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Madhya Pradesh High Court

Amit Agrawal vs The State Of Madhya Pradesh on 19 February, 2018

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                                                                 W.A.No.570/2017
        THE HIGH COURT OF MADHYA PRADESH

                   Writ Appeal No.570/2017
            Amit Agrawal Vs. State of M.P. and others

Jabalpur, dated 19/02/2018
      Mr. Munish Saini, Advocate for the appellant.
      Mr. Shivendra Pandey, Government Advocate for the
respondents/State.

Challenge in the present appeal is to an order passed by the learned Single Bench on 17.5.2017 whereby Writ Petition No.6515/2017 directed against an order dated 8.9.2016 passed by the State Government rejecting the application of the appellant for grant of a pistol licence, remained unsuccessful.

2. The application for grant of pistol licence was rejected by the State Government inter alia for the reason that the appellant has no threat perception from a person or group of persons and that grant of licence to the appellant does not fall within the policy of the State Government. Learned Single Bench relied upon an order passed by the Division Bench in Writ Appeal No.1076/2013 (Umesh Yadav Vs. State of M.P.) decided on 6.2.2014, wherein it has been held as under:-

"Notably, the policy of the Central Government/Union of India as well as State Government that only persons having threat perception should be issued licence subject to verification, has not been challenged by the petitioner. In other words, the policy recognises exception to the rule of prohibition of acquisition or possession of fire-arms by persons within the specified area.

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The learned single Judge has found, as of fact, that the licensing authority being satisfied that there was no threat perception to the petitioner's life or property from any group or group of persons, no fault can be found with the decision of the appropriate authority in refusing licence. That is unexceptional. Hence, the appeal fails and the same is dismissed."

3. Learned counsel for the appellant contends that the learned Single Bench of Patna High Court in its judgment dated 11.8.2015 (Manish Kumar and others Vs. The State of Bihar and others, (CWJC No.18535 of 2011), held that the reasoning given by the Licensing Authority that in absence of threat perception, licence cannot be granted is not tenable as none of the provisions of the statute discloses that imminent danger or actual threat perception is a ground for refusal of licence. Therefore, it is not a justifiable reason declaring the applicant unfit for grant of licence.

4. Learned counsel for the appellant also relies upon a Single Bench judgment of Delhi High Court in Writ Petition (Civil) No.1631/2012 (Vinod Kumar Vs. The State & others) decided on 9.9.2013, wherein it has been held it is the applicant's own perception of threat to his life and property which needs to be considered by the Licensing Authority in the light of law and order situation, prevailing in the locality and various other factors.

5. Learned counsel for the appellant also refers to another Single Bench judgment of Kerala High Court in Writ Petition (Civil) No.38165/2010 (C.Chandran Nair Vs. The Additional District Magistrate, Kasaragod & others) decided on 19.11.2014 wherein it has been held that the subjective ..3..

satisfaction of the authorities under the Act that there is no threat to the life and property of the applicant may or may not be correct. However, when the applicant feels that there is threat to his life and property, there is no reason for the State to risk his life and property. Another Single Bench judgment of Allahabad High Court reported as Abdul Kafi Vs. District Magistrate, Allahabad (2002) ILR (All.) 867 has taken the same view as in the other cases. In a judgment passed by the Himachal Pradesh High Court on 9.9.2015 in Bhavak Parashar Vs. State of H.P. & others, the writ petition was allowed and refusal to issue licence was set aside for the reason that the petitioner sought firearm licence to protect his life and property.

6. Chapter III of the Arms Act, 1959 (for short 'the Act') deals with the provisions of grant of licence. Sub-section (2) of Section 13 of the Act contemplates that 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. The Licensing Authority is to conduct an enquiry as it may consider necessary and after considering the report received under sub- section (2), either grant the licence or refuse to grant the same. Section 14 of the Act starts with the non-obstante clause. It permits the Licensing Authority to refuse to grant licence. Relevant Sections 13 and 14 of the Act read 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 ..4..

