Orissa High Court
Haridhan Dey vs Additional District Magistrate on 4 December, 2023
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.8476 of 2015
Haridhan Dey ...... Petitioner
-Versus-
Additional District Magistrate, ...... Opposite Parties
Balasore and others
For Petitioner : Mr. A. A. Mishra, Advocate
For Opp. Parties : Mr. S.N. Pattnaik, AGA
(for O.P. Nos.1 & 2)
Mr. Debasish Samal, Advocate
(for O.P. No.3)
-----
CORAM: JUSTICE SANJAY KUMAR MISHRA
________________________________________________________________
Date of Judgment: 04.12.2023
________________________________________________________________
S.K. Mishra, J.
1. This Writ Petition has been preferred challenging the Order dated 09.07.2014 passed by the Collector & District Magistrate, Balasore, vide which the Arms Licence bearing No.3275/BLS issued in favour of Petitioner-Haridhan Dey was suspended till finalisation of civil case/criminal dispute among the brothers, which are subjudice before various Courts. It was also ordered to keep the Gun (Rifle bearing No. L 16994 by BSA) W.P.(C) No.8476 of 2015 Page 1 of 22 in safe custody either at Police Station Level or District Armoury Level. The said order was passed invoking Section 17(3)(b) read with Section 21 of Arms Act, 1959, shortly, "the Act, 1959".
2. The brief background facts, which led to filing of the Writ Petition, are that the Petitioner and the Opposite Party No.3 are brothers, being sons of Late Suresh Chandra Dey, who died in the year 2010 leaving behind four sons and three daughters. The Petitioner is running a hotel business so also the other brother, namely, Niranjan Dey. Mr. Manoranjan Dey, who is one of the sons of late Suresh Chandra Dey, is in the profession of TV repairing works and the Opposite Party No.3-Satyaranjan is a lawyer by profession.
It is alleged that Petitioner's brother-Opposite Party No.3 is influential and powerful. Under the cover of advocacy, he makes people believe that he is very powerful. His say has a value before the officials too including the Addl. District Magistrate & Inspector In-Charge, who are Opposite Party Nos. 1 and 2 respectively. Taking advantage of the position, the Opposite Party No.3 threatens the villagers and wishes to get his work done. W.P.(C) No.8476 of 2015 Page 2 of 22
It is further case of the Petitioner that some disputes arose between him and his brother (Opposite Party No.3) regarding properties left by their father Late Suresh Chandra Dey, for which his other brother, namely, Satyaranjan Dey, has filed a Civil Suit and now the matter is subjudice, besides before this Court in W.P.(C) No.15821 of 2010.
The case of the Petitioner is that there being a threat to his life and property, he applied for Gun licence before the competent Authority to possess a Gun. The Additional District Magistrate, Balasore, by Order dated 11.02.1995 in I.A. No.2 of 1995, accorded permission to the Petitioner to purchase a Gun of .22 bore. Being so accorded, the Petitioner purchased the Gun from one Brajamohan Sahu, a licensee. The same was inspected by the Officer In-Charge of the Judicial Section and Executive Magistrate on 15.10.1998. Thereafter, time to time, the licence was being renewed. Finally, by Order dated 27.10.2013, arms licence to possess the .22 bore rifle was renewed up to 17.05.2016. It is further case of the Petitioner that earlier he was possessing another rifle of .12 bore, which he sold later on. At present, he owns only one rifle.
W.P.(C) No.8476 of 2015 Page 3 of 22
3. When the matter was stood thus, the Petitioner received a letter from the Sub-Inspector of Police to surrender the rifle on 17.08.2013 as the Municipal Election was scheduled to be held on 12/13 of September, 2013. In obedience to such requisition, the Petitioner deposited the Gun/rifle with the Sub- Inspector on 31.08.2013.
