Allahabad High Court
Manoj Kumar Yadav vs State Of U.P.Thru.Addl.Chief ... on 13 February, 2023
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R Court No. - 7 Case :- WRIT - C No. - 16298 of 2021 Petitioner :- Manoj Kumar Yadav Respondent :- State Of U.P.Thru.Addl.Chief Secy.Home Lucknow And Ors. Counsel for Petitioner :- Shantanu Sharma,Anshuman Sharma,Athar Ali Counsel for Respondent :- C.S.C. Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.
2. Instant petition has been filed praying for the following main reliefs:-
"1.) Issue a writ, order, direction in the nature of Certiorari to quash the illegal, impugned order dated 12.04.2021 passed by Divisional Commissioner, Prayagraj Division, Prayagraj i.e., opposite party no.2 in Appeal No.01052/2020 in re: Manoj Kumar Yadav Vs. State under section 18, Indian Arms Act, 1959 and illegal, impugned order dated 07.09.2020 passed by District Magistrate, Pratapgarh Le opposite party no.3 regarding Grant of Arms License to Petitioner the illegal impugned order dated 07.09.2020 passed by District Magistrate, Pratapgarh i.e. opposite party no.2 regarding Grant of Arms License Application of Petitioner i.e., Annexure no.1 & 2 respectively, in the interest of justice.
2.) Issue a writ, order, direction in the nature of mandamus commanding Opposite parties to consider the Application for Grant Arms License of the Petitioner and to decide the issue of grant of arms license in accordance with law within a stipulated period in the interest of justice."
3. The case set forth by the petitioner is that he is a practicing lawyer at District Pratapgarh and is a law abiding citizen without any criminal record. He applied for grant of a firearms license for the purpose of personal safety and security of his property. The application of the petitioner initially remained pending with the District Magistrate, Pratapgarh, which required the petitioner to file Writ Petition No.27645 (MS) of 2016 in re: Manoj Kumar vs. State of U.P. and others before this Court. This Court vide order dated 22.01.2020 disposed of the petition with a direction to the District Magistrate to consider and decide the application of the petitioner. In pursuance thereof, vide order impugned dated 07.09.2020, the application of the petitioner for grant of firearms license has been rejected. The appeal filed by the petitioner has also been rejected vide order dated 12.04.2019 and hence the petition.
4. Learned counsel for the petitioner while seeking to challenge the impugned order dated 07.09.2020 whereby the application of the petitioner for grant of firearms license has been rejected contends that a perusal of the order impugned would indicate that the District Magistrate has indicated three reasons while rejecting the application of the petitioner namely (a) no reasons have been assigned by the petitioner as to why he requires the firearms license (b) there is no report of actual requirement of arms license from the authorities, and (c) there is no threat perception to the petitioner.
5. Learned counsel for the petitioner contends that a perusal of the order impugned would indicate that the Inspector Incharge of the Kowali Nagar Pratapgarh as well as the Tehsil authorities have both submitted their reports, as finds place in the order impugned, whereby it has been indicated that the petitioner is a fit person for being granted an arms license. It is contended that the grounds taken by the District Magistrate while rejecting the application of the petitioner for grant of firearms license are totally alien to the provisions contained in Section 14 of the Arms Act, 1959 (hereinafter referred to as the 'Act, 1959').
6. Elaborating the same, the contention of learned counsel for the petitioner is that Section 14 of the Act, 1959 is couched in negative terms i.e. the circumstances in which refusal of license can be made. He contends that none of the grounds, as have been indicated by the District Magistrate while rejecting the application of the petitioner for grant of firearms license, fall within the ambit of Section 14 of the Act, 1959 and as such on this ground alone the order impugned merits to be quashed.
7. In this regard, reliance has been placed on a judgment of this Court in the case of Dinesh Kumar Pandey vs. State of U.P. and others passed in Writ-C No.16565 of 2012 decided on 25.07.2012 to argue that in similar circumstances this Court has categorically held that grant of firearms license is not a largesse and a person is entitled for grant of said license on his own right.
8. On the other hand, learned Standing Counsel on the basis of averments contained in the counter affidavit argues that a perusal of the order impugned would indicate that the competent authority has not found the petitioner to be a fit person for grant of firearms license inasmuch as there is no threat perception against the petitioner which has come up in any of the reports that were called for prior to considering the application of the petitioner for grant of firearms license. It is also contended that various Government Orders have been issued which detail the method on which firearms license is to be granted to a person applying for the same. Thus, it is contended that there is no infirmity or illegality in the order impugned and the writ petition deserves to be dismissed.
