Allahabad High Court
Rakesh Yadav @ Rakesh Kumar vs State Of U.P., Prin. Secy. Home Civil ... on 14 November, 2024
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:75437 Court No. - 7 Case :- WRIT - C No. - 3617 of 2023 Petitioner :- Rakesh Yadav @ Rakesh Kumar Respondent :- State Of U.P., Prin. Secy. Home Civil Secrt. Lko. And 2 Others Counsel for Petitioner :- Vishnu Kumar Srivastava,Rajeev Srivastava,Satyendra Kumar Srivastava Counsel for Respondent :- C.S.C. Hon'ble Pankaj Bhatia,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel for the State.
2. Present petition has been filed challenging the order dated 28.01.2017 whereby arms license of the petitioner was cancelled as well as the order dated 05.04.2023 whereby the appeal was dismissed.
3. Contention of learned counsel for the petitioner, in brief, is that the petitioner was a holder of arms license which came to be suspended and a show-cause notice was issued alleging that the petitioner had misused the arms in Case Crime No.84 of 2015, under Section 395/397/427 of IPC. The petitioner gave a reply denying the allegation levelled therein and thereafter, on the basis of the fact that a criminal case was instituted, the arms license was cancelled under Section 17(3) of the Arms Act. The appeal preferred by the petitioner was also dismissed.
4. Learned counsel for the petitioner argues that Case Crime No.85 of 2015 (supra) was filed against the petitioner, however, after the investigation, a police report came to be filed and the charge-sheet was filed under Section 144, 147, 148, 440, 448, 456, 427, 504 & 506 IPC; no charge-sheet was filed under Section 395, 397 of IPC in which initially the FIR was lodged. He argues that merely institution of a case cannot be a ground for cancellation of the arms license as has been held by this Court in the case of Radhey Shyam Yadav v. State of U.P. & Ors.; 2019(2) ADJ 744 (LB); Laddan Khan v. Commissioner, Lucknow Division, Lucknow and Anr.; 2017(35) LCD 715 and Ghanshyam Gupta vs. State of U.P. & Ors.; 2016 (34) LCD 3035. For the sake of brevity, Para - 7, 8, 9 & 10 of Ghanshyam Gupta's case (supra) are extracted herein below:
"...
7. In the facts and circumstances of the present case, there is no allegation of misuse of firearm by the petitioner. There is further no finding based upon any relevant material or document on record to show that revocation of petitioner's firearm licence is necessary for security of public peace or for public safety. The mere fact that petitioner may misuse his firearm licence cannot be a ground to cancel the firearm licence. Mere pendency of a criminal case also cannot be a ground to cancel the firearm licence. This Court finds substance in the argument of petitioner that the criminal case have involved political implications, as it is claimed that violence broke out upon the arrest of member of Parliament, in which large number of persons including petitioner have been implicated. The trial is pending. There is no allegation of misuse of firearm against the petitioner. Though the licence had continued with petitioner for long, but apart from this incident, there is no other allegation of misuse of firearm by the petitioner.
8. In Illam Singh Vs. Commissioner Meerut Division and others, reported in 1987 ALJ 416, this Court has been pleased to observe as under :-
"4. .... In the present case no incident of breach of security of the public peace or public safety at the behest of the petitioner has been pointed out. Even no report was lodged against the petitioner indicating that he used his gun in the incident which led to the breach of public peace or public safety. Even though some reports might have been lodged but that could not be said to be a sufficient reason to cancel the licence. See also Sheo Prasad Misra v. District Magistrate, Basti, 1978 All WC 122 and Sheo Shankar v. Sub-Divisional Magistrate, AIR 1973 All 293.
5. In the instant case no incident of breach of public peace or public safety has been cited either in the notice or in the impugned orders. Just by making a vague allegation that the petitioner was keeping company with the bad elements of the society would not be covered by the clause "security of public peace" or 'for public safety' under S. 17(3)(b) of the Arms Act. There must be some positive incident in which the petitioner participated and used his gun which led to the breach of the public peace or public safety. In the absence of the use of the gun by the petitioner against the security of public peace or public safety the licence of the gun of the petitioner was not liable either to be suspended or revoked. ....."
9. In a recent decision of Lucknow Bench of this Court in Surya Narain Mishra Vs. State of U.P. and others, reported in 2015 (7) ADJ 510, similar view has been taken by this Court relying upon subsequent decisions. Para-14 of the judgment is reproduced:-
"14. In the case of Raj Kumar Verma Vs. State of U.P. , 2013 (80) ACC 231 this Court in paragraph No. 3 held as under:-
"The ground for issue of show-cause notice, suspension and ultimately cancellation of the licence is that one and precisely one criminal case was registered against the petitioner. The District Magistrate has also held that the petitioner has been enlarged on bail. He has gone further to observe that if the licence remained intact, the petitioner, may disturb public peace and tranquility. The same findings have been given by the Commissioner, Unmindful of the fact that this Court is repeating the law of the land, but the deaf ears of the administrative officers do not ready to succumb the law of the land. The settled law is that mere involvement in a criminal case without any finding that involvement in such criminal case shall be detrimental to public peace and tranquility shall not create the ground for the cancellation of Armed Licence. In Ram Suchi vs. Commissioner, Devipatan Division reported in 2004 (22) LCD 1643, it was held that this law was relied upon in Balram Singh vs. State of UP 2006 (24) LCD 1359. Mere apprehension without substance is simply an opinion which has no legs to stand. Personal whims are not allowed to be reflected while acting as a public servant.""
10. For the reasons aforesaid, this Court is of the opinion that necessary ingredients to invoke jurisdiction of licensing authority in terms of Section 17 are clearly lacking, and no finding has been returned on the basis of materials produced in that regard by the licensing authority, which may justify passing of the order impugned."
5. Considering the fact that the law with regard to cancellation of arms license on account of pendency of a criminal case is fairly well settled, and the sole ground in the two impugned orders for cancellation of license are pendency of a criminal case, prima-facie, the said reasoning contained in the said two orders are incorrect and contrary to the law as declared by this Court, as such, both the orders dated 28.01.2017 & 05.04.2023 are quashed.
6. Present petition stands allowed in above terms.
Order Date :- 14.11.2024 nishant