Allahabad High Court
Furqan vs State Of U.P.And 2 Others on 14 February, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 34 Case :- WRIT - C No. - 661 of 2023 Petitioner :- Furqan Respondent :- State Of U.P.And 2 Others Counsel for Petitioner :- Nigamendra Shukla,Anju Shukla Counsel for Respondent :- C.S.C. Hon'ble Saurabh Shyam Shamshery,J.
Heard learned counsel for petitioner and learned Standing Counsel appearing on behalf of State-respondents.
Petitioner's arms license was revoked on ground that he was involved in a criminal case bearing No.342 of 2017 under Sections 147, 148, 342, 379, 323, 506 IPC, PS- Kakrauli, District- Muzaffar Nagar and that it was deemed necessary for security of public peace or public safety to revoke the license.
Learned counsel for petitioner submits that trial in aforesaid case is still pending and that merely on basis of pendency of a criminal case, arms license cannot be revoked and has placed reliance on a judgment passed by Co-ordinate Bench in Sunil vs State of U.P. and others (2020 0 Supreme(All) 477 2020 113 AllCriC 1; 2020 3 AWC 2659), Ram Prasad vs Commissioner and others in Writ-C No.- 56378 of 2006, Indra Pratap @ Ram Pratap vs State of U.P. in Misc. Single No. 28781 of 2017 and Rajeev Kumar @ Monu Shukla vs State of U.P in Writ-C No. 31473 of 2019.
Per contra learned Standing Counsel has placed reliance on counter affidavit which is taken on record that it is not in dispute that petitioner is involved in above referred criminal case where trial is pending and that with subjective satisfaction of Licensing Authority is based on material evidence.
The crux of argument of learned counsel for petitioner is that mere pendency of a criminal case cannot be a ground to revoke the arms license and for that he has heavily placed reliance on paragraph 18 of Sunil vs. State of U.P. (supra) which is concluded hereinafter:
"18. This issue was further dealth with in the case of Ram Charan Vs. State of U.P. And two others, 2016 (11) ADJ 185 and the Hon'ble Court was pleased to consider all the previous judgment in this regard and was pleased to observe in paragraph nos. 11, 12, 13, 14, 15, 16, 17 and 18 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 judgment, 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 judgment, this Court has 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 judgment, this Court has 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 judgment of this Court 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., this Court in paragraph no.8 of the judgment has held as follows:-
"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 judgment, this Court 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."
This Court has recently in the case of Mahipal Singh vs. State of U.P. and 2 others in Writ C No.1080 of 2023, dated 14.02.2023 has an occasion to consider the similar submissions wherein it has referred to its earlier judgment in the case of Indrajeet Singh vs. State of U.P. and others, 2021(10) ADJ 471, wherein it has been held that:
"16. The words "public peace and public order" are normally considered to maintain peace and order at public at large. However, there may be instances where though the immediate danger may be to an individual, but it may have threat to the public at large. For example a fire arm licensee entered inside the house of a neighbour and threatened him or undertook blank firing by licensed weapon or otherwise, though it may be itself be violative or not violative of conditions fire arm license, but this act is not only a threat to an individual, but is definitely likely to cause disturbance of public peace and public order to public at large, therefore, in these circumstances for security of public peace or for public order, the licensing authority may suspend or revoke the arms licence under Section 17 (3) of the Act, of 1959. Similarly, a person/licensee who is involved in a case of murder or attempt to murder or any offence affecting human body or any other serious offence, there may be likelihood of breach of public peace or public order.
17. The words used in Section 17 (3) (b) of the Act, 1959 is "deems it necessary for the security of the public peace or for public safety" i.e. in order to secure public peace or for public safety, the licensing authority if deems necessary, may suspend or revoke the licence. It is not necessary that actual disturbance of public peace or public safety may take place to revoke or suspend the arms licence. The licensing authority on the basis of material available, if deems necessary for security of public peace or for public safety may revoke the arms licence. Therefore, at this stage subjective satisfaction of the licensing authority comes into picture and if the licensing authority finds that due to certain act whether it is affecting to an individual or public at large, may for the security of public peace or for public safety, may suspend or revoke the arms licence. This is a precautionary measure, therefore, it is not necessary that actual disturbance of public peace or public safety may occur. Therefore, even the criminal antecedent of the licensee are very important factor for consideration for granting license. In these circumstances, even pendency of a criminal case involving serious offence may be sufficient to suspend or revoke the arms licence. Similarly, even after the acquittal, the nature of acquittal may be an important factor to consider whether there may be a likelihood of disturbance of public peace and safety especially in cases where the offences are against the State, offence against public tranquillity, offences affecting human body, offences affecting life, and sexual offences etc.
18. The licensing authority is in the field, therefore, is the best judge who can assess the situation on the basis of material which are before him. Such an assessment cannot be substituted by this Court which is no way connected or does not have any inkling of situations. This Court cannot undertake any exercise to determine the facts leading to the subjective satisfaction of the licencing authority on the basis of situation then existing, except there are material to show as to how the satisfaction is perverse or based on no material. (See Jagat Pal Singh Vs. State of U.P. 1997 (34) ACC 499).
19. There must be subjective satisfaction of the licensing authority that the licensee is not fit to continue holding of licence. If the licensing authority is satisfied of the fact that a continued existence of fire arms licence with a person charged with various offence may endanger security of public peace and public safety then revocation of licence under Section 17 cannot be said to arbitrary or without jurisdiction. (See, 1999 SCC Online Pat 206, (1999) 3 PLJR 203, Tej Narayan Singh Vs. State of Bihar and others)."
In order to consider rival submissions, I have carefully perused the First Information Report wherein the petitioner is one of named accused person. There are allegations against him that he used his Rifle in aforesaid offence. Division Bench of this Court in Sheo Prasad Misra vs. The District Magistrate Basti and others, 1978 AWC 122, while remanding the matter back for fresh consideration has stated that arms license cannot be cancelled on ground that some reports has been lodged against petitioner and there must be a finding that it was necessary to cancel the license for security of public peace or public safety i.e. allegations in First Information Report can be considered by Licensing Authority to arrive a subjective satisfaction that facts and circumstances of particualar case, it was deemed necessary for security of public peace or for public safety to revoke arms license.
It is well settled that arms license is a privilege and it does not fall in the category of constitutional or fundamental right as held by Full Bench of this Court in Kailash Nath vs. State, 1985 AWC 493 (FB). The allegations against petitioner are serious to the effect that he not only has participated in the above said offence but has pointed his Rifle, a licensed arm, in violation of conditions prescribed in the Arms Act and Arms Rule, which is a specific ground to revoke the arms license.
Therefore, considering the allegations made in First Information Report and that Licensing Authority has taken note of allegations as well as has specifically mentioned that licensed arm was also used in offence, with further specific finding on basis of material available that for security of public peace and for public safety, it was deemed necessary to revoke the arms license. The words "public peace or public safety" have been used in provisions under Arms Act is to secure a person or public from likelihood of an act detrimental to peace and safety at hands of person having an arms license or an applicant for an arms license. Petitioner is involved in a Criminal Case of serious allegations, where there is a specific allegation of misuse of licensed arm also.
In these circumstances I do not find any ground to interfere with the impugned order, therefore, this writ petition is dismissed.
Order Date :- 14.2.2023 P. Pandey