Allahabad High Court
Moinuddin vs State Of U.P. Thru Secyreatry Deptt. Of ... on 27 March, 2023
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 20 Case :- WRIT - C No. - 1004936 of 2012 Petitioner :- Moinuddin Respondent :- State Of U.P. Thru Secyreatry Deptt. Of Home And Others Counsel for Petitioner :- Santosh Singh Counsel for Respondent :- C.S.C. Hon'ble Jaspreet Singh,J.
1. Heard the learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.
2. The instant petition has been preferred assailing the impugned order dated 29.03.2004 whereby the arms licence of the petitioner was cancelled. The appeal preferred by the petitioner before the respondent no.2 was also rejected by means of order dated 13.01.2012 and the aforesaid two orders are under challenge before this Court.
3. Submission of the learned counsel for the petitioner is that the petitioner was falsely implicated in Case Crime No.233 of 2003 under Sections 504, 506 302 IPC and Section 3(2)(v) SC/ST Act, Police Station Lalganj, District Pratapgarh. Since the petitioner had an arms licence of SBBL Gun bearing No.565/Lalganj, granted to the petitioner on 20.02.1995 and it was alleged that the petitioner has misused the said fire arm, accordingly in light of the said case bearing No.233 of 2003, a show cause notice was issued to the petitioner on 31.01.2004. The petitioner responded by filing his response on 15.03.2004 but it did not find favour with the District Magistrate, Pratapgrah who by means of order dated 29.03.2004 cancelled the arm licence.
4. It is further submitted that the petitioner preferred an appeal under Section 18 of Arms Act before the Commissioner Allahabad Division and the said appeal has also been dismissed by means of order dated 13.01.202012. The contention is that merely on the basis of one single case, the petitioner's arms licence has been cancelled. It is also urged that it has not been considered by the authorities that the petitioner had not misused the said arms licence and actually there was no threat to the public peace at large.
5. It has also been submitted by the learned counsel for the petitioner that in the Sessions Trial No.38 of 2004 which arose out of Case Crime No.236 of 2003, the petitioner was acquitted by the court by means of judgment dated 31.03. 2015. It is also urged that thereafter there is no complaint against the petitioner apart from the fact that the State did not file any appeal against the judgment of acquittal dated 31.03.2015. In the aforesaid backdrop, the impugned orders deserve to be set aside.
6. Learned counsel for the petitioner has submitted that by ignoring all the relevant law regarding cancellation of arms license and without considering the settled legal proposition the impugned orders have been passed by the respondents no.2 and 3. It is also urged that the impugned orders are bad in the eyes of law and is also contrary to the legal principles as laid down by this Court in the case of Mewa Lal & Kunnu Vs. Commissioner, Allahabad Division, Allahabad and another reported in 2014 (32) LCD page 576 and in Ram Charan Vs. State of U.P. and others reported in 2018 (36) LCD page 1178.
7. Learned Standing Counsel has filed a counter-affidavit wherein it is stated that since the petitioner was involved in the said case, accordingly considering the overall circumstances, it was found that it is not conducive for the petitioner to possess the arms licence as the petitioner was involved in heinous crime, accordingly the licence was cancelled.
8. It has also been submitted by the learned Standing Counsel that the judgment of acquittal which has been filed by the petitioner alongwith his rejoinder-affidavit, it indicates that the petitioner has been granted the benefit of doubt and it does not mean that there is a clear acquittal and in the aforesaid circumstances the cancellation of licence does not require any interference.
9. Before adverting to the respective contentions, it will be relevant to notice the dictum as held in the case of Mewa Lal (supra) wherein this Court by referring to an earlier decision in the case of Rajendra Singh Vs. Commissioner, Lucknow Division, Lucknow 2011 (29) LCD page 1045 has culled out the meaning of the word public peace and public safety and the relevant portion of the aforesaid report of Mewa Lal reads as under:-
"In the case of Rajendra Singh vs. Commissioner, Lucknow Division, Lucknow and others, reported in 2011 (29) LCD 1041 'Public Peace' or 'Public Safety' has been defined. The relevant paras 6 & 7 read as under:
6. 'Public peace' or 'public safety' do not mean ordinary disturbance of law and order public safety means safety of the public at large and not safety of few persons only. Before passing of the order in exercise of power 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.