Soon after the election was over, the Petitioner approached the Opposite Party No.2 to return the Gun, but on some plea or other, the matter was postponed. Thereafter, the Petitioner received a notice to Show-Cause dated 12.11.2013 from the Additional District Magistrate as to why the licence to possess the Gun shall not be cancelled. Then, the Petitioner came to know that his brother (present Opposite Party No.3) lodged a complaint before the Additional District Magistrate on 05.09.2013 against him on frivolous grounds, based on which the said Show-Cause Notice has been issued to him.
In the said Show-Cause Notice, there was a mention that the Petitioner is involved in a Sessions Case being 52 of 2013 and Civil Suit No.282 of 2010. That apart, there was an allegation W.P.(C) No.8476 of 2015 Page 4 of 22 that the Petitioner and his brother, namely, Manoranjan Dey have threatened to kill the Opposite Party No.3.
On being so noticed, the Petitioner submitted a detailed reply on 31.01.2014 delineating therein his stand to return the said Gun so also continuance of licence in his favour issued by the Authority concerned. Thereafter, the Petitioner wrote to the concerned Inspector In-Charge to return the Gun for cleaning, as it requires so once in every 6 months. Unfortunately, the Inspector In-Charge refused to receive the letter. Thereafter, without any further enquiry, the Collector and District Magistrate, Balasore, issued the impugned letter dated 09.07.2014 and ordered that the Gun in question be kept in custody of police, after suspending the licence. Since the said letter dated 09.07.2014 disclosed that the Collector and District Magistrate, Balasore, while issuing notice, relied upon the report of the Inspector In-Charge, Town Police Station, Balasore, the Petitioner made an application under the Right to Information Act, 2005 to know the contents of the said report, as the same was submitted behind his back.
W.P.(C) No.8476 of 2015 Page 5 of 22
The said report being supplied to him vide letter dated 21.03.2015 by the Public Information Officer, Collectorate, Balasore, it came to the notice of the Petitioner that it has been disclosed in the said report that there is likely hood of breach of peace in view of pendency of P.S. Case No.218 of 2010 and Civil Suit No.282 of 2010. But, no overt act or use of the Gun of the Petitioner was mentioned in the said report. As a consequence of the said report, the Inspector In-Charge seized the Gun and kept the same in his custody.
4. It is further case of the Petitioner that the decision of the authority to suspend his licence so also seized the Gun is bad in the eye of law as the same was taken without considering the submissions made by him, in response to the Show-Cause Notice. Accordingly, a prayer has been made to quash the Order dated 09.07.2014, as at Annexure-5, and direct the Opposite Party No.2 to return the Gun to the Petitioner.
5. Since there is a pleading in the body of the Writ Petition as to pendency of W.P.(C) No.15821 of 2010 before this Court, without disclosing therein as to what is the subject matter of challenge in the Writ Petition, in order to ascertain the same, a W.P.(C) No.8476 of 2015 Page 6 of 22 search being made through the official website of this Court, it is ascertained that the said Writ Petition i.e. 15821 of 2010, has been disposed of since 25.08.2016. The Writ Petition is pertaining to issue regarding appointment of receiver in F.A.O. Nos.109 and 115 of 2010, pending in the Court of District Judge, Balasore- Bhadrak and the same has been disposed of with the following observation/direction:
" 25.08.2016 The petitioner in this writ application seeks quashment of the common order dated 09.09.2010 passed by the learned District Judge, Balasore- Bhadrak in FAO No. 109 and 115 of 2010 in the matter of appointment of receiver.
Heard learned counsel for the parties. Perused the order.
It is submitted by the learned counsel for the parties that despite the order of the learned District Judge making an arrangement in so far as running of the shop of Mahi Mistana Bhandara is concerned, the same has not been carried out in view of the interim order of this Court passed on 17.09.2010 maintaining status quo with regard to the possession of the said disputed shop room.
