Court No. - 2 Reserved
Case :- WRIT - C No. - 35611 of 2017 Petitioner :- Avnish Kumar Shukla Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Om Prakash Mishra Counsel for Respondent :- C.S.C.
Hon'ble Ram Surat Ram (Maurya),J.
1. Heard Sri Om Prakash Mishra, for the petitioner, Standing Counsel, for State of U.P.
2. The writ petition has been filed against the order of Joint Secretary, Government of U.P. dated 30.12.2016, rejecting the application of the petitioner for grant of Fire Arm Licence of NPB Rifle to the petitioner.
3. The petitioner is a permanent resident of 201/90-A, Rasulabad, Teliarganj, Allahabad, falling within limit of police station Shivkuti, Allahabad. It has been stated that the petitioner is a practicing advocate and is also engaged in property business. The petitioner has obtained Fire Arm Licence no. 316/Shivkuti, of NPB Pistol, on which he has a revolver.
4. Smt. Bithika Shukla wife of Deep Chandra Shukla, resident of Chhiwki, P.S. Naini, district Allahabad gave a missing report of her husband at P.S. Civil Lines, Allahabad on 17.01.2016. On 18.01.2016, half burnt and mutilated dead body of Deep Chandra Shukla was found and it was also noticed that his licenced revolver was looted then the case was converted under Section 364, 302, 201, 394, 34 IPC. The police after investigation submitted charge sheet no. 39 of 2016 dated 17.04.2016, against (i) Jai Raj Singh son of V.P. Singh, (ii) Abhishek Mayank Rastogi @ Anshu son of Narendra Kumar Rastogi (iii) Ajay Kumar Mishra son of Ram Naresh Mishra (iv) Arun Kumar Talan son of Gajan Singh Talan (v) Indeewar Pandey son of Lakshmi Kant Pandey, under aforementioned sections. Chief Judicial Magistrate by order dated 20.04.2016 took cognizance on the charge sheet and on committal S.T. No. 4565 of 2016 is registered and pending.
5. Deep Chandra Shukla was real uncle of the petitioner and he was also an advocate and engaged in property business. After his brutal murder, his widow began to reside with the petitioner, due to terror of the accused. The petitioner is alleging to be an eye witness of the incident. The accused began to give threatening to the petitioner and Smt. Bithika Shukla. The petitioner, therefore, applied for another firearm Licence of NPB Rifle before District Magistrate on 02.02.2016. District Magistrate called for a report from Senior Superintendent of Police, Allahabad. In turn, local police submitted its report dated 27.04.2016, with recommendation to grant of second licence. Senior Superintendent of Police also called for a report from Local Intelligence Unit. Circle Officer, Local Intelligence Unit, Allahabad also gave report that there was imminent danger to life of the petitioner and his family members. The reports were forwarded to District Magistrate by Senior Superintendent of Police. Under Clause-2 (2) Government Order dated 29.12.2014, application for grant of second arm licence has to be considered by the Divisional Level Committee, consisting of Commissioner (as Chairman), District Magistrate, Deputy Inspector General of Police and Senior Superintendent of Police.
6. District Magistrate through his letter dated 14.11.2016, placed the matter before Divisional Level Committee. Divisional Level Committee, by its resolution dated 03.12.2016, recommended for grant of second fire arm licence to the petitioner. Clause-11 of Government Order dated 29.12.2014, requires consideration for the licence of NPB Rifle by State Level Committee constituted under Clause-2 (3) as such District Magistrate through his letter dated 22.12.2016, forwarded the matter to Special Secretary, Government of U.P. for consideration of State Level Committee. State Level Committee, through resolution dated 30.12.2016, held that as the petitioner has already been granted NPB Pistol Licence no. 316/ Shivkuti on the ground of victim of crime as such grant of second licence of NPB Rifle is not required. Joint Secretary, through letter dated 30.12.2016, communicated the resolution to the petitioner. Hence this writ petition has been filed.
7. I have considered the arguments of the counsel for the parties and examined the record. Full Benches of this Court and Patna High Court in Kailash Nath Vs. State of U.P., AIR 1985 All 291 (FB), Kapildeo Singh Vs. State of Bihar, AIR 1987 Pat. 122 (FB), Balram Singh Vs. State of U.P., 1989 ALJ 23 (FB), Rana Pratap Singh Vs. State of U.P., 1996 CrLJ 665 (SB) and State of U.P. Vs. Mahipat Singh, 2014 (2)ADJ 134 (DB) have held that obtaining fire arm licence for acquisition and possession of firearms and ammunition under Arms Act, 1959 is a statutory privilege and the grant of such privilege does not involve the adjudication of the right of an individual nor does it entail civil consequences. No doubt, a citizen may apply for grant of a licence of firearms mostly with the object of protecting his person or property but that is mainly the function of the State.
Even remotely this cannot be comprehended within the ambit of Article 21 of Constitution which postulates the fundamental right of protection of life and personal liberty. It deals with deprivation of life and is attracted only in cases of deprivation in the sense of total loss and that accordingly has no application to the case of a mere restriction upon the right to move freely or to the grant of licence for possession and acquisition of firearms which stands on an entirely different footing from the licence to carry on a trade or occupation.
8. Division Bench of this Court in Misc. Bench No. 3268 (PIL) of 2012 Jitendra Singh Vs. State of U.P., filed to fix public accountability, by an interim order dated 07.10.2013, stayed grant of fresh fire arm licences in U.P. except to family heirloom policy and to a victims of crime. On 13.11.2014, some further directions were issued to State Government and Central Government. In pursuance thereof, State Government issued Government Order dated 29.12.2014, under which, District Magistrate, who is licensing authority is authorized to grant one firearm licence. The committee at Division Level is authorized to grant second firearm licence and the committee at State Level is authorized to grant third firearm licence and licence for NPB Rifle. Central Government framed Arms Rules, 2016, giving detailed procedure and superseded Arms Rules, 1962. The writ petition is disposed off by order dated 28.11.2017 with observation that concerned authority shall deal with the application for grant of licence, in accordance with Arms Rules, 2016. After coming into force of Arms Rules, 2016, Government Order dated 29.12.2014 has lost its sanctity. At present the application for grant of firearm licence has to be decided according to the provisions of the Arms Act, 1959 and Arms Rules, 2016.
