Heard Shri Anand Dubey, learned counsel for the petitioner, Shri Mohd. Mansoor,learned Chief Standing Counsel, Shri Devendra Upadhyaya, learned Standing Counsel assisted by Shri Suman Singh, Special Secretary (Home), U.P. and perused the record.
By means of the present writ petition, the petitioner has challenged the order dated 14.11.2011 passed by opposite party no.2/Special Secretary Home, U.P., Civil Secretariat, U.P., Lucknow by which his license to run the arms shop has been cancelled.
Facts in brief of the present case are that an application has been submitted by Sri Abhishek Upadhyay/petitioner for grant of licence to run the arms shop after completing all has completed necessary formalities as provided under the Arm Act 1959 read with Arms Rules, 1962, thereafter on 28.08.2000, Sate Government had granted a licence to the petitioner to run arms shop at Mohalla - Chhedipurwa Tahan Kotwali Ngar Gonda, District Gonda with certain conditions are to be observed by the petitioner while running the arms shop some of them are as under:-
"1- (a) This license is granted subject to all the provisions of the Arms Act, 1959 and of the Arms Rules, 1962.
(b) This Lencese does not entitle the dealer to take any arms of ammunition for testing to attesting range or other place without a permit for the purpose, or to prove any arms.
(c) The License is valid only so long as be carries on the trade or business in the premises shown in column 3 thereof, and will pso facto lapself the business is discontinued for a continuous period exceeding six months.
2- The Lecence shall maintain registers of all arms and ammunition in stock, and of all sales showing the particulars in such form as may be prescribed by the Central Government for the purpose.
7- He shall at the time of sale or transfer of any arms or ammunition to a person boking a license in Form III, Form IV, Form V, Form VII or Form VIII endorse as the license -
(a) The name, description and evidence of the person who takes delivery of the articles sold or transferred;
(b) The nature and quantity of the article sole or transferred ; and
(c) the date of sale or transfer ;
10- He shall not sell or transfer ammunition to any person, licensed to posses or arms, without his first obtaining a written certificate from such person is to the effect that with the quantity of ammunition proposed to be acquired by him, the total quantity of ammunition in his possession shall not exceed the maximum quantity which he is entitled to possess at any one time or his total allowance for the year:
14- Subject to the other conditions contained herein no licnese shall, without reasonable cause refuse to sell arms or ammunition to any action who is entailed to purchase or acquire such arms or ammunition under the provisions of the Arms Act, 1959 of the Arms Rules, 1962."
On 05.11.2008, District Magistrate, Gonda passed an order for sealing the petitioner's shop in pursuance of the said order, Additional District Magistrate, Gonda on 11.11.2008 directed the Superintendent of Police, Gonda to seal the petitioner's shop. Accordingly, the same was sealed on 17.11.2005.
Aggrieved by the said action, petitioner approached this Court by filing Writ Petition No. 395 (MS) of 2009, disposed of by order dated 28.05.2009. On reproduction reads as under:-
"Heard learned counsel for the petitioner and the learned Standing Counsel for ht opposite parties.
This writ petition has been filed by the petitioner challenging the arbitrary seizure of the petitioner's fire arm shop by the opposite party no. 3 although his licnece to run the fire arm shop has neither been suspended or cancelled.
Learned Standing counsel was granted time by this Court on 28.01.2009 for seeking instructions in the matter.
When the case was taken up today, learned Standing Counsel has failed to produce any material before this Court indicating that the petitioner's licence to runt he fire arm shop has either been cancelled or suspended. Learned Standing Counsel further submitted that cancellation of the petitioner's licence has been recommended on the basis of police report.
In view of the above, an interim mandamus is issued to the opposite party no. 2 to forthwith release the petitioner's licence to run the fire arm shop. However, this order will not prevent the authorities from proceedings against the petitioner on the basis of police report, if any, recommending initiation of proceedings for cancellation of the petitioner's licence to runt eh fire arm shop.
Learned Standing Counsel prays for and is allowed six weeks' time for filing counter affidavit.
List this case after six weeks."
In view of the said factual background, the matter has come up for consideration before the authority concerned/Special Secretary (Home), State of Uttar Pradesh who order dated 14.11.2011, after cancelled the licence of the petitioner to run arms shop, , the said order is under challenge in the present writ petition.
I have heard learnd counsel for parties and gone through the record.
Before adjudicating and deciding the controversy involved in the present case, taking into consideration the scenario/position prevailing in the society where a person who holds an arms licence can walk in an arms shop and can purchase ammunition/bullet just lie grocery item and it is also not in dispute that in the recent years several incidences occurred whereby on discriminate firing, students and other innocent persons were killed, shops, petrol pumps, shops etc. were looted , on the gun point which is against the peaceful environment of the society, so in order to keep peace and healthy society in a country I think it will be appropriate that within the ambit and scope of the provisions of Indian Arms Act, 1959 (hereinafter referred to as the Act), Rules, 1952 (hereinafter referred to as the Rules) and the forms as provided therein, certain restrictions, necessary formalities permissible under law to be observed by Arms Dealers prior to issuing of the ammunition/bullet to a person who demands for it against his arms liecence.
After major Indian rebellion (the mutiny of 1857), the British has taken steps for restructuring of administration and the colonial British Indian rebellion (the mutiny of 1857) and were busy putting in place measures to ensure that the events of 1857 were never repeated .These measures included a major restructuring of administration and the colonial British Indian Army along with improvements in communications and transportation. Meanwhile Indian masses were systematically being disarmed and the means of local firearm production destroyed, to ensure that they (the Indian masses) would never again have the means to rise in rebellion against their colonial masters. Towards this end the colonial government, under Lord Lytton as Viceroy, bought into existence the Indian Arms Act, 1878 (11 of 1878); and act which, exempted Europeans and ensured that no India could posses a weapon of any description unless the British masters considered him a "loyal" subject of the British Empire.
