications founded on succession due to old age of licence holder shall be examined and appropriate order shall be passed within one month after considering the eligibility of the successor/heir applicant.
111. Evidently, this G.O. has not not been complied by the respondents in passing the impugned orders, ex facie, for the reason that while three months' period is prescribed for disposal of firearm application, but in the present case, the licensing authority has taken twelve years period in one case and more than two years' period in the other in taking decision without giving any justification for such extraordinary delay.
112. The second G.O. dated 05.06.1999 of the State Government only draws attention of District Magistrates to Section 13(3)(b) of Act 1959 stating that licensing authority shall ensure that firearm licence is not issued to such persons who do not actually require it. The licence has to be issued only when the licensing authority is satisfied that the applicant has a "good reason" for obtaining the same. It also says that after declaration of election, no new licence shall be issued till the election process is complete.
113. Then comes Government of India's Order dated 18/20.03.2009, which is said to have been circulated by the State Government vide Secretary, Home's letter dated 19.05.2009. The said G.O. also says that firearm licence should be granted to those persons who are found to have a genuine need therefor. Para 3 (i) to (iii) requires that application shall be considered only when it complies with requisite formalities under the statute, i.e., the Act and Rules framed thereunder.
114. However, para 3 (iii)(b) of G.O. (Central) dated 18/20.03.2009 requires the licensing authority not to invoke sub-section (2A) of Section 13 since it is under review. This part of direction is wholly misconceived inasmuch as, so long as the statute is actually not amended, a licensing authority cannot be required to ignore any part thereof on the pretext of 'review' of the statute. Executive orders cannot compel a statutory authority from considering relevant provisions of statute and to that extent the direction in an executive order, would be wholly without jurisdiction and authority.
115. Even otherwise, mere factum of mention of "under review" in a G.O. would not result in amendment of statute itself unless actual amendment is made.
116. Para 3 (v) of the said G.O. says, where the application is given for grant of licence on threat perception basis, the licensing authority may ensure that there is in fact, "imminent and grave threat" to the life of the applicant. In my view, this applies to a case where an application is submitted by an individual giving reason of threat perception for applying firearm licence. In such a case, he must give details of threat perception. But where the licence is sought on the ground of "personal safety and security", the situation would be different and this part of Central G.O. dated 18/20.03.2009 would have no application at all. There is no other direction in the remaining part of G.O. which may throw any light on the question, up for consideration in the judgment, and rest of the G.O. is of no assistance to the respondents.
117. Then comes the last G.O. (Central) dated 31.3.2010 which contains certain guidelines on various aspects of grant of firearm licence for acquisition/ possession of arms. It is said to have been issued in view to curb proliferation of arms in the country and in supersession of all existing instructions. Para (i) says that Government of India has decided that application for grant of prohibited bore weapons may be considered for the following category of persons:
a) Those persons who face grave and imminent threat to their lives by mere reason of being residents of a geographical area (or areas) where terrorists are most active and/or are held to be prime 'targets' in the eyes of terrorists and/or are known to be inimical to the aims and objects of the terrorists and as such face danger to their lives.
b) Those Government officials who by virtue of the office occupied by them and/or the nature of duties performed by them and/or in due discharge of their official duty have made themselves targets in the eyes of terrorists and are vulnerable to terrorist attack.
c) Those MPs and MLAs including non-officials/private persons who by virtue of having been closely and/ or actively associated with anti-terrorist programmes and policies of the Government or by mere reason of their holding views, political or otherwise, not to the liking of the terrorists, have rendered themselves open to attack by the terrorists.
d) The family members/kith and kin of those who by the very nature of their duties or performance (past or present) or positions occupied in the Government (past or present) or even otherwise for known/unknown reasons have been rendered vulnerable and have come to be regarded by the terrorists as fit targets for elimination."
