Allahabad High Court
Mohd. Nazimand Others vs District Magistrate, Allahabad And ... on 4 August, 2010
Author: Sanjay Misra
Bench: Sanjay Misra
AFR Court No. - 28 Case :- WRIT - C No. - 3286 of 1998 Petitioner :- Mohd. Nazimand Others Respondent :- District Magistrate, Allahabad And Another Petitioner Counsel :- Ajit Kumar,A. Kumar,C.B. Yadav,Gs Chaturvedi,S. Gopal,Smt. Gabri,Vimlesh Srivastava Respondent Counsel :- C.S.C. Hon'ble Sanjay Misra,J.
Heard Sri Tahir Hussain learned counsel for the petitioner and learned Standing Counsel for the respondents. Counter and rejoinder affidavits have been exchanged between the parties.
The petitioners are aggrieved by the show cause notice dated 17.7.1995 in Case no. 5 of 1997 (annexure 1) notice dated 17.7.1997 in Case no. 6 of 1997 (annexure 2) order dated 7.12.1998 filed as Annexure SA-1 and SA-2 with amendment application no.30524 of 1999 whereby the arms dealer licence in Form no. 11 and 12 has been cancelled by the State Government.
The notice dated 17.7.1997 in Case no. 5 of 1997 (annexure 1 to the writ petition) issued by the District Magistrate, Allahabad was a show cause notice requiring the petitioners to reply as why the licence no. 36 Form no. 13 be not cancelled. The allegation was that he had sold a 30' Bore Pistol No. 11005882 on 21.6.1965 to M/S Mirajuddin Arms Dealer which did not bear the name of the manufacturer and was subsequently sold to Sri Nafis Ahmad. Non compliance of Rule 25(2) of the Arms Rules 1962 was alleged which was in violation of Section 8(2) of the Arms Act and punishable under Section 25 of the Act. An FIR No. 631/67 dated 8.7.1967 was also registered in Police Station Shahganj.
The notice dated 17.7.1997 in Case no. 6 of 1997 (Annexure 2 to the writ petition) issued by the District Magistrate, Allahabad was a show cause notice requiring the petitioner to reply as to why the Licence no. 17 Form 14 be not cancelled. The allegation was that he had purchased a 30' Bore Pistol No. 117642 on 18.10.1964 from M/S H.N. Sahu and Company and sold it but it did not bear the name of the manufacturer. Non compliance of Rule 25(2) of the Arms Rules 1962 was alleged which was in violation of Section 8(2) of the Arms Act and punishable under Section 25 of Arms Act. An FIR no. 631/67 dated 8.7.1967 was registered in Police 2 Station, Shahganj.
Two show cause notice dated 9.10.1967 were issued by the State Government as to why the From 11 Licence no. 1 L.1968 dated 23.6.1967 and Form 12 Licence no. 2 L.1968 dated 23.6.1967 be not cancelled for the allegations made therein (Annexure 3 and 4 to the writ petition). By two orders dated 7.12.1998 (Annexure SA-1 and SA-
2) the State Government has cancelled the licence in Form 11 and Form 12. These orders have been assailed by the petitioner in the amendment application no. 30524 of 1999.
Learned counsel for the petitioner has made extensive argument by referring various annexures to the writ petition relating to the proceedings during pendency of CBI inquiry and reply of the petitioner. However the ballistic report dated 29.9.1967 filed as annexure 23 to the writ petition has been referred to in light of a decision of this court in Writ Petition No. 15652 of 1998 M/S S.N. Neogi & Company and others Vs State of U.P. & others to show similarity of this case with the aforesaid case decided on 13.8.2002. A certified copy of the judgment where of has been placed before this court.
The first submission of learned counsel for the petitioner is that the case of the petitioner herein is the same as the case of M/S S.N. Neogi & Company and others and therefore this writ petition requires to be allowed in the same terms as the Writ Petition of M/S S.N. Neogi & Company and others had been allowed on 13.8.2002.
