Andhra HC (Pre-Telangana)
Hamza Bin Omer @ Zafar vs Commissioner, City Police, Hyderabad ... on 5 March, 2002
Equivalent citations: 2002(3)ALD275, 2002(4)ALT572
ORDER P.S. Narayana, J.
1. Heard Sri B.V. Bakshi and Sri Gangaiah Naidu, the learned Counsel representing the writ petitioners in WP Nos. 9107 and 9374 of 2000 and Sri Srimannarayana, learned Assistant Government Pleader for Home.
2. In both these writ petitions, inasmuch as substantially the same question is involved except slight variations; both the writ petitions are being disposed of by a common order.
3. The facts in brief are as follows:-
WP No. 9107 of 2000 is filed by the petitioner for a writ of mandamus directing the respondents to forbear seizing Licence No. 128/Home/92 to hold the licence and revolver owned and possessed by the petitioner without following the procedure and also questioning the impugned proceedings dated 15-5-2000 issued by the first respondent.
4. It is stated that the writ petitioner is a holder of valid Licence No. 128/Home/ 92 to possess a revolver and it is stated that he always carries weapon with him and this fact is within the knowledge of everyone and it is being regularly checked by the Inspector of Police, Rajendranagar, Ranga Reddy District and the petitioner is having the said licence, since there is a threat to his life. It is stated that the petitioner was not inclined to hear the ideals and coffer of certain political parties and communal groups since he is only a businessman and family of grown up daughters one of whom is studying MBBS etc., had been referred to as his family responsibility. Inasmuch as the petitioner was not inclined to oblige the political parties in collusion with local police began filing false criminal cases, his house at Rajendranagar also was ransacked during his absence, and no action was taken by the police.
5. It is stated that the petitioner is a victim and sufferer. His canteen and cycle stand at Princess Durre-shevar Hospital, Purani Haveli, Hyderabad was ransacked, complete crockery was reduced to pieces and furniture was broken and cycle stand was completely destroyed in the early hours of 12-2-2000 and his employees filed a complaint with the police, Mir Chowk Police Station. He was being forced to attend Police Station and he was warned to surrender his revolver. Several other allegations had been made in this regard and when there was pressure from the police to surrender the revolver, the petitioner filed WP No. 2955 of 2000, which was admitted on 29-2-2000, counter was filed by Respondent No. 1 on 15-3-2000 and reply affidavit was also filed. It is stated that there is no single occasion on which the petitioner used the weapon, though it has been always with him whenever he goes out. The third respondent on 18-5-2000 called the petitioner to Police Station and directed him that the petitioner should surrender his revolver and however he was not prepared to show any copy of the order and in such circumstances having no alternative remedy, the writ petition was filed.
6. It is brought to my notice that by virtue of interim direction of this Court, the weapon and licence had been deposited before the Registrar (Judicial) of this Court.
7. Counter-affidavit is filed by Respondent No. 1 to the effect that it is a fact that the petitioner is a resident of H. No. 18-7-418/267, Yesrabnager, Yakhuthpura under the limits of Rein Bazar Police Station. The petitioner is a valid Arms licence holder, which was issued by the Government of Andhra Pradesh vide No. 128/Home/92 for holding both revolver and DBBL gun and the same was re-registered with the Office of the District Collector and Magistrate, Ranga Reddy District, vide No. Rajendrangar IV-185/76. As the applicant has shown in residential addressed with House No. 6-4-182, Shivarampalli, Katedhan, Ranga Reddy District and it is stated that the said licence was obtained by the petitioner, suppressing material information about residential address, character and antecedents with a mala fide intention. Several other allegations have been made which will amount to suppressing of material information in obtaining the arms licence. It is stated that Cr.No.24 of 2000 of Mir Chowk Police Station was registered in which the petitioner was also an accused for the offences under Section 147, 