9. Heard and perused the records.
10. From perusal of the records it emerges that the petitioner, a practicing Advocate of District Pratapgarh, had applied for grant of firearms license before the competent authority. The same remained pending before the competent authority and the orders have only been passed after a direction issued by the writ Court. Be that as it may, the order impugned dated 07.09.2020 whereby the application for grant of firearms license has been rejected on the grounds namely (a) no reasons have been assigned by the petitioner as to why he requires the firearms license (b) there is no report of actual requirement of arms license from the authorities, and (c) there is no threat perception to the petitioner.
11. The procedure for grant of firearms license and its refusal is contained in the Act, 1959. Section 13 of the Act, 1959 pertains to grant of licenses whereas Section 14 of the Act, 1959 pertains to refusal of licenses. For the sake of convenience, Sections 13 and 14 of the Act, 1959 are reproduced below:-
"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.
(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.
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."
12. From perusal of Section 13 of the Act, 1959, it emerges that an application application for the grant of a license under Chapter II shall be made to the licensing authority and to be in such form, contain such particulars and to be accompanied by a fee. On receipt of the said application, the licensing authority has to call for a report from the officer in charge of the nearest police station and may after inquiry, if any, as it may consider necessary and after considering the report shall, subject to the other provisions of the Act, by order in writing either grant the license or refuse to grant the same.
13. Perusal of Section 14 of the Act, 1959 indicates that notwithstanding anything contained in Section 13 of the Act, 1959, the licensing authority shall refuse to grant a license under Section 3, Section 4 or Section 5 where such license is required in respect of any prohibited arms or prohibited ammunition; where a license is required by a person whom the licensing authority has reason to believe (i) to be prohibited by the Act or any other law from having in his possession or carrying any arms or ammunition (ii) to be of unsound mind or (iii) to be for any reason unfit for a license under the Act; where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such license. However, the license shall not be refused on the ground that such person does not own or possess sufficient property. Further the licensing authority refusing to grant a license to any person has to record reasons for such refusal.
14. From a perusal of the aforesaid provision, it emerges that though the authority has got power to refuse or grant license yet such refusal would only be confined to the conditions as contained in sub-section (1) of Section 14 of the Act, 1959, as already indicated above. Obviously the reasons as are required to be indicated by the authority as provided in sub-section (3) of Section 14 of the Act, 1959 would have to adhere to the reasons on which refusal can be made i.e. the reasons as indicated in sub-section (1) of Section 14 of the Act, 1959.
15. The reasons contained in the order impugned dated 07.09.2020 do not indicate that any of the reasons on which the refusal of license can be made, as provided under Section 14 of the Act, 1959 are the reasons which have prevailed on the District Magistrate, Pratapgarh while refusing the license rather it is apparent that the reasons which have prevailed on the District Magistrate, Pratapgarh, while refusing to grant of firearms license to the petitioner, are totally alien to the provisions of the Act, 1959. Even if certain Government Orders as have been indicated in the impugned order are to be seen, it goes without saying that the said Government Orders or circulars issued from time to time can not go against the mandatory provisions of Section 14 of the Act, 1959.
16. In this regard provisions of Section 13 and 14 of the Act 1959 were considered by a Division Bench of this Court in the case of State of U.P. and others vs Jaswant Singh Sarna reported in AIR 1968 All 383 wherein it was held as under:
"It is clear that section 13 recognises a right to a licence. Apart from cases where the fire arm is required for protection or sport or crop protection or for target practice in a Rifle Club or Rifle Association, any one is entitled to it if he has good reason for obtaining it. There must be good reason for obtaining the licence, and that condition regulates the grant of a licence. The requirement has been imposed to prevent an abuse of the right by members of the public. Nonetheless, as soon as the condition is satisfied the grant is obligatory and it is not open to a licensing authority to refuse a licence arbitrarily." (para 8) (emphasis added)"
17. This Court in the case of Abdul Kafi vs District Magistrate, Allabahad reported in 2002 (45) ACC 1121 has held that the scheme of Act 1959 does not contemplate that licence of firearm shall be granted only if somebody has apprehension to his life from someone and rejection of firearm licence on such ground means an order passed on wholly irrelevant consideration.
