Madhya Pradesh High Court
Keshav Upadhyay vs The State Of Madhya Pradesh Thr on 14 July, 2020
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
W.P. No.20488/2018
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB : HON'BLE MR. JUSTICE S.A. DHARMADHIKARI
W.P. No. 20488 of 2018
Keshav Upadhyay
Vs.
State of M.P. & Anr.
Whether reportable :- Yes /No
__________________________________________________________
For Petitioner : Shri Arun Dudawat, Advocate.
For Respondents : Shri Ankur Mody, Additional Advocate
/State General
ORDER
(Delivered on this Day of 14th July, 2020)
1. In pursuance of the directions issued by the Apex Court and guidelines issued by the High Court of Madhya Pradesh in the wake of COVID-19 outbreak, the matter was taken up through video conferencing while adhering to the norms of social distancing prescribed by the Government.
2. With the consent of rival parties, this petition is disposed of finally.
3. In this petition under Article 226 of Constitution of India, the petitioner has assailed the legality, validity and propriety of the impugned order dated 28/07/2017 (Annexure P/1) passed by Additional Secretary (Home), State of M.P., Bhopal, whereby, the application for grant of arms license of revolver / pistol has been rejected. 2 W.P. No.20488/2018
4. The petitioner is a permanent resident of District Gwalior and is carrying on a business of Civil Construction and Logistics. The petitioner carries on business in the entire territory of district Gwalior and adjoining areas of district Gwalior including remote areas. The aforesaid area is already notified as dacoit affected area and for this reason the petitioner felt it necessary to own a revolver/pistol for own safety and also looking to the fact that law and order situation in the locality is day by day going down, therefore, he applied for a licence for possessing and carrying an un-prohibited fire arm under Sections 3 and 4 of the Arms Act, 1959 (hereinafter referred to as the Act) to the District Magistrate, Gwalior (M.P.).
5. The District Magistrate called for report from the Superintendent of police as well as Commissioner. The reports were received by the District Magistrate, Gwalior (M.P.). In the said report, the Superintendent of Police as well as Commissioner recommended the case of the petitioner for issuance of revolver/pistol license. Thereafter, the matter was referred to the State Government since the licencing authority in respect of revolver/pistol is the State Government. The State Government without giving any show cause notice or opportunity of hearing to the petitioner rejected the claim of the petitioner vide order dated 21/05/2012 ( Annexure P/4) on the ground that case of the petitioner does no fall under the new policy for grant of arms license.
6. Being aggrieved, the petitioner challenged the aforesaid order in 3 W.P. No.20488/2018 W.P. No. 9317/2012 and vide order dated 27/12/2012 (Annexure P/5), the aforesaid writ petition was finally disposed of by setting aside the order dated 21/05/2012 (Annexure P/4) and directed the respondents to re-consider the case of the petitioner in accordance with the provision as contained in section 14 of the Act. Thereafter, the State Government once again rejected the claim of the petitioner on the sole ground of absence of any threat to the life of the petitioner vide order dated 13/02/2013.
7. Being aggrieved, the petitioner again approached this Court by filing a W.P. No. 1383/2013, which was allowed vide order dated 21/06/2016, in view of the fact that the order was not passed in accordance with the provision of section 14 of Act, therefore, the respondents were directed to decide the same by passing a speaking and reasoned order within a period of four weeks. Again,the respondents/authorities neither passed the speaking order nor followed the mandate of section 14 of the Act and rejected the claim of the petitioner for grant of arms license on the 3rd occasion vide order impugned dated 28/07/2017 on the ground of absence of any threat to the life of the petitioner. Being aggrieved, the petitioner has again approached this Court by filing the instant writ petition.
8. Learned counsel for the petitioner contends that impugned order is arbitrary and perverse since now it is well settled that licence for possession of the arms should not be rejected on the sole ground of 4 W.P. No.20488/2018 absence of any threat to life. He submits that the relevant criteria especially, those relating to possibility of misuse of the firearm, breach of public peace, incapacity-physical, mental or otherwise, of the petitioner to make use of the firearm in a proper manner and so on, have not at all been considered by the Authorities concerned. He further submits that the police report as well as the District Magistrate have recommended issuance of the firearm licence for revolver, case of the petitioner becomes more stronger. Learned counsel for the petitioner relies upon the following cases in support of his contention :-
(i) 2016 (1) MPWN 39 (Dinesh Pachori Vs State of Madhya Pradesh and others). (ii) WP (c) No. 5959/2013 (Sahil Kohli Vs Additional Commissioner of Police) Delhi High Court decided on 20/09/2013. (iii) Civil Misc. Writ Petition No. 65647/2013 (Chandraraj Tripathi Vs State of U.P. And Anr.) Allahabad High Court decided on 10/12/2013.
