Allahabad High Court
Ram Prasad vs Commissioner And Others on 7 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 190
Author: Ravi Nath Tilhari
Bench: Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved on 14.1.2020 Judgment delivered on 7-2-2020 Court No. - 23 Case :- WRIT - C No. - 56378 of 2006 Petitioner :- Ram Prasad Respondent :- Commissioner And Others Counsel for Petitioner :- T.S. Dabas Counsel for Respondent :- C.S.C. Hon'ble Ravi Nath Tilhari,J.
1. I have heard Sri Akash Gupta holding brief of Sri T.S. Dabas, learned counsel for the petitioner and Sri Rakesh Kumar Singh, learned Standing Counsel appearing for Respondent Nos. 1 and 2.
2. By means of this writ petition the petitioner has challenged the order dated 2.1.2003, passed by the District Magistrate, Rampur in Case No. 397 of 1999 under Section 17 of the Arms Act, 1959, (State Vs. Ram Prasad) (Annexure-4 to the writ petition) by which the petitioner's Fire Arms Licence No. 1332/TTT of double-barrel gun No. 1595 was cancelled. The appellate order dated 24.8.2006 passed by the Commissioner, Moradabad Mandal, Moradabad dismissing the petitioner's Appeal No. 26/02-03 under Section 18 of The Arms Act, 1959 (Ram Prasad Vs. State of U.P.) District Rampur (Annexure-6 to the writ petition) is also under challenge.
3. Briefly stated the facts of the case are that the petitioner was granted licence No. 1332/TTT of double-barrel gun on 22.8.1997. A criminal case, bearing Crime Case No. 181 of 1999 under Sections 323, 504, 506 IPC and Section 3(1) (X) of The Schedule Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, P.S. Milak, District Rampur, was registered against the petitioner. In view thereof, the police of Police Station-Milak submitted a report dated 20.7.1999 to the District Magistrate/Collector, Rampur recommending cancellation of the petitioner's fire arms licence, as it was not in the public interest that the fire arm remain with the petitioner.
4. A show cause notice dated 10.8.1999 was issued to the petitioner as to why his fire arm licence be not cancelled on the aforesaid ground of pendency of criminal case.
5. The petitioner filed reply to the show cause notice, that the petitioner did not misuse the fire arm and the Criminal Case No. 181 of 1999 was lodged due to partybandi in the village, which was pending in the court. The fire arm licence was not liable to be cancelled and the show cause notice deserved to be withdrawn.
6. The District Magistrate, Rampur after considering the petitioner's reply, by order dated 2.1.2003 cancelled fire arm licence on the ground that in view of the pendency of the criminal case against the petitioner and considering the police reports dated 5.7.1999 and 8.10.2000, it was necessary to cancel the fire arm licence in public interest and public security.
7. After the order of cancellation dated 2.1.2003, the petitioner was acquitted in Session Trial No. 559 of 2000, arising out of Crime Case No. 181 of 1999 under Sections 323, 504, 506 IPC and Section 3(1) (X) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 by judgment dated 17.1.2003 passed by the learned Additional Sessions Judge, Court No.2, Rampur.
8. The petitioner filed appeal No. 26/02-03 (Ram Prasad Vs. State of U.P.) under Section 18 of the Arms Act, 1959 challenging the order of cancellation of fire arm licence dated 2.1.2003, before the Commissioner, Moradabad Region, Moradabad. The petitioner filed copy of the order of his acquittal dated 17.1.2003 in the aforesaid appeal.
9. The Commissioner, Moradabad Region, Moradabad dismissed the petitioner's appeal by order dated 24.8.2006 and affirmed the order of cancellation dated 2.1.2003, taking the same view as in the order dated 2.1.2003 based on the police report that if the licence was restored, the petitioner will misuse the fire arm and terrorise the person of weaker sections. With respect to the judgment of acquittal dated 17.1.2003, it held that the petitioner was acquitted as the witnesses became hostile and there was some compromise between the accused and the victim.
10. The present petition has been filed challenging the aforesaid orders dated 24.8.2006 and 2.1.2003.
11. The submission of the learned counsel for the petitioner is that mere pendency of a criminal case was no ground to cancel the petitioner's fire arm licence. He submits that at the time when the order dated 2.1.2003 cancelling the fire arm licence was passed the criminal case was pending but after the order dated 2.1.2003, the petitioner was acquitted in the criminal case by judgment of the learned Additional Sessions Judge, Court No.2, Rampur and in view of the petitioner's acquittal, the appellate authority ought to have set aside the order of cancellation. The petitioner has no previous criminal history and in Crime Case No. 181 of 1999, the fire arm was not involved.
12. The learned counsel for the petitioner has placed reliance upon the judgment of this Court in Hari Prasad Vs. State of U.P. and others, reported in 2005 (5) AWC 4939 (Allahabad).
13. On the other hand the learned Standing Counsel has argued that the order of cancellation was passed on the ground of pendency of the criminal case and even after acquittal, in view of the police reports dated 26.7.1999 and 8.10.2000, to the effect that if the fire arm licence was restored the petitioner would extend threat to the weaker sections and misuse the fire arm, the impugned orders deserve to be maintained.