The suit is of the year 2010 and that is also still pending when by now there has been lapse of about six years by now.W.P.(C) No.8476 of 2015 Page 7 of 22
In the above state of affairs that has been prevailing since the time of filing of the suit as on today and in view of the submission of the learned counsel for the parties, the present writ application is disposed of with a direction to the trial court to complete the trial within a period of eight month from the date of communication of the order or production of its certified copy whichever is earlier with continuance of the order of status quo, till then keeping it open for the parties to move for any interim arrangement with regard to the said shop room thereafter in case situation so demands.
The writ application is accordingly disposed of."
6. The Inspector In-Charge, who has been arrayed as Opposite Party No.2 to this Writ Petition, has filed a Counter delineating therein that the Petitioner, who was holding a fire arm vide license No.3275 dated 07.05.1995 issued by the Arms Magistrate, Balasore to possess one .22 bore rifle No.L-16994 made-BSA, was authorized to keep 25 to 100 quantity of ammunitions, being a permanent inhabitant of village Damodarpur.
It has further been stated that the Petitioner is running a Hotel-cum-Sweets Stall at Motiganj Bazar of Balasore town. Following a family dispute between the Petitioner and his brother Satya Ranjan Dey, a criminal case was registered vide Balasore W.P.(C) No.8476 of 2015 Page 8 of 22 Town P.S. Case No.218 dated 17.09.2010 under Sections 294, 323, 324, 379, 506 and 307/34 of the IPC on the report of Satya Ranjan Dey. The said case was the outcome of the civil dispute amongst the brothers regarding partition of paternal property, for which a Civil Suit vide C.S. No.282 of 2010 is pending before the Court of Civil Judge. After due investigation, the above criminal case ended in charge sheet against the Petitioner and his brother Manoranjan Dey. The criminal case as well as Civil Suit are pending before the concerned Courts.
That apart, reiterating the facts stated in the Writ Petition so also denying the allegations made therein, it has further been stated in the Counter that the Petitioner had never approached the Police ventilating his grievance for threat to his life or any apprehension to the said effect. A stand has also been taken in the Counter that while Urban Body Election of Balasore Municipal Council was processed, the A.D.M.-Cum-Arms Magistrate, Balasore, vide letter dated 12.09.2013 asked the IIC, Town PS, Balasore to conduct enquiry and submit a factual report. In terms of the said direction of the Licensing Authority, the IIC, Town P.S., conducted an enquiry and submitted a report vide letter dated 19.10.2013. Based on the Enquiry Report, the W.P.(C) No.8476 of 2015 Page 9 of 22 A.D.M.-Cum-Arms Magistrate, Balasore, vide letter dated 12.11.2013 directed the IIC to seize the arms of the Petitioner and keep it in police custody. Upon direction Order dated 09.07.2014 of the Collector & District Magistrate, Balasore, the IIC, Town P.S. ensured the deposit of said rifle of the Petitioner in the District Armoury for safe custody in terms of Section 17(3)(b) read with Section 21 of the Arms Act, 1959.
7. Though the private Opposite Party No.3, being noticed, has already rendered appearance in this case, no Counter has been filed till date by the Opposite Party No.3. However, Mr. Samal, learned Counsel for the Opposite Party No.3, hands up the photocopy of the judgment dated 04.08.2016 passed in Sessions Trial No.52/261 of 2013-2011 by the 2nd Additional Sessions Judge, Balasore and submits, the present Petitioner, who is one of the accused persons in the said trial, has been convicted and being aggrieved by the said judgment, the Petitioner has preferred Criminal Appeal No.414 of 2016, which is now pending for adjudication.
That apart, Mr. Samal submits, the Civil Suit as to apportion of the immovable property of Late Suresh Chandra Dey W.P.(C) No.8476 of 2015 Page 10 of 22 being decreed, an Appeal is pending against the judgment and decree before the Appellate Court. He further submits, as per the latest instruction received from his client, still the Petitioner is terrorising his client. Accordingly, Mr. Samal vehemently opposes the prayer made in the Writ Petition to direct the IIC to return the Gun.