7.It is well settled in law that mere pendency of criminal case or apprehension of abuse of arms act are not sufficient grounds for passing the order of suspension or revocation of licence under Section 17 (3) of the Act. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of licence under Arms Act, has been dealt with by a Division Bench of this Court Sheo Prasad Misra Vs. The District Magistrate, Basti & others, wherein the Division Bench relying upon the earlier decision of Masiuddin Vs. Commissioner, Allahabad, found that mere involvement in criminal case cannot in any way affect the public security or public interest. The law propounded in the said decisions has been subsequently followed in Habib Vs. State of U.P. reported in 2002 ACC 783."
10. Even in the case of Ram Charan (supra), this Court noticing the distinction between the concept of public order and breach of law, by relying upon the earlier decisions of the Apex Court and this Court in paragraphs 11 to 18, have considered the requisite which is required to be noticed while considering an application for grant or revocation of an arms license. The relevant paras read as under:-
11. The distinction between the concept of public order and that of law and order has been adverted to by the Apex Court in a catena of decisions. The question whether a man has only committed a breach of law and order or acted in a manner leading to disturbance of public order is a question of degree of the reach of the act upon society is no more res integra. In the case reported in AIR 1966 SC 740, Dr Ram Manohar Lohia v. State of Bihar it was observed that the contravention 'of law' always affects 'order' but before it could be said to affect 'public order', it must affect the community or the public at large. One has to imagine three concentric circles, the largest representing "law and order", the next representing "public order" and the smallest representing "security of State". An act may affect "law and order" but not "public order", just as an act may affect "public order" but not "security of the State".
12. The principles settled way back in the year 1966 in the case of Dr. Ram Manohar Lohia (Supra) has been repeatedly quoted with respect and approval.
13. In 1998 (16) LCD 905, Ram Murti Madhukar Vs. District Magistrate, Sitapur, in paragrah 8 & 9 of the said report this Court has held as follows:-
"8. It is also well settled in law that mere pendency of criminal case or apprehension of abuse of Arms Act, are not sufficient ground for passing of the order of suspension or revocation of licence under Section 17 of the Act. A reference in this regard may be made to the decisions of this Court in Ganesh Chandra Bhatt v. D.M. Almora (AIR 1993 Allahabad-291).
9. It is also well settled in law that before passing of the order of suspension or revocation, under clause (b) of sub section (3) of Section 13 of the Act, the licensing authority must apply its mind to the question as to whether there was eminent danger to public peace and safety involved in the case. Licence cannot be suspended or revoked on the ground of 'Jan Hit'."
14. In 2002 (44) ACC 783, Habib Vs. State of U.P. & Ors. in paragraph 3 & 4 of the said report it has been held as follows:-
"3. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of the licence under Arms Act, has been dealt with by a Division Bench of this Court reported in Sheo Prasad Misra v. The District Magistrate, Basti and others, wherein the Division Bench relying upon the earlier decision reported in Masi Uddin v. Commissioner, Allahabad, found that mere involvement in criminal case cannot in any way affect the public security or public interest and the order cancelling or revoking the licence of firearm has been set aside. The present impugned orders also suffer from the same infirmity as was pointed out by the Division Bench in abovementioned cases. I am in full agreement with the view taken by the Division Bench that these orders cannot be sustained and deserve to be quashed and are hereby quashed.
4. There is yet another reason that during the pendency of the present writ petition, the petitioner has been acquitted from the aforesaid criminal cases and at present there is neither any case pending, nor any conviction has been attributed to the petitioner, as is evident from Annexure SA-1 and II to the supplementary affidavit filed by the petitioner. In this view of the matter, the petitioner is entitled to have the fire-arm licence. It is submitted by petitioner's counsel that the petitioner has been acquitted of the charges."
15. In 2009 (10) ADJ 635, Ashiq Hussain Vs. Commissioner, Moradabad & Ors., in paragraph 6 of the report it has been held as under:
"6. The mere involvement in a solitary criminal case cannot be a ground for cancellation of a firearm license as held by this Court in case of Mohd. Haroon Vs. The District Magistrate, Siddharth Nagar reported in 2003 (1) ACJ 124, unless and until it is shown on the basis of material on record that there was grave danger to public law and order. In the instant case it is only a solitary incident, which was not arising out of any disturbance of public law and order, that has been made the basis for ordering cancellation."