148, 324, 307 read with Section 149 IPC and Section 27(2) of Indian Arms Act. It is stated that he had opened fire in private hospital and caused breach of peace in communally hypersensitive old city. It is stated that no complaint was received in the Mir Chowk Police Station stating that on the early hours of 12-2-2000 there was an incident at Princess Durre-shever Hospital, Hyderabad. It is stated that Sri Misbahuddin Khan, Manager of cycle stand and canteen of Princess Durre-shevar Hospital, had submitted a written complaint on 17-2-2000 at 9-00 a.m., addressed to the Inspector of Police Mir chowk Police Station stating that on 17-2-2000 at about 8-30 a.m., about 15-20 persons of Bin Mahfooz family went to Princess Durr-e-Shevar Hospital, ransacked cycle stand, canteen articles, and beat the workers of canteen. In this connection, a case in Cr.No.23/2000 was registered at Mir chowk Police Station. After thorough investigation of the case, a final report was submitted in the XVI Metropolitan Magistrate Court under Section 173 Cr.PC referring the case as 'lack of evidence' with a request for its approval. In fact that the petitioner approached this Court by filing WP No. 2955 of 2000 with a request to direct the respondent in the writ petition to forbear from depriving him of possession of his fire arms without following the provisions under the Indian Arms Act, 1959 and the Arms Rules of 1962 (for brevity 'The Act' and 'The Rules'). The said writ petition is no doubt admitted by this Court, It is stated that in compliance with the interim directions issued by this Court in WP No. 9107 of 2000 on 12-6-2000 a requisition was submitted to the Registrar (Judicial) and the weapon was taken from the Office of the Registrar (Judicial) on 22-6-2000 and the same was sent to the Forensic Science Laboratory, Hyderabad on 5-7-2000 to ascertain whether the said weapon was used during the commission of offence in Cr.No.24 of 2000 for the offences under Section 147, 148, 324, 307 read with Section 149 IPC and Section 27(2) of the Act. The Forensic Expert opined that the weapon was fired but the timing of the use could not be ascertained. The said weapon was received from Forensic Science Laboratory on 17-7-2000 and further action is being taken as per law. It is stated that by virtue of Memo No. 009447/Genl..C/2K, dated 25-4-2000, the Government had permitted to cancel the Arms Licence No. 128/Home/92 of the petitioner and in pursuance of the said memo, the Proceedings No. L&O/A1/320/2000 of the Commissioner of Police, Hyderabad City, dated 15-5-2000 had been duly issued and the reasons given are self-explanatory.
8. A reply affidavit was filed, explaining the stand taken by the writ petitioner and the counter-affidavit, filed in support of the petition.
9. WP No. 9374 of 2000 is filed for a writ of mandamus declaring the Proceedings No. Lic.1309/Panjagutta, dated 14-2-2000 issued by the respondent, whereunder the petitioner's arms licence No. 1309/Panjagutta had been cancelled, as illegal, improper, unjust and violative of the principles of natural justice and for such other suitable orders.
10. It is stated that the writ petitioner is a resident of Hyderabad and presently residing at Anandnagar, Khairtabad, Hyderabad. He is an agriculturist and doing business at Hyderabad. He possessed agricultural lands at Yerragunta of Ranga Reddy District and he applied for a licence for possession of firearms as required under Section 3 of the Arms Act. The licensing authority granted licence vide No. 1309/ Paunjagutta covered by three weapons i.e., (1) NP Bore Revolver No. B69397 Webly and Scott; (2) 315 Bore Rifle No. 93-AB-2516 10F and (3) 12 Bore DBBL gun No. 51230 made in London. It is stated that he had got licence and it had been renewed from time to time by the Home Department of Andhra Pradesh, Hyderabad. It is further stated that the impugned proceedings No. Lic.1309/Panjagutta, dated 14-2-2000 cancelling the arms licence had been issued with a direction to deposit the weapon with any authorised Arms Dealer and the reasons given for cancelling the licence also had been narrated in para 3 of the affidavit filed in support of the petition and how the reasons assigned for the said cancellation are not sustainable had been explained in detail in paras 4 and 5 of the said affidavit.
