Court No. - 18
Case :- WRIT - C No. - 8350 of 2013 Petitioner :- Sanjay Kumar Tiwari Respondent :- State Of U.P. And Others Counsel for Petitioner :- R.V. Mishra Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.
2. The petitioner is before this Court assailing the orders dated 25.2.2010 and 1.2.2012 passed by third and second respondent respectively by which the fire arm license of the petitioner has been cancelled on the ground of pendency of criminal cases.
3. Record in question reflects that the petitioner's firearm licence was cancelled on the ground of pendency of criminal cases being Case Crime No.20 of 2007 under Section 352 and 504 IPC; Case Crime No.214 of 2007 under Section 452, 323, 504 and 506 IPC; Case Crime No.74 of 2007 under Sections 363, 366, 504, 506, 328 and 376 IPC P.S. Karchana and Case Crime No.311 of 2009 under Section 147, 149, 352, 504 and 506 IPC and 7 Crl. Act. It is contended that in Case Crime No.311 of 2009 the petitioner has been acquitted vide order dated 11.4.2012 passed by the Addl. Chief Judicial Magistrate, Room No.4, Allahabad. So far as Case Crime No.74 of 2007 is concerned, he is on bail. It is contended that so far as Case Crime Nos.20 of 2007 and 214 of 2007 are concerned, the petitioner has no knowledge as he has not received any notice from police or court.
4. It is contended by learned counsel for the petitioner that the petitioner’s life in danger and attempt of murder has been tried on his family and in this backdrop initially the license in question was granted. The petitioner has falsely been implicated in the aforesaid cases. Learned counsel for the petitioner has also relied upon the Government Order dated 7th February, 2018, wherein at para 6 it is categorically stated that mere pendency of criminal case is not sufficient for cancelling/ suspending the fire arm license.
5. Learned counsel for the petitioner further submits that the licence is to be granted in accordance with the provisions of the Arms Act, 1959 and it cannot be refused on the said ground. In support of his submission, he has placed reliance upon the decisions of this Court in Ram Chandra Yadav Vs. Commissioner, Allahabad Division & Ors., 2005 LawSuit (All) 2053; Jitendra Nath Singh vs. State of UP and ors Writ C No.63412 of 2010 decided on 2.5.2011; Muniraj Singh vs. State of UP and ors, Writ C No.53555