14. I have considered the submissions advanced by the learned counsels for the parties and have perused the records.
15. Perusal of the impugned order dated 2.1.2003 passed by the District Magistrate shows that the fire arm licence has been cancelled on the ground that Criminal Case No. 181 of 1999 under Sections 323, 504, 506 IPC and Section 3(1) (x) of The Schedule Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 was pending against the petitioner and in view thereof the police report was submitted that if the licence was restored the petitioner might misuse the fire arm. A perusal of the impugned appellate order also shows that the appeal has been dismissed on the ground of the police reports that the fire arm might be misused, although the petitioner was later on acquitted in the criminal case on 17.1.2003.
16. The matter which requires consideration is, whether on the ground of pendency of the criminal case the petitioner's fire arm licence could be cancelled and his appeal could be dismissed, notwithstanding his acquittal on 17.1.2003. It also requires consideration if the ground in the impugned orders that if the petitioner's fire arm licence remain with the petitioner, it would not be in the public interest and public security, are justified for cancellation and based on substantial material.
17. Section 17 of the Arms Act, 1959, deals with variation, suspension and revocation of the fire arm licence. Section 17 is reproduced as under:
"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 be 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.
(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 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 authority as may be specified in this behalf in the order of suspension or revocation.
18. A bare reading of Section 17 (3) of the Arms Act makes it evident that the licencing authority may by order in writing suspend a licence for such period as he things fit or revoke a licence; (b) if the licencing authority deems it necessary for the security of public peace or for public safety to suspend or revoke the licence. These two expressions "Security of public peace" and "for public safety" are of utmost importance. The licencing authority must be satisfied of the existence of these pre conditions.
19. In Masiuddin Vs. Commissioner, Allahabad Division, Allahabad and another reported in 1972 A.L.J. 573 this Court held in paragraph Nos. 4 and 7 as under:
"4. After a license is granted, the right to hold the license and possess a gun is a valuable individual right in a free country. The security of public peace and public safety is a valuable social interest. Section 17 shows that Parliament had decided that neither of the two valuable interests should unduly impinge on the other Section 17 seeks to establish a fair equilibrium between the two contending interests. It says: Hear the licensee first; and then cancel the license "if necessary for the security of the public peace or for public safety". True, there is no express provision for hearing. True, there is no express provision for hearing. But the nature of the right affected, the language of Sec. 17, the grounds for cancellation, the requirement of a reasoned order and the right of appeal plainly implicate a fair hearing procedure. Jai Narain Rai v. District Magistrate, Azamgarh. While cancelling a licence, the District Magistrate acts as a quasi-judicial authority.
7. A license may be cancelled, inter alia on the ground that it is "necessary for the security of the public peace or for public safety" to do so. The District Magistrate has not recorded a finding that it was necessary for the security of the public peace or for public safety to revoke the license. The mere existence of enmity between a licensee and another person would not establish the ''necessary' connection with security of public peace or public safety. There should be something more than mere enmity. There should be some evidence of the provocative utterances of the licensee or of his suspicious movements or of his criminal designs and conspiracy in reinforcement of the evidence of enmity. It is not possible to give an exhaustive list of facts and circumstances from which an inference of threat to public security or public peace may be deduced. The District Magistrate will have to take a decision on the facts of each case. But in the instant case there is nothing in his order to indicate that it was necessary for the security of the public peace or for public safety to cancel the license of the petitioner. Mere enmity is not sufficient."
20. Thus, in Masiuddin's case (supra) it was held that a license may be cancelled, inter alia on the ground that it is necessary for the security of the public peace or for public safety, to do so. Mere existence of enmity between the licensee and another person would not establish the necessary connection with security of public peace or public safety.
21. In Sheo Prasad Misra Vs. The District Magistrate Basti and others reported in 1978 Allahabad Weekly Cases, 122, (D.B.) this Court after considering Masiuddin case (supra) held in paragraph 4 which is reproduced as under:
4. "Learned Counsel for the petitioner contended that, while there was material before the licencing authority, viz., the District Magistrate, to show that some reports had been lodged against the petitioner, there was neither any material to warrant a conclusion that it was necessary to cancel the licence for security of public peace or public safety nor was a finding to that effect recorded. Learned Counel referred us to a decision of this Court in case of Masi Uddin v. Commissioner, Allahabad, 1972 ALJ 572, where this Court held:
"A licence may be cancelled, inter alia, on the ground that it is "necessary for the security of public peace or for public safety, to do so. The District Magistrate has not recorded a finding that it was necessary for the security of the public peace or for public safety to revoke the licend. The mere existence of enmity between a licencee and another person would not establish the "necessary" connection with security of the public peace or public safety."
In case before us also the District Magistrate has not recorded any finding that it was necessary to cancel the licence for the security of public peace or for public safety. All that he has done is to have referred to some applications and reports lodged against the petitioner. The mere fact that some reports had been lodged against the petitioner could not form basis for cancelling the licence. The order passed by the District Magistrate and that passed by the Commissioner cannot, therefore, be upheld on the basis of any thing contained in Sections 17(3) (b) of the Act"
22. In Chhanga Prasad Sahu Vs. State of U.P. and others reported in 1984 AWC 145 (FB), after noticing the provisions of Section 17 (3) of the Arms Act the Full Bench in paragraph 5 held as follows:
"A perusal of abovementioned provisions indicates that the licensing authority has been given the power to suspend or revoe an arms licence only if any of the conditions mentioned in sub-clauses (a) to (e) of sub-section (3) of Section 17 of Act exists." sub section (5) of Section 17 makes it obligatory upon the licensing authority to, while passing the order revoking/suspending an arms licence, record in writing the reasons therefore and to, on demand, furnish a brief statement thereof to the holder of the license unless it considers that it will not be in the public interest to do so."