It compelled the Indians to have licence to keep, sell or purchase arms. The offenders were to be punished both with fine and imprisonment. But the English, Anglo-Indians and government servants of certain categories were exempted from this Act. Thus most of the administrative measures of Lord Lytton were against the interests of the Indians.
The Indian Arms Act, 1878, was intended to disarm the entire nation. Even after independence, the law declaring "swords, daggers, spears, spear-heads, bow and arrows" as "arms" has been allowed to continue unaltered on the statute book. The rigorous of the Arms Act and the rules thereunder continue to make it difficult for law abiding citizens to possess firearms for self-defence whereas terrorists, dacoit-gangs and other anti-social or anti-national elements are using not only civilian weapons but also bombs, hand-grenades, Bren-guns, sten-guns, 303 bore service rifles and revolvers of Military type, for perpetrating heinous crimes against society and the State.
The Indian Arms (Amendment) Bill (No.49 of 1953) was introduced in the Lok Sabha on the 27th November, 1953 to focus Parliament's attention on this vital subject. It was discussed in the House on 26th March, 1953 and was circulated for public opinion.
Opinions were received from all the State Governments which contained not only their views but also those of many legal luminaries, Bar Associations, Judges, Collectors, Senior Police Officers and local Bodies of their respective States. On the basis of those opinions, this Bill has been drafted.
The objects of this Bill are :-
(a) to exclude knives, spears, bows and arrows and the like from the definition of "arms" ;
(b) to classify firearms and other prohibited weapons so as to ensure -
(i)that dangerous weapons of military patterns are not available to civilians, particularly the anti-social elements;
(ii)that weapons for self-defence are available for all citizens under licence unless their antecedents or propensities do not entitle them for the privilege ; and
(iii) that firearms required for training purposes and ordinary civilian use are made more easily available on permits ;
(c) to co-ordinate the rights of the citizen with the necessity of maintaining law and order and avoiding fifth-column activities in the country ;
(d) to recognize the right of the State to requisition the services of every citizen in national emergencies. The licensees and permit-holders for firearms, shikaris, target shooters and rifle-men in general (in appropriate age groups) will be of great service to the country in emergencies, if the Government can properly mobilize and utilize them.
The first set of rules under the Arms Act, 1878, was published on the 6th March, 1879. These rules, with such amendments and additions as the circumstances demanded from time to time, continued in force for about thirty years. These were then revised in the form of the Arms Rules, 1909, published on the 16th August, 1909. Changes made in the revised rules were, for the most part, only such as wee required to make the rules clear or were necessary in consequence of the administrative changes, such as the formation of the erstwhile North-Western Frontier Province, the creation of new districts in the Punjab and the formation of the then Province of Eastern Bengal and Assam.
One important change, however, was that the revised rules made separate provision for the grant of licence - (1) for possession of arms and ammunition ; and (2) for going armed (a) for destruction of wild animals which cause injury to human beings or cattle, and (b) for the destruction of wild animals which cause injury to cattle or damage the crops.
The Arms Rules of 1909 as amended from time to time were in force until the 1st January, 1920, when they were replaced by the Arms Rules, 1920. These rules were framed on the advice of a representative committee of officials and non-officials which was appointed by the Government of India in deference to a resolution moved in the Imperial Legislative Council in September, 1918. These rules introduced the following three main changes :-
(1)the removal of racial discrimination (2)greater restriction on exemption and (3)the exclusion, generally, of arms other than fire-arms.
The Arms Rules of 1920 continued until the 1st January, 1924, when those Rules were replaced by the Arms Rules, 1924, which were framed after the Government of India had considered the recommendation of a Committee in pursuance of a resolution moved in the Legislative Assembly in February, 1922.
The following were the main changes introduced by this set of rules :
(i)the removal of title-holders and certain others from the list of exemptees
(ii)the reduction of fees for the renewal of licence for fire-arms, other than muzzle-loading weapons, to one half of the fees for the issue of such licences;
(iii) the grant of power to the Sub-Divisional Officers to renew licences and
(iv) the compulsory registration by certain exemptees of fire-arms and ammunition in respect of which they were exempt.
Since their introduction these rules were considerably amended from time to time in matters of detail.
Apart from these rules the various State Government had issued their respective Arms Manuals. The rules included in these were 1924 Rules, certain executive instructions and certain rules framed by the States by virtue of powers conferred by 1924 Rules. These Manuals were primarily means for the guidance of the officers concerned.
After the attainment of the Independence of India, it was thought desirable, and indeed it became necessary, that the administration of law relating to arms and ammunition be on a uniform basis for all the parts of free India. With that objective in view an exhaustive and self contained set of rules viz. Arms Rules, 1951, were framed. These rules superseded the 1924 Rules and as a necessary corollary the matter contained in the various States' Arms Manuals. Finally the Arms Rules, 1962 came into force on 1st October, 1962 and repealed the existing Arms Rules of 1951.
Bullet/ammunition means :-
For millenia man has been fascinated with the idea of launching a projectile at animals or men of opposing points of view and has developed more efficient ways of doing so. The invention of gunpowder led to the development of firearms. Gunpowder first appeared in use in China over a thousand years ago but was used primarily in firecrackers and only sparingly in weapons for military use. Dissemination of the knowledge of gunpowder manufacture to Europe in the 14th century did not at first lead to military usage. However, once the effectiveness of projectiles impelled by the force of gunpowder against both the armor of knight-soldiers and fortifications was known, the use of firearms proliferated rapidly.
