Court No. - 36
Case :- WRIT - C No. - 28444 of 2018 Petitioner :- Habib Khan And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Aishwarya Pratap Singh Counsel for Respondent :- C.S.C.,Dhananjay Pratap Singh
Hon'ble Mrs. Sunita Agarwal,J.
The present petition has been filed on behalf of two petitioners challenging the order of cancellation of their firearm licence passed by the licensing authority as also the appellate authority. One writ petition on behalf of two persons challenging separate orders of cancellation of their licence cannot be maintained.
Learned counsel for the petitioner prays for and is granted permission to withdraw this writ petition on behalf of the petitioner no.2 with liberty to file a fresh writ petition on his behalf.
Sri Dhananjay Pratap Singh learned counsel has put in appearance on behalf of the caveator/complainant who had lodged FIR dated 22.03.2015. He submits that he has a right to be heard in the present petition.
The present petition is directed against the order of cancellation of firearm licence of the petitioner passed by the licensing authority in the proceeding under Section 17 of the Arms Act; respectively.
The question as to whether the petitioner is entitled to retain firearm licence is the question of contest between the petitioner and the licensing authority. The complainant who has lodged the FIR has no right to be heard in the matter. The licensing authority is required to make necessary enquiry from the police authority, in case of any complaint of the involvement of the licensee in the criminal case.
In view of the above, this Court is of the considered view that the complainant/first informant has no right to be heard in the present matter arising out of the Arms Act.
The request of learned Advocate appearing for the caveator for hearing is, therefore, turned down.
Heard learned counsel for the petitioner and learned Standing Counsel.
The order of cancellation of firearm licence passed by the District Magistrate, Aligarh is being challenged on the ground that the same is solely based on the FIR lodged against the petitioner namely case crime no.26 of 2015 under Section 147, 148, 149, 307, 392, 504 & 506 IPC.
The FIR was lodged against 20 persons wherein the petitioner was also named. After investigation, the police had submitted charge sheet dated 18.06.2015 against two of the named accused. The petitioner has not been found guilty in the investigation made by the police. Till date no protest has been filed by the complainant before the competent court of law.
Submission is that the said fact was duly brought to the notice of the District Magistrate, Aligarh but he has proceeded to pass cancellation order merely on the report of the Station House Officer of Police Station concerned that an FIR had been lodged against the petitioner. The fact that the petitioner had been exonerated at the stage of the submission of charge sheet by the police had not been brought to the notice of the District Magistrate by the Station House Officer of the police station concerned in his report.
Moreover, no independent enquiry has been made by the District Magistrate before arriving at the conclusion that allowing the firearm license to the petitioner would result in breach the law and order situation. It is contended that mere involvement in the criminal case or lodging of the FIR cannot be taken as a ground for cancellation of firearm licence in absence of any other material on record.
Reference has been made to the judgement of this Court in the case of Rajendra Pandit Vs. State of U.P. & others reported in 2012 (10) ADJ 435 wherein it has been held as under:-
The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of the licence under section 17 of the Arms Act has been considered by the Division Bench of this Court in the case of Sheo Prasad Misra Vs. District Magistrate, Basti and others 1979 (16) ACC 6(sum), wherein the Division Bench has relied upon the earlier decisions of this Court in Mast Uddin Vs. Commissioner, Allahabad 1972 ALJ 573. In the aforesaid cases, it has been held that mere involvement in a criminal case can not in any way effect the public security and public interest. In view of the this proposition of law, the order cancelling or revoking the arms licence of the petitioner on the aforesaid ground of involvement and pendency of a criminal case is not tenable.
In Full Bench Decision of this Court rendered in Chhanga Prasad Sahu Vs. State of Uttar Pradesh, 1984 (10) ALR 223 and Kailash Nath and others Vs. State of U.P. and others, 1985 (22) ACC 353 and in case of Rana Pratap Singh Vs. State of U.P. 1994 JIC 72 (All); 1995 (Supp) ACC 235, it has been held that mere pendency of a criminal case(s) is no ground for cancellation of arms licence. The effect of the aforesaid Full Bench decisions was also considered in Sadri Ram Vs. District Magistrate, Azamgarh and others, 1998 (3) AWC 2102: 1998 (37) ACC 830.
This Court in the case of Harprasad Vs. State of U.P. & others reported in 2005 (5) AWC 4939 held as hereunder:-
"Involvement and pendency of a case crime is no ground for cancellation of fire-arm licence. It is settled law that after acquittal the very basis for cancellation of the arm licence stands vitiated. In this regard reference of the decision rendered in Lalji Vs. Commissioner, Kanpur and another, 199 (4) AWC 2952, has been made."
The appellate authority also simply affirmed the order passed by the licensing authority without giving any independent consideration.
Learned Standing Counsel on the other hand defends the order impugned for the reasoning given therein.
Considered the submission of learned counsel for the petitioner and perused the record. A bare perusal of the order impugned would indicate that the firearm licence of the petitioner was suspended vide order dated 21.05.2015 passed by the District Magistrate. The order passed by the appellate authority further indicates that the petitioner did not deposit the firearm after suspension of his licence. The firearm was deposited only on 08.01.2017. The said fact recorded in the order of the appellate authority is not disputed in the present petition rather a perusal of the show cause notice dated 21.05.2015 indicates that while suspending the licence of the petitioner, he was directed to deposit the firearm in the concerned police station and to receive a receipt thereof. The said show cause notice was replied by the petitioner on 06.06.2015 with the request to revoke the same. However, he did not deposit the firearm for a period of two years. It is also an admitted fact that the petitioner did not challenge the order of suspension/show cause notice dated 21.05.2015 before the appellate authority or this Court.
For the said fact recorded by the appellate authority, it is more than apparent that the petitioner is guilty of flouting the order passed by the competent licensing authority. He was, therefore, not found a fit person to retain the firearm licence. The reasoning given by the appellate authority for sustaining the order passed by the licensing authority, therefore, cannot be faulted with.
Lastly, learned counsel for the petitioner submits that though the petitioner may be found guilty of violation of the order passed by the licensing authority but there has been no complaint against his conduct. He has never been involved in any criminal case nor any complaint has been lodged against him. The petitioner's claim may be considered for grant of fresh licence.
The said submission of learned counsel for the petitioner, in the opinion of the Court, can very well be examined by the licensing authority, in case, the petitioner moves an application for fresh grant of firearm licence. In that eventuality, the licensing authority would be under obligation to call for the reports regarding credentials of the petitioner so as to satisfy itself that there has been no complaint against the petitioner and that he is a fit person for grant of licence.
Subject to the above observations, the writ petition is dismissed.
It goes without saying that independent enquiry is required to be made by the licensing authority.
Any observations made herein above, would not come in the way of the petitioner in case, he moves such an application.
Order Date :- 24.8.2018 Himanshu