16. In 2011 (29) LCD 1045, Rama Kushwaha Vs. State of U.P. & Ors., a Single Judge of this Court in paragraph 10 & 11 of the said report has held as follows:-
"10. In Ram Murli Madhukar Vs. District Magistrate, Sitapur [1998(16) LCD 905], this Court has held that licence can not be suspended or revoked on the ground of public interest (Janhit).
11. It is well settled in law that mere pendency of criminal case or apprehension of abuse of arms act are not sufficient grounds for passing the order of suspension or revocation of licence under Section 17 (3) of the Act. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of licence under Arms Act, has been dealt with by a Division Bench of this Court Sheo Prasad Misra Vs. The District Magistrate, Basti & others, wherein the Division Bench relying upon the earlier decision of Masiuddin Vs. Commissioner, Allahabad, found that mere involvement in criminal case cannot in any way affect the public security or public interest. The law propounded in the said decisions has been subsequently followed in Habib Vs. State of U.P. Reported in 2002 ACC 783, Ram Sanehi Vs. Commissioner, Devi Patan Division, Gonda & another."
17. In 2011 (29) LCD 829, Hiramani Singh Vs. State of U.P. & Ors. it was held as under:-
"8. This Court in the case of Ashok Rao v. State of U.P. and others, reported in 2010 (68) ACC 441 while considering the authority to be exercised under Section 17 of the Indian Arms Act has taken the view that mere pendency of criminal case cannot be ground for cancellation of firearm license unless and until finding is returned by the authority concerned that possession of firearm has the tendency of threatening public peace and public safety."
18. In 1994 (12) LCD 1109, Anil Kumar Singh Vs. Distt. Magistrate, Pratapgarh, in paragraph no. 6 of the said report it has been held as follows:-
"6. ...Therefore, it is clear that at the time of passing the order order dated 6-2-79 by the Commissioner, there was no ground on which the gun licence of the petitioner could have been cancelled. Both the grounds were wiped off before passing of the order of the learned Commissioner and the learned Commissioner could not have passed this order unless there was some fresh material against the petitioner be that date. In this connection it will by useful to refer to the case of Ram Bodh Singh v. State of U.P. & others, 1985 (11) Allahabad Law Reports, 114, in which it has been held that once petitioner was acquitted those cases could not furnish material for cancellation of his licence. Therefore, on the date on which the Commissioner passed his licence. Therefore, on the date on which the Commissioner passed his order, it cannot be said that the cancellation of licence was in the public interest and this fact could not be substantiated by the State."
11. The Court further finds that by means of order dated 28.02.2023, a Co-ordinate Bench of this Court had required the learned Standing Counsel to seek instructions as to whether against the judgment of acquittal dated 31.03.2015 any appeal has been preferred and if so its outcome. The State was also required to inform as to whether any other criminal case has been lodged or pending against the petitioner.
12. In furtherance of the said order, learned Standing Counsel has filed the affidavit on behalf of the District Magistrate under the signature of the Tehsildar Lalganj, District Pratapgarh. In pagraphs no.5 and 6 of the said affidavit, it has clearly been stated that there is no appeal pending against the acquittal of the petitioner dated 31.03.2015 and further there is no case which was lodged against the petitioner or is pending. The said affidavit is taken on record.
13. Considering the facts and circumstances also noticing that the petitioner's licence has been cancelled only on account of one, solitary case wherein the involvement of the petitioner was not found established and he has been acquitted and there has been no appeal against the order of acquittal and also the issue regarding threat to public peace has not been considered in the correct perspective as noticed hereinabove this Court finds that the reasoning given by the District Magistrate Pratapgrah and the respondent no.2 while cancelling the licence as well as the dismissing the appeal in not in consonance with the settled legal principles and the core question regarding threat to public peace has not been considered nor adjudicated in the correct prespective.
14. In view of the aforesaid, the impugned orders cannot be sustained and are accordingly set aside. The respondent no.3 is directed to consider the application of the petitioner for grant of licence in accordance with law considering the dictum which has been noticed by this Court in Mewa Lal (supra) and Ram Charan (supra) within three months from the date a certified copy of this order is placed before the District Magistrate, Pratapgarh.
15. With the aforesaid, the writ petition is allowed. The impugned orders dated 29.03.2004 and 13.01.2012 are quashed and set aside. In the facts and circumstances, there shall be no order as to costs.
Order Date :- March 27, 2023 ank/-