Gunpowder, made of a mixture of sulfur, charcoal and saltpeter (potassium nitrite), owes its explosive force to the fact that 1 mole of solid powder will, when ignited, produce 6 moles of gas. This rapid expansion in the enclosed space of a metal tube could be used to drive a projectile at high speed in a specified direction. Modern gunpowder is simply a refined version of the primitive substance in which the chemical composition has been altered to provide the greatest expansion with the smallest quantity and the least residue. The manufacture of modern powders is standardized enough that gunpowder residue can be analyzed by methods which identify specific components, which can aid the forensic scientist greatly.
The greatest stimulus for firearms development was and continues to be military usage. The important needs, militarily speaking, for a firearm included the following : reliability of firing, accuracy of projectile, force of projectile, speed of firing. The reliability issue sparked the development of a number of mechanisms to ignite the powder. Primitive matchlock weapons employed a burning wick on a spring that was "locked" back and released into a pan of powder upon pulling a trigger. The powder in the pan then ignited, sending flame through a small hole into the barrel chamber of the weapon, igniting a larger powder charge in the chamber and sending the projectile (bullet) forward.
Improvements included the wheellock, in which a spinning wheel against a metal plate showered sparks into the "pan" holding "priming' powder, and the flintlock, in which a flint was released by the trigger mechanism to strike a steel plate to shower sparks into the pan. "Percussion" ignition evolved next and consisted of a "hammer" that was locked and, when released, struck a cap containing a volatile "primer" that ignited on impact, sending a flame into the barrel chamber. Inventors improved the system to include the bullet, powder charge, and primer all in a single cartridge which could be introduced directly into the chamber. Up to that point, "muzzle loaders" had the powder and bullet loaded from the top of the barrel.
The new "breechloading" firearms led to another advantage speed of loading. Further improvements consisted of multiple chambers, as in the revolver, for multiple shots. Other mechanisms included various "actions" associated with sliding or pumping motions that loaded successive cartridges into the chamber the so called "repeating rifle." Toward the end of the 19th century, inventors like Henry Maxim and Richard Gatling devised schemes for rapidly firing large numbers of "rounds" or cartridges without stopping, thus developing the "machine gun."
Machine guns were refined in World Wars I and II. Modern assault weapons used by armies around the world utilize a mechanism in which the expanding gasses of the gunpowder provide the force for cycling the mechanism to shoot multiple rounds up to 600 rounds per minute.
The accuracy issue was partially solved by using weapons with a longer "bore" or length of metal tube, but there was always a limit to the size of weapon you could carry around. In the 18th century, gunsmiths discovered that putting spiral grooves in the bore would impart a spin to the bullet that improved accuracy markedly. However, grooves had originally been cut to reduce the problem of "fouling" from unburned powder residue. Thus, all modern weapons have "rifling' in their barrels. This rifling is slightly different for each weapon, imparting different patterns of deformation on the bullet. These patterns can be used by the forensic scientist to aid identification of a particular weapon used in a crime.
The force of a projectile is related to the kinetic energy (KE) imparted to it, given by the formula:
Kinetic Energy =1/2 MV2 where M=Mass and V=Velocity Historically, the first way the KE was enhanced was increasing the "Caliber" of the weapon. Caliber refers to the diameter of the bore of the barel, given in decimal fractions of an inch or, in metric systems, in millimeters. Thus, a handgun or rifle could be referred to as .45 cal or .38 cal (called 45 caliber or 38 caliber) or 9mm. The second way modern weapons increase KE is through velocity, as impelled by modern gunpowder, which increases the force tremendously because it increases KE as a square of any increment of improvement in velocity.
A Bullet is a solid projectile propelled by a firearm or air gun and is normally made from metal (usually lead). A bullet does not contain explosives, but damages the intended target by tissue disruption and impact. The word "bullet" is sometimes erroneously used to refer to a cartridge, which is the combination of bullet, casing (case or shell), gunpowder and primer. The Oxford English Dictionary definition of a bullet is "a projectile of lead.......... for firing from a rifle, revolver etc." However, bullets for air guns are not part of a cartridge.
In the Arms Act, 1959, Section 2 of Chapter 1 of the Arms deals with definitions and interpretation and Section 2(b), Section 2(e) and Section 2(f) are quoted herein below :-
Section 2(b) defines ammunition means ammunition for any firearm, and includes :-
(i)rockets, bombs, grenades, shells [and other missiles]
(ii)articles designed for torpedo service and submarine mining
(iii) other articles containing, or designed or adapted to contain explosive, fulminating or fissionable material or noxious liquid, gas or other such thing, whether capable of use with firearms or not,
(iv) charges for firearms and accessories for such charges
(v) fuses and friction tubes
(vi) parts of, and machinery for manufacturing ammunition, and
(vii)such ingredients or ammunition as the Central Government may, by notification in the Official Gazette, specify in this behalf ;
Section 2(e) defines firearms means arms of any description designed or adapted to discharge a projectile or projectiles of any kind by the action of any explosive or other forms of energy, and includes :-
(i)artillery, hand-grenades, riot-pistols or weapons of any kind designed or adapted for the discharge of any noxious liquid, gas or other such thing.
(ii)Accessories for any such firearm designed or adapted diminish the noise or flash caused by the firing thereof
(iii) parts of, and machinery for manufacturing, firearms and
(iv)Carriages, platforms and appliances for mounting, transporting and serving artillery Section 2(f) defines licensing authority means an officer or authority empowered grant or renew licences under rules made under this Act, and includes the Government.