9. Section 13 and 14 of the Act provides guidelines for grant/refusal of licence, which are quoted below:-
Section 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.
(2-A) 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.
Section 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.
Rule-12 of Arms Rules, 2016 is as follows:-
Rule-12. Obligations of licensing authority in certain cases.─ (1) Save as otherwise provided in the Act, every licensing authority granting a licence in Form III to an individual for the restricted or permissible arms or ammunition as specified in category I(b) and I(c) or category III respectively in Schedule I, shall have due regard to the application of norms specified in sub-rules (2) and (3).
(2) For grant of a licence for the restricted arms or ammunition specified in category I (b) and I (c) in Schedule I, the licensing authority, may consider the application of─ (a) any person who faces grave and anticipated threat to his life by reason of – (i) being resident of a geographical area or areas where militants, terrorists or extremists are most active; or (ii) being the prime target in the eyes of militants, terrorists or extremists; or (iii) facing danger to his life for being inimical to the aims and objectives of the militants, terrorists or extremists; or
(b) any Government official who by virtue of the office occupied by him or by the nature of duty performed by him and/or in due discharge of his official duty is exposed to anticipated risk to his life; or
(c) any Member of Parliament or Member of Legislative Assembly, who by virtue of having close or active association with anti-militant, anti-terrorist or anti- extremist programmes and policies of the Government or by mere reason of holding views, political or otherwise, exposed himself to anticipated risk to his life; or
(d) any family member or kith and kin of a person who by the very nature of his duty or performance (past or present) or position occupied in the Government (past or present) or even otherwise for known or unknown reasons exposed himself to anticipated risk to his life; or
(e) any other person, for any legitimate and genuine reason, to the satisfaction of the licensing authority, by passing of a speaking order in this regard: Provided that before grant of a licence under this sub-rule, the licensing authority based on the recommendations of the district magistrate and of the State Government concerned and on examination of the police report and after conducting a separate verification from its own source, shall satisfy itself that the applicant requires such licence.
(3) For grant of a licence for the permissible arms or ammunition specified in category III in Schedule I, and without prejudice to the provisions contained in clause (a) of sub-section (3) of section 13, the licensing authority, based on the police report and on his own assessment, may consider the applications of ─ (a) any person who by the very nature of his business, profession, job or otherwise has genuine requirement to protect his life and/or property; or
(b) any dedicated sports person being active member for the last two years, of a shooting club or a rifle association, licensed under these rules and who wants to pursue sport shooting for target practice in a structured learning process; or
(c) any person in service or having served in the Defence Forces, Central Armed Police Forces or the State Police Force and has genuine requirement to protect his life and/or property.
10. The Statement of objects and reasons for enactment of Arms Act, 1959, as given reads as follows:
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 rigours of the Arms Act and Rules thereunder continued 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 by the undersigned 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, 1954 and was circulated for public opinion.
Opinions were received from all State Governments which contained not onlv their own 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 privileges; and
(iii) the fire-arms 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 riflle-men in general (in appropriate age groups) will be of great service to the country in emergencies, if the Government can properly mobiles and utilise them.
11. One of the objects for enactment of Arms Act, 1959 is that weapons for self- defence be available for all citizens under licence unless their antecedents or propensities do not entitle them for the privileges. Rule 12 (e) provides for grant of firearm licence to any other person, for any legitimate and genuine reason, to the satisfaction of the licensing authority, by passing of a speaking order in this regard: Provided that before grant of a licence under this sub-rule, the licensing authority based on the recommendations of District Magistrate and of State Government concerned and on examination of the police report and after conducting a separate verification from its own source, shall satisfy itself that the applicant requires such licence.
12. In present case, Deep Chandra Shukla real uncle of the petitioner was murdered on 16/17.01.2016. His widow began to reside with the petitioner, due to terror of the accused. The petitioner is alleging to be an eye witness of the incident. The accused began to give threats to the petitioner and Smt. Bithika Shukla. The petitioner, therefore, applied for another firearm Licence of NPB Rifle before District Magistrate on 02.02.2016. Local police submitted its report dated 27.04.2016, with recommendation to grant of second licence. Senior Superintendent of Police also called for a report from Local Intelligence Unit. Circle Officer, Local Intelligence Unit, Allahabad also gave report that there was imminent danger to life of the petitioner and his family members. District Magistrate and Divisional Level Committee was satisfied with the reports and forwarded the application to State Government. Rejection of the application on the ground that the petitioner was given one licence of pistol, is no ground at all, as a person can be granted three firearms licences. In view of object of Arms Act, 1959 and Rule 12 (e) Arms Rules, 2016, the petitioner was entitled for grant of firearms licence for rifle also.
13. In view of the aforesaid discussion, writ petition succeeds and is allowed. The order of State Government as communicated through letter dated 30.12.2016 is set aside. The petitioner is permitted to file a fresh application under new proforma according to Arms Rules, 2016 within 15 days. In case, any application for grant of firearm licence of NPB Rifle is filed on new proforma, then District Magistrate/Central Government shall grant firearm licence of NPB Rifle to the petitioner within two months thereafter as provided under Rule-13 of Arms Rule, 1959. It is made clear that no further report from police is required.
Order date: 28.02.2018 mt