11. A counter-affidavit is filed by the Deputy Commissioner of Police, West Zone, Hyderabad City, denying the allegations and taking the stand that the petitioner being a licence holder is involved in Cr. No.188/99 under Sections 147, 148, 324, 427, read with Section 34 IPC of Charminar Police Station, wherein on the intervening night of 29/30-12-1999, the petitioner along with his two sons; namely, Faizal Jabri and Sayeed Jabri and other employees of Hotel Madina formed into unlawful assembly, pelted stones on cool drink bottles, glasses cup-saucers of the Hotel known as 'Shadab'. It is further stated that Sayeed Jabri and Faizal Jabri, the sons of the petitioner are rowdy-sheeters of Police Station Naryanguda, who are involved in different cases are creating law and order problem. The petitioner and his sons are involved in different cases, therefore, the Commissioner of Police, cancelled the arms licence of the petitioner under proceedings No. 1309/Panjagutta, dated 14-2-2000 giving details and cogent reasons.
12. Though, pleadings of the parities in both the writ petitions appear to be lengthy, the question raised by the Counsel representing respective parties in the writ petitions is quite lucid.
13. The main contention which had been raised by the learned Counsel, Sri B.V. Bakshi, in WP No. 9107 of 2000 is that the competent authority who had granted the licence being the Government and in the absence of any allegations, the Commissioner of Police had nothing to do and cannot initiate action and hence the impugned order is without jurisdiction. Apart from this aspect, the learned Counsel further contended that even otherwise, though Section 17(3) of the Arms Act does not specifically speak with regard to issuing of any notice as such, it is implicit, before making the impugned order, aggrieved party should be put on notice, reasonable opportunity should be given and in the absence of the same, the impugned order suffers from violation of the principles of natural justice.
14. The learned senior Counsel, Sri B.V. Bakshi while making elaborate submissions had drawn my attention to several provisions of the Act and catena of several decisions wherein the view had been expressed that even in a case of this nature it is essential that the principles of natural justice have to be observed.
15. Sri Gangaiah Naidu, the learned Counsel representing the petitioner had placed reliance on several decisions and further contended on the factual aspects and the explanation, which had been given relating to the allegations made in the impugned order, they need not be gone into at this stage inasmuch as the impugned order was made without affording any opportunity and if the petitioner had been given an opportunity he could have explained the stand now taken by him, which he had clearly explained by making detailed allegations in the affidavit filed in support of the petition. In this view of the matter, the impugned order is not sustainable in law.
16. Sri Srimarmarayana, the learned Assistant Government Pleader for Home had taken me through several factual details, which had been narrated in the respective counter-affidavits and further contended that the grounds, which had been mentioned in the impugned order, are the grounds falling under Section 17(3) of the Arms Act and hence the competent authority being satisfied that there was involvement of the petitioner and his sons in disturbance of public peace, action had been initiated in this regard.
17. On the aspect of jurisdiction, the learned Assistant Government Pleader for Home placed reliance on Section 43 of the Arms Act and had submitted that though the Government had issued the licence by virtue of delegation of powers even the Commissioner of Police can issue the impugned proceedings. He placed strong reliance oh certain decisions like Sudhir Chandra Ghosh v. The ADM 24 Paraganas and Ors., , Shesh Nath Singh v. State of Bihar and Ors., 1985 Crl.LJ 1601, Chhanga Prasad Sahu v. State of Uttar Pradesh, .
18. Heard both sides. Perused the entire material available on record. In the light of the authority of law especially in the field of applicability of principles of natural justice as envisaged in Smt. Maneka Gandhi v. Union of India and another, , wherein the principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. It is high time that even specifically notice is not contemplated under the provisions whenever the right of a citizen is infringed involving serious consequences the aggrieved party should be put on notice. No doubt an attempt was made on the part of the learned Assistant Government Pleader to show that under Section 17(3) of the Act there is no specific provisions of issuance of notice and the learned Counsel has drawn my attention to variation, suspension and revocation of licences. It was also contended that the non-mentioning of specific issuance of notice can always be taken as specific exclusion of the issuance of notice giving reasonable opportunity. It is also essential to note that the reasons are to be recorded and the authority should be satisfied that the reasons envisaged by the provisions are in fact in existence while making the orders of this nature.