(iv) Civil Misc. Writ Petition No. 6307/2001 (Bhanu Pratap Singh Vs Commissioner Chitrakoot Dham Mandal, Banda and another) Delhi High Court decided on 19/04/2005. (v). 2017 (4) Maharashtra Law Journal Pawan s/o Ashok Bora Vs The State of Maharashtra and others decided on 02/02/2017. (vi) AIR 1993 Allahabad High Court 291 (Ganesh Chandra Bhatt Vs District Magistrate Almora). (vii) WP (c) 1631/2012 (Vinod Kumar Vs The State and others) Delhi High Court decided on 09/09/2013.
9. Per contra, return has been filed by counsel for the 5 W.P. No.20488/2018 respondents/State. It is submitted that impugned order rejecting grant of revolver licence has been passed by the competent authority i.e. State Government absolutely according to law. Merely because case of the petitioner has been recommended by the Superintendent of Police and the District magistrate for grant of licence, the same does not confer any legal right to obtain the arm licence. The petitioner has not been able to point out any single incident by which it can be inferred that there is a real danger to his life warranting grant of licence. The petitioner can not ask for arms licence for protecting his business. Since, the State Government has exercised its discretion in a reasonable manner, no interference is required. On this ground, he urges that the petition deserves to be dismissed.
10. Heard learned counsel for the parties and perused the record.
11. In order to consider the rival arguments, it would be necessary to advert to the relevant provision of law. The licence for acquisition and possession of fire-arm and ammunition can be obtained under section 3 and the licence for acquisition and possession of arms of specified description can be obtained under section 4 of the Act. Since the petitioner had made an application for grant of licence for acquisition and possession of the firearm of specified description, primarily, his application could be said to have been made under section 4 of the Act. Section 13 of the Act deals with grant of licence and section 14 is about refusal of the licence. They broadly underline the factors, by 6 W.P. No.20488/2018 considering which, the licence be granted or refused. The provision are reproduced as under :
"13 Grant of licences--
(1) An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed.
(2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time.
(2-A) The licensing authority, after such inquiry, if any, as it may, consider necessary, and after considering the report received under sub- section (2), shall, subject to the other provision of this Chapter, by order in writing either grant the licence or refuse to grant the same:
Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report. (3) The licensing authority shall grant-
(a) a licence under section 3 where the licence is required-
(i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or 7 W.P. No.20488/2018 sport or in respect of a muzzle a loading gun to be used for bona fide crop protection:
Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection, or
(ii) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government;
(b) a licence under Section 3 in any other case or a licence under section 4, section 5, section 6, section 10 or section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same.
14 Refusal of licences-
(1) Notwithstanding anything in section 13, the licensing authority shall refuse to grant-
(a) a licence under section 3, section 4 or section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition;
(b) a licence in any other case under Chapter II,--
(i) where such licence is required by a person whom the licensing authority has reason to believe-
(1) to be prohibited by this Act or by any other law for the time being 8 W.P. No.20488/2018 in force from acquiring, having in his possession or carrying any arms or ammunition, or (2) to be of unsound mind, or (3) to be for any reason unfit for a licence under this Act; or
(ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence. (2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.
(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person 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.
12. From bare perusal of the aforesaid Section 13 of the Act, it would be clear that licencing authority has to consider the issue of grant of licence or otherwise by following the procedure under Section 13 of the Act. The licence can be refused as per the provision of Section 14 of the Act. It delineates the situations where licence is to be mandatorily refused. These situations are as under :-
1. Where licence under section 3, or 4 or 5 is required in respect of any prohibited arm or prohibited ammunition;
2. Where the licensing authority is satisfied that the person requiring licence is prohibited by Actor by any other law from acquiring or 9 W.P. No.20488/2018 possessing or carrying any arms or ammunition.
3. Where the person requiring licence is of unsound mind;
4. Where the person desirous of having a licence is unfit for holding the licence under the Act;
5. Where the licensing authority considers it necessary for the security of the public peace or public safety to refuse the licence.
The licence can be refused only on the grounds mentioned herein above.
It is pertinent to note that ground on which the application has been rejected i.e. absence of any threat on life or property of a person, is not available to the authorities to reject/refuse the application mandatorily.
13. From the aforesaid, it is clear that this ground can not be a good ground for refusal within the meaning of Section 14 of the Act. The Authorities ought to have considered the relevant criterion i.e. genuineness of the need of a person, examined from the individual's own perception and his security wants in the light of his mental and physical make up and factors for a person to hold the licence under Section 14 of the Act.
