Rejoinder affidavit filed today is taken on record.
By means of this petition, the petitioner is challenging the order dated 7.4.2000 by which the arms licence of the petitioner has been suspended and the petitioner has been directed to deposit the weapon and he has also been directed to submit his reply within 15 days otherwise his arms licence shall be cancelled.
The case of the petitioner, in brief, is that he was issued an arms licence No.5343 for SBBL Gun No.14282 by the District Magistrate. His contention is that he was issued a show cause notice dated 7.4.2000 whereby his arms licence has been placed under suspension and he has been directed to submit his reply within 15 days otherwise his licence would be cancelled. This order has been passed on the basis of the report of Superintendent of Police, Etawah.
From a perusal of the impugned order it is seen that the petitioner was involved in a case of kidnapping on 4.4.2000 at 8.30 p.m. while he was working as a conductor in the U.P. S.R.T.C. and an F.I.R. was lodged against the petitioner being Case Crime no. 186 of 2000 under section 395 I.P.C.
I have heard Shri Madhusudan Dixit, learned counsel for the petitioner and the learned standing counsel for the State.
The submission of learned counsel for the petitioner is that the said order does not indicate application of mind by the District Magistrate and is based absolutely on the report of Superintendent of Police, Etawah. It is further submitted that the impugned order has been passed without any enquiry by the District Magistrate and there is no independent finding recorded by the District Magistrate as to whether the weapon for which the licence was granted was used in the crime or whether the petitioner was even involved in the said crime.
On the contrary, learned standing counsel submitted that the petitioner was involved in a heinous offence of kidnapping and the F.I.R. has also been lodged against the petitioner under section 395 I.P.C. and therefore, there was sufficient material on record for the District Magistrate to come to the conclusion that the licence of the petitioner should be suspended.
At the time of admission of this writ petition, this Court had passed the following order:
"In the meantime the operation of the impugned order dated 7.4.2000 shall remain stayed."
From a perusal of the counter affidavit, it is not clear as to what enquiry has been conducted by the District Magistrate in the matter after suspending the arms licence of the petitioner.
Learned counsel for the petitioner has placed reliance upon a Five Judges Full Bench decision of this Court reported in 1985 (22) ACC 353, Kailash Nath and others vs. State of U.P. and others. wherein it has been held that if the circumstances are so urgent that it is not possible to give any opportunity of hearing before passing of the impugned order, at least the petitioner was entitled to a post decisional hearing. The relevant paragraph -10 of the Full Bench reads as follows:-
"10.........Normally or ordinarily a notice before an action should be given to the person affected but in such extraordinary cases as mentioned above, the absence of hearing before the action can be adequately compensated for by a hearing ex post facto. A prior hearing may be better than subsequent hearing, but a subsequent hearing is better than no hearing at all; and in some cases the Courts have held that statutory provisions for an administrative appeal or even full judicial review on the merits are sufficient to negative the existence of any implied duty to hear before the original decision is made. See St. James and St. John, Clerkenwell vestry vs. Feary (200, R.V. Randalph (21) interim mail stop order) assessments) Furnell vs. Whangard High Schools Board, (23) (suspension of teacher pending full hearing; See also Maymard Osmand (24) (right of legal representation on appeal a reason for not implying the same right in original proceedings). Likewise, a full judicial review on the merits has also been regarded as sufficient for a hearing before the proposed action is taken. See Literature Board of Review vs. H.M.H. Publishing Co.Inc. (25) (order prohibiting distribution of Playbody magazine); Twist v. Randwick Municipal Council (26). The rule is not inflexible. The ultimate test is whether in a particular context the procedure as a whole afforded the individual an opportunity for hearing."
Thus even if no show cause notice was given prior to suspending the arms licence of the petitioner a post decisional hearing ought to have been given to the petitioner. Even otherwise in the counter affidavit it has not been indicated as to what was the outcome of the criminal case registered against the petitioner.
The petitioner has filed his rejoinder affidavit in which he has filed a copy of the judgment of the trial court relating to case crime no. 186 of 2000 wherein the petitioner has been acquitted of the offences under section 147, 323 read with 149, 504, 506 I.P.C. There is no mention of proceedings under section 395 I.P.C. (dacoity) as contained in the order of the District Magistrate dated 7.4.2000.
In this view of the matter in my opinion the matter requires reconsideration. Since at the time of admission there was a stay granted in respect of the order of the District Magistrate dated 7.4.2000 therefore, no useful purpose would be served by keeping the impugned order alive. The impugned order dated 7.4.2000 is therefore, quashed.
However, the District Magistrate shall take a fresh decision in the matter regarding his finding as to whether the arms licence of the petitioner should be placed under suspension or whether it should be cancelled keeping in mind the judgment passed by the trial court in case crime no. 186 of 2000 wherein the petitioner has been acquitted of the charges leveled against him and which was the foundation of the impugned order dated 7.4.2000.
With the aforesaid observations this writ petition is allowed.
Order Date :- 27.8.2012 o.k.