8. In view of the pleadings so also submission made by the learned Counsel for the Parties, this Court thinks it appropriate to extract below the contents of the impugned order dated 09.07.2014.
" After careful consideration of allegation petition filed by Shri Satyaranjan Dey son of Late Suresh Chandra Dey of Vill: Damodarpur, P.S. Town, Dist. Balasore and gone through the enquiry report of I.I.C. Town Police Station, Balasore along with show cause reply and application dated 31.01.2014 of Shri Haridhan Dey, the Arms Licence bearing No.3275/BLS issued in favour of Shri Haridhan Dey is hereby suspended till finalization of the Court Cases due to Civil case/Criminal dispute among the brothers which is subjudice before the Hon'ble Court and gun (Refle bearing No. L 16994 by BSA) which has been kept in the Town Police Station, Balasore are to be finally kept in safe custody either at Police Station Level or District Armoury Level as per W.P.(C) No.8476 of 2015 Page 11 of 22 Section 17(3)(b) read with Section 21 of Arms Act, 1959.
This Order will take immediate effect."
(Emphasis supplied)
9. Admittedly, Section 18 of the Arms Act, 1959 provides, any person aggrieved by an order of the licensing Authority refusing to grant a licence or varying the conditions of a licence or by an order of the licensing Authority or the Authority to whom the licensing Authority is subordinate, suspending or revoking a licence may prefer an appeal against that order to such authority and within such period as may be prescribed. The provisions under Sections 17, 18 and 21 of the Arms Act, 1959, being relevant to the present lis, are extracted below:
" 17. Variation, suspension and revocation of licences.―(1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the licence-holder by notice in writing to deliver-up the licence to it within such time as may specified in the notice.
(2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed.W.P.(C) No.8476 of 2015 Page 12 of 22
(3) The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence,―
(a) if the licensing authority is satisfied that the holder of the licence is prohibited by this Act or by any other law for the time being in force, from acquiring, having in his possession or carrying any arms or ammunition, or is of unsound mind, or is for any reason unfit for a licence under this Act; or
(b) if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or
(c) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for it;
or
(d) if any of the conditions of the licence has been contravened; or
(e) if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver-up the licence.
(4) The licensing authority may also revoke a licence on the application of the holder thereof.
(5) Where the licensing authority makes an order varying a licence under sub-section (1) or an order suspending or revoking a licence under sub-section (3), it shall record in writing the reasons therefor and furnish to the holder of the licence on demand a brief statement of the same unless in any case W.P.(C) No.8476 of 2015 Page 13 of 22 the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.
(6) The authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority.
(7) A court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence:
Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void.
(8) An order of suspension or revocation under sub-
section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision.
(9) The Central Government may, by order in the Official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licences granted under this Act throughout India or any part thereof.
(10) On the suspension or revocation of a licence under this section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other W.P.(C) No.8476 of 2015 Page 14 of 22 authority as may be specified in this behalf in the order of suspension or revocation.
21. Deposit of arms, etc., on possession ceasing to be lawful.―(1) Any person having in his possession any arms or ammunition the possession whereof has, in consequence of the expiration of the duration of a licence or of the suspension or revocation of a licence or by the issue of a notification under section 4 or by any reason whatever, ceased to be lawful, shall without unnecessary delay deposit the same either with the officer in charge of the nearest police station or subject to such conditions as may be prescribed, with a licensed dealer or where such person is a member of the armed forces of the Union, in a unit armoury.
Explanation.―In this sub-section "unit armoury"
includes an armoury in a ship or establishment of the Indian Navy.