The aforesaid submission does not pass the test of similarity upon scrutiny of the records of this writ petition in its similarity to the other case. The case of M/S S.N. Neogi & Company and others was that out of the several pistols sold by them which were sent for ballistic expert opinion it was reported that the engravings on the pistol are genuine and made by the manufacturer. The court found that this ballistic report was not available before the State Government or the District Magistrate when the licence of M/S S.N. Neogi & Company and others had been cancelled. Consequently it directed that the authorities should re-consider their decision in light of Rule 25 of the Arms Rules of 1962 by considering the opinion of the ballistic expert.
In the present case the opinion of the ballistic expert is available as annexure 23 which indicates that apart from the No. 11005882 engraved on the pistol there is no engraving about the name of the maker of the fire arm. In the case of M/S S.N. Neogi 3 & Company and others the opinion of the ballistic expert was that the engravings on the pistol are genuine and made by the manufacturer but in the present case the report of the ballistic expert is that there is no engraving at all. Consequently on that ground the case of the petitioner is not similar to that of M/S S.N. Neogi & Company and others and therefore the petitioner cannot claim that this writ petition be decided in terms of the judgment dated 13.8.2002 passed in Writ Petition No. 15652 of 1998 M/S S.N. Neogi & Company and others.
In so far as the reason given in the two impugned orders dated 7.12.1998 for cancellation of the licence of the petitioner is concerned the same is quite clear. The show cause notice was issued for the allegations as quoted here under:-
(Annexure 1) "vki }kjk iznRr lqpuk ds vk/kkj ij ,oa miyC/k vfHkys[kksa ds v/;;uksijkUr ;g rF; izekf.kd :i ls Li"V gqvk gS fd vkius 30 cksj dh fiLVy la[;k 11005882 ftl ij 'kL= fuekZrk dEiuh dk uke ugh Fkk fnukad 21-09-95 dks esllZ fejktq)hu iq= Jh fljktq)hu 'kL= fodzrs k 137 ejkBh eksgYyk lnj cktkj bUnkSj ls dz; djds mls Jh uQhl vgen iq= Jh txneqy gqlSu fuoklh xkze d`ikyiqj Fkkuk lksjko bykgkckn dks fodzhr fd;k gSA vkidks mDr fiLVyks dks dzrkvksa ls cspus ds iwoZ fiLVyks ij igpku fpUg ;Fkk 'kL= fuekZrk dEiuh dk uke vkfn vafdr u gksus dh fLFkfr esa 'kL= fu;ekoyh 1962 dh /kkjk 25¼2½ ds varxZr jkT; ljdkj ls 'kL= ij igpku fpUg [kqnokus gsrw vkosnu i= izLrqr djuk pkfg, Fkk rFkk jkT; ljdkj }kjk mDr 'kL=ksa ij fu/kkZfjr igpku fpUg vafdr fd;s tkus ds ckn gh mUgs cspuk pkfg, Fkk fdUrq vkius tkucw>dj ,slk ugh fd;k tks /kkjk 8¼2½ 'kL= vf/kfu;e dk mYya/ku gS rFkk /kkjk 25 ds varxZr n.Muh; vijk/k gSA vkidh QeZ ds fo:) mijksDr nq"d`R; ds fy, Fkkuk 'kkgxat esa eq0v0la0 631@97 fnukad 8-7-97 dks iathd`r Hkh djk fn;k x;k gSA"
