Patna High Court
Hardeo Narayan Singh vs State Of Bihar And Ors. on 18 July, 1984
Equivalent citations: AIR1985PAT3, 1985(33)BLJR107, AIR 1985 PATNA 3, (1985) PAT LJR 177, 1985 BLJR 107, (1985) 1 CRILC 410, (1985) EASTCRIC 216, (1985) BLJ 17, 1984 BBCJ 37
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT
M.P. Varma, J.
1. The petitioner, Hardeo Narayan Singh, held a licence for a D.B.B.L. gun granted to him by the Sub-divisional Officer, Buxar, being licence No. 131 of 1961.
2. The officer-in-charge of Brahampur police station instituted a case against one Awadhesh Prasad Singh on various charges in which one of the allegations was that he was seen carrying the gun belonging to the petitioner. Awadhesh Prasad Singh had no written authority or consent of the petitioner Hardeo Narayan Singh to carry his gun, nor was he keeping the same as a retainer. Awadhesh Prasad Singh was, therefore, prosecuted for an offence under Section 25(1)(a) of the Arms Act, 1959 (hereinafter referred to as 'the Act'). During the pendency of the investigation of the said case, the said officer-in-charge made a report to the Sub-divisional Officer, Buxar, for cancellation of the licence of the gun belonging to this petitioner and, the learned Magistrate, on receipt of the report, by order dated the 23rd Nov., 1974, cancelled the licence of the petitioner. The order of the Magistrate has been annexed with the petition as Annexure 1. The petitioner moved an appeal before the District Magistrate of Bhojpur at Arrah against the aforesaid order, but the learned District Magistrate as well on hearing the petitioner dismissed the appeal vide Annexure 2. The petitioner, thereafter, filed another application before the District Magistrate, by way of an application for review of the earlier order of dismissal of the appeal which also was rejected vide Annexure 3. Having lost at every stage, the petitioner filed this application under Arts. 226 and 227 of the Constitution, with a prayer to quash the aforementioned orders contained in all the three annexures, namely, Annexures 1, 2 and 3.
3. Learned Counsel for the petitioner has rightly said that on reading the orders impugned, it appears that the sole ground, which weighed with the authorities concerned, that is, the Sub-divisional Magistrate and the District Magistrate in cancelling the licence was that Awadhesh Prasad Singh had no authority to keep the gun of this petitioner. Learned Advocate has argued that the entire case has been misunderstood by the respondents, that is, the Sub-divisional Magistrate and the District Magistrate. They could not apply their minds to the police report, finally submitted in this case. It is not a case of possessing a gun by Awadhesh Prasad Singh without a licence or holding it as a retainer under the Act. Since the petitioner had suddenly felt the call of nature, he had temporarily asked Awadhesh Prasad Singh to hold the gun, and, it was during this period that the officer-in-charge who per chance happened to arrive, caught hold of Awadhesh Prasad Singh and instituted a case against him under Section 25( 1 )(a) of the Act for keeping the gun without a licence and the further allegation is that some cartridges were also found in possession of said Awadhesh Prasad Singh. It has been urged that in the aforesaid case instituted against Awadhesh Prasad Singh, a final form was submitted by the Police stating the case as mistake of facts. Final report has been accepted by the Sub-divisional Judicial Magistrate at Buxar and the case has been dropped. A certified copy of the final form submitted by the police has been produced in support of the contention raised above. A copy of the order of the learned Sub-divisional Judicial Magistrate dated the 2nd April, 1975, is Annexure 4 to the application, by which the final form submitted by the police has been accepted.
4. It will be relevant to quote some extracts from the final form which the police found in course of the investigation :
"During investigation.............. Sri Hardeo Singh was examined, who stated that he had given his gun to Awadhesh Kumar Singh when he had gone to ease and in the meanwhile he has been arrested with the gun.
The Dy. S. P. Buxar, who was mobile in connection with the Rly. strike duty due to students1 agitation at Raghunathpur Rly. St. just after the arrest of accused Awadhesh Kumar Singh, when he also examined besides myself and others.
The S. Police was pleased to pass remarks in the F.I.R. itself of this case and Dy. S. P. Buxar was entrusted with the job of passing final order in the case.
Accordingly, the D.S.P. Buxar was pleased to pass order in this case and directed to submit final report mistake of facts u/s. 25(A) Arms Act."
Abovementioned facts do indicate that it is not a case of possessing a gun by Awadhesh Prasad Singh without any valid licence or authority.
5. Mr. Daman Kant Jha, Government Advocate, appearing for the State, has contended that Awadhesh Prasad Singh was a man of doubtful character. The allegation against him was that in addition to the gun belonging to the petitioner, some cartridges were also found in his possession and in view of this fact it would be unsafe to quash the orders relating to the cancellation of the licence of the gun of this petitioner.
6. I have given due consideration to the points raised, and, in this connection it will be important to repeat that the police itself has stated in its report that it was a case of mistake of facts even against Awadhesh Prasad Singh, and, as such, on the direction of the Superintendent of Police, final form was submitted which was accepted by the Sub-divisional Judicial Magistrate and the case was dropped. Thus, it is quite apparent that in the course of investigation it transpired that Awadhesh Prasad Singh had been given a temporary custody of the gun, when the petitioner had gone to ease himself, and, in such a situation it cannot be accepted that he had handed over the gun to Awadhesh Prasad Singh for any ulterior motive or for the purpose of committing any offence. Temporary charge of the gun or holding the same, in the situation which had arisen or in such circumstances, does not amount to violation of the condition of the licence or any provisions of the Arms Act. The order, cancelling the licence of the petitioner, is without jurisdiction and must be set aside.
7. In the result, the application succeeds; the orders contained in Annexures 1, 2 and 3 are hereby set aside; and, I would direct that the licence of the petitioner which has been cancelled may be restored to him. There will, however, be no order for costs.
Nagendra Prasad Singh, J.
I agree.