(2) Where arms or ammunition have or has been deposited under sub-section (1), the depositor or in the case of his death, his legal representative, shall, at any time before the expiry of such period as may be prescribed, be entitled--
(a) to receive back anything so deposited on his becoming entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, or
(b) to dispose, or authorise the disposal, of anything so deposited by sale or otherwise to any person entitled by virtue of this Act or any other law for the time being in force to have, or not prohibited by this Act or such W.P.(C) No.8476 of 2015 Page 15 of 22 other law from having, the same in his possession and to receive the proceeds of any such disposal:
Provided that nothing in this sub-section shall be deemed to authorise the return or disposal of anything of which confiscation has been directed under section
32.
(3) All things deposited and not received back or disposed of under sub-section (2) within the period therein referred to shall be forfeited to Government by order of the district magistrate:
Provided that in the case of suspension of a licence no such forfeiture shall be ordered in respect of a thing covered by the licence during the period of suspension.
(4) Before making an order under sub-section (3) the district magistrate shall, by notice in writing to be served upon the depositor or in the case of his death, upon his legal representative, in the prescribed manner, require him to show cause within thirty days from the service of the notice why the things specified in the notice should not be forfeited.
(5) After considering the cause, if any, shown by the depositor or, as the case may be, his legal representative, the district magistrate shall pass such order as he thinks fit.
(6) The Government may at any time return to the depositor or his legal representative things forfeited to it or the proceeds of disposal thereof wholly or in part.
18. Appeals.―(1) Any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an order of W.P.(C) No.8476 of 2015 Page 16 of 22 the licensing authority or the authority to whom the licensing authority is subordinate, suspending or revoking a licence may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed:
Provided that no appeal shall lie against any order made by, or under the direction of, the Government.
(2) No appeal shall be admitted if it is preferred after the expiry of the period prescribed therefor:
Provided that an appeal may be admitted after the expiry of the period prescribed therefor if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period.
(3) The period prescribed for an appeal shall be computed in accordance with the provisions of the Indian Limitation Act, 1908 (9 of 1908), with respect to the computation of periods of limitation thereunder.
(4) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a brief statement of the reasons for the order appealed against where such statement has been furnished to the appellant and by such fee as may be prescribed.
(5) In disposing of an appeal the appellate authority shall follow such procedure as may be prescribed:
Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of being heard.W.P.(C) No.8476 of 2015 Page 17 of 22
(6) The order appealed against shall, unless the appellate authority conditionally or unconditionally directs otherwise, be in force pending the disposal of the appeal against such order.
(7) Every order of the appellate authority confirming, modifying or reversing the order appealed against shall be final."
(Emphasis supplied)
10. Similarly, Rules 107 and 105 of the Arms Rules, 2016, which deal with provisions of Appeal and Appellate Authority, are extracted below:
"107. Appeal against order of licensing authority or an authority suspending or revoking a licence under sub-section (6) of section 17 of the Act.- In any case, in which an authority issues an order -
(i) Refusing to grant or renew a license or to give a "no objection certificate" for such grant or renewal; or
(ii) varying any condition of a license or suspending or revoking a license under sub-section (1), or sub-
section (3) or sub-section (6) of section 17, the person aggrieved by such order may, within thirty days from the date of issue of the order, any subject to the proviso to sub-section (2) of section 18, prefer an appeal against that order, to be concerned appellate authority.
"105. Appellate authorities.- (1) the appellate authority to whom an appeal shall lie against an order of the licensing or other authority specified in column W.P.(C) No.8476 of 2015 Page 18 of 22 (1) of the table below, shall be that specified in the corresponding entry in column (2) thereof:-
TABLE Authority Appellate Authority (1) (2)
(a) District Magistrate Commissioner of the Division or any other equivalent post or in any state in which there is no post of Commissioner of a Division, the State Government (or any officer authorized by the State Government.
(b) Commissioner of Police State Government
(c) Officer empowered by the Administrator/Lt. Governor of the Central Government in a Union Union Territory Territory
(d) Head of Indian Mission Central Government
(e) Other Specially empowered Authority that empowered officer (2) For the purpose of sub-section (6) of section 17, the licensing authority shall be deemed to be subordinate to the appellate authority.