18. This Court in the case of Brij Nandan Singh vs State of U.P. and another reported in 2011 (9) ADJ 135 has held as under:
"A fire arm licence cannot be denied only on conjectures and surmises and without appreciating the objective of statute under which the power is being exercised. Right to life and liberty which includes within its ambit right of security and safety of a person and taking, adopting and pursuing such means as are necessary for such safety and security, is a fundamental right of every person. Keeping a fire arm for the purpose of personal safety and security is a mode and manner of protection of oneself and enjoyment of fundamental right of life and liberty under Article 21 of the Constitution. In the interest of maintenance of law and order certain reasonable restrictions have been imposed on such right but that would not make the fundamental right itself to be dependant on the vagaries of executive authorities. It is not a kind of privilege being granted by Government to individual but only to the extent where grant of fire arm licence to an individual would demonstratively prejudice or adversely affect the maintenance of law and order including peace and tranquility in the society, ordinarily such right shall not be denied....." (Para 7) "The authorities empowered to grant licence under the Act ought not to behave as if they are part of the old British sovereignty and the applicant is a pity subject whose every demand deserved to be crushed on one or the other pretext. The requirement of an Indian citizen governed by rule of law under the Indian Constitution deserved to be considered with greater respect and honour. The authorities thus shall have considered the requirement of applicant with more pragmatic and practical approach. Unless they find that in the garb of safety and security, applicant in fact intend to use the weapon by obtaining a licence for a purpose other than self defence, it ought not to have been denied such licence. I am not putting the statutory power of authority concerned in a compartment since there may be more than one reasons for exercising statutory discretion against applicant but then that must justify in the context of purpose and objective of statute and necessarily ought not be whimsical."
19. Again this Court in the case of Pawan Kumar Jha vs State of U.P. and others reported in 2010 (10) ADJ 782 has held that undue restrain on keeping and bearing arms ought not be based on unfounded fear and license is normally to be granted unless there is something adverse.
20. Considering the aforesaid judgements, this Court in the case of Dinesh Kumar Pandey (supra) while also considering the discretion of the licensing authority to grant a firearms license and the various government orders and circulars issued in this regard has held as under:-
"62. I have no hesitation thus in observing that a cumulative and harmonious reading of Sections 13 and 14 leave no manner of doubt that an objective consideration is mandated on the part of licensing authority. He cannot deny grant of license to a person on his sheer whims, caprices, imagination etc. Here it answers the requirement of reasonableness also. The procedure is consistent with the requirement of principle of natural justice. To some extent, it brings into consideration Article 14 of the Constitution. One cannot say that under the garb of the words, "any reason", "unfit for grant of licence", or the absence of a "good reason" for obtaining license, a licensing authority is empowered to deny licence on sheer flimsy grounds, namely, he will grant it only to those who have white hair or blue eyes or having a particular height and like. Similarly, the licensing authority cannot discover within "good reasons" for obtaining licence certain ex facie absurd reasons, namely, if a person belongs to a particular political party, or, that a person if belongs to a particular class or caste, and so on. These considerations are impermissible and cannot be construed a "good reason". In the garb of "good reason" for obtaining licence, one also cannot stretch to a situation which would be virtually impossible to be performed or placed on record.
69. Now the question comes, whether grant of licence by competent authority is like a grant of privilege at par with distribution of State's largess or an indiscreet permission resulting in no interest of the applicant. Whether its grant by an authority depends on sheer whims and caprice, totally unguided and unbridled discretion of such authority or he is bound to act reasonably, fairly, impartially and in accordance with certain norms applicable to all equally, treating all the persons applying for grant of such licence without any discrimination, favour etc.
70. The Court's observations that nobody has a right to possess a firearm but it is a privilege which can be granted in the discretion of licensing authority has been construed and interpreted by licensing authorities as if it is their totally unbridled, uncontrolled and absolute discretion to which they are not answerable to anyone. In this context, the orders are being passed frequently day-after-day resulting in a spate of litigation in the Courts throughout the country. This has necissitated to find out whether the right of equality and fairness under Article 14 would be attracted to judge the correctness of an order of licensing authority when he considers application for licence or in the matter of suspension or cancellation of a firearm licence, already granted.
89. Be that as it may, what discerns from the above discussion in the context of Sections 13, 14 and 17 of Act 1959 and right to possess and carry a firearm may be summarized as under:
(i) No person has a right, fundamental or otherwise, to carry or possess a firearm unless he is permitted to do so under a licence granted by a competent authority under the Act 1959.