In paragraph-9 it has been emphasised as under:-
"it is true that in order to revoke/suspend an arms licence, the licensing authority has necessarily to come to the conclusion that the facts justifying revocation/suspension of licence mentioned in grounds (a) to (e) of section 17 exist"
23. In Ilam Singh v. Commissioner, Meerut Division and others [1987 ALL. L.J. 416] this Court held that under Section 17(3) (b) the licencing authority may suspend or revoke a licence if it becomes necessary for the security of public peace or public safety. In this case no report was lodged against the licensee indicating that he had used the gun in the incident which led to the breach of public peace or public safety. It was held that there must be some positive incident in which the petitioner participated and used his gun which led to breach of public peace or public safety and in the absence of the use of the gun by the licencee against the security of public peace or public safety the licence of the gun could not be suspended or revoked. The relevant paragraphs 4 and 5 of the judgment in Ilam Singh (supra) are being reproduced as under:
"4. Having heard the learned counsel for the petitioner I am of the view that the submissions raised by the learned counsel for the petitioner cannot be said to be without substance. Section 17(3) (b) of the Arms Act enacts that licensing authority may by order in writing suspend a licence or revoke the same if it becomes necessary for the security of public peace or the public safety. When once a person has been granted a licence and he acquires a gun, it becomes one of his properties. In the present case no incident of breach of security of the public peace or public sfety 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."
5. 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. The licensing authority as well as the Commissioner committed errors on the face of the record in cancelling the licence of the gun held by the petitioner in utter disregard of the provisions of Section 17 (3) (b) of the Arms Act. In view of these facts the impugned orders cannot be sustained and deserves to be quashed."
24. In Habib v. State of U.P. and others [2002 (44) ACC 783] this Court held that mere involvement in a criminal case cannot in any way affect the public security or public interest and the order cancelling or revoking licence of fire arm was not justified. Paragraph 3 of this judgment reads as under:
"3. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of the licence under Arms Act, has been dealt with by a Division Bench of this court reported in Sheo Prasad Misra Vs. The District Magistrate, Basti and others, wherein the Division Bench relying upon the earlier decision reported in Masi Uddin v. Commissioner, Allahabad, found that mere involvement in criminal case cannot in any way affect the public security or public interest and the order cancelling or revoking the licence of fire arm has been set aside."
25. In Satish Singh v. District Magistrate, Sultanpur 2009 (4) ADJ 33 (LB), this Court elaborately explained what is detrimental to the security of the public peace or public safety and held that mere involvement in criminal case cannot in any way affect the public security or public interest. Paragraphs 6 and 7 of Satish Singh case (supra) are being reproduced as under:
"6. A plain reading of section 17 indicates that the arms licence can be cancelled or suspended on the ground that the licensing authority deems it necessary for security of the public peace or the public safety. In the present case, while passing the impugned order, neither the District Magistrate nor the appellate authority has recorded the finding as to how and under what circumstance, the possession of arms licence by the petitioner, is detrimental to the public peace or the public security and safety. Merely because criminal case is pending more so, does not seem to attract the provisions of section 17 of the Arms Act. To attract the provisions of section 17 of the Arms Act with regard to public peace, security and safety it shall always be incumbent on the authorities to record a finding that how, under what circumstances and what manner, the possession of arms licence shall be detrimental to public peace, safety and security. In absence of such finding merely on the ground that a criminal case is pending without any mitigating circumstances with regard to endanger of public peace, safety and security, the provisions contained under Section 17 of the Arms Act, shall not satisfy.
7. Needless to say that right to life and liberty are guaranteed under Article 21 of the Constitution of India and the arms licences are granted for personal safety and security after due inquiry by the authorities in accordance with the provisions contained in Arms Act, 1959. The provisions of section 17 of the Arms Act with regard to suspension or cancellation of arms licence cannot be invoked lightly in an arbitrary manner. The provisions contained under Section 17 of the Arms Act should be construed strictly and not liberally. The conditions provided therein, should be satisfied by the authorities before proceeding ahead to cancel or suspend an arms licence. We may take notice of the fact that any reason whatsoever, the crime rate is raising day by day. The Government is not in a position to provide security to each and every person individually. Right to possess arms is statutory right but right to life and liberty is fundamental guaranteed by Article 21 of the Constitution of India. Corollary to it, it is citizen's right to possess firearms for their personal safety to save their family from miscreants. It is often said that ordinarily in a civilised society, only civilised persons require arms licence for their safety and security and not the criminals. Of course, in case the government feels that arms licence are abused for oblique motive or criminal activities, then appropriate measures may be adopted to check such mal-practice. But arms licence should not be suspended in a routine manner mechanically, without application of mind and keeping in view the letter and spirit of Section 17 of the Arms Act."
26. In the case of Satish (supra) due to accidental firing some one was killed. This court held that the same shall not amount to breach of public peace or tranquility. This Court also held that the authorities have to record finding based on material evidence with regard to breach of public peace and safety while cancelling the arms licence.
