Heard learned counsel for the petitioner and Shri B.N. Mishra, learned standing counsel appearing for the State - respondents.
The petitioner challenges the orders dated 12.5.2010 passed by the District Magistrate, Ghaziabad cancelling the arm licence of the petitioner and also dated 18.10.2010 passed by the Commissioner, Meerut Division, Meerut in appeal confirming the said order.
The petitioner was issued the licence bearing no.657/Dec/2007 in December, 2007 of 32 bore revolver/pistol no.619853, which was valid up to 8.12.2010. Unfortunately, on 30.9.2009 an incident of murder took place in which revolver of the petitioner was used killing one girl known as Km. Kirti r/o F - 128, Mahindra Enclave, Shastri Nagar, Ghaziabad. It was said that Ranu son of Ram Kishan, a domestic servant of the petitioner, killed Km. Kirti from that very revolver. After killing Km. Kirti, Ranu killed himself also on the spot. The aforesaid occurrence took place at about 9.15 a.m. Devendra son of Ram Sewak, brother of Km. Kirti, in fact, lodged report on 30.9.3009 at 1.50 p.m. at police station Kavi Nagar, District Ghaziabad informing about the incident, which, according to him, took place at about 9.15 a.m. on 30.9.2009. Case crime no.1255 of 2009, under Section 302 I.P.C. was registered against Ranu and recovery of pistol/revolver of the petitioner was also made by the police from the residence of Devendra on 30.9.2009. Another case under Sections 25/27 of the Arms Act (hereinafter referred to as the Act) in case crime no.1279 of 2009 was registered against Ranu on the report of S.H.O., Police Station Kavi Nagar, District Ghaziabad on 1.10.2009 at about 8.05 p.m. The petitioner was not accused in the murder case registered against Ranu for allegedly murdering Km. Kirti and final report no.586 of 2009 was submitted in the case under Section 381 I.P.C. registered on the report of the petitioner on account of subsequent death of Ranu on 4.10.2009. Since the revolver of the petitioner was, admittedly and primarily, used in the aforesaid murder of Km. Kirti by Ranu and subsequently, he killed himself also on the spot by the same revolver, show cause notice was issued to the petitioner on 4.10.2009 based on the police report of the Senior Superintendent of Police, Ghaziabad dated 13.11.2009 and the recommendation made by the S.H.O., Kavi Nagar, District Ghaziabad dated 24.10.2009 requiring him to show cause as to why his arm licence be not cancelled.
The show cause notice charged the petitioner of being negligent in keeping the arm, which resulted into the murder of Km. Kirti by a domestic servant - Ranu. In the said circumstances, it was presumed that keeping arm by the petitioner could not be in public interest.
The petitioner submitted his reply on 8.1.2010 and stated therein, inter alia, that it was not a case of his negligence in keeping the revolver in safe custody, but, as a matter of fact, on the date of occurrence i.e. 30.9.2009 when the petitioner came out of bathroom after taking bath at about 8 a.m., he found the locker, where the said revolver was usually and always kept in seal and lock, opened and found that the said revolver was not available. He immediately made a complaint at Police Station, Kavi Nagar, District Ghaziabad, which was duly received on that very date, but the F.I.R. was registered on 2.10.2009 that too when the Superintendent of Police directed for registering the F.I.R. vide order dated 1.10.2009.
According to the petitioner, he approached the police station for lodging F.I.R. under Section 381 I.P.C. i.e. regarding theft of revolver before the murder incident took place, but there is nothing on record to indicate the time that when the petitioner reached the police station. The fact of giving complaint in the police station on 30.9.2009 is admitted by the police in the counter affidavit. The District Magistrate after considering the reply of the petitioner and the charges levelled against him observed that it appears to be a case of negligence and as such, the petitioner has violated the provisions of Section 17 of the Act. He further observed that had the revolver been stolen by any other person, then other incident could also have taken place. The petitioner was thus, not capable to keep firm arm in safe custody. The District Magistrate while considering the plea of the petitioner that it is a case of theft and not negligence in keeping the firearm in safe custody though also did not, apparently, disbelieve that the petitioner was keeping the firearm usually in his locker when he was not taking it along with him, but was guided by the presumptuous thought that this time revolver was stolen by a domestic servant, who murdered Km. Kirti, but if it had been stolen by some one else, some major incidence could have taken place. On this presumptuous approach, he cancelled the firearm licence of the petitioner. An appeal preferred against the aforesaid order has also been dismissed by the Commissioner almost on the same reasoning and presumptions.