(ii) It is a personal privilege of the person who obtains it. The licensing authority cannot treat it as its own privilege to indiscreetly grant or refuse it.
(iii) Considerations on which licence of firearm would be granted or refused is governed strictly by Sections 13 and 14 of Act 1959.
(iv) The factors relevant for grant or refusal of firearm licence travel in a distinct field. Hence the principle of audi alteram partem is inapplicable. But once licence is granted, any power to take away such a right would depend on distinct considerations and would attract the said principle.
(v) An order refusing to grant firearm licence can be reviewed by Courts if passed arbitrarily, capriciously, by non-application of mind, on irrelevant considerations or due to mala fide etc.
(vi) Considerations relevant for cancellation or revocation of firearm licence are governed by Section 17 of Act 1959.
(vii) If the licensing authority is satisfied prima facie, that grounds enumerated in sub section (3) (a) to (e) of Section 17 exist, he can suspend or revoke firearm licence immediately. Such an order however would be "a provisional order".
(viii) Having passed the provisional order the licensing authority is obliged to give an opportunity of show cause to the licence holder i.e. a post decisional hearing and he (licensee) will have a right to submit his objection(s) against such provisional order.
(ix) The licence holder also has option of filing appeal against provisional order as above under Section 18 instead of filing objection before licensing authority.
(x) Where the licence holder submits his objection, licensing authority shall consider the same and pass a reasoned order. Such an order may be either for revocation of licence or suspension. In case final order passed is that of suspension, it shall be for a specified period.
(xi) If against provisional order, licence holder straightaway avails remedy of appeal, question of final order to be passed by licensing authority may not arise since thereafter it is the appellate order which shall hold the field.
(xii) Where the licensing authority has any doubt about the existence of grounds referred in Section 17(3)(a) to (e) of Act 1959 and proceed to make inquiry into existence of such grounds, during this interregnum period of inquiry, he can neither exercise power of suspension of firearm licence nor that of revocation. This view has been reiterated by Larger Bench in Rana Pratap Singh (Supra) after overruling otherwise observations in Balram Singh (Supra).
106. Licensing and appellate authority both have held that the applicant could not show as to what is the special threat which may justify a firearm licence for their personal safety and security. Learned Chief Standing Counsel could not show any provision under the Act which contemplates that firearm licence can be granted only when a person has special kind of threat perception to his life. The term "special threat" is extremely vague and even the learned Chief Standing Counsel could not explain it. This Court required him to tell as to how a person can predict when, where and at what time and from whom his person and property can be or shall be put in peril. Such a forecast is almost impossible. If one would have known a definite threat and plan, as a prudent citizen, he would immediately approach the police making a complaint and thereafter it shall be responsibility of the State to take appropriate action so that such person or planner may not achieve his vicious goal by committing crime but when the firearm licence is required for personal safety in general, the individual's perception of threat to their life and property has to be considered taking into account general law and order situation in the area, nature of his job and various other factors. It is only a kind of keeping oneself in the State of readiness in case such an exigency of assault etc. on a person and property arises and not otherwise.
107. I specifically required the learned Chief Standing Counsel to explain as to what particulars an applicant must disclose along with his reason of personal safety and security so as to constitute a "good reason" but he failed to give even a single instance in this regard. Very fairly he said that even the concerned officers were not able to tell anything.
108. In my view, the phrase "good reasons" cannot be re-termed to make it "extraordinary reasons", "very good reasons", "outstanding reasons", "extra reasons", etc. When legislature has used certain words, the same must be read, interpreted and applied in their ordinary sense unless such an application renders the provision ambiguous, impracticable or results in wholly unwarranted consequences. It is not the case of respondents that the term "good reason", if read in its ordinary meaning any of such thing is likely to occur. Therefore, the circumstances which would be covered by phrase "good reasons", cannot be excluded in any manner by restricting the aforesaid phrase to a different kind of situation, and that too, either on volition and arbitrary discretion of individual officials or in the hands of Government by issuing an executive order.
109. At this stage, learned Chief Standing Counsel instead of replying to the specific query of the Court directly referred the Government Circulars/orders issued from time to time, filed as Anenxure CA-1 CA-4 to counter affidavit sworn by Sri Hrishikesh Bhaskar Yashod, presently, District Magistrate, Deoria, to contend that it is in the light of guidelines provided therein that licences are not granted to possess or carry a firearm licence unless the licensing authority finds with certainty an imminent apprehension of danger to one's life and liberty.