(Annexure 2) "vki }kjk iznRr lwpuk ds vk/kkj ij ,oa miyC/k vfHkys[kksa ds v/;;uksijkUr ;g rF; izekf.kd :i ls Li"V gqvk gS fd vkius 30 cksj dh fiLVy la[;k 117642 ftl ij 'kL= fuekZrk dEiuh dk uke ugh Fkk fnukad 18-10-94 dks esllZ ,p0 ,u0 lkgw ,aM dEiuh] bykgkckn ls dz; djds fodzhr fd;k gS A blh izdkj vkius 30 cksj dh fiLVy la[;k 11005882 ftl ij 'kL= fuekZrk dEiuh dk uke ugh Fkk fnukad 21-09-95 dks esllZ fejktq)hu iq= Jh fljktq)hu 'kL= fodzsrk 137 ejkBh eksgYyk lnj cktkj bUnkSj ls dz; djds mls Jh uQhl vgen iq= Jh txneqy gqluS fuoklh xkze d`ikyiqj Fkkuk lksjko bykgkckn dks fodzhr fd;k gSA vkidks mDr fiLVyks dks 4 dzrkvksa ls cspus ds iwoZ fiLVyks ij igpku fpUg ;Fkk 'kL= fuekZrk dEiuh dk uke vkfn vafdr u gksus dh fLFkfr esa 'kL= fu;ekoyh 1962 dh /kkjk 25¼2½ ds varxZr jkT; ljdkj ls 'kL= ij igpku fpUg [kqnokus gsrw vkosnu i= izLrqr djuk pkfg, Fkk rFkk jkT; ljdkj }kjk mDr 'kL=ksa ij fu/kkZfjr igpku fpUg vafdr fd;s tkus ds ckn gh mUgs cspuk pkfg, Fkk fdUrq vkius tkucw>dj ,slk ugh fd;k tks /kkjk 8¼2½ 'kL= vf/kfu;e dk mYya/ku gS rFkk /kkjk 25 ds varxZr n.Muh; vijk/k gSA vkidh QeZ ds fo:) mijksDr nq"d`R; ds fy, Fkkuk 'kkgxat esa eq0v0la0 631@97 fnukad 8-7-97 dks iathd`r Hkh djk fn;k x;k gSA"
The notice of the State Government (Annexure 3 and 4) was as quoted here under-
(Annexure 3) "ftyk eftLVzsV bykckckn ds i= la[;k 5813@'k0fy0 fnukad tqykbZ 16] 1997 }kjk voxr djk;k x;k gS fd vkius 30 cksj dh fiLVy la[;k 117642 ftl ij 'kL= fuekZrk dEiuh dk uke ugh Fkk] fnukad 18- 10-94 dks esllZ ,p0 ,u0 lkgw0 ,aM dEiuh] bykgkckn ls dz; djds mls fodzhr fd;k gS A bl izdkj vkius 30 cksj dh fiLVy la[;k 11005882 ftl ij 'kL= fuekZrk dEiuh dk uke ugh Fkk fnukad 21-09- 95 dks esllZ fejktq)hu iq= Jh fljktq)hu 'kL= fodzsrk 137 ejkBh eksgYyk lnj cktkj bUnkSj ls dz; djds mls Jh uQhl vgen iq= Jh txneqy gqlSu fuoklh xkze d`ikyiqj Fkkuk lksjko bykgkckn ij fodzhr fd;k gSA vkidks mDr fiLVyks dks dzrkvksa ls cspus ds iwoZ fiLVyks ij igpku fpUg ;Fkk 'kL= fuekZrk dEiuh dk uke vkfn vafdr u gksus dh fLFkfr esa 'kL= fu;ekoyh 1962 dh /kkjk 25¼2½ ds varxZr jkT; ljdkj ls 'kL= ij igpku fpUg [kqnokus gsrw vkosnu i= izLrqr djuk pkfg, Fkk rFkk jkT; ljdkj }kjk mDr 'kL=ksa ij fu/kkZfjr igpku fpUg vafdr fd;s tkus ds ckn gh mUgs cspuk pkfg, Fkk fdUrq vkius tkucw>dj ,slk ugh fd;k tks /kkjk 8¼2½ 'kL= vf/kfu;e dk mYya/ku gS rFkk /kkjk 25 ds varxZr n.Muh; vijk/k gSA vkidh QeZ ds fo:) mijksDr nq"d`R; ds fy, uxj eftLVzsV] bykgkckn }kjk Fkkuk 'kkgxat esa eq0v0la0 631@97 fnukad 8-7-97 dks iathd`r Hkh djk fn;k x;k gSA"