27. In Vishal Varshney Vs. State of U.P. and another [2009 (75) ALR 593] this Court held that cancellation of a fire arm licence merely on the ground of apprehension or likelihood of misuse of fire arm is illegal. In Jageshwar Vs. State of U.P. and others 2009 (67) Allahabad Criminal Cases 157 this court held that in view of the settled law the licence under the Arms Act cannot be suspended on the ground of mere involvement in a criminal case or criminal trial or on the basis of mere apprehension of misuse of fire arm by the licensee.
28. In Thakur Prasad Vs. State of U.P. and others reported 2013(31) LCD 1460 (LB) this Court after referring to the earlier pronouncements in the case of Ram Murli Madhukar Vs. District Magistrate, Sitapur [1998 (16) LCD 905] and Habib Vs. State of U.P., 2002 ACC 783, held in paragraphs 10 and 11 as follows:
"10. "Public peace" or ''public safety" do not mean ordinary disturbance of law and order public safety means safety of the public at large and not safety of few persons only and before passing of the order of cancellation of arm license as per Section 17 (3) of the Act the Licensing Authority is under an obligation to apply his mind to the question as to whether there was eminent danger to public peace and safety involved in the case in view of the judgment given by this court in the case of Ram Murli Madhukar v. District Magistrate, Sitapur [1998 916) LCD 905], wherein it has been held that license can not be suspended or revoked on the ground of public interest (Jan-hit) merely on the registration of an F.I.R. and pendency of a criminal case."
11. Further, this Court in the case of Habib v. State of U.P. 2002 ACC 783 held as under:
"The question as to whether mere Involvement in a criminal case or pendency of a criminal case can be a ground for revocation of the licence under Arms Act, has been dealt with by a Division Bench of this Court in Sheo prasad Misra Vs. District Magistrate, Basti and Others, 1978 AWC 122, wherein the Division Bench relying upon the earlier decision in Masi Uddin Vs. Commissioner, Allahabad, 1972 ALJ 573, found that mere involvement in criminal case cannot, in any way, affect the public security or public interest and the order cancelling or revoking the licence of fire arm has been set aside. The present impugned orders also suffer from the same infirmity as was pointed out by the Division Bench in the above mentioned cases. I am in full agreement with the view taken by the Division Bench that these orders cannot be sustained and deserves to be quashed and are hereby quashed.
There is yet another reason that during the pendency of the present writ petition, the petitioner has been acquitted from the aforesaid criminal case and at present there is neither any case pending, nor any conviction has been attributed to the petitioner, as is evident from Annexure SA-I and II to the supplementary affidavit filed by the petitioner. In this view of the matter, the petitioner is entitled to have the fire-arm licence."
29. Thus, it has been held by this Court that "Public peace" or "public safety" do not mean ordinary disturbance of law and order. Public safety means safety of the public at large and not safety of few persons only. The Licensing Authority is under an obligation to apply his mind to the question as to whether there was eminent danger to public peace and public safety before passing the order under Section 17 (3) of the Act.
30. In Mewalal @ Kunnu v. Commissioner, Allahabad Division, Allahabad and another [2014 (32) LCD 576] it was held that the licence cannot be refused/suspended/cancelled merely because there is ordinary breach of law and order. Paragraph 13, 14 and 16 of the said judgment read as under:
"13. In the case of Rama Kushwaha v. State of U.P. & others, reported in 2011 (29) LCD 1045 it has been held that a license cannot be refused/suspended/cancelled merely because there is an ordinary breach of law and order.
14. The relevant paras of the aforesaid judgment are being reproduced hereinunder:
8. Relying upon Ganesh Chandra Bhatt v. District Magistrate Almora; AIR 1993 All, 291, learned Counsel for the petitioner submits that this court has held in clear words that a licence can not be refused/suspended/cancelled merely because there is an ordinary breach of law and order.
9. ''Public peace' or ''public safety' do not mean ordinary disturbance of law and order public safety means safety of the public at larger and not safety of few persons only. Before passing of the order in exercise of power conferred under Section 17 (3) of the Act the Licensing Authority is under an obligation to apply his mind to the question as to whether there was eminent danger to public peace and safety involved in the case.
10. In Ram Murli Madhukar v. District Magistrate, Sitapur [1998 (16) LCD 905], this Court has held that licence cannot be suspended or revoked on the ground of public interest (Janhit).
11. It is well settled in law that mere pendency of criminal case or apprehension of abuse of arms act are not sufficient grounds for passing the order of suspension or revocation of licence under Section 17 (3) of the Act. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of licence under Arms Act, has been dealt with by a division Bench of this Court Sheo Prasad Misra Vs. The District Magistrate, Basti and others, wherein the Division Bench relying upon the earlier decision of Msiuddin v. Commissioner, Allahabad, found that mere involvement in criminal case cannot in any way affect the public security or public interest. The law propounded in the said decisions has been subsequently followed in Habib Vs. Staate of U.P. reported in 2002 ACC 783, Ram Sanehi Vs. Commissioner, Devi Patan Division, Gonda and another.
16. In the case of Rajendra Singh v. Commissioner, Lucknow Division, Lucknow and others, reported in 2011 (29) LCD 1041 ''Public Peace' or ''public Safety' has been defined. The relevant paras 6 and 7 read as under:
6. ''Public peace' or ''public safety' do not mean ordinary disturbance of law and order public safety means safety of the public at large and not safety of few persons only. Before passing of the order in exercise of power conferred under Section 17 (3) of the Act the Licensing Authority is under an obligation to apply his mind to the question as to whether there was eminent danger to public peace annd safety involved in the case.
