Heard Mr. Arun Kumar Shukla, learned counsel for the petitioner and Mr. Rakesh Kumar Srivastava, learned Standing Counsel.
Brief facts of the present case are that the petitioner is resident of Village Andapur, Police Station Phardhan, District Kheri and by profession, he is a contractor registered as such with Bharat Sanchar Nigam Ltd. On 4.6.2008, the petitioner applied for non-prohibited Revolver (Firearm) license in the requisite format before the Licensing Authority. Licensing Authority call for the reports as required under Section 13 of the Arms Act. The authorities, namely, Station House Officer and In-charge DCRB, Kheri submitted their respective reports dated 8.7.2009 and 11.8.2009. On the basis of the said report, Superintendent of Police, Kheri also submitted the report dated 26.9.2009 recommending for issuance of Arms License. The revenue authorities, i.e. Sub-Divisional Magistrate, Lakhimpur Kheri also vide report dated 25.6.2008 forwarded the application for grant of Arms License. When no action was taken on his application, he filed a writ petition No. 2434 (MS) of 2009 which was disposed of finally vide order dated 7.5.2009 with a direction to the Licensing Authority to decide the application for granting arms license. In compliance of this Court's Order dated 7.5.2009, the case of the petitioner was considered and the same was rejected vide orders dated 1.10.2009. Being aggrieved, he filed an appeal which too was dismissed.
Petitioner has assailed the aforesaid orders inter alia on the grounds that the Licensing Authority and the Appellate Authority have overlooked the police report furnished by the Superintendent of Police, Kheri based on the report of Station House Officer, Police Station Phardhan, District Kheri as well as the recommendations made by the Sub-Divisional Magistrate, Lakhimpur Kheri submitted in favour of the petitioner for granting fire arm license and thus committed manifest error in law in rejecting the application for granting arm license for his personal safety insofar as the petitioner has specifically shown his urgent need of the fire arm license as he mostly travels with huge amount in connection with his business. For the purposes of safety of his personal life, he is in dire need of license. It has been clarified that he has no criminal antecedents, yet the Licensing Authority has rejected the application for grant of license.
Learned Standing Counsel submits that vide Government Order dated 5.6.1999, the State Government directed the District Authorities to be cautious in issuing arms license and while considering the applications for grant of license, the same should be issued only after satisfying that there is immense danger to life to the applicant and he meets all requirements and other stipulations. Learned Standing further submits that Section 13 (3) (b) specifically deals with the conditions for issuing the arms license. In the police report and the report of Revenue Department, no actual danger of life or the requirement of any personal security to the applicant has been reported. Further, in the application for Arms License, no reason has been mentioned, therefore, the nature of danger could not be substantiated and as such, the District Magistrate did not find sufficient ground for granting arms license to the petitioner which was rejected vide order dated 1.10.2009. According to him, the appeal has also rightly been rejected by the order dated 7.1.2010.
In rebuttal, learned counsel for the petitioner submits that in the police and revenue reports, it is clearly mentioned that the petitioner is in need of fire arms license for safety and security of his life as he is a contractor by profession. Further, he asserts that in the Arms Act, nowhere it is mentioned that specific reason should be disclosed in the application form.
Considered the submissions made by the learned counsel for the parties and perused the record including the impugned orders. In order to adjudicate the matter, provisions of Sections 13 and 14 of the Arms Act, 1959 are necessary which are reproduced hereunder:-
13. Grant of licenses -- (1) An application for the grant of a license 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:
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 license under Section 3 where the license 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 spot or in respect of a muzzle loading gun to be used for boan 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 recognized by the Central Government;
(b) a license under section 3 in any other case or a license under sub 4, section 5, section 6, section 10 or section 12, if the licensing authority is satisfied that the person by whom the license is required has a good reason for obtaining the same.
14. Refusal of license -- (1) Notwithstanding anything in section 13, licensing authority shall refuse to grant --
(a) a license under section 3, section 4 or section 5 where such license 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.
