Allahabad High Court
Radhey Shyam Yadav vs State Of U.P.Through Secy. Home Lko. And ... on 18 January, 2019
Equivalent citations: AIR 2019 (NOC) 625 (ALU), AIRONLINE 2019 ALL 1622 2019 (4) ALJ 80, 2019 (4) ALJ 80, AIRONLINE 2019 ALL 1622
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 26
Case :- MISC. SINGLE No. - 5192 of 2006
Petitioner :- Radhey Shyam Yadav
Respondent :- State Of U.P.Through Secy. Home Lko. And Others
Counsel for Petitioner :- Rajiva Dubey,Ram Bux Rawat
Counsel for Respondent :- C.S.C.
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Hon'ble Manish Mathur,J.
This petition has been filed challenging the order dated 30.11.2005 passed by the Commissioner, Lucknow Division, Lucknow in Appeal No.590/2003-04 and the order dated 03.05.2003 passed by the District Magistrate, Hardoi in Case No.199/383/1999 whereby the petitioner's S.B.B.L. gun licence was cancelled.
As per the averments of the writ petition, the petitioner had been granted a licence of S.B.B.L. gun no. 27357, Licence No.8751 for his personal safety and protection of property after following due procedure. On 23.09.1999, a show cause notice under Section 17 of the Arms Act 1959 (hereinafter referred to as the Act) was issued to the petitioner mentioning pendency of three criminal cases against him, i.e. (i) Crime No.143/1995 under Sections 147, 148 & 149 I.P.C.; (ii) Crime No.292/1997 under Section 25 Arms Act; and (iii) Crime No.410/1998 under Sections 147, 148, 149, 323, 308, 504 I.P.C. The petitioner submitted his reply dated 03.12.1999 to the aforesaid show cause notice where after vide order dated 25.08.2000, the petitioner's gun licence was suspended pending disposal of the criminal cases. Against the order dated 25.08.2000, the petitioner preferred Appeal No.611/99-2000 before the Commissioner Lucknow Division which was allowed vide order dated 22.02.2002 and the case was remanded to the District Magistrate for consideration afresh. In pursuance of the aforesaid order dated 22.02.2002 passed in appeal, the District Magistrate again issued notice dated 28.09.2002 to the petitioner and thereafter the impugned order dated 03.05.2003 has been passed cancelling the petitioner's S.B.B.L. gun licence. Being aggrieved by the order dated 03.05.2003, the petitioner filed Appeal No.590/2003-04 before the Commissioner, Lucknow Division, Lucknow who has also upheld the order of the District Magistrate by means of the order dated 30.11.2005. The aforesaid two orders are under challenge in this Writ Petition.
Heard Sri Rajiva Dubey, learned counsel appearing on behalf of the petitioner and the learned Standing Counsel appearing on behalf of the opposite parties.
Learned counsel for the petitioner has relied upon the provisions of Section 17(3) of the Act with the submission that the impugned orders have been passed without any application of mind and without recording any subjective satisfaction with regard to the criminal nature attributed to the petitioner in the impugned orders. It has also been submitted that the authorities below have not recorded any subjective satisfaction with regard to the apprehension of breach of peace by the petitioner and have also ignored the fact that there was no misuse by the petitioner of his fire arm ever since the grant of licence. Learned counsel for the petitioner has specifically relied upon sub-section (3) of Section 17 of the Act where under, in terms of clause (b) of the aforesaid provision, it was incumbent upon the opposite parties to have specifically recorded a finding with regard to breach of security of public peace or for public safety due to which it was necessary to revoke the petitioner's gun licence. In support of his arguments, learned counsel for the petitioner has relied upon the decisions in Munnawar Ali v. State of U.P. and others reported in 2018(103) ACC 769; Laddan Khan v. Commissioner, Lucknow Division, Lucknow and another, reported in 2017 (99) ACC 843 and Arun Kumar Singh v. State of U.P. and another, reported in 2005 (23) LCD 1011.
Learned counsel for the petitioner has further submitted that out of the three criminal cases said to have been pending against the petitioner, the petitioner was acquitted in Crime No.143/1995 by means of judgment and order dated 11.09.2009 which has been brought on record by means of a supplementary affidavit dated 8.11.2009. Similarly, he has submitted that the petitioner was acquitted by means of the judgment and order dated 23.10.2018 in Case Crime No.292/1997 under Section 25 of the Arms Act, which has also been brought on record by means of supplementary affidavit dated 18.11.2018. So far as the third Criminal case is concerned, leaned counsel for the petitioner has submitted that the records of the said Crime No.410/1998 has been summoned by this Court by means of order dated 12.4.2016 passed in Criminal Revision No.651 of 2008, which is still pending consideration. In view of the aforesaid submissions, learned counsel for the petitioner has submitted that the impugned orders are against the provisions of law and therefore, deserve to be quashed.
Learned Standing Counsel rebutting the submissions made by learned counsel for the petitioner has submitted that a perusal of the impugned orders will make it absolutely clear that the said orders have been passed under the provisions of sub-section (3) of Section 17 of the Act inasmuch as the impugned orders clearly rely upon the police report, conduct of the petitioner and the recording of the satisfaction of the authority concerned that the petitioner is an impediment to public peace. It has been further submitted that the licence has been revoked in view of the criminal cases which are pending against the petitioner. The learned Standing Counsel has also submitted that after the introduction of new Rules of 2016 under the Act, it is open to the petitioner to apply afresh for Arms Licence which can be considered by the appropriate authority.