110. My reading of the above Government Orders (hereinafter referred to as "G.O.") of the Central and State Government shows something different than what has been contended. The earliest G.O. is dated 03.06.1998 issued by the Secretary, Home Department, Government of U.P. to all Commissioners and District Magistrates in the State of U.P. It lays down guidelines as to within what time proceedings shall be completed whenever an application is given under Section 13 for grant of firearm licence. A police report is required to be submitted maximum within twenty days. The aforesaid period can be reduced by District Magistrates in their discretion. The police is required to collect all information as provided in Schedule III of the Arms Rules read with Rule 51. It shall also find out whether the applicant has a criminal history or not. The police station in charge shall submit report through Senior Superintendent of Police or Circle Officer to the District Magistrate. In this regard, necessary instructions shall be issued by the Senior Superintendent of Police/Superintendent of Police and the District Magistrate shall be apprised of the same within a week and till no such instructions are received from the SSP/SP; the Station In Charge shall submit report through seniormost police officer to the District Magistrate. The applications sent to Tehsil from the office of District Magistrate shall proceed through Sub Divisional Magistrate who will also call for a report from Naib Tehsildar and submit his recommendation to District Magistrate latest within one month. Reports by police and Tehsil shall not be forwarded through special messengers. Firearm applications shall be disposed of as far as possible within three months. Members of Legislative Assembly/ Council and Members of Parliament who have no criminal record and have faced an incident of heinous crime and the Government officials, who require firearm licence for discharge of their duties shall be issued licence by licensing authority after following the procedure prescribed in the statute. Persons engaged in large scale business and apprehend their kidnapping, loot, robbery etc., but possess no firearm licence, shall be considered for grant of firearm licence as per the Government policy. Generally, suitability of the applicants shall be examined after obtaining certificates of income tax and trade tax or other documents from them and after assessing threat perception to them and also the factum that they have no other weapon or method or source of security for protection of their lives. Applications founded on succession due to old age of licence holder shall be examined and appropriate order shall be passed within one month after considering the eligibility of the successor/heir applicant.
111. Evidently, this G.O. has not been complied by the respondents in passing the impugned orders, ex facie, for the reason that while three months' period is prescribed for disposal of firearm application, but in the present case, the licensing authority has taken twelve years period in one case and more than two years' period in the other in taking decision without giving any justification for such extraordinary delay.
112. The second G.O. dated 05.06.1999 of the State Government only draws attention of District Magistrates to Section 13(3)(b) of Act 1959 stating that licensing authority shall ensure that firearm licence is not issued to such persons who do not actually require it. The licence has to be issued only when the licensing authority is satisfied that the applicant has a "good reason" for obtaining the same. It also says that after declaration of election, no new licence shall be issued till the election process is complete.
113. Then comes Government of India's Order dated 18/20.03.2009, which is said to have been circulated by the State Government vide Secretary, Home's letter dated 19.05.2009. The said G.O. also says that firearm licence should be granted to those persons who are found to have a genuine need therefor. Para 3 (i) to (iii) requires that application shall be considered only when it complies with requisite formalities under the statute, i.e., the Act and Rules framed thereunder.
114. However, para 3 (iii)(b) of G.O. (Central) dated 18/20.03.2009 requires the licensing authority not to invoke sub-section (2A) of Section 13 since it is under review. This part of direction is wholly misconceived inasmuch as, so long as the statute is actually not amended, a licensing authority cannot be required to ignore any part thereof on the pretext of 'review' of the statute. Executive orders cannot compel a statutory authority from considering relevant provisions of statute and to that extent the direction in an executive order, would be wholly without jurisdiction and authority.
115. Even otherwise, mere factum of mention of "under review" in a G.O. would not result in amendment of statute itself unless actual amendment is made.
116. Para 3 (v) of the said G.O. says, where the application is given for grant of licence on threat perception basis, the licensing authority may ensure that there is in fact, "imminent and grave threat" to the life of the applicant. In my view, this applies to a case where an application is submitted by an individual giving reason of threat perception for applying firearm licence. In such a case, he must give details of threat perception. But where the licence is sought on the ground of "personal safety and security", the situation would be different and this part of Central G.O. dated 18/20.03.2009 would have no application at all. There is no other direction in the remaining part of G.O. which may throw any light on the question, up for consideration in the judgment, and rest of the G.O. is of no assistance to the respondents.