And, Chapter II of the Arms Act deals with acquisition, possession, manufacture, sale, import, export and transport of arms and ammunition.
In the said chapter, Section 3 deals with licence for acquisition and possession of firearms and ammunition and Section 5 (1) of the Arms Act, 1959, prescribes for manufacture, sale, etc., of arms and ammunition. The relevant provision of the same is as under:
(3) (1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act.
(5[1]) Licence for manufacture, sale, etc., of arms and ammunition .- (1) No person shall -
(a) use, manufacture, sell, transfer, convert, repair, test or prove, or (b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearms or any other arms of such class or description as may be prescribed or any ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.
Chapter III of the Arms Act, 1959, provides provisions relating to licences.
Section 13 prescribes provision in regard to grant of licences, Section 14 for refusal of licences and Section 15 provides duration and renewal of licence, the relevant portion of the same reads as under :-
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 :
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.
15. Duration and renewal of licence .- (1) A licence under Section 3 shall, unless revoked earlier, continue in force for a period of three years from the date on which it is granted:
Provided that such a licence may be granted for a shorter period if the person by whom the licence is required so desires or if the licesing authority for reasons to be recorded in writing considers in any case that the licence should be granted for a shorter period.
(2) A licence under any other provision of Chapter II shall, unless revoked earlier, continue in force for such period from the date on which it is granted as the licensing authority may in each case determine.
(3) Every licence shall, unless the licensing authority for reasons to be recorded in writing otherwise decides in any case, be renewable for the same period for which the licence was originally granted and shall be so renewable from time to time, and the provisions of Sections 13 and 14 shall apply to the renewal of a licence as they apply to the grant thereof.
From the aforesaid provisions of Section 15 , it is clear that a licence shall be in a forced for a period of three years from the date on which it is granted, even for a shorter period, may be prescribed and even the licence granted by the Licensing Authority be renewed within the same period.
Section 44 of the Arms Act 1959 entrusts power to make Rules to the Central Government. The Central Government has made the Rules under the provision of Section 44, which are named as 'The Arms Rules, 1962'. Rule 20 thereof casts a duty on the Licensing Authority to mention in the licence the transactions permitted in respect of the different categories of arms or ammunition. The relevant rule is as under:
Manufacture, conversion, shortening, repair, test, sale, etc., of arms or ammunition .- (1) The licensing authority while granting a licence in Form IX shall show clearly in the licence Form -
(i) the categories and description of the arms or ammunition covered by the licence (ii) the transactions permitted in respect of the different categories of arms or ammunition, and omit any transactions or categories of arms or ammunition, not covered by the licence.
(2) A copy of every licence granted in Form IX by an authority other than the District Magistrate of the place of business, factory or shop of the licensee shall forthwith be sent to that District Magistrate.
Rule 26 further prescribes that every Arms Dealer has to keep a record of transactions of arms and ammunition, which is as under:
Records of transactions in arms and ammunition .- (1) Every dealer shall maintain such registers as maybe prescribed by the Central Government to show receipts, disposals, balance of stock in hand and daily sales of arms or ammunition of different categories and provide such other information as may be required.
(2) Every entry of transactions in such registers shall be made before the close of business hours on the same day and in the case of a sale or transfer the dealer shall, at the time of the transaction, require the purchaser or transferee, if not known to him, to furnish particulars sufficient for identification, and shall immediately enter the said particulars in the registers.
Rule 54 of the Arms Act prescribes renewal of licence, which is as under:
Renewal of licences .- (1) Every licence may, at its expiration and subject to the same condition (if any) as to the grant thereof, be renewed by the authority mentioned in Schedule II as nerewing authority:
Provided that the licence so renewed may be signed in the appropriate column of the licence by such officer as may be specially empowered in this behalf by the State Government under Rule 4.
(2) The authority issuing a licence shall ordinarily be responsible for watching all future renewals of the licence. Where a licence is renewed by an authority other than the authority who granted it, the former shall forthwith inform the latter of the fact of renewal and the period for which such renewal is valid. The applicant for the renewal of a licence under this rule shall always be required to state his permanent residence, and, if he notifies a change in his permanent residence to the district in which the renewal is sought, the licesing authority of such district shall hence-forward become responsible for watching all future renewals of his licence and shall inform the original issuing authority accordingly. The procedure shall be repeated on each subsequent occasion of renewal of the licence, the necessary intimation being sent by the renewing authority to the original issuing authority or to the authority who last renewed the licence on a permanent change of residence, as the case may be.
(3) An application for renewal of a licence for arms or ammunition deposited under Sub-rule (1) of Rule 47 may be made by the depositor, or where it is not practicable to make the application direct, through the dealer or any other person authorised by him in this behalf while the arms or ammunition continue to be so deposited.
(4) The licensing authority may consider an application for renewal of a licence, if the period between the date of its expiry and the date of application is not, in his opinion, unduly long with due regard to the circumstances of the case, and all renewal fee for the intervening period are paid; othe4rwise the application may be treated as one for grant of a fresh licence.
Rule 52 further prescribes the form of licence. Form No. IX is relevant for the purpose of sale or transfer, conversion, repair or test of arms or ammunition, which is as under:
FORM IX Licence to -
(1) Manufacture, (2) Convert, shorten, repair or test (other than proof-test) sell or transfer, keep for sale or transfer, conversion, repair or test of arms or ammunition Serial No. of licence Name, designati on and residence of licensee and of duly authorised agent or agents (if any) Place of business, factory or shop Description and number To be manufactured, converted, shortended repaired To be sold or kept for sale Description and quantity To be manufactured, converted, etc. To be sold or kept for sale Name of range or other place where allowed to test Date and year on which the licence expires.