(Annexure 4) "ftyk eftLVzsV bykckckn ds i= la[;k 5813@'k0fy0 fnukad tqykbZ 16] 1997 }kjk voxr djk;k x;k gS fd vkius 30 cksj dh fiLVy la[;k 117642 ftl ij 'kL= fuekZrk dEiuh dk uke ugh Fkk] fnukad 18- 10-94 dks esllZ ,p0 ,u0 lkgw0 ,aM dEiuh] bykgkckn ls dz; djds mls fodzhr fd;k gS A bl izdkj vkius 30 cksj dh fiLVy la[;k 11005882 ftl ij 'kL= fuekZrk dEiuh dk uke ugh Fkk fnukad 21-09- 95 dks esllZ fejktq)hu iq= Jh fljktq)hu 'kL= fodzsrk 137 ejkBh eksgYyk lnj cktkj bUnkSj ls dz; djds mls Jh uQhl vgen iq= Jh txneqy gqlSu fuoklh xkze d`ikyiqj Fkkuk lksjko bykgkckn dks muds 'kL= ykbZlal s la[;k 8203@11 Fkkuk lksja ko bykgkckn ij fodzhr fd;k 5 gSA vkidks mDr fiLVyks dks dzrkvksa ls cspus ds iwoZ fiLVyks ij igpku fpUg ;Fkk 'kL= fuekZrk dEiuh dk uke vkfn vafdr u gksus dh fLFkfr esa 'kL= fu;ekoyh 1962 dh /kkjk 25¼2½ ds varxZr jkT; ljdkj ls 'kL= ij igpku fpUg [kqnokus gsrw vkosnu i= izLrqr djuk pkfg, Fkk rFkk jkT; ljdkj }kjk mDr 'kL=ksa ij fu/kkZfjr igpku fpUg vafdr fd;s tkus ds ckn gh mUgs cspuk pkfg, Fkk fdUrq vkius tkucw>dj ,slk ugh fd;k tks /kkjk 8¼2½ 'kL= vf/kfu;e dk mYya/ku gS rFkk /kkjk 25 ds varxZr n.Muh; vijk/k gSA vkidh QeZ ds fo:) mijksDr nq"d`R; ds fy, uxj eftLVzsV] bykgkckn }kjk Fkkuk 'kkgxat esa eq0v0la0 631@97 fnukad 8-7-97 dks iathd`r Hkh djk fn;k x;k gSA"
From a perusal of the above show cause notices it appears that there has been a violation of Rule 25 (2) of the Arms Rules 1962.
Rule 25(2) is quoted here under-
"When an imported fire-arm kept for sale by a dealer does not bear the manufacturer's name, such distinguishing mark of the importer as allotted by the State Government shall be engraved on the barrel (adjacent to the number, if any, existing thereon) and on other parts as shown in column (2) of the Table under sub-rule (1); if a barrel bears more than one number, the distinguishing mark shall be affixed to the number appearing on the original invoice. When the manufacturer's number appear only on the trigger guard or other replaceable part, that number shall be engraved on the parts shown in column (3) of the Table."
The rule provides that when a fire arm is kept for sale by a dealer and it does not bear the manufacturers name or distinguishing mark of the importer as allotted by the State Government it shall be sent to the State Government for a mark being engraved at the place mentioned in column of the table under sub-rule (1).