117. Then comes the last G.O. (Central) dated 31.3.2010 which contains certain guidelines on various aspects of grant of firearm licence for acquisition/ possession of arms. It is said to have been issued in view to curb proliferation of arms in the country and in supersession of all existing instructions. Para (i) says that Government of India has decided that application for grant of prohibited bore weapons may be considered for the following category of persons:
a) Those persons who face grave and imminent threat to their lives by mere reason of being residents of a geographical area (or areas) where terrorists are most active and/or are held to be prime 'targets' in the eyes of terrorists and/or are known to be inimical to the aims and objects of the terrorists and as such face danger to their lives.
b) Those Government officials who by virtue of the office occupied by them and/or the nature of duties performed by them and/or in due discharge of their official duty have made themselves targets in the eyes of terrorists and are vulnerable to terrorist attack.
c) Those MPs and MLAs including non-officials/private persons who by virtue of having been closely and/ or actively associated with anti-terrorist programmes and policies of the Government or by mere reason of their holding views, political or otherwise, not to the liking of the terrorists, have rendered themselves open to attack by the terrorists.
d) The family members/kith and kin of those who by the very nature of their duties or performance (past or present) or positions occupied in the Government (past or present) or even otherwise for known/unknown reasons have been rendered vulnerable and have come to be regarded by the terrorists as fit targets for elimination."
118. Obviously, the above direction is for grant of "Prohibited Bore Weapons" to certain category of applicants. This Court is not concerned with this part of the G.O. in the present set of cases. Here we are concerned with "Non Prohibited Bore Weapons" for which a licence is required. Here also the G.O. says that a person who may face or perceive grave and imminent threat to his life, may be considered for grant of Non Prohibited Bore arms licence after obtaining assessment of threat faced by the persons, from police authorities. Here again it refers to such cases where an individual specifically complains about apprehension of grave and imminent threat to his life but it does not talk of a situation where somebody has applied only for safety and security from an unanticipated, likely threat or assault to his life and property at any point of time for various reasons including general crime conditions of the area concerned. There is no other part of the above G.O. referred by the learned Chief Standing Counsel which may have application to the cases in hand.
119. Thus at the pain of repetition, I may say that my reading of the aforesaid Government Orders shows that if an applicant of firearm licence is able to show the existence of factors as enumerated above, he must be granted a firearm licence and should not be denied unless there are other relevant factors regarding his conduct etc. The aforesaid Government Orders however, nowhere prohibit that in cases which are otherwise within the domain of Section 13 of the Act and fulfil all requisites therein, still they shall not be granted licence unless what has been stated in the aforesaid Government Order(s) is found to exist. I am constrained to observe further that any other view of the matter would render the aforesaid Government Orders ultra vires of Act 1959 for the reason that even the Government by issuing an executive order cannot add or diminish the power of licensing authority which has to be exercised in accordance with Sections 13 and 14 of the Act 1959. Moreover, there is no provision, at least, none has been shown to this Court under Act 1959 which empowers the Government to issue such an executive order so as to control statutory consideration of licensing authority. The efficacy of a statute cannot be expanded or restricted by an executive order.
120. Now there is a last submission. Learned Chief Standing Counsel apprehended that grant of firearm licence on the mere ground of personal safety and security, if allowed, may flood the entire society with firearms causing great danger to the very society itself. He says that hundreds of applications are received in every district every month for grant of firearm licence and almost all these applications contain one and the same reason, i.e., personal safety and security. He contended that the State has to take care of general law and order and in furtherance thereof grant of firearm licence on mere asking would be against the interest of entire society besides endangering the law and order condition in the State.