19. In Union of India v. Sinha and Anr., , while dealing with the 'Doctrine of Pleasure' under Articles 309, 310, 311 of the Constitution of India, the Apex Court no doubt observed that where there is conflict between 'rule of natural justice and statutory provision' - Latter prevails.
20. In Smt. Maneka Gandhi v. Union of India and Anr., (already referred supra), it was observed that:
"although there is no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the Legislature. The principles of audi alleram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice."
21. Apart from this aspect of the matter, the learned Counsel representing the respective parties had drawn my attention to several decisions in this regard.
22. The learned Assistant Government Pleader had strongly placed reliance in Sudhir Chandra Ghosh v. The ADM 24 Paragawis and Ors., AIR 1978 Cal. 275 (referred supra), wherein it was held at para 5 as follows:
"that on the scheme of the Act, it cannot be held that in the absence of any prior show-cause notice, the licence holder is deprived of a reasonable opportunity to support his licence and oppose its suspension or revocation. The Legislature made a scheme ensuring giving of such suspension or revocation though not prior there to obviously because the Legislature was conscious of the position that the licence being in respect of a dangerous weapon its suspension or revocation may be an immediate necessity which cannot afford a confronted adjudication upon a prior notice to the licence holder. Since the statute itself incorporates in its own ways the requirement of the principles of natural justice, it rules out by necessary implication any further application of such a principle as of prior show-cause notice."
23. In Chhanga Prasad Sahu v. State of Uttar Pradesh (FB) (supra), while dealing with Section 17 of the Arms Act, where revocation/suspension of licence and opportunity to place his version of the case before the licensing authority, it was held that:
"the licensing authority has no power to suspend the anus licence pending enquiry into its cancellation/suspension. The object of the enquiry that a licensing authority may, while proceeding to consider the question as to whether or not an arms licence should be revoked or suspended, like to make, clearly is to enable the authority to come to a conclusion as to whether or not the facts stated in columns (a) to (e) of Section 17 (3) exist. In this view of the matter it can safely be taken that where a licensing authority embarks upon such an enquiry it is, till then, not convicted about existence of the conditions mentioned in columns (a) to (e) of Section 17 (3). So long as it is not so convinced, no case to make an order either revoking or suspending an arms licence as contemplated by the section will be made out. Neither Section 17 empowers the licensing authority to make an order of suspension pending enquiry into existence of the facts justifying making of the order for revocation/suspension nor can it be said that such power is implied in the power conferred upon the licensing authority by Section 17. The ground raised in favour of assumption of existence of such power in the licensing authority, namely, that unless such a power is assumed to exist in the licensing authority, it may not be possible to, in cases of urgency secure public peace and safety and thus the very object behind the provision may get defeated is untenable. In case it becomes apparent to the licensing authority that possession of arms by the licensee is going to endanger public peace and safety, it can straightaway and without holding any enquiry proceed to revoke/ suspend the arms licence. However, where from the material before the licensing authority it is not apparent to it that there is an immediate danger to public peace and safety and the licensing authority proceeds to find out whether there is any likelihood of public peace and safety being affected at some future date, it cannot be said that there is any such urgency as to justify the revocation/cancellation of the licence even before the licensing authority gets so satisfied. Considering the nature and the object of the enquiry, it cannot be said that that non-confennent of the power to suspend an arms licence pending enquiry has the effect of defeating the object for which such a power has been conferred upon the licensing authority".
24. Reliance was also placed in Shesh Nath Singh v. State of Bihar and Ors., 1985 Crl.LJ 1601 (supra).
25. In Kakku Venkataramaiah v. State of Andhra Pradesh, , wherein it was observed at para 9 as follows:
"The further question whether the impugned order is vitiated by reason of the non-observance of the principles of natural justice inasmuch as the Collector had cancelled the licence without giving the petitioner an opportunity of showing cause against the action proposed to be taken, is a question which is not free from difficulty. In a case a Division Bench of the Madras High Court consisting of Rajamannar CJ., and Panchapakesa Ayyar, J., approved of two earlier single Judge decisions of the same Court and held that notice and hearing are the essential prerequisites of an order of cancellation. On the other hand, a Division Bench of the Rajasthan High Court composed of Wanchoo CJ., (as he than was) and Dave, J., in the case of took a contrary view on the reasoning that the statute does not advisedly provide for a hearing whereas it does provide for the recording of reasons in the order of cancellation; and therefore, the introduction of the principles of natural justice into the statute is unwarranted."