7. it is well settled in law that mere pendency of criminal case or apprehension of abuse of arms act are not sufficient ground for passing the order of suspension or revocation of licence under Section 17 (3) of the Act. The question as to whether mere involvement in a criminal cae or pendency of a criminal case can be a ground for revocation of licence under Arms Act, has been dealth with by a Division Bench of this court Sheo Prasad Misra v. The District Magistrate, Basti and others, wherein the Division Bench relying upon the earlier decision of Masiuddin v. Commissioner, Allahabad, found that mere involvement in criminal case cannot in any way affect the public security or public interest. The law propounded in the said decisions has been subsequently followed in Habib v. State of U.P. reported in 2002 ACC 783."
31. In Chandrabali Tewari v. The Commissioner, Faizabad [2014 (32) LCD 1696] this Court again held that mere pendency of criminal case is no ground to cancel fire arm licence. It has also been held that as in that case there were no allegations that the licenced gun was ever taken out by the licensee and was used in the act, the order cancelling petitioner's fire arm licence was quashed. Paragraph 12 of the said judgment is being reproduced as under:
"12. In the case reported in [2012 (79) ACC 824] Allahabad High Court, Civil Misc. Writ Petition No. 30724 of 1999 His Lordship has observed as follows:
"However, the impugned order nowhere indicates that the petitioner had used his licensed firearm or for that matter any firearm at all. The allegation in the impugned order is of physical assault (without use of firearm) and use of abusive language. Such an allegation, in my opinion cannot be the foundation of an impression by the District Magistrate that the petitioner, if allowed to retain his firearm license, would be a threat to future public peace and order."
32. In Ghanshyam Gupta v. State of U.P. and others [2016 (34) LCD 3035] this Court has again held that the necessary ingredients to invoke jurisdiction of the licencing authority in terms of Section 17 were clearly lacking and no finding had been returned on the basis of materials produced in that regard by the licencing authority, which must justify passing of the order of cancellation. Paragraph 9 of the said judgment is being quoted as under:
"9. In a recent decision of Lucknow Bench of this court in Surya Narain Mishra v. Stae 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 v. 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 tranqulity shall not create the ground for the cancellation of Armed Licence. In Ram Suchi v. Commissioner, Devipatan Division reported in 2004 (22) LCD 1643, it was held that this law was relied upon in Balram Singh Vs. Satate of U.P. 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."
33. In Jogendra Singh vs. State of U.P. and others [2018 (8) ADJ 871] this Court clearly held that for cancellation of a fire arm licence there had to be a definite finding that the possession of fire arm with the licensee was endangering public peace and public safety. In the absence of such finding it could safely be presumed that the licencing authority had erred in cancelling the fire arm licence. This Court also noticed that the State Government had issued guidelines which were circulated to all the District Magistrates to follow the same in the matters of cancellation/revocation of fire arm licence. The guidelines were reproduced as under:-