_____________________________________________________________ The 31st December. 20..... The ...of ...20.... The date on which copy if sent to the District Magistrate of ...district [Vide Sub-rule (2) of rule 20] The ...of ...20.... (SEAL) (Signatutre)................... [Licensing Authority........... Designation.................... Place.......................... FORM OF RENEWAL OF THE LICIENCE. Date and year of Date on which Signature and SEAL. renewal renewed licence designation of expires renewing authority In column No. 7 of the aforesaid form, there is a provision of description of quantity to be sold or kept for sale. It is clear from the aforesaid form that the licensing authority has power to restrict the quantity of arms and ammunition to be sold or kept for sale.
Accordingly, as per Form IX, which is a statutory form of licence as per Rule 52 of the Arms Rules 1962, it is the duty of the licensing authority to mention the description of the quantity to be sold or kept for sale of the arms and ammunition as per the power given by Central Government in this regard to the licensing authority. Hence, there is no question that no such power has been delegated to the licensing authority.
Form-III deals with a license for the acquisition, possession and carrying of arms or ammunition for sport/protection/display and the relevant conditions of the same form which are as under :-
The licensee, at the time of purchasing any arms or ammunition shall cause the following particulars to be endorsed upon his licence under the vendor's signature, namely :-
(a) the name, description and residence of the person who takes delivery of the articles purchased ;
(b) the nature and quantity of the articles purchased ; and
(c) the date of purchase ;
and if the arms or ammunition are purchased from any person other than a licensed dealer, shall also cause the particulars specified in clauses (b) and (C) to be furnished, in writing, to the authority who granted this licence within such period as may be prescribed for this purpose by such authority. No purchase of ammunition shall, however, be permitted except on written certificate from the licensee certifying that with the amount proposed to be purchased, the total quantity of ammunition in his possession will not exceed the maximum which he is entitled to possess at any one time, or his total allowance for the year.
He shall not purchase ammunition of any kind in excess of the maximum which may from time to time be fixed by the Central Government. Such maximum may be prescribed both for the amount purchasable in a calendar year and for the amount that may be possessed at any one time. If, however, a licensee exhausts the total quantity of ammunition purchasable in a year earlier than the close of the year, he may for good and sufficient reasons be given a temporary increase in the total quantity purchasable at the discretion of the licensing authority.
Form IV deals with the licence for acquisition/possession and carrying of arms or ammunition for destruction of wild animals which do injury to human beings or cattle and the relevant conditions of the same form which are as under :-
He shall not purchase or possess ammunition of any kind in excess of the maximum allowed under Columns 3 and 4 of the licence or the maxim which may from time to time be fixed by the Central Government for the amount purchasable in a year and for the amount that may be possessed at any one time.
At the time of purchasing any arms or ammunition he shall cause the following particulars to be endorsed upon his licence under the vendor's signature, namely -
(a) the name, description and residence of the person who takes delivery of the articles purchased ;
(b) the nature and quantity of the articles purchased ; and
(c) the date of purchase ;
and if the arms or ammunition are purchased from any person other than a licensed dealer, shall also cause the particulars specified in clauses (b) and (C) to be furnished, in writing, to the authority who granted this licence within such period as may be prescribed for this purpose by such authority. No purchase of ammunition shall, however, be permitted except on written certificate from the licensee certifying that with the amount proposed to be purchased, the total quantity of ammunition in his possession will not exceed the maximum which he is entitled to possess at any one time, or his total allowance for the year.
Form V deals with the licence for acquisition/possession and carrying of arms or ammunition for the protection of crops or cattle and the relevant conditions of the same form which are as under :-
He shall not purchase or possess ammunition of any kind in excess of the maximum allowed under Columns 3 and 4 of the licence or the maxim which may from time to time be fixed by the Central Government for the amount purchasable in a year and for the amount that may be possessed at any one time.
At the time of purchasing any arms or ammunition he shall cause the following particulars to be endorsed upon his licence under the vendor's signature, namely -
(a) the name, description and residence of the person who takes delivery of the articles purchased ;
(b) the nature and quantity of the articles purchased ; and
(c) the date of purchase ;
and if the arms or ammunition are purchased from any person other than a licensed dealer, shall also cause the particulars specified in clauses (b) and (C) to be furnished, in writing, to the authority who granted this licence within such period as may be prescribed for this purpose by such authority. No purchase of ammunition shall, however, be permitted except on written certificate from the licensee certifying that with the amount proposed to be purchased, the total quantity of ammunition in his possession will not exceed the maximum which he is entitled to possess at any one time, or his total allowance for the year.
Form VII deals with a licence for carrying arms or ammunition on a journey in or through any part of India and the relevant condition of the same form which is quoted as under :-
This licence is granted subject to all the provisions of the Arms Act, 1959 and of the Arms Rules, 1962.
Form VIII deals with the licence for the possession and carrying of arms or ammunition for the duration of his journey from the port or other place of his arrival in India to the place of his destination in India and the relevant condition of the same form quoted herein below :-
This licence is granted subject to all the provisions of the Arms Act, 1959 and of the Arms Rules, 1962.
In our Constitution and jurisprudence there is no fundamental right to bear arms unlike the Second Amendment to the American Constitution which at least suggests such a right in the following terms :
"A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."
In construing the aforesaid provision the Supreme Court of the United States in Presser v. Illinois, (1884-85) 116 US 252 has observed as under:
"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the Federal Government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government. But....... we think it clear that the sections under consideration do not have this effect."