118. Obviously, the above direction is for grant of "Prohibited Bore Weapons" to certain category of applicants. This Court is not concerned with this part of the G.O. in the present set of cases. Here we are concerned with "Non Prohibited Bore Weapons" for which a licence is required. Here also the G.O. says that a person who may face or perceive grave and imminent threat to his life, may be considered for grant of Non Prohibited Bore arms licence after obtaining assessment of threat faced by the persons, from police authorities. Here again it refers to such cases where an individual specifically complains about apprehension of grave and imminent threat to his life but it does not talk of a situation where somebody has applied only for safety and security from an unanticipated, likely threat or assault to his life and property at any point of time for various reasons including general crime conditions of the area concerned. There is no other part of the above G.O. referred by the learned Chief Standing Counsel which may have application to the cases in hand.
119. Thus at the pain of repetition, I may say that my reading of the aforesaid Government Orders shows that if an applicant of firearm licence is able to show the existence of factors as enumerated above, he must be granted a firearm licence and should not be denied unless there are other relevant factors regarding his conduct etc. The aforesaid Government Orders however, nowhere prohibit that in cases which are otherwise within the domain of Section 13 of the Act and fulfil all requisites therein, still they shall not be granted licence unless what has been stated in the aforesaid Government Order(s) is found to exist. I am constrained to observe further that any other view of the matter would render the aforesaid Government Orders ultra vires of Act 1959 for the reason that even the Government by issuing an executive order cannot add or diminish the power of licensing authority which has to be exercised in accordance with Sections 13 and 14 of the Act 1959. Moreover, there is no provision, at least, none has been shown to this Court under Act 1959 which empowers the Government to issue such an executive order so as to control statutory consideration of licensing authority. The efficacy of a statute cannot be expanded or restricted by an executive order.
120. Now there is a last submission. Learned Chief Standing Counsel apprehended that grant of firearm licence on the mere ground of personal safety and security, if allowed, may flood the entire society with firearms causing great danger to the very society itself. He says that hundreds of applications are received in every district every month for grant of firearm licence and almost all these applications contain one and the same reason, i.e., personal safety and security. He contended that the State has to take care of general law and order and in furtherance thereof grant of firearm licence on mere asking would be against the interest of entire society besides endangering the law and order condition in the State.
121. At first flush, the argument in the nature of apprehending a threat to very sustenance of society appears to be quite attractive, but on deeper consideration, I find it shallow and more in the nature of a threat than substance. It pre-supposes as if everybody is very eager to obtain firearm licence. Though there is no restriction but the ground reality cannot be ignored. If I confine myself to the ground level conditions of State of U.P., population is almost 20 crores whereagainst less than 2.5 lacs of cops are available to look after safety and security of entire State. More than 5% out of this strength is already deployed in the personal service of the class called VIPs who are provided external/extra security in the form of Shadow, Gunner, Escorts, etc. People's representatives no sooner they are elected becomes so vulnerable to the society that immediately they demand and are provided extra security from their own people who have elected them. The strength of Indian Administrative Service and Indian Police Service of U.P. Cadre is more than 1500. Almost every member of these services is provided a personal security officer. Similarly there are officials including Judicial Officers having extra/external security. In majority of these cases there is no study, no investigation, no inquiry about any perception of threat level justifying extra security. Many a times it is provided for political or other considerations. In very rare cases threat perceptions from criminals, unsocial elements, terrorists etc. actually exist where extra security would be justified but for majority of people belonging to this category, it has become more a status symbol than a mode of safety and security. Law and order situation in the State cannot boast good or satisfactory. The number of crimes committed but remained unearthed are much large in number than those which are investigated and worked out. The control of unauthorised and illicit arms is almost negligible in the State. In the recent past even protectors have proved to be serious offenders and violators of law. A common man has all perceptions of fear and fright to his person and property. The apprehension about safety cannot be said unfounded in general. However, that itself may or may not justify grant of firearm licence to all such persons who may apply but one thing is very clear that a large majority of the State is living in such a pathetic financial conditions that they find it difficult to meet two square meals. The desire for possessing a firearm licence or purchasing a firearm for these persons is a daydream. They cannot even think of it.