121. At first flush, the argument in the nature of apprehending a threat to very sustenance of society appears to be quite attractive, but on deeper consideration, I find it shallow and more in the nature of a threat than substance. It pre-supposes as if everybody is very eager to obtain firearm licence. Though there is no restriction but the ground reality cannot be ignored. If I confine myself to the ground level conditions of State of U.P., population is almost 20 crores whereagainst less than 2.5 lacs of cops are available to look after safety and security of entire State. More than 5% out of this strength is already deployed in the personal service of the class called VIPs who are provided external/extra security in the form of Shadow, Gunner, Escorts, etc. People's representatives no sooner they are elected becomes so vulnerable to the society that immediately they demand and are provided extra security from their own people who have elected them. The strength of Indian Administrative Service and Indian Police Service of U.P. Cadre is more than 1500. Almost every member of these services is provided a personal security officer. Similarly there are officials including Judicial Officers having extra/external security. In majority of these cases there is no study, no investigation, no inquiry about any perception of threat level justifying extra security. Many a times it is provided for political or other considerations. In very rare cases threat perceptions from criminals, unsocial elements, terrorists etc. actually exist where extra security would be justified but for majority of people belonging to this category, it has become more a status symbol than a mode of safety and security. Law and order situation in the State cannot boast good or satisfactory. The number of crimes committed but remained unearthed are much large in number than those which are investigated and worked out. The control of unauthorised and illicit arms is almost negligible in the State. In the recent past even protectors have proved to be serious offenders and violators of law. A common man has all perceptions of fear and fright to his person and property. The apprehension about safety cannot be said unfounded in general. However, that itself may or may not justify grant of firearm licence to all such persons who may apply but one thing is very clear that a large majority of the State is living in such a pathetic financial conditions that they find it difficult to meet two square meals. The desire for possessing a firearm licence or purchasing a firearm for these persons is a daydream. They cannot even think of it.
122. The above observations made by this Court are fortified from what has been said by a Division Bench of this Court in Gayur Hasan Vs. State of U.P. and others, 2008(10) ADJ 575 decided on 2011.2008 in paragraphs no.14, 15 and 16 which which would be useful to reproduce as under:
"14. Before parting, however, we find it obligatory on our part to record our dissatisfaction and anguish on the system of providing gunners/security personnels to individuals in the manner it has been implemented while the entire State is reeling under a very difficult law and order situation, not of ordinary kind but of high risk due to large scale terrorist and other activists movement and operations. The State is under a constitutional obligation to provide adequate security to each and every individual resident irrespective of his caste, creed, religion, status, position etc. Life of the most ordinary person is equally important as that of a person holding a high position in the State. We cannot treat ordinary people like ginny pigs whose death only results in number but it is a loss to the nation. Every individual, howsoever ordinary man he is, is an asset to the State. It is the most pious and solemn obligation of the State to take all possible steps to protect him. The State must inspire and instil full confidence in every individual that his life and liberty is secured from all kinds of scrupulous activities and he can enjoy his constitutional right enshrined under Article 21 without any extra risk, fear etc. The population of the State of U.P. when is already exceeding 20 crores, the number of people employed in security forces namely Police Force is extremely inadequate. As we are informed the entire police force in the State of U.P. has less than 2 lacs of people. Meaning thereby on every 1000 and more persons only one police personnel is available to take care of their security. In such circumstances, if the State withdraw a high number of security personnels for the purpose of providing individual security cover that would be like putting the common and ordinary man at enhanced risk to his life and liberty at the cost of individual security. This can neither be appreciated nor is consistent with the constitutional scheme which treats every individual equal so far as the question of his life and liberty is concerned. Even a little Indian, as said by Hon'ble Krishna Iyer, J. is entitled to be treated at par with the mightiest one. The individual security may be necessary in a very few exceptional cases but it cannot be at the cost of collective security of the common man.."
21. Keeping in view the aforesaid discussion as well as the judgments of this Court in the case of Dinesh Kumar Pandey (supra), Jaswant Singh Sarna (supra), Abdul Kafi (supra), Brij Nandan Singh (supra) and Pawan Kumar Jha (supra) it is apparent that the order impugned dated 07.09.2020, whereby the competent authority has rejected the application of the petitioner for grant of firearms license, is clearly against the provisions of Section 14 of the Act, 1959. The reasons contained in the order impugned are also beyond the reasons as have been enumerated under Section 14 of the Act, 1959. This aspect of the matter has also not been considered by the appellate authority while rejecting the appeal of the petitioner vide his order dated 12.04.2021. Consequently, the writ petition deserves to be allowed and is allowed. The orders impugned dated 12.04.2021 and 07.09.2020, copies of which are Annexures 1 and 2 respectively to the writ petition, are quashed. The matter is remitted to the District Magistrate, Pratapgarh, to pass an order on the application of the petitioner for grant of firearms license within a period of six weeks from the date of receipt of a certified copy of this order, keeping in view the observations made above.
Order Date :- 13.2.2023 A. Katiyar