14. The authority, however, must be wary of those needs which are fanciful or simply pretentious or purely fired by a desire to flaunt or parade in public the fire-arm as a fashion trend. This is not to say that a need felt by a person to possess a fire-arm is false only because police 10 W.P. No.20488/2018 do not think it to be real. As said earlier, an individual's own feeling of insecurity is an important factor. So, it needs to be respected and considered on the touch-stone of his own psyche, physical and mental make up and other factors contained in section 14 of the Act. After all, it is now a settled law that as possession of a nonprohibited fire-arm helps effectuate a person's right to protect himself, the right is considered as a part of fundamental right under Article 21 of the Constitution of India, subject of course to reasonable restrictions. Therefore, generally speaking, granting a licence should be the rule and refusal an exception, for reasons to be recorded in writing.
15. This view is consistent with the legislative intent discernible from section 14 (2) of the Act. This provision of law creates an embargo upon the power of the authority to refuse grant of licence by laying down that it shall not refuse licence merely on the ground of absence of any threat to the life of the petitioner. The Legislature intends that possession of property would have no bearing on exercise of the power to refuse grant of licence. It would also then mean that absence of threat to the property is no criteria for refusal of the licence. So, if absence of threat to the property is not a criteria for refusal of licence, it can also be found inferentially that absence of threat to the person of the applicant would be no criteria for refusal of the licence.
In the case of Ganesh Chandra Bhatt (supra) the learned Judge of Allahabad High Court, as His Lordship then was, observed that right to 11 W.P. No.20488/2018 carry an unprohibited fire-arm is a part of Article 21 of the Constitution, for to hold otherwise, would amount to keeping the unarmed and peace loving citizen distressed while the well armed criminals make merry. Relevant observations appearing in paragraph no. 47 are reproduced thus :
"47. In my opinion the right to carry non- prohibited firearms is part of Article 21 of the Constitution, for to hold otherwise, would amount to keeping good and peace loving citizens defenceless while the criminals are well armed. This would be wholly arbitrary and unreasonable. In these days when law and order has broken down it is only an armed man who can lead a life of dignity and self respect. No criminal or gangster can dare to assault or threaten such a person for fear of retaliation. Since the word 'life' in Article 21 has been held by the Supreme Court to mean a life of dignity (as discussed above), the right to carry non- prohibited firearms must be deemed to be included in Article 21."
In the case of Vinod Kumar (supra) the learned Single Judge of Delhi High Court held that refusal of the licence on the ground that there is no specific threat to the life or property is incorrect as that is not the criteria for refusal of licence under section 14 of the Act. The observations of the learned Single Judge are as under :
"A situation requiring safety in the form of a fire arm cannot always be foreseen and may develop all of a sudden. For instance, there may be an attempted burglary, dacoity, house breaking or robbery in 12 W.P. No.20488/2018 the house of a citizen in the dead of the night or he may be subjected to robbery, snatching etc. while on the move. It is not possible for the police official to be present everywhere and every time to protect the citizens and in fact it happens quite often that the police arrives at the scene only after the crime is already committed."
16. Now applying these principles of law to the instant case, I find that there was absolutely no valid and good ground for refusal of fire- arm licence to the petitioner, which was admittedly in respect of a non- prohibited firearm. Bare perusal of the police report and recommendation of the District Magistrate would show that all relevant factors have been answered in favour of the petitioner.
17. Therefore, relevant factors required for grant of arms licence has not been considered by the Authorities of the State Government and therefore the impugned order dated 28/07/2017 (Annexure P-1) is perverse and arbitrary. It violates the fundamental right of the petitioner guaranteed to him under Article 21 of the constitution of India. There are no factors which make the petitioner unsuitable or unfit for acquiring and possessing firearm licence. Unfortunately, no relevant factors have been considered by the Authorities below in passing the impugned order.
18. Accordingly, the impugned order dated 28/07/2017 (Annexure P/1) is therefore liable to be quashed and set-aside. The writ petition is allowed and impugned order is quashed and set-aside. The 13 W.P. No.20488/2018 respondents/State Government is directed to grant an appropriate licence to the petitioner unless there exists a situation contemplated under Section 14(1) of the Act which would mandate refusal of a licence to him. An appropriate order in terms of this direction be passed by the Licencing Authority, within a period of eight weeks from the date of receipt of certified copy of the order passed today.
(S.A. Dharmadhikari) JUDGE (14/07/2020) Durgekar* SANJAY N DURGEKAR 2020.07.18 12:40:02 +05'30'