स्पीड पोस्ट/फैक्स/ई-मेल संख्याः 1/2018/जन-102-छ पु0-5-2018-408/17 प्रेशक-
भगवान स्वरूप सचिव उत्तर प्रदेश शासन।
सेवा में, समस्त जिला मजिस्ट्रट उत्तर प्रदेश।
गृह (पुलिस) लखनऊ दिनांकः अनुभाग-5 07 फरवरी 2018 विशयः- व्यक्तिगत शस्त लाइसेंसो के अनुज्ञप्तियों मे परिवर्तन-परिवर्धन, उनके निलम्बन एवं प्रतिसंहरण के संबंध मे, दिशा निर्देश।
महोदय, आयुध अधिनियम, 1959 की धारा -17 मे अनुज्ञप्तियों मे परिवर्तन-परिवर्धन, उनके निलम्बन एवं प्रतिसंहरण के संबंध मे व्यवस्था दी गयी है। उपरोक्त के अतिरिक्त मा0 सर्वोच्च न्यायालय एवं मा0 उच्च न्यायालय द्वारा भी समयकश् पर तत्सम्बन्ध मे विस्तश्त आदेश पारित किये गये है। गृह (पुलिस) अनुभाग-5 के शासनादेश संख्या-271 आर/छः-पु0-5-91-573/01, दिनांक 25.02.1991 द्वारा आग्नेयास्त्र लाइसेंसों का निलम्बन/निरस्तीकरण व शासनादेश संख्या-3017 आर/छः-पु0-5-99, दिनांक 15.05.1999 द्वारा व्यक्तिगत शस्त्र लाइसेंस(R) का दुरूप्रयोग रोकने के संबंध मे निर्देश दिये गये है।
2. उक्त के दृश्टिगत मुझे यह कहने का निर्देश हुआ है कि व्यक्तिगत शस्त्र लाइसेसों के अनुज्ञप्तियों मे परिवर्तन-परिवर्धन, उनके निलम्बन एवं प्रतिसंहरण के संबंध में निम्नानुसार कार्यवाही सुनिश्चित किया जाय-
(1) जिला मजिस्ट्रट/लाइसेसिग प्राधिकारी लिखित आदेश द्वारा अग्नेयास्त्र अनुज्ञप्ति का सुनिश्चित कालावधि के लिए निलम्बित कर सकता है या अनुज्ञप्ति को प्रतिसंहरित कर सकता है।
(2) उपरोक्त निलम्बन/प्रतिसंहरण तभी किया जाएगा जब जिला मजिस्ट्रट/लाइसेसिग प्राधिकारी को यह समाधान हो जाए कि-
(क) अनुज्ञप्तिधारी किसी विधि के अंतर्गत आयुध रखने हेतु प्रतिशिद्ध है या विकश्तचित्त है या किन्ही अन्य कारणों से आयुध अधिनियम मे अनुज्ञप्ति के अयोग्य है, अथवा (ख) जब जिला मजिस्ट्रट/लाइसेसिग प्राधिकारी लोकशांति की सुरक्षा या ''लोकक्षेत्र'' के लिए अनुज्ञप्ति को निलम्बित या प्रतिसंहरित करने के युक्तियुक्त आधार पाता है, आवश्यक समझता है अथवा (ग) जबकि यह प्रमाण हो कि अनुज्ञप्ति गलत जानकारी के आधार पर प्राप्त की गई है, अथवा (घ) जबकि अनुज्ञप्ति की किसी शर्त का उल्लंघन किया गया है, अथवा (ड़) जबकि अनुज्ञप्ति धारक को अपना शस्त्र परिदत्त करने का निर्देश दिया गया हो और उसके द्वारा शस्त्र का परिदान न किया गया हो।
(3) अनुज्ञप्ति प्राधिकारी को अनंत समय के लिए शस्त्र अनुज्ञप्ति निलंबित अथवा प्रतिसंहरित (निरस्त) नहीं करनी चाहिए। अनुज्ञप्ति के निलम्बन अथवा प्रतिसंहरण की अवधि सुनिश्चित होनी चाहिए।
(4) अनुज्ञप्ति प्राधिकारी को लाइसेंस निलंबित अथवा निरस्त करने का अधिकार आयुध अधिनियम की धा मजिस्टेªट रा 17 (3) के अंतर्गत प्रदत्त है और उक्त कार्यवाही करने से पूर्व अनुज्ञप्तिधारी को सुने जाने का अवसर प्रदान किया जाना आवश्यक है।
(5) अनुज्ञप्ति प्राधिकारी मामले के तथ्यों और परिस्थितियों पर विचार करते हुए यदि यह उचित पाते हैं कि प्रकरण में तात्कालिक प्रभाव से आयुध अनुज्ञप्ति का अनुज्ञप्ति प्राधिकारी द्वारा परिदान किया जाना आवश्यक है तो ऐसा करने का आदेश अभिलिखित किया जाये।
(6) मात्र किसी आपराधिक मामले का लम्बित रहना शस्त्र अनुज्ञप्ति निरस्त/निलम्बित करने का पर्याप्त आधार नहीं है। यहाॅ यह भी स्पश्ट करना समीचीन है कि मात्र एक आपराधिक प्रकरण के लम्बित होने के आधार पर भी विशिश्ट मामलों में आयुध अनुज्ञप्ति को निलंबित/निरस्त किया जा सकता है, परंतु अनुज्ञप्ति प्राधिकारी को ऐसा करने के पर्याप्त आधार अपने आदेश में अभिलिखित किये जाय। यह भी आवश्यक है कि ऐसे आधार अभिलिखित करते समय यह स्पश्ट उल्लिखित किया जाय कि अनुज्ञप्ति प्राधिकारी को समाधान हो गया कि प्रश्नगत आपराधिक प्रकरण की प्रकृति ऐसी है कि वह आमजन और समाज की लोकशांति एवं लोक़क्षेम के प्रतिकूल है और यदि अनुज्ञप्तिधारी को अनुज्ञप्ति रखने दी गई तो लोकशांति व लोकक्षेम पर प्रतिकूल प्रभाव पड़ेगा।
