Allahabad High Court
Sadri Ram vs District Magistrate/Licensing ... on 19 August, 1998
Equivalent citations: 1998(3)AWC2102
JUDGMENT S.R. Singh, J.
1. Challenge In the instant petition is to the order dated 24.12.1997 of the District Magistrate, Azamgarh, whereby the petitioner's firearm's licence has been suspended and at the same time, the petitioner has been called upon to show cause why the licence be not revoked/cancelled. The District Magistrate. Azamgarh, purports to have suspended the petitioner's fire- arm licence pending enquiry into cancellation of the licence set afoot on the basis of police report which led the District Magistrate to form an opinion keeping in view the public peace and public security, that the licence of the petitioner was liable to be cancelled and it would be prejudicial to the interest of public to allow him to retain the arms.
2. The question canvassed at the bar by Sri Ramesh Ral, counsel appearing for the petitioner was that in view of the Full Bench decision of this Court in the case of C. P. Sahu, v. State, 1984 AWC 145, the licensing authority was not clothed with the jurisdiction to suspend petitioner's fire-arm licence pending enquiry into cancellation-revocation of the licence. This submission of the counsel for the petitioner was met with stiff resistance by the standing counsel Sri Ran Vijay Singh. The submission brought to bear in vindication by him is that the Full Bench decision of the Court in C. P. Sahu's case, (supra) would not operate to the detriment of the power of the licensing authority to suspend the fire-arm licence pending enquiry into the cancellation/revocation of the licence if it is pursuaded to the view that the suspension of fire-arm has been rendered indispensable for maintaining public peace and public security. The question begging answer herein, being a pure question of law. I feel called to dispose of the petition finally at the admission stage itself.
3. Section 17(3) of the Arms Act, 1959, empowers the licensing authority to suspend a licence for such period as it thinks fit or revoke a licence in writing-
"(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. In the instant case, the licensing authority seemingly formed an opinion that it was necessary for the security of the public peace and public safety to suspend and revoke the licenses as visualised by clause (b) of subsection (3) of Section 17 of the Act. The order would not have drawn a flak, had the licence been suspended for a specified period in that Section 17(3) visualises that licensing authority may by order in writing suspend a licence for such period as it thinks fit. The period of suspension has not been indicated and instead, the licensee has been called upon to show cause why the licence be not revoked/cancelled.
5. In C. P. Sahu's case, (supra), a Full Bench was constituted to answer the following questions :
(i) Whether there is power to suspend arms licence pending enquiry into its cancellation or suspension?
(ii) Whether in view of statutory provisions, it is incumbent upon the authorities to afford an opportunity of hearing prior to suspension pending enquiry."
The Full Bench answered the first question referred to above in negative and declined to answer the 2nd question stemming from the reason that as a result of the answer to the first question, the controversy sought to be resolved by the 2nd question did not arise for consideration and it was, therefore, not necessary to answer the same. In answer to the first question, the Full Bench unequivocally expressed itself that having regard to the scheme and purpose of the provisions embodied in Sections 17 and 18 of the Act and the nature of the enquiry that the licensing authority is to make before directing revocation/suspension of an arms licence, it has no power to suspend the arms licence pending enquiry into its cancellation/suspension. The argument that the licensing authority is invested with implied/incidental power to suspend fire-arms licence pending enquiry into its revocation was brought to bear but expressly repelled by the Full Bench in the following words :
"it is thus evident that before a power can be Implied as an incidental power, the Court has to be satisfied that the existence of such power is absolutely essential for the discharge of power conferred and not merely that it is convenient for its exercise. In our opinion, it can neither be said that the power to suspend arms licence pending an enquiry of the nature that the licensing authority may like to make before ordering revocation/suspension of the arms licence is absolutely necessary nor can it be said that the power to revoke suspend a licence in the circumstances mentioned in Section 17 of the Act, cannot be exercised unless a power to suspend the licence pending enquiry is also conceded to the licensing authority."
it was further held by the Full Bench in C. P. Sahu's case (supra) that if there already is material before the licensing authority and it becomes apparent to it that possession of arms by the licensee is going to endanger public peace and safety, it can straightway and without holding any enquiry proceeding, revoke/suspend the arms licence after recording reasons therefor and if the licensee is aggrieved by such orders, he will have a right to ventilate his grievance before the appellate authority. A show cause notice regarding revocation or suspension of licence for specified duration may be given to the licensee only 'if there is no such material before the licensing authority and it is not apparent to it that there is an immediate danger to public peace and safety and it, on some information being laid before it, proceeds to find out whether there is any likelihood of public peace and safety being affected at some future date, it cannot be said that there is any such urgency so as to justify the revocation/cancellation of the licence even before the licensing authority gets to satisfied."
6. Second question which the Full Bench considered unnecessary to be answered, came up for consideration before a Five Judges Bench of this Court in the case of Kailoshrtath v. State of U. P. and another, 1985 AWC 493, in which the bottom-line question that emerged for consideration was ; whether '"before exercising the power of revocation, etc. under Section 17 of the Arms Act, notice is required to be given to the licensee? M. N. Shukla, C.J., speaking for the majority held that "the Act and Rules made thereunder do not contemplate a notice to be given to the licence-holder before cancelling or varying or suspending the licence of a licence holder". "Nevertheless", observed the learned Chief Justice, "the act of cancelling or refusing to review the licence leads to grave consequences and withdrawal or cessation of such privilege may adversely affect the licence holder's security or protection and may even be a slur on his reputation." And, accordingly, "supplemented" C. P. Sahu by inter alia holding that, firstly, "The withdrawal or refusal to renew the subsisting licence is in my opinion intrinsically a quasi-judicial act, and therefore, it attracts the rules of natural Justice". Secondly, "Normally or ordinarily a notice before an action should be given, the absence of hearing before the action can be adequately compensated for by a hearing 'ex-post-facio'........" Thirdly, the order cancelling/suspending the licence without prior notice is only 'provisional' or 'preliminary' in the sense that it does not take effect at all until an opportunity of filing objection is given against the 'preliminary' order and after hearing the licence holder a final order affirming the preliminary order is passed ; fourthly, 'the licensing authority can also for the furtherance of immediate remedial action, exercise the incidental power of directing the licence holder to surrender his licence until the objections have been decided : and fifthly.' in the event of the objections being allowed, the licence as well as the fire-arm 'must be restored to the licence holder'.