26. In Gianoba and Anr. v. The Collector, Additional District Magistrate, Medak District at Sangareddy, 1967 (1) An WR 159, wherein it was observed as follows:
"An order cancelling the gun licence under Section 17 of the Arms Act, 1959 must be a speaking order, and must indicate the reasons in writing as to why the District Magistrate thought it necessary to cancel the gun licence, and also to show that the cancellation was necessary in the interest of public peace. The order should also indicate that the authority cancelling the licence had applied his mind to the question, and come to its own conclusions.
27. Apart from these decisions, strong reliance was placed on the following decisions; viz.
1. Sudhansu Kanta v. State of Bihar and Ors., AIR 1954 Pat 299 (Vol.41 C.N. 102).
2. In re the State of Madras, represented by the Secretary Home Department, Fort St. George, Madras, .
3. Ratilal Bhogilal Shah v. State of Gujarat and Ors., .
4. Naneppa s/o Narayanappa Commissioner, Bangalore Division and another, AIR 1967 Mysore 238 (V 54 C79).
5. Labh Singh Chatter Singh v. The Divisional Commissioner, Ambala Division, Ambala and Anr., .
6. Mohd Afaq v. The Commissioner, Allahabad Division, Allahabad and another, 1975 Cri.LJ 709 (Allahabad High Court).
7. Kapildeo Singh v. State of Bihar and Ors., .
8. Rajeshwar Dayal Sharma v. Bulandshaar and Anr., 1992 Crl. LJ 1412 (Allahabad High Court).
9. Megha Ram v. Commissioner, Meerut Division and Ors., 1993 Cri.LJ 3469.
10. Kukkila Narayan Naik v. The Additional District Magistrate, Cannanore and Ors., .
28. The contention of the learned Assistant Government Pleader is that under Section 43 of the Act, there is delegation of power and hence, the concerned Commissioner of Police is entitled to make the impugned order in the first writ petition, in my considered opinion does not hold water, since the learned Assistant Government Pleader for Home is unable to produce any notification in this regard relating to the delegation of power under the said provision. Hence, in any view of the matter and especially in the light of the view expressed in Smt. Manek Gandhi v. Union of India (supra), I am of the considered opinion that though specifically the words relating to 'issuance of notice' or 'affording reasonable opportunity' had (sic not) been employed in Section 17(3) of the Act. Such opportunity in my considered opinion is implicit and hence before initiating action of this nature, the competent authorities are expected to follow the procedure of putting the affected party on notice. It is no doubt true that there may be cases where serious urgency may be there and in such cases, the concerned competent authority is expected to act with all quickness. But even in such matters inasmuch as when licence had been granted and that right which is given to the party is being taken away, it is always desirable to put that party to show-cause why such action should not be initiated and make an order in accordance with law. I do reaffirm that the duty or legal obligation is cast upon the competent authority to put the party on notice before making the impugned order of this nature.
29. It is brought to my notice that in WP No. 9107 of 2000 the weapon had been deposited before the Registrar (Judicial) of this Court and it is hereby directed that the weapon and the licence be delivered back to the writ petitioner forthwith. Likewise in WP No. 9374 of 2000 also the weapon and the licence be delivered back to the writ petitioner forthwith.
30. Accordingly, the impugned orders are set aside. However, the learned Counsel for the petitioners brought to my notice that in view of the pendency of these litigations respective licences could not be renewed and accordingly the respective competent authorities are directed to consider the renewal of the respective licences of the petitioners within a period of one month from the date of receipt of this order. It is needless to say, that the respondents are at liberty to initiate necessary action in accordance with law after following the procedure in the light of the observations made above.
31. The writ petitions are accordingly allowed. However, there shall be no order as to costs.