Section 17 of the Act gives the ground for variation, suspension and revocation of the firearm licence. In Sub clause 3 (a) of Section 17 of the Act the licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence if the licensing authority is satisfied that the holder of the licence is 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 is of unsound mind, or is for any reason unfit for a licence under this Act.
The petitioner's case, apparently, falls under clause aforesaid 'for any reason unfit for a licence under this Act'. There cannot be a dispute that if a person is incapable of keeping firearm in safe custody and is negligent in handling the same, he would not be a person fit to keep firearm. The licence issued to such person could be cancelled for the aforesaid reason. The relevance and importance of safe and proper custody of firearm by the licence holder does not require any detailed discussion for the reason that in case the firearm is allowed to be used by any person because of the negligence of the licence holder, it would result into unfortunate criminal occurrence, though the licensee may not be himself involved in such criminal incident; because of which criminal activity would take place, disturbing peace and tranquillity and law and order and may be public order. Such person would not be entitled to keep his firearm and, therefore, the licence must be cancelled.
The incident, which took place, in the instant case, is regarding the murder of Km. Kirti by the domestic servant of the petitioner ? Ranu after stealing his revolver from the locker. It is a different matter that Ranu after killing Km. Kirti also killed himself on the spot. In the counter affidavit filed by the State there is no denial of the fact that the petitioner made a written complaint at police station, Kavi Nagar, Ghaziabad regarding theft of his revolver by Ranu on 30.9.2009 itself. The F.I.R. was since not lodged, he approached the Senior Superintendent of Police, who passed the order on 1.10.2009 for lodging the F.I.R. Consequently, the F.I.R. was registered on 2.10.2009. Paragraph 6 of the counter affidavit filed by the Deputy Superintendent of Police almost admits the contents contained in paragraph 4 of the writ petition, which says that on 30.9.2009 at about 8 o'clock in the morning the petitioner had gone for bath after keeping his revolver in 'safe' and when he came out of bathroom, he found that the domestic servant has stolen his revolver and, therefore, he immediately gave this information at police station, Kavi Nagar, Ghaziabad. In paragraph 7 of the counter affidavit, it has been stated that the contents of paragraph 5 of the writ petition are admitted wherein it was reiterated by the petitioner that the F.I.R. was registered on 2.10.2009 at 10.25 p.m. on the written report of the petitioner dated 30.9.2009.
The F.I.R. of Devendra, regarding murder of his sister by Ranu, was registered at about 12.50 p.m. at police station, Kavi Nagar, Ghaziabad, as stated in paragraph 9 of the counter affidavit. However, the F.I.R. aforesaid, copy of which is on record, shows that the same was registered at 1.50 p.m. Be that at it may, the fact remains that, as per averments made in the writ petition and also in the counter affidavit of the State, the petitioner did approach the police station, Kavi Nagar, Ghaziabad on 30.9.2009 when he found that the revolver, which was kept in safe custody in his locker, was stolen by his domestic servant ? Ranu, when he came from his bathroom.
The petitioner's involvement in the murder of Km. Kirti was also inquired into, but he was not an accused in the said murder nor any thing was found against him.
Learned counsel for the State has also tried to argue that the petitioner, in fact, did not lodge complaint about theft of his revolver on 30.9.2009 before the incidence of murder took place, but has tried to make out a case for the purposes of his defence. The contention of the State counsel may or may not be correct, but in view of clear admission and statement made in the counter affidavit of the State, it is not open to the learned standing counsel to make a plea, which does not flow from the record, and particularly, from the counter affidavit filed by the State.