7. The question whether the licensing authority is clothed with the powers to suspend the licence in the midst of proceedings for suspension or revocation under Section 17(3) of the Arms Act, 1959, was posed for consideration before another Full Bench of this Court in Batram Singh v. State of U. P. and others, 1988 AWC 1481. The Court noticed therein the decisions referred to above and held-
"The ratio in Sahu's cose that there is no power to suspend pending enquiry stands completely demolished by Kallash Nath's case."
The Court further amplified its observations as under :
"Therefore, we have not a minute's hesitation in holding that the effect of a combined reading of sub-section (3) and clause (b) thereof is that whenever a proceeding under sub-section (3) is initiated for suspending or revoking 'a licence' and the 'licensing authority' deems it necessary for security of public peace or for public safety to suspend or revoke 'the licence', the said authority can in exercise of that power suspend the licence during pendency of these proceedings without any hindrance from other provisions in the Act."
8. In Rana Pratap Singh v. State of U. P.. 1995 ACJ 200, the question of correctness of the view expressed by the Full Bench in Balram Singh's case came up for consideration before a Five Judges Bench of this Court. S. S. Sodhi, C.J., speaking for the Court held "we are, with respect, constrained to hold that the extent to which it runs counter to the decision of the Full Bench in C. P. Sahu and Kailash Nath cases, it does not lay down correct law and we consequently overrule it." Learned C.J. went on to hold that "we also cannot but hold that the Bench fell in error in observing, the ratio in C. P. Sahu's case that there is no power to suspend pending enquiry, stands completely demolished by Kailash Nath's case."
9. The sequitur, therefore, is that Rana Pratap Singh overrules the proposition that "whenever a proceeding under sub-section (3) is initiated for suspending or revoking a licence and the licensing authority deems it necessary for security and public peace or for public safety to suspend or revoke the licence, the said authority can in exercise of that power, suspend the licence during the pendency of these proceedings without any hindrance from other provisions of the Act." as laid down in Bertram Singh's case (supra), and re-affirmed the view taken in C. P. Sahu's case that the licensing authority has no power to suspend an arms licence pending enquiry into the revocation/suspension thereof.
10. The order impugned herein is not an order of suspension for specified duration within the meaning of Section 17(3) of the Act, it is a case of suspension of arms licence pending enquiry into cancellation thereof which cannot legally be done as per exposition of taw laid down in C. P. Sahu's case. The satisfaction arrived at by the District Magistrate in the instant case that it was necessary for the security of the public peace and public safety to revoke/suspend the licence derogates from its worth owing to the fact that the District Magistrate in the same breath has called upon the petitioner to show cause why the licence be not rescinded/revoked. As propounded by the Full Bench in C. P. Sahu's case, if there was material before the licensing authority and it was really satisfied on the basis of the material placed before it that possession of arms by the licensee was going to imperil public peace and safety, it could have straightway revoked or suspended the licence after recording reasons therefor, with room to the licensee to ventilate his grievance before the appellate authority. The requisite satisfaction on the basis of which the licence has been suspended pending enquiry into its cancellation detracts from all its worth and merit in the eyes of law, owing to the reason that the District Magistrate by the self-same order required the petitioner to show cause why licence be not revoked. The ground of revocation or suspension for specified duration are common as visualised by clauses (a) to (e) of sub-section (3) of Section 17 of the Act and so long as the enquiry is pending, it cannot be said that the licensing authority was satisfied about existence of the grounds or ground visualised by clauses (a) to (e) of Section 17(3) of the Act and this is what has been aptly expounded in C. P. Sahu's case in the following words :
"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."
11. The propositions that emerge from the above discussion, may be summed up as under :
(a) the licensing authority has no power to suspend the arms licence pending enquiry into its cancellation/suspension nor has it the power to suspend the licence for indefinite period;
(b) licensing authority has the power to suspend for specified period a fire-arm licence on being satisfied as to existence of all or any of the conditions visualised by clauses (a) to (e) of sub-section (3) of Section 17 of the Act sans any prior opportunity of hearing being given to the licence holder but such order of suspension shall not attain finality until the aggrieved party has been heard and his objections, if any, adjudicated. In other words, suspension of arms licence for specified period or its revocation under Section 17(3) of the Act, if ordered without affording opportunity of hearing, would endure in suspended animation until the aggrieved party has been heard by the licensing authority and his objections, if any, are adjudicated :
(c) the licensing authority can also for the furtherance of the immediate remedial actions, exercise in facts and circumstances of a given case, an incidental power of directing the licence holder to surrender his licence until objections have been decided ; and
(d) suspension under Section 17(3) of the Act must be for definite period to be specified in the order by the licensing authority.
12. As a result of foregoing discussion, the petition succeeds and is allowed in part. The impugned order suspending petitioner's fire-arm licence is quashed without prejudice to the on-going enquiry into cancellation of licence. Licensing authorities exercising powers under Section 17(3) of the Act in the State of Uttar Pradesh are directed to act in accordance with directions embodied in this judgment.