By judgment and order dated 11.03.2014 passed in Writ Petition No.1605 of 2014 (Shiv Narayan vs. Addl. Commissioner of Police (Licensing), Delhi High Court held as under :-
"In fact, the Full Bench of Patna High Court in Kapildeo Singh vs. State of Bihar and others, AIR 1987 Patna 122 has held that "In our Constitution and jurisprudence there is no fundamental right to bear arms unlike the Second Amendment to the American Constution. It further held that "the registration and pendency of a criminal case for a major or capital offence may for adequate reasons justify the suspension or revocation of a licence under Cl.(a) of sub-sec.(3) of S. 17 of the Act." This Court is also of the opinion that the 'precautionary principle' must be followed and public safety cannot be put in jeopardy by granting an arms licence to the petitioner at this stage."
However, it is apt to notice that in modern times even in the United States any constitutional right to possess and bear arms has now come under carping criticism in view of the raising of the ugly heads of gun-running, gangsterism and the mafia. In sharp contrast therewith there is no such analogous provision in other jurisprudential system and indeed under the Indian law the right to carry arms is privilege conferred by the Act and other similar statutes which primarily leave the grant thereof in the discretion of the licensing authority.
A Full Bench of this Court in the case of Kailash Nath and Ors. v. State of U.P. And another AIR 1985 All 291, has held, as under, in regard to right of the person to carry on the business of arms and ammunition:
The law is well settled that before an action is proposed t`o be taken against an individual which affects his rights and involves civil consequences, he must be given an opportunity to show cause. This is the essence of the rule of 'audi alteram partem' which is the principal doctrine of natural justice. This rule, however, must be confined to a case in which the adjudication of right of a party arises and which involves civil consequences. A right is distinct from a mere privilege. The case of licence to possess or use firearm is materially different from a case of licence to deal in or sell firearms. S. 3 deals with acquisition and possession of firearms or ammunition on the strength of a licence whereas Section 5 provides for a licence for manufacture, sale etc. of arms and ammunition. The licience for acquisition and possession of firearms is materially different from a licence for manufacture, sale etc. While the latter confers a right to carry on a trade or business and is a source of earning livelihood, the former is merely a personal privilege for doing something which without such privilege would be unlawful. The obtaining of a licence for acquisition and possession of firearms and ammunition under the Arms Act is nothing more than a privilege and the grant of such privilege does not involve the adjudication of the rights of an individual nor does it entail civil consequences.
In the case of Amrik Chand Saluja v. State of M.P. And others 1991 Cri.L.J. 1314, has held, as under:
Ordinarily, a licence shall be renewable. If, however, the licensing authority decides not to renew the licence, it has to record its reasons in writing for so doing. As the provisions of Ss. 13 and 14 have been made applicable to an application for renewal of a licence in in the same manner as they apply for grant of a licence, the licensing authority is required to obtain a report of the officer-in-charge of the nearest Police station and is also required to make such enquiry as maybe considered necessary before refusing to renew the licence.
Hon'ble the Supreme Court in the case of Chandrakant Hargovindas Shah v. Deputy Commissioner of Police and another (2009) 7 SCC 186, has held that the Arms act, 1959 was enacted to consolidate and amend the law relating to arms and ammunition and a person has no right to travel beyond the statutory restrictions imposed under the Arms Act and Arms Rules made thereunder in dealing with the arms and ammunition:
14. There cannot be any doubt or dispute whatsoever that sale and purchase of arms and ammunition by a licensee per se is not prohibited. But having regard to the provisions of the said Act and the purport and object for which different types of licences are granted for different purposes, there cannot be any doubt whatsoever that a licensee cannot be permitted to do something indirectly which he cannot do directly.
The employment of such phraseology in the statute by the framers can leave no manner of doubt that a wide residuary discretion has been vested in the licensing ; authority to revoke provided it is satisfied that the holder is unfit for the licence under the Act. The issue, thus, is whether the pendency of a major or capital crime case may not, in the opinion of the District Magistrate, satisfy him that such a person is unfit for holding the licence further. Plainly enough such discretion given by the statute cannot be put in a strait-jacket. It cannot possibly be said that in a particular case the implication of the holder in serious or horrendous capital crime may not furnish an adequate ground for the licensing authority for being satisfied that the former holder of the weapon is now unfit for the privilege of the licence granted under the Act.
In view of the discussion made herein above, a citizen has no fundamental right to hold the arms license, it is only a privilege. In this regard a Division Bench of this Court in State of U.P. and others v. Jaswant Singh AIR 1968 Allahabad,383 has held that a citizen has fundamental right to hold acquire and dispose of fire arms and ammunition and the provision of sub.clauses (f) and (g) of clause (1) of Article 19 of the Constitution are attracted. The Division comprising of V.G.Oak ,CJ and R.S.Pathak,J (as he then was) held as follows:-
"The aforesaid conclusion is fortified by the nature of die legislation. The Act is plainly a regulatory measure intended to regulate the rights of a citizen to hold acquire and dispose of fire arms and ammunition and to carry on the occupation, trade or business of dealing in them. The provisions of sub clauses (f) and (g) of clause (1) of Article 19 of the Constitution are immediately attracted, and an enquiry into the question whether the provision, of the Act constitute a reasonable restriction upon the exercise of those fundamental rights becomes relevant. In that enquiry, it is pertinent to consider whether a right of hearing is afforded, expressly or by necessary intendment, before the fundamental right is prejudicially affected."