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.

(2A) 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 provisions 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 sport or in respect of a muzzle 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.

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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 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.

7. It may be stated that Section 3 of the Act is for acquisition and possession of firearm licence and ammunition, therefore, request of the appellant for grant of licence is under Section 3 of the Act.

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8. A Full Bench of this Court in a judgment reported as Pratibha Chouhan and others Vs. State of M.P. and others 2013 (3) MPLJ 219, was examining the question as to whether the State Government can issue guidelines for grant of licence as the Act has been enacted being part of Union List. It was held as under:-

"26. On the basis of the aforesaid discussion, we answer the substantial questions of law accordingly:

(i) That the State Government or its authorities are competent to issue executive instructions or conditions for issuing, varying or renewing the arms licence as far as the aforesaid conditions or instructions are not contrary to the provisions of Act of 1959 and Rules of 1962 or statutory order issued thereunder from time to time by the Union of India in exercise of power of discretion endowed on the authorities under the provisions of Act of 1959 and Rules of 1962.

(ii) That the view taken by the Gwalior Bench in Arun Mangal and others Vs. State of M.P. and others, W.P.No.1224/2005 to the effect that the State authorities are competent to issue instructions to a licensing authority in regard to grant of licence in exercise of discretion by the authorities provided to them under Act of 1959 and Rules of 1962 is in accordance with law and correct."

9. The State Government has issued instructions on 26.3.2011 whereby, it was decided that arm licence can be generally given to the specific categories which includes Ministers of Central Government and Members of Parliament, Ministers of State Government, Members of All India Services, Members of Armed Forces of the rank of Colonel and above etc. Clause 2.2 of such ..7..

guidelines provides that in respect of all other categories, licence shall be granted on the basis of threat perception in terms of Clause (ii) of the Government of India Circular.

10. In view of the judgment of the Full Bench of this Court in Pratibha Chouhan (supra), guidelines issued by the State Government are permissible guidelines. Once guidelines are permissible and there is a statutory prohibition of not possessing any arm and ammunition by a person without licence, therefore, it cannot be threat perception as in the mind of an applicant would be relevant. The State has to see the social context as well as threat perception so as to grant licence to an applicant for possessing arm licence. Section 14(1)(b)(ii) of the Act empowers the Licensing Authority to deny the licence if it is necessary for the security of the public peace or for public safety. Security of the public peace or public safety has to be examined on the report of the police officer in terms of Section 13(2) of the Act. Therefore, the scheme of the Act does not contemplate that the threat as perceived by the applicant alone is relevant to grant the licence. The Licensing Authority has to ensure maintenance of the public peace and public safety. Therefore, such considerations are paramount as to when licence can be granted or refused. We are unable to agree with the judgments of the different High Courts which were relied upon by the appellant.

11. This Court in a writ petition does not act as a Court of Appeal against the decision of the Licensing Authority refusing to ..8..

grant licence. This Court examines the decision making process only. If the decision making process is contrary to the provisions of law, only then this Court will intervene to direct the Licensing Authority to reconsider grant of licence but, the wish of an applicant to obtain a licence cannot outweigh the public peace or public safety, which are required to be considered by the Licensing Authority.

12. A weapon is not only meant for protection but it can be a weapon for action as well. Therefore, uncontrolled grant of licence will not only endanger the life of an applicant but to the other fellow citizens as well. Therefore, unless an applicant is able to satisfy that he is under threat from a person or group of persons, which State may not be able to protect, only then licence can be granted. However, in view of the categorical finding recorded that there is no threat perception from a person or group of persons; therefore, licence for possessing firearm has been rightly declined.

13. We do not find any error in the order passed by the learned Single Bench, which may warrant interference in the present intra- court appeal. Consequently, the same is dismissed.

                      (Hemant Gupta)                             (Vijay Kumar Shukla)
                       Chief Justice                                    Judge

C.
Digitally signed by
PREM SHANKAR
MISHRA
Date: 2018.02.22
01:48:16 -08'00'