Heard Sri Vivek Manishi Shukla, learned counsel for the petitioner and learned Standing Counsel.
By means of present writ petition, the impugned orders dated 21.12.2005 and 14.09.2006 passed by the respondent no.1 i.e. Commissioner, Lucknow Division, Lucknow and order dated 28.05.2003 passed by respondent no. 2, District Magistrate, Sitapur are under challenge.
Facts in brief as submitted by the learned counsel for the petitioner are that the petitioner was holder of licence No. 798 Double Barrel Gun, granted by the licensing authority/District Magistrate, Sitapur.
On 23.01.2003, petitioner received a show-cause-notice issued by the licensing authority/District Magistrate, Sitapur that why the licence should not be cancelled and his licence was also suspended. On 05.02.2003, petitioner submitted reply in response to the show-cause-notice dated 23.01.2003. Thereafter, vide order dated 28.05.2003 petitioner's licence was cancelled.
Aggrieved by the same, petitioner preferred an appeal before the appellate authority under Section 18 of the Arms Act, 1959 dismissed vide order dated 21.12.2005. Thereafter, the petitioner filed an application for recall/restoration of the said order, dismissed vide order dated 14.09.2006 by the appellate authority/Commissioner, Lucknow Division, Lucknow, hence the present writ petition has been filed.
Learned counsel for the petitioner while assailing the impugned orders in question submits that the order passed by the appellate authority dated 21.12.2005 by which the petitioner's appeal has been dismissed is a non-speaking order and passed without application of mind, as such the same is arbitrary in nature, in violation of principles of natural justice.
He further submits that the Licensing Authority/District Magistrate, Sitapur had cancelled the petitioner's licence vide order dated 28.05.2003 on the basis of a report dated 14.01.2003 submitted by Superintendent of Police, Sitapur, copy of the said report was not given to the petitioner, accordingly the non-supply of the material/report dated 14.01.2003 renders the impugned order without jurisdiction.
Learned counsel for the petitioner further submits that as a matter of fact and record, two cases namely Case Crime No. 174/89 and 135/95 which are the basis of passing of the impugned order of cancellation of his arm licence in both the cases he has been acquitted.
Further, there is no finding in the impugned orders about the imminent danger to public peace and safety due to the involvement of the petitioner in alleged criminal cases, but the impugned order of cancellation passed by the respondent no. 2 in 'Janhit'; the said action is per se illegal and in contravention to the provisions as provided under Section 17 of the Arms Act.
In support of his contention, learned counsel for the petitioner relies on the following judgments.
1.Fuzail Ahmad Vs. Commissioner Allahabad Mandal, Allahabad and others [2001(19) LCD 1]
2.Ram Murti Madhukar Vs. District Magistrate, Sitapur [1998 (16) LCD 905]
3.Ram Sanehi Vs. Commissioner, Devi Patan Division Gonda and another [2004(22) LCD 1643]
4.Mohd. Haroon Vs. The District Magistrate, Siddharth Nagar [2003(21) LCD 548]
5.Hari Kant @ Raja Vs. State of U.P. and others [2002(1) JIC 714(All)]
6.Raghubir Singh Vs. Commissioner Jhansi Division, Jhansi & others [2002(2)JIC 987(All)]
7.Ram Karpal Singh Vs. Commissioner Devi Patan Mandal Gonda and others [2006(24) LCD 114]
8.Satish Singh Vs. District Magistrate, Sultanpur [2010(68) ACC 94].
On the strength of the said judgments, learned counsel for the petitioner submits that the Arm licence no. 798 cancelled only on the ground of 'Janhit' cannot be cancelled under the provisions as provided under Section 17 of the Arms Act, so the instant writ petition liable to be allowed.
Sri Suresh Panjwani, learned Standing Counsel on the other hand submits that after considering the facts and circumstances of the case, the licence of the petitioner has been cancelled by the respondent no. 2 taking into consideration the report submitted against him by police authority of the District Sitapur, said order was confirmed by the appellate authority. However, Sri Suresh Panjwani, learned Standing Counsel fairly admits that the two criminal cases which were the basis of the passing of the impugned cancellation order in the same, petitioner has been acquitted.
I have heard learned counsel for the petitioner and gone through the record.