122. The above observations made by this Court are fortified from what has been said by a Division Bench of this Court in Gayur Hasan Vs. State of U.P. and others, 2008(10) ADJ 575 decided on 2011.2008 in paragraphs no.14, 15 and 16 which which would be useful to reproduce as under:
"14. Before parting, however, we find it obligatory on our part to record our dissatisfaction and anguish on the system of providing gunners/security personnels to individuals in the manner it has been implemented while the entire State is reeling under a very difficult law and order situation, not of ordinary kind but of high risk due to large scale terrorist and other activists movement and operations. The State is under a constitutional obligation to provide adequate security to each and every individual resident irrespective of his caste, creed, religion, status, position etc. Life of the most ordinary person is equally important as that of a person holding a high position in the State. We cannot treat ordinary people like ginny pigs whose death only results in number but it is a loss to the nation. Every individual, howsoever ordinary man he is, is an asset to the State. It is the most pious and solemn obligation of the State to take all possible steps to protect him. The State must inspire and instil full confidence in every individual that his life and liberty is secured from all kinds of scrupulous activities and he can enjoy his constitutional right enshrined under Article 21 without any extra risk, fear etc. The population of the State of U.P. when is already exceeding 20 crores, the number of people employed in security forces namely Police Force is extremely inadequate. As we are informed the entire police force in the State of U.P. has less than 2 lacs of people. Meaning thereby on every 1000 and more persons only one police personnel is available to take care of their security. In such circumstances, if the State withdraw a high number of security personnels for the purpose of providing individual security cover that would be like putting the common and ordinary man at enhanced risk to his life and liberty at the cost of individual security. This can neither be appreciated nor is consistent with the constitutional scheme which treats every individual equal so far as the question of his life and liberty is concerned. Even a little Indian, as said by Hon'ble Krishna Iyer, J. is entitled to be treated at par with the mightiest one. The individual security may be necessary in a very few exceptional cases but it cannot be at the cost of collective security of the common man.
15. Moreover, irrespective of any reason whatsoever, if a person has indulged in criminal activities and thereby has enhanced perception of threat to his life and liberty, he himself is responsible for the same, and cannot look to the State to provide him separate security at the cost of common man when he himself is responsible for enhancing threat perception due to his anti-social activities. Whatever position an individual occupy in our democratic system, if he is engaged in anti social criminal activities, in our view, there is no justification to provide him security at the cost of tax payer society and common people of the State. His criminal activities are against the society. It is inconceivable that such a person shall be provided extra security at individual level to ensure that such activities at his level may continue with impunity. This in fact amounts to an encouragement to anti-social criminal elements to go ahead with such criminal activities and also enjoy an edge over his counter parts by obtaining State's security cover at the cost of common man.
16. Similarly, the mere fact that a person is elected to hold an office is not sufficient to provide him individual security since he is a representative of people and he cannot be said to have threat perception to his life from those people who have elected him unless there is something more than that. Spending very huge amount for maintaining individual security of a so called few privileged persons is an unnecessary and unwarranted burden on the public exchequer which ultimately falls on the shoulder of tax payers and consume a hefty sum from the public exchequer which otherwise could have been utilised for betterment of the security forces by providing them sophisticated arms, ammunitions and other articles of their use so that they may tackle with the threat to the State in the hands of anti-social and anti-national elements including terrorist in a more effective manner which would also generate better confidence in the people qua their security perception and would also create a better atmosphere of peace."