That apart, it is the normal conduct of a human being of ordinary prudence in such a matter which has to be considered. The State does not dispute the story set up by the petitioner that when he was not keeping firearm with him, he used to put it in the locker in safe custody. Once this is not disputed the reasoning given for cancelling the licence falls as it does not say what more steps should have been taken by the licensee to keep the firearm in safe custody.
It is not the case of the State that the petitioner was negligent in keeping the firearm or he was not keeping it in safe custody in the locker under lock and key. If the domestic servant, who was in the know of things, had stolen the revolver and of course without connivance and knowledge of the petitioner, it cannot be said that the petitioner was negligent in handling the firearm or keeping in safe custody. It was thus, a clear case of theft of firearm and not negligence.
For testing the plea of the learned standing counsel that there was some delay in lodging the FIR or delay in making the complaint regarding theft by Ranu, the question would be whether the conduct of the petitioner was that of a person of ordinary prudence or not? There was no reason for the petitioner to presume before hand to apprehend that the firearm, which he has kept in the locker, would be stolen. It is also not supposed that the licensee would keep on checking the firearm every day and every moment, if it is in lock and key that whether the same is in safe custody or not? The only responsibility and duty, cast upon the licensee, is to keep the firearm in safe custody i.e. under lock and key at the place, which is not easily accessible to all and sundry.
In the aforesaid circumstances, if some theft takes place and the licensee does not know about the crime, but when he come to know about the theft, he immediately thereafter lodged the report at the police station, it cannot be conclusively said that in all matters it necessarily be a case of negligence or that the licensee has deliberately not informed to the police about the theft. This will depend upon the facts and circumstances of each case.
It is the duty of the District Magistrate while dealing with the situation like present one or in other words the charge of being negligent in keeping firearm, to assess from the evidence on record, material collected and the surrounding circumstances, whether it is the case of theft or of negligence. In absence of any clear finding, in this regard, the provision of Section 17 (3) (a) of the Act under its last clause, cannot be invoked in the present case.
There may be instances where firearm is kept in safe custody under lock and key and it is stolen by some one and the licenee may not know about the theft, since he had no occasion to take arm with him and upon opening the locker, the theft is disclosed and may be, in the meantime, some crime is committed by the said arm and he comes to know only when he gathers information, that his firearm has been misused by some one after stealing, even in such circumstances, it is always open for the licensee to satisfy the police and the concerned authority that he was not aware of theft, as he had kept the arm in safe custody and was confident that it remained in the locker, throughout and, therefore, unless it is found that he was involved in one way or the other in the offence committed, it would be obligatory upon the concerned authority to satisfy himself about the plea raised by such licensee regarding he being not negligent and that it is a case of pure theft.
In the case in hand, the information regarding stealing of revolver/pistol was immediately brought to the notice of the police by the petitioner. The arm was being kept in locker under lock. The theft was committed by the domestic servant, who was well in the know of things and also ins and out of the petitioner's belongings. The petitioner was not found involved in the case of murder of Km. Kirti. There was no connivance in any way in the theft of the arm.
The order passed by the District Magistrate and Commissioner are mainly based on presumption that in case firearm had been stolen by some one else, any major criminal incident could have taken place. This observation, in my opinion, is purely based on conjectures and surmises and is presumptuous. Here, it is a case, where theft was committed by a domestic servant. It, being a clear case of theft and not negligence, I do not find any ground for cancelling the licence of the petitioner.
In the result, the writ petition is allowed. The orders dated 12.5.2010 passed by the District Magistrate, Ghaziabad and also dated 18.10.2010 passed by the Commissioner, Meerut Division, Meerut are quashed. In case the validity of the licence has come to an end, it is open for the petitioner to apply for its renewal, which may be considered in accordance with Rules; but the renewal shall not be refused merely on the ground of negligence, as observed in the impugned orders passed by the District Magistrate and the Commissioner. The follow up action about return of revolver/pistol shall also be taken in accordance with Rules.
Order Date :- 13.5.2011 Anupam