The power to suspend or cancell the arm licence has been given under Section 17 Arms Act, 1951, from the perusal of the said section, it can be seen that the arm licence can be cancelled or suspended on the ground that it will necessary for security and public safety.
A plain reading of Section 17 indicates that the arms licence can be cancelled or suspended on the ground when the licensing authority deems it necessary for the security of the public peace or the public safety. In the present case, while passing the impugned order, neither the District Magistrate nor the appellate authority has recorded the finding as to how and under what circumstances, the possession of arms licence by the petitioner, is detrimental to the public peace or the public security and safety. Merely because criminal cases are pending does not seems to attract the provisions of Section 17 of the Arms Act.
To attract the provisions of Section 17 of the Arms Act with regard to public peace, security and safety, it shall always be incumbent on the authorities to record a finding that how and under what circumstances and in what manner, the possession of arms licence shall be detrimental to public peace, safety and security. In absence of any such finding merely on the ground that a criminal cases are pending without considering any circumstances with regard to danger of public peace, safety and security, the provisions contained under Section 17 of the Arms Act, shall not satisfy.
Needless to say that right to life and liberty are guaranteed under Article 226 of the Constitution of India and the arms licences are granted for personal safety and security after due inquiry by the authorities in accordance with the provisions contained in Arms Act, 1959. The provisions of Section 17 of the Arms Act with regard to suspension or cancellation of arms licence cannot be invoked lightly in an arbitrary manner. The provisions contained under Section 17 of the Arms Act should be construed strictly and not liberally. The conditions provided therein, should be satisfied by the authorities before proceeding ahead to cancel or suspend an arms licence.
A notice may be taken of the fact that for any reason whatsoever, the crime rate is rising day by day. The Government is not in a position to provide security to each and every person individually. Right to possess arms is statutory right but right to life and liberty is a fundamental right guaranteed by Article 21 of the Constitution of India. Corollary to it, it is citizen's right to possess fire arms for their personal safety and to save their family from miscreants. It is often said that ordinarily in a civilized society, only civilized persons require arms licence for their safety and security and not the criminals. Of course, in case the Government feels that arms licences are abused for oblique motive or criminal activities, then appropriate measures may be adopted to check such mal-practice. But arms licence should not be suspended in a routine manner mechanically, without application of mind and keeping in view the letter and spirit of Section 17 of the Arms Act.
Learned counsel for the petitioner relied upon the judgment reported in Ram Sanehi Vs. Commissioner, Devi Patan Division Gonda and another [2004(22) LCD 1643] where this Court relied upon its earlier judgment Habib Vs. State of U.P.2002 ACC 783 and in one another judgment Fakir Chand Vs. Commissioner, Meerut Mandal, Meerut 2002 (11) ACC 518 and it has been held that merely because criminal case is pending, it shall not create a ground for suspension or cancellation of arms licence in pursuance of powers conferred by Section 17 of the Arms Act. The authorities have to record finding based on material evidence with regard to breach of public peace and security while cancelling the arms licence.
In the present case, neither the District Magistrate, Sitapur nor appellate authority while passing the impugned order has recorded the reasons as on what grounds and under what circumstances if the petitioner possesses the Arm licence, the same would be against the society of public peace or public safety but the same had cancelled on the ground of 'Janhit' taking into consideration the two criminal cases in respect of which a report was submitted against the petitioner, however the said two criminal cases he was acquitted, so the impugned action on the part of respondents thereby cancelling his arm licence is arbitrary action, in violation to the provisions of the Arms Act.
Further, in the impugned order dated 14.09.2006 passed by the appellate authority/Commissioner, Lucknow Division, Lucknow, no reasons on the basis of which the appellate authority had came to the conclusion for dismissing the appeal of the petitioner had been stated/given moreover, when it was brought to the notice to the appellate authority that the two criminal cases which are the basis of the cancellation of Arm licence by the respondent no. 2 vide order dated 28.05.2003, in the same petitioner has been acquitted, so it is incumbent upon the appellate authority to discuss the said fact and thereafter the impugned order should be passed.
For the foregoing reasons, the orders dated 21.12.2005 and 14.09.2006 passed by the respondent no. 1 and the order dated 28.05.2003 passed by the respondent no. 2 are quashed and respondent no. 2 is directed to restore/renew the licence of the petitioner forthwith.
Accordingly, writ petition is allowed.
No order as to costs.
01.10.2010 Krishna/*