Under Section 3 of the Arms Act, 1959, it is essential to obtain an arms possession license issued by a competent licensing authority by any person for acquisition, possession or carrying any firearms or ammunition. Section 13 of the Arms Act, 1959 contains provisions relating to grant of arms licenses by the licensing authority concerned. On receipt of an application, the licensing authority is required to call for a report from the officer in-charge of the nearest police station and such officer is required to send his report about the bona fide of the antecedent of the applicant to the licensing authority, within the prescribed time. The licensing authority is required to take a decision whether to grant or to refuse to grant the arms possession license, based on the report of the police authorities and subject to fulfilment of other conditions stipulated under the Arms Act. However, there is a provision to Section 13 (2A), which empowers the licensing authority to grant an arm license where the report of the police authorities has not been received within the prescribed time.
It is relevant to point out that the quantum of prescribed time referred to in Section 13 of the Arms Act, 1959 has not been specifically defined under the said At. This being so, the chances of invoking proviso may be easy, which may lead to grant of an arms license to a person whose antecedents, may not be clear.
Considering the importance of the police verification report in the grant of arms licenses to any person, the Government of India by way of amendment decided to delete the proviso to Section 13 (2A) of the Arms Act, 1959 and prescribe a period of 60 days for the police authorities to send their report, to obviate chances of discretion being used by the licensing authority to issue any arms license without police verification report.
Now, the position is that the licensing authority will be obliged to take into consideration the report of the police authorities before grant of arms license in each case, with the deletion of the proviso to Section 13 (2A) of the Arms Act, 1959.
In view of the prescription provided under Section 14 of the Act, it is obligatory upon the District Magistrate/Licensing Authority to record the reasons in writing, in case he refused to grant a license and communicate the same to the applicant.
In this instant case, while rejecting the application, the Licensing Authority stated that the applicant did not mention the reason that what type of danger he apprehends and why the arms license is required by him. Further, he has relied upon the aforesaid provisions heavily. A careful perusal of the aforesaid Sections, it reveals that no where it is mentioned that specific reason should be disclosed in the application for obtaining arms license. The only condition is that report should be obtained from the police authorities concerned. Here, the police authorities submitted the report in favour of the petitioner. Even, the revenue authorities have also submitted that the petitioner may be granted arms license. Though two reports are in favour of the petitioner and further the reason for obtaining the arms license is mentioned in the application itself i.e. being a contractor he mostly travels with huge amount, yet the District Magistrate had stated in the impugned order that the petitioner has not mentioned specific immense threat to his life for obtaining arms license.
It is well settled law that right to life is the fundamental right guaranteed under Article 21 of the Constitution of India. In case, a citizen feels that he requires fire arm for his personal security, then it is bounden duty of the authority concerned to consider and decide the application in accordance with law, within a reasonable time, but neither the Licensing Authority nor the Appellate Authority considered the facts and circumstances of the case and simply rejected the application and the said order was uphold. In the writ petition, the petitioner has specifically averred that the petitioner is in urgent need of the fire arm license as he mostly travels with huge amount in connection with his business and there is great possibility of robbery or loot. which may endanger his life. In all probabilities, the impugned orders are liable to be quashed.
It may be noted that in Abdul Kafi versus District Magistrate, Allahabad and another [2003 (21) LCD 299] the petitioner filed a writ petition when his application was rejected although the report of the concerned authorities were in favour of the petitioner. The application was rejected by the Licensing Authority on the ground that the petitioner has not stated in his application form as to from whom he has danger to his life. The Court after examining the various provisions of the Arms Act observed in paragraph 7 as under:-
"7. Learned Standing Counsel appearing for the respondents tried to justify the order passed by the licensing authority, which has been challenged in the present petition but, in my opinion, he failed to substantiate and support the reasoning given in the order. Learned Standing Counsel also could not point out any provision under the Arms Act on the basis whereof the reasoning given by the licensing authority for rejecting the petitioner's application for grant of firearm license can be justified."
The aforesaid citation is fully applicable in the instant case as here also, as averred above, the application has been rejected simply on the ground that the petitioner has not indicated that what type of danger he apprehends and why the arms license is required by him.
In view of the aforesaid discussion and legal position, the writ petition is allowed and the impugned order passed by the Licensing Authority dated 1.10.2009 and the Appellate Authority's order dated 7.1.2010 are hereby quashed. On the application of the petitioner for grant of license, the District Magistrate shall pass fresh appropriate orders in light of the observations made here-in-above.
Order Date :- 25.5.2011 lakshman