I have considered the submissions made by learned counsel for the parties and perused the record.
A perusal of the impugned order dated 03.05.2003 passed by the District Magistrate makes it clear that the arms licence of the petitioner has been revoked, primarily, on the pendency of criminal cases against the petitioner as well as on the basis of police report indicating the criminal nature of the petitioner, which is not conducive for public security and there is threat to public peace. It is relevant to indicate that at the time of passing of the impugned orders, the petitioner had not been acquitted in two out of the three criminal cases which were pending against him and this is only a subsequent development which has taken place during pendency of this writ petition.
The matter relating to variation, suspension and revocation of licences is dealt with in Section 17 of the Act, which provides as follows :
" 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 therefore 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 thought India or any part thereof.
(10) On the suspension or revocation of a licence under the 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."
A perusal of the aforesaid Section, particularly, sub-section (3) read with sub-section (5) makes it clear that it shall be incumbent upon the licensing authority to record reasons in writing and also to furnish such reasons to the holder of licence on demand a brief statement in case the said authority makes an order suspending or revoking a licence under sub-section (3). In terms of the said provisions, I am clearly of the view that an order passed by the licensing authority suspending or revoking a gun licence has to specifically record reasons for the same which are also required to be supported by corroborating evidence and is also required to be mentioned in the order suspending or revoking such licence. In the absence of recording of such reasons by the licensing authority or his failure to indicate any corroborating evidence for such suspension or revocation, it can be clearly held that such an order suffers from the vice of non-application of mind and is, thus, against the provisions of Section 17 of the Act.
So far as the grounds of revocation in the impugned order are concerned, it is clear that the findings recorded by the District Magistrate with regard to criminal antecedents and nature of the petitioner are not supported by any documentary or oral evidence whatsoever. He has also not indicated as to how public peace and tranquillity would be disturbed in case the gun licence of the petitioner is not revoked. The authority concerned has also not recorded any finding that the petitioner has misused his fire arm after grant of licence and, as such, it can be said that the impugned order dated 03.05.2003 has been passed without any application of mind.
Learned counsel for the petitioner has relied upon the decision in Munnawar Ali v. State of U.P. and others (supra) in which this Court has clearly held that mere pendency of a criminal case cannot be a ground for cancelling licence to carry fire arm and that the Collector is required to arrive at a definite finding that possession of fire arm licence would endanger public peace and tranquillity. The second decision relied upon by learned counsel for the petitioner is Laddan Khan v. Commissioner, Lucknow Division, Lucknow and another (supra) in which also this Court has held that mere pendency of criminal cases cannot be a ground for cancellation of arms licence since it is well-settled in law that mere pendency of a criminal case or apprehension of abuse of the Arm Act are not sufficient ground in passing the order of revocation of licence under Section 17(3) of the Act. The said case has also made a distinction between the words "public peace" and "public safety" which do not mean ordinary disturbance of law and order and safety of a few persons only. It has been held that before passing the order in exercise of the powers 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. The third decision relied upon by learned counsel for the petitioner is Arun Kumar Singh v. State of U.P. and another (supra) in which also this Court has held that mere pendency of criminal cases is not a good ground for cancellation of the arms licence.
I have gone through the aforesaid judgment and am of the view that the aforesaid three decisions are clearly applicable in the present case inasmuch as the impugned order as well as the appellate order has been passed primarily on account of pendency of criminal cases against the petitioner which is also the basis of the police report indicating that the petitioner has a criminal bent of mind.
As regards the submission of the learned Standing Counsel that after introduction of new Rules of 2016 under the Act, it is open to the petitioner to apply afresh for arms licence, I am of the view that the said submission deserves to be rejected on account of the settled law that rights of the parties stand crystallized as on the date of filing of suit, application or petition and such right would not be hampered by any subsequent event occurring during the pendency of the said court proceedings. For such subsequent events to have a bearing on the pending litigation it should be of such a nature so as to either render the relief claimed to be nugatory or incapable of being granted, which circumstance is not available in the present case. Law with regard to the same has been propounded by Hon'ble the Supreme Court in Beg Raj Singh v. State of U.P. & others reported in (2003) 1 SCC 726, in which it has been observed in paragraph 7 as under :
"7. .......The ordinary rule of litigation is that the rights of the parties stand crystallized on the date of commencement of litigation and the right to relief should be decided by reference to the date on which the petitioner entered the portals of the court. A petitioner, though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events i.e. the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgment. Third-party interests may have been created or allowing relief to the claimant may result in unjust enrichment on account of events happening in-between. Else the relief may not be denied solely on account of time lost in prosecuting proceedings in judicial or quasi- judicial forum and for no fault of the petitioner. A plaintiff or petitioner having been found entitled to a right to relief, the court would as an ordinary rule try to place the successful party in the same position in which he would have been if the wrong complained against would not have been done to him........"
In view of the aforesaid facts and, particularly, the fact that the petitioner has subsequently been acquitted in two out of the three criminal cases pending against him whereas case file of the third criminal case has been summoned by this Court, the writ petition is liable to be allowed.
In the result, the writ petition is allowed and a writ in the nature of certiorari is issued quashing the order dated 30.11.2005 passed by the Commissioner, Lucknow Division, Lucknow in Appeal No.590/2003-04 as well as the order dated 03.05.2003 passed by the District Magistrate, Hardoi in Case No.199/383/1999 (annexed as Annexures 1 and 2 to the writ petition) and the Arms Licence of the petitioner is restored as a consequence.
[Manish Mathur,J.] Order Date :- 18.01.2019 kvg/-