123. Though the respondents have advanced arguments without any factual pleadings on this aspect but the Court can take judicial cognizance of record already published by various authorities of the Governments State and Central, both. As per the census 2011 population in the State of U.P. was 19.95 crores. This Court has also noticed financial conditions of the people in the State of U.P. in 2009 and 2010 in its judgment dated 28.5.2012 in Writ C No. 19070 of 2012, Dharmendra Singh Vs. State of U.P. and others. There were 106.7 Lacs Below Poverty Line (for short "BPL") families as on 1.3.2009, 40.045 Lacs Antyodaya Families and 3.25 crores Above Poverty Line (for short "APL") families. Basis for division of poverty line is income of Rs.25,546.60 per family per annum in urban areas and Rs. 19,884/- per family per annum in rural areas. This is the limit to determine whether a family is "BPL" or "APL". Moreover, in the category of Antyodaya, poorest among the poor residing under poverty line comes.
124. If on an average four persons are taken to constitute a "family", about 4.268 crores people would come in the category of BPL; about 1.619 crores will come in the category of Antyodaya and 13 crores of people would come in the category of APL.
125. The above income details of BPL families brings per day per person income to less than Rs. 18/-. More than 5 crores of people when are struggling to meet their two square meals, to expect these people to apply for firearm licence would be nothing but a mockery of their poverty. This takes care of more than 25% of the total population. Rest 13 crores and odd people who are termed as 'APL' but in fact, they also come mostly in the category of poorest section of Society whose income is just above those who are under Poverty Line. They also cannot be expected to go for purchasing firearm licence ignoring their basic requirements for their survival. The argument advanced by learned Chief Standing Counsel is a hoax and false cry and one made in desperation, having no foundation or substance as a matter of fact.
126. The Court also cannot ignore the fact that the licensing authority did not fail in harassing the petitioner-applicants by not taking a decision on their application and keeping the matter pending for unreasonable length of time. In the present case, one of the petitioners applied in 1999 and the order was passed in 2011. No justification whatsoever has come, why for almost 12 years the application for grant of firearm licence and that too, on the ground of personal safety and security, was kept pending and undecided for more than a decade. In another matter it has remained pending for almost two years. Here also no explanation came forward for extraordinary delay.
127. In the fact situation as above, contention of learned counsel for the petitioners that respondents have found out a ground to reject petitioners' applications on getting annoyed of petitioners daring to approach this Court with complaint of inaction on their part, whereupon this Court mandated to pass final order within a specified time, deserves to be accepted. The licensing authority in fact has tried to penalize the petitioners by rejecting their applications on fanciful grounds. I find force in the above submission but refrain from recording a final opinion on this aspect since the concerned officers have not been impleaded in person.
128. Now comes the question of relief. Can a Court's judgment, mere quashing the impugned orders, would do complete justice and balance the scales of justice or these cases justify something more. The answer I find in a recent verdict of Apex Court, though it relates to Article 21 of the Constitution but to a case involving the question of individual rights of safety and security, the principle thereof can be extended.
129. In Delhi Jal Board Vs. National Campaign for Dignity and Rights of Sewerage and Allied Workers and Ors., JT 2011(8) SC 232 the Court said that Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of removing executives illegal orders/action only and nothing more than that. The Court further said that one of the telling ways in which violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the Petitioners' rights. It may have recourse against those officers.
130. For the reasons aforesaid, in my view, both the writ petitions deserve to be allowed with exemplary costs.
131. The writ petitions are allowed. Impugned orders dated 14.11.2011 and 18.7.2011 passed by respondents no.2 and 3 respectively in the matter of Dinesh Kumar Pandey, petitioner of writ petition no.(C) 16565 of 2012 and Rajesh Pandey, petitioner of writ petition no.(C) 15883 of 2012 are hereby quashed.
132. The licensing authority is directed to consider the petitioners' application for grant of firearm licence in the light of observations made above and in accordance with law. It shall pass fresh order within two months from the date of presentation of a certified copy of this order before him.
133. The petitioners shall be entitled to costs which I quantify to Rs. One Lac per set of writ petition, which shall be paid by the respondents to the petitioner within three months from the date of production of a certified copy of this order to them. However, the respondent State of U.P. shall have liberty to recover the said amount from the official concerned who are responsible for creating such situation, after making such inquiry as permissible under law.
Order Date :- 25.7.2012 Akn/KA