The petitioner admittedly had purchased the fire arm Pistol No. 11005882 from another dealer namely M/S Mirajuddin and sold it to Sri Nafees Ahmad. The other Pistol No. 117642 was purchased by the petitioner from M/S H.N. Sahu and Company and it was also sold. Both these pistols did not bear the manufacturers name. The rules required that under such circumstances the petitioner ought to have sent the pistols to the State Government for engraving of a distinguishing mark before he sold them to anyone. The petitioner does not deny that he has violated the requirement of Rule 25 of the Arms Rules 1962 and has sold both the Pistols which did not bear the manufacturers name.
The next submission of the petitioners is that no opportunity was afforded to 6 them prior to passing the impugned orders. Admittedly the petitioners were given two show cause notices by the District Magistrate, Allahabad (annexures 1 and 2 to the writ petition) and the State Government also issued two show cause notices (annexures 3 and 4 to the writ petition) to the petitioners. The petitioner replied to all the show cause notices which was taken into account while passing the impugned orders of cancellation. A perusal of the show cause notices indicates that the substance of the allegation was that the pistols did not bear the manufacturers name and the petitioner violated the statutory provisions of Rule 25 of the Arms Rules. In the explanation given by the petitioners in as many as 39 paragraphs there is no explanation to justify the non compliance of Rule 25 of the Arms Rules and therefore in the absence of the required explanation there could be nothing more which could be put forth in a oral hearing. The explanation that the fire arm was purchased from other dealer and sold in the same form will not in any manner absolve the petitioner from the application of Rule 25(2) of the Arms Rules 1962 when he admits to have purchased it and kept it in his possession till it was sold. Hence the submission that there has been violation of the principles of natural justice in the present case is not made out. In fact if the submission is accepted it would amount to an unnatural expansion of the principles of natural justice. In the present case the allegations in the show cause notices were not such as to require an explanation by elucidating on facts for which there was no documentary defence.
Another submission of learned counsel for the petitioner is based on the letter dated 04.02.1997 (annexure 14 to the writ petition). It is submitted that even if the pistol does not bear the name of the manufacturer it would not attract the provisions of Section 8 of the Arms Act. A perusal of the letter dated 04.02.1997 indicates that it relates to weapons issued by the Indian Ordinance Factories and for the personal use to its officers. These weapons could be of foreign make also. This letter cannot help the petitioner for two reasons. Firstly the petitioner is not an officer of the factory or ministry and secondly the pistol was not issued to the petitioner from the Indian Ordinance Factory for personal use. Therefore the submission cannot be accepted.
A vague allegation of malafide has been made against one Sri S.K. Singh the then City Magistrate, Allahabad in the affidavit supporting the amendment application no. 41848 of 1998. The malafide alleged is that the officer brought about the proceedings due to his personal ego. The requirement is that the persons against 7 whom malafide is alleged must be made a party so that he can have a chance to reply to such allegation. In the present case neither Sri S.K. Singh has been made a party nor even the City Magistrate, Allahabad has been made a party. Consequently no finding can be recorded behind the back of the person against whom malafide has been alleged. Moreover the allegation of malafide is vague and shorn of any details hence such submission requires to be rejected.
The impugned orders (annexures SA-I and SA-II) have considered each and every paragraph of the explanation given by the petitioner. It has dealt with each paragraph of the explanation separately. A perusal whereof does not reflect of any error or illegality committed therein. The reasons for cancellation of the licence are clearly given which is not that the licence has been cancelled only due to some criminal case pending against the petitioners. Therefore the CBI enquiry or the CBCID enquiry in the criminal case pending against the petitioner or concluded could not be a reason not to cancel the licence. The respondents were exercising their powers under the provisions of the Arms Act and Rules hence the letter dated 17.9.1967 (annexure 19 to the writ petition) written by the Secretary to the Chief Minister was not issued in exercise of any power under the statute but it was written on the request of a member of the State Assembly. The letter itself says that proceedings should be done in accordance with the rules.
For the afore given reasons no error or illegality can be found in the impugned orders.
The writ petition is accordingly dismissed.
No order is passed as to costs.
Order Date :- 4.8.2010 Pravin