Needless to mention herein that the Ministry of Home Affairs, Government of India issued a Government Order No.V-11016/16/2009-Arms dated 31.03.2010 in regard to issue bullet/ammunition to fire arms licensee. The relevant clauses of the said G.O. Which are necessary to resolve the controversy in regard to issue ammunition to a person holding an arm license being reproduced herein below :-
"Clause-IV-Quantity of ammunition- At present, the holder of a PB arms licence is allowed to purchase 50 cartridges of ammunition of the appropriate bore per annum subject to the condition that not more than 30 cartridges can be purchased at a time. In respect of NPB weapons, the State Governments are following different norms and allowing different quantities of ammunition. It has been decided to prescribe a uniform norm and allow 50 cartridges of the appropriate bore per annum in respect of PB and NPB weapons held by a licensee. However, in respect of PB and NPB weapons allowed under the family heirloom policy, the quantity of ammunition will be restricted to 30 cartridges per annum since, ordinarily, there is no threat to the legal heir and the weapon is transferred to him on sentimental merits in exceptional cases, for good and sufficient reasons to Department of the State concerned.
Clause-V-Reporting use of ammunition- It has also been decided that every State Government may prescribe reporting on use of ammunition by the licensee and devise a reporting mechanism under which each licensee may keep a record of the use of ammunition with him such as (i) date of use, (ii) place, (iii) number of bullets fired and (iv) purpose. The licensee shall report use of ammunition during the previous year before purchase of ammunition in the current year to the authority concerned as per procedure to be prescribed by the State Government. Thus, the quantity of ammunition in a year shall be limited to the use of the ammunition in the previous year so that the total quantity with a licensee shall not exceed the prescribed quantity at any time. For example, if a licensee under the threat perception category had not used any ammunition in the previous year against the quota of 50 cartridges, no fresh quota for the current year will be admissible. The State Governments may issue appropriate instructions to the licensee and all the arms dealers in the State in this regard. A report on the use of ammunition by licensees may be sent by each DM to the State Government concerned on a quarterly basis and a consolidated report may be sent by the State Government to MHA on an annual basis."
In pursuance to the said Government Order issued by the Central Government, State of U.P. issued a Government Order dated 27.04.2010, same reads reproduced herein below :-
प्रेषक सर्वेश चन्द्र मिश्र विशेष सचिव उ. प्र. शासन सेवा में, समस्त जिला मजिस्ट्रेट/पुलिस उप महानिरीक्षक/वरिष्ठ पुलिस अधीक्षक/पुलिस अधीक्षक, उत्तर प्रदेश गृह (पुलिस) अनुभाग-५ विषय : शस्त्र लाइसेंसों के सम्बन्ध में भारत सरकार के दिशा निर्देश महोदय, उपर्युक्त विषयक गृह मंत्रालय, भारत सरकार से प्राप्त पत्र संख्या-व्-११०६१/१६/२००९-आर्म्स, दिनांक 31 मार्च, २०१० की एक प्रति आपके सूचनार्थ एवं मार्गदर्शन हेतु भेजने का मुझे निर्देश हुआ है | कृपया भारत सरकार के निर्देशों को ध्यान में रखते हुए यह आवश्यक कार्यवाही सुनिश्चित की जाय | उक्त दिशा निर्देश में जिन बिन्दुओं पर व्यक्तिगत अनुज्ञप्ति धारकों एवं शस्त्र व्यवसायिक अनुज्ञप्ति धारकों को भारत सरकार द्वारा अवगत कराये जाने की अपेक्षा की गयी है । तदनुसार अपने स्तर से उपरोक्त प्रकार के अनुज्ञप्ति धारकों को सूचित करने का कष्ट करें | भवदीय सर्वेश चन्द्र मिश्र विशेष सचिव Further, another Government Order has been issued by State of U.p. on the point in issue on 14.03.2011, is being reproduced herein below :-
प्रेषक आनंद कुमार सचिव उ. प्र. शासन सेवा में, समस्त जिला मजिस्ट्रेट उत्तर प्रदेश गृह (पुलिस) अनुभाग-५ विषय : गृह मंत्रालय, भारत सरकार के शासनादेश दिनांक 31 मार्च, २०१० में कारतूसों की बिक्री तथा उसके उपयोग का विवरण देने की प्रक्रिया का निर्धारण राज्य सरकार द्वारा किये जाने की व्यवस्था की गयी है । अतएव, सम्यक विचारोपरान्त कारतूसों के विक्रय एवं उसके उपयोग का विवरण देने हेतु निम्नलिखित प्रक्रिया निर्धारित की जाती है :-
शस्त्र व्यवसायिक लाइसेंस दुकानदार कारतूस विक्रय करते समय व्यक्तिगत शस्त्र धारक से निम्नलिखित प्रारूप पर उसके हस्ताक्षर सहित सूचना प्राप्त करेगा तथा उक्त प्रारूप की छायाप्रति अपने अभिलेखार्थ सुरक्षित रखेगा और मूल प्रति जनपद के जिला मजिस्ट्रेट को प्रेषित करेगा । व्यक्तिगत शस्त्र लाईसेंसी के अन्य जनपद/प्रदेश का होने की दशा में जनपद के जिला मजिस्ट्रेट का यह दायित्व होगा कि शस्त्र दुकानदार से प्राप् सेल रिपोर्ट तथा व्यक्तिगत शस्त्र लाईसेंसी से हस्ताक्षरित प्रारूप की सूचना/प्रतिलिपि तत्काल व्यक्तिगत शस्त्र लाईसेंसी के जनपद के जिला मजिस्ट्रेट को उपलब्ध कराये | शस्त्र दुकानदार यह भली-भाँती देखेगा कि शस्त्र धारक द्वारा पूर्व में क्रय किये गए कारतूसों का कोटा गृह मंत्रालय के नवीनतम दिशा निर्देशों में दी गयी अनुमन्य सीमा में ही है तथा दुकानदार अनुमन्य सीमा से अधिक कारतूस नहीं बेचेगा | प्रारूप १-शस्त्र अनुज्ञापी का नाम/पिता/पति का नाम- ..............................