(3) All licensing authorities shall work under the direction and control of their respective appellate authorities."
(Emphasis supplied)
11. As is revealed from the impugned order dated 09.07.2014, as at Annexure-5, the Collector and District Magistrate, being the Licensing Authority, suspended the licence of the Petitioner till finalization of the Court cases after taking W.P.(C) No.8476 of 2015 Page 19 of 22 into consideration the Enquiry Report submitted by the Inspector In-Charge, Town Police Station, Balasore, so also Show Cause Reply and application dated 31.01.2014 of the Petitioner. Hence, this Court is of the view the stand of the Petitioner that before passing of the impugned order, the Authority concerned did not take into consideration his Show Cause Reply is incorrect.
That apart, Sub-Section (5) of Section 17 of the Act, 1959 mandates that the Licensing Authority, while suspending or revoking a licence under Sub-Section (3), shall record in writing the reasons there for and furnish to the holder of the licence on demand, a brief statement of the same, unless the Licensing Authority is of the opinion that it will not be in the public interest to furnish such statement. As is revealed from the impugned order of suspend, as has been extracted above, the Licensing Authority has recorded the reasons to do so in terms of Sub- Section (5) of Section 17 of the Act, 1959. Further, though it is obligatory on the part of the Licensing Authority to furnish a brief statement of the reasons to do so, the same is subject to the licensee demands so and furnishing of brief statement is not automatic. It is not the case of the Petitioner that he asked for a brief statement of the reasons to suspend the Gun licence and it W.P.(C) No.8476 of 2015 Page 20 of 22 was not supplied to him. Hence, this Court is of the view that there is no illegality or perversity in the impugned order dated 09.07.2014 (Annexure-5)
12. This Court is also of the view that in view of alternative remedy available under Section 18 of the Arms Act, 1959 read with Rule 107 of Arms Rules 2016, the present Writ Petition directly preferred before this Court, bypassing the alternative and efficacious remedy available under the Arms Act, 1959, so also Rules, 2016 made there under, is not maintainable.
13. Further, as is revealed from the photocopy judgment dated 04.08.2016 passed in Sessions Trial No.52/261 of 2013- 2011, the 2nd Additional Sessions Judge, Balasore, on assessment of the evidence on record, came to the conclusion that though the Petitioner and his brother, namely, Manoranjan Dey are found not guilty for commission of the offences punishable under Sections 307/323/294/379/ 506/34 of the Indian Penal Code, but found the accused persons guilty for commission of offence punishable under Section 324/34 of the Indian Panel Code and convicted both of them under Section 235(1) of the Cr.P.C. Apart from the same, in view of the serious allegation made by the W.P.(C) No.8476 of 2015 Page 21 of 22 Opposite Party No.3 as to threat to his life at the instance of the Petitioner so also conviction of the Petitioner in the aforesaid case and pendency of the appeal against the said order of conviction, this Court is not inclined to entertain the prayer made in the Writ Petition at this stage .
14. Accordingly, the Writ Petition stands dismissed.
15. Since the order of suspension of Gun licence is conditional, needless to mention here that dismissal of the Writ Petition will not be a bar for the Petitioner to approach the appropriate forum, at appropriate stage, in accordance with various provisions of Arms Act, 1959, for revocation of the suspension order so also return of Gun, as prayed in the present Writ Petition.
16. The photocopy of the judgment dated 04.08.2016 passed by the 2nd Addl. Sessions Judge, Balasore in Sessions Trial No.52/261 of 2013-2011 filed in the Court, be kept on record.
Signature Not Verified (S.K. MISHRA) Digitally Signed
Signed by: PADMA CHARAN DASH JUDGE Designation: Personal Assistant Orissa High Court, Cuttack Reason: Authentication Dated, 4th December, 2023/Padma Location: orissa high court, cuttack Date: 08-Dec-2023 14:51:44 W.P.(C) No.8476 of 2015 Page 22 of 22