(7) यदि किसी शस्त्र अनुज्ञप्ति के निलंबन या प्रतिसंहरण की कार्यवाही आपराधिक वाद के आधार पर की गई हैं तो यदि उक्त आपराधिक अभियोग, दोशमुक्ति में परिवर्तित हो जाता हैं तो शस्त्र निलम्बन/निरस्त्रीकरण के आदेश का औचित्य भी समाप्त हो जाता है, परंतु यदि उक्त अभियेाग राज्य द्वारा अपील योग्य पाया जाए एवं उक्त प्रकरण की अपील की जाए तो राज्य को उक्त दोशमुक्ति के आदेश की अपील के निर्णय तक अनुज्ञप्तिधारी की शस्त्र अनुज्ञप्ति निलंबित/प्रतिसंहरित रह सकती है। अतः ऐसे प्रकरण जहाॅ जिला मजिस्टेªट के समक्ष दोशमुक्ति के अभिकथन द्वारा अपने शस्त्र अनुज्ञप्ति निलंबन/निरस्त्रीकरण की कार्यवाही को अपास्त करने की प्रार्थना की जाए, वहाॅ जिला मजिस्टेªट यह जानकारी करना सुनिश्चित करेंगे कि प्रकरण में कोई राज्य अपील योजित/प्रस्तावित तो नहीं की गई हैं? तथा उसके उपरान्त ही किसी निर्णय पर पहुचेंगे।
(8) जहाॅ पर अनुज्ञप्ति प्राधिकारी द्वारा यह समाधान किया जा रहा है कि अनुज्ञप्तिधारी का कृत्य लोकशांति और लोकक्षेम के प्रतिकूल है तो इसका तात्पर्य कानून व्यवस्था बिगड़ने की सामान्य परिस्थितियां¢ से नहीं समझा जाएगा, अपितु लोकशांति और लोकक्षेम प्रभावित होना तथा समाज पर व्यापक असर से तात्पर्यित है।
(9) शस्त्र निरस्त्रीकरण की कार्यवाही लम्बित रहने अथवा कोई आपराधिक विचारण लम्बित रहने के दौरान अनुज्ञप्तिधारी शस्त्र रखने के लिए अधिकार स्वरूप माॅग नहीं कर सकता हैं क्योंकि शस्त्र अनुज्ञप्ति एक अधिकार नहीं मात्र एक सुविधा है।
(10) अनुज्ञप्ति प्राधिकारी/जिला मजिस्टेªट अपने तात्विक समाधान के लिए पुलिस, अभियोजन एवं अन्य एजेंसियों से आख्या आहूत कर सकता है। इसके साथ ही जिला मजिस्टेªट द्वारा प्रकरण से संबंधित सभी सुसंगत अभिलेख पर विचार करने तथा मजिस्टेªट अनुज्ञप्तिधारी की पारिवारिक पश्श्ठभूमि, उसके पूर्व आपराधिक कश्त्य और उसका आपराधिक इतिहास को विचार में लेने के उपरांत ही समुचित आदेश पारित किया जाय।
(11) अनुज्ञप्ति प्राधिकारी/जिला मजिस्टेªट आयुध अधिनियम की धारा 17 के उपबंधों के अंतर्गत यह समाधान होने पर कि कोई अनुज्ञप्तिधारी किसी गंभीर अपराध में सम्मिलित होने, दोशसिद्ध होने या किसी अन्य आनुशांगिक कारण, जिसे वो तात्विक रूप से उचित पाता हो, के आधार पर अनुज्ञप्तिकारी को अनुज्ञप्ति धारण करने के लिए अयोग्य व्यक्ति की श्रेणी में पाता है तो वह शस्त्र अनुज्ञप्ति को निलंबित/प्रतिसंहरित कर सकता है।
(12) अग्नेयास्त्रों के लाइसेंस सुरक्षा की दश्श्टि से स्वीकश्त किये जाते हैं। इनका प्रयोग शादी-विवाह अथवा सार्वजनिक स्ािानों पर प्रदर्शन नहीं किया जाना चाहिए। ऐसा किये जाने से जनता में भय का वातावरण व्याप्त होता है। जो व्यक्ति शस्त्रों का प्रयोग प्रदर्शन हेतु अथवा जनता में भय व्याप्त करते हुए पाए जाएॅ, उनके शस्त्र लाइसेंस की शर्त संख्या 5 का उल्लंघन करने के आरोप में एवं शस्त्र अधिनियम की धारा 17 (3) (ख), (घ), (ड़) के अधीन तत्काल निरस्त करते हुए विधिक कार्यवाही की जा सकती है।
(13) यदि लाइसेंसिंग अधिकारी के समक्ष सामग्री है और उन्हें यह स्पश्ट हो जाता है कि लाइसेंसी के पास शस्त्र रहने से शांति एवं जनसुरक्षा खतरे में पड़ सकती है, तो वह (लाइसेंसिंग अधिकारी) उक्त तथ्यों को अभिलिखित करने के उपरांत सीधे अथवा किसी जाॅच अथवा लाइसेंसी की सुनवाई का अवसर दिये बिना लाइसेंस निलम्बित/निरस्त कर सकते हैं, परंतु उन मामलों में जिनमें लाइसेंसिंग अधिकारी को यह स्पश्ट है कि लाइसेंसी के पास शस्त्र रहने से जनशान्ति या जनसुरक्षा खतरे में पड़ सकती है और सही स्थित की जानकारी हेतु जाॅच लंबित हो तो ऐसी जाॅच के दौरान लाइसेंस निरस्त नहीं किया जा सकता है।
(14) आयुध अधिनियम की धारा 17 के अंतर्गत किसी कार्यवाही को प्रचलित करने से पहले जिला मजिस्टेªट/अनुज्ञप्ति प्राधिकारी के लिए यह आवश्यक है कि वह अपने समक्ष प्रस्तुत पत्रावली पर अनुज्ञप्तिधारी की शस्त्र अनुभाग से मूल पत्रावली में संलग्न शस्त्र आवेदन, शपथपत्र, आख्या एवं सुसंगत दस्तावेजों का सूक्ष्म अध्ययन कर लें, ताकि यह सुनिश्चित किया जा सके कि अनुज्ञप्तिधारी द्वारा गलत तथ्यों के आधार पर शस्त्र आवेदन तो नहीं किया गया है या किसी शर्त का उल्लंघन तो नहीं किया गया है?
(15) उपरोक्त निर्देशों के अतिरिक्त आयुध अधिनियम-1959, आयुध नियमावली-2016 समय समय पर माननीय सर्वोच्च न्यायालय एवं माननीय उच्च न्यायालय इलाहाबाद द्वारा पारित आदेशों, भारत सरकार एवं राज्य सरकार द्वारा समयकभ् पर निर्गत निर्देशों का भी सम्यक अनुपालन किया जाए एवं यदि उक्त का अनुज्ञप्तिधारी द्वारा उल्लंघन पाया जाता है तो उसके शस़्त्र अनुज्ञप्ति के निलंबन/निरस्तीकरण की विधि सम्मत कार्यवाही सुनिश्चित की जाय।
3. इस संबंध में मा0 न्यायालय द्वारा निम्नलिखित वादों (1) सी0पी0 साहू बनाम उत्तर प्रदेश राज्य 1984 ए0डब्लू0सी0 145,(2) कैलाश नाथ बनाम उत्तर प्रदेश राज्य 1985 ए0डब्लू0सी0 493, (3) हरप्रसाद बनाम उत्तर प्रदेश राज्य 2005 (5) ए0डब्लू0सी0 4939 तथा (4) नेशनल कैपिटल टेरिटरी आॅफ डेलही बनाम उमेश कुमार 2008 (3) एस0सी0सी0 क्रिमिनल 490 में पारित निर्णयों का सम्यक् अवलोकन करने के उपरान्त उमें दिये गये निर्देशों का पालन करते हुए ही कोई निर्णय लिया जाए।
4. कृपया उक्त निर्देशों का कड़ाई से अनुपालन सुनिश्चित किया जाए।'''' (34) In Hari Prasad Vs. State of U.P. and others (supra) judgments cited by learned counsel for the petitioner this Court held in paragraph Nos. 4 and 5 as under:-
"4. It is apparent from the record that the aforesaid finding is perverse and against the record as the petitioner has already been acquitted in Case Crime No. 170/93. The non-cognizance report No. 242/96 dated 7.9.1996 under Sections 252 and 504 I.P.C. was also not investigated. Involvement and pendency of a case crime is no ground for cancellation of fire-arm licence. It is settled law, that after acquittal the very basis for cancellation of the arms licence stands vitiated. In this regard reference of the decision rendered in Lalji v. Commisioner, Kanpur and Anr. MANU/UP.0661/1999 has been made.
5. The question as to whether mere involvement in a criminal cae or pendency of a criminal case can be a ground for revocation of the licence under Section 17 of the Arms Act has been considered by a Division Bench of this Court in Sheo Prasad Misra v. The District Magistrate Basti and others, 1979 (16) ACC 6 (Sum) wherein the Division Bench relied upon an earlier decision in Masi Uddin v. Commissioner, Allahabad, 1972 ALJ 573. In both the aforesaid cases it has been held mere involvement in a criminal case cannot in any way affect the public security or public interest. In view of this proposition of law the order cancelling or revoking the licence of the petitioner or the aforesaid ground of involvement and pendency of a criminal case is not tenable."
(35) From the aforesaid judgments some of the following propositions of law may be summarized as under:
(i) Right to hold fire arm licence granted by the authorities in accordance with the provisions contained in the Arms Act, 1959 is a valuable right of an individual.
(ii) Licencing authority has the power to suspend or revoke an arm's licence only if any of the conditions mentioned in Sub-Clauses (a) to (e) of Sub Section (3) of Section 17 of the Arms Act exists.
(iii) The provisions of Section 17 of the Act cannot be invoked lightly in an arbitrary manner.
(iv) The licencing authority has to satisfy itself if it is necessary for the security of public peace or for public safety to suspend or revoke the licence.
(v) Such satisfaction of the licencing authority must be expressed in the order and must be based on relevant material.
(vi) Public peace or public safety do not mean ordinary disturbance of law and order. Public safety means safety of the public at large and not of few persons only.
(vii) Mere involvement or pendency of a criminal case does not, of its own, necessarily affect public peace or public safety. The licencing authority in each case has to record a finding as to how and under what circumstances the possession of the arm licence is detrimental to the public peace or public safety.
(viii) On mere apprehension of misuse of fire arm or that the licencee would extend threat to the persons of the weaker section, the arm licence cannot be cancelled. There must be some positive incident in which the licencee participated or used his arm, leading to breach of public peace or public security.
(ix) After acquittal of the licencee from the criminal case, the very basis of cancellation of arm licence is vanished.
36. In the present case the petitioner's licence was cancelled by the District Magistrate on the ground of pendency of criminal case against him. The petitioner was later on acquitted of the criminal case by order dated 17.1.2003. A perusal of the order of acquittal does not show the use of fire arm. After acquittal the very basis of the order of cancellation vanished. The finding of the District Magistrate as affirmed by the Commissioner, that it was not in the interest of public peace and the public security that the licence remained with the petitioner/licencee, is not based on any evidence/material, except the police reports which in their turn were in view of the pendency of the criminal case against the petitioner. On mere apprehension expressed in the impugned orders that the petitioner would misuse the fire arm and would extend threat to the persons of the weaker section of the society, the arm licence could not be cancelled.
37. I do not find any substance in the submission advanced by learned Standing Counsel in support of the impugned orders, in view of the above discussion.
38. The writ petition deserves to be allowed and is hereby allowed. The orders impugned are quashed. However, quashing of the impugned orders would not result in revival of the petitioner's fire arm licence automatically. The petitioner may apply for arm licence afresh under the Arms Act, 1959 read with Arms Rules, 2016 before the Licencing Authority, along with a certified copy of this Judgment, if so desires, to have the arm licence. If any such application is filed before the licencing authority within a period of 30 days, the same shall be considered and decided expeditiously by the licencing authority strictly in accordance with law but the licencing authority shall not refuse the arm licence on the ground of the impugned orders which have been quashed by this judgment.
39. Writ petition is allowed. No orders as to costs.
Order Date :- 7-2-2020 Manish Tripathi