२-शस्त्र लाइसेंस नंबर-..................
३-शस्त्र का प्रकार -.............
४- शस्त्र अनुज्ञापी का पता-........................।
कारतूस उपयोग का दिनांक स्थान, जहाँ कारतूस उपयोग किये ग़ये कितने कारतूस उपयोग किये ग़ये कारतूस उपयोग करने का उद्देश्य/कारण 1 2 3 4 उक्त सम्बन्ध में मुझे यह कहने का निर्देश हुआ है कि गृह मंत्रालय, भारत सरकार के पत्र संख्या-व्-११०६१/१६/२००९-आर्म्स, दिनांक 31 मार्च, २०१० के लागू होने के उपरांत समस्त जिला मजिस्ट्रेट, दी गयी व्यवस्था के अनुसार कारतूसों के विक्रय तथा लाइसेंसधारियों द्वारा कारतूसों के उपयोग की सूचना त्रैमासिक रूप से शासन को उपलब्ध कराएँगे | प्रदेश में कारतूसों की बिक्री तथा उसके उपयोग का विवरण देने की उपरोक्त प्रक्रिया से समस्त शस्त्र व्यवसायिओं तथा शस्त्र धारकों को तत्काल अवगत कराते हुए अनुपालन सुनिश्चित करने का कष्ट करें | भवदीय आनंद कुमार सचिव Needless to mention herein that at the time of hearing, Shri Suman Singh Principal Secretary (Home) assisted the learned Chief Standing Counsel also submits that issue of bullet/ammunition to a person who is a holder of arm license from the arm shop is a valid area of consideration by the State Government and as per instructions received to him from the authority of the department, if a certain direction is issued in this regard in the light of existing government orders, the same will be implemented in its letter and spirit.
Thus, taking into consideration the position of law on the point in issue and Government Orders issued by Central/State Government, I feel appropriate that the State Government should take steps for implementing the Government Order dated 31.03.2010 issued by the Central Government and Government Orders dated 27.04.2010 as well as 14.03.2011 in respect of purchase of bullet/ammunition by a person who is holder of an arm licence and shall strictly complied with.
Reverting to the facts of the present case, after hearing the arguments of the learned counsel for parties and going through the impugned order dated14.11.2011, the position which emerged out that the licence of the petitioner to run the fire arms shop has been cancelled on the ground that a case Crime No. 384/2008 has been initiated against the petitioner on the basis of an FIR lodged on 05.06.2008 under Section 406, 420, 467, 468 and 471 I.P.C. and the same is under consideration on the ground that the petitioner/Abhishek Upadhyay by way of fraud has taken the money from the general public by becoming Deputy Chairman of the Company known as Teracap Investment Consultant Private Company Limited, Gonda.
The said fact of the petitioner is against the petitioner is against the Lokshanti/Surakhas, so it would not be appropriate that the petitioner should run his fire arms shop, accordingly, the same has been cancelled by O.P.No. 2 invoking the provisions as provided under Section 17(3)(kha) of the Act.
In view of the said factual background, the first question which is to be considered in the present case whether in view of the criminal case which is pending against the petitioner on the basis of the same the licence of the petitioner to run the fire arm shop can be cancelled or not?
After hearing learned counsel for parties and going through the record, it is not in dispute that the criminal case which is pending against the petitioner is of a civil nature and it has got no link in respect to any action on the part of the petitioner thereby committing any nature of irregularity in selling or distributing the guns or ammunition from his shop which actually involved in commission of any offence or the involvement of the petitioner in any crime or any act committed by him is in the nature of disturbing the peace and tranquility of the area, what is the endanger of public peace security in the area where he is running the arm shop as the said situation does not exist in the present case rather the same has not been born out from the record. And the position is otherwise in the present case so the licence of the petitioner to run arm shop has been cancelled on extraneous consideration due to political interference.
Further, the O.P.No. 2 cancelled the licence of the petitioner to run the fire arms shop that the same is neceaary in view of Lok Shanti/suraksha by invoking the provisions of Section 17 (3)(b) of Arms Act. However, no finding has been given that in what manner the running of the petitioner's fire arms shop will effect the Lok Shanti/Suraksha. The said finding is made contrary to the provision of Section 17 of Arms Act as well as law laid down by this Court in the case of Dharamvir Singh Vs. The State, 2003 All L.J. 1769, the relevant para 6 of the judgment given herein below:
"There is no finding that the revocation of licence was considered necessary for the security of the public peace or public safety. Public interest cannot be equated to term for the security of the public peace or public safety. . . . . . ." (See also Rajendra Deo Pandey Vs. State of U.P. and others, 2012(4) ADJ 716 and in the case of Babu Ram Vs. State of U.P. and others, 2012 (78) ACC 640).
Thus, after hearing learned counsel for parties in the present case and going through the record, it is clearly established that the impugned order which has been passed is not in accordance with the provisions of Section 17 (3) (B) of the Act as the necessary ingredients to pass an order under the said section does not exist in the present case because in the impugned order dated 14.11.2011, there is no positive finding relating to breach of public peace or tranquility on account of continuance of licence to run the arms shop by the petitioner, simply cancelled on the ground that the criminal case pending against him, although the same is of a civil nature, has got no relation in respect of the breach of public peace and safety. So, the impugned order is liable to be set aside.
For the foregoing reasons, the impugned order dated 14.11.2011 is set and aside and the writ petition is allowed with a direction that the State Government shall comply the observations as made herein above.
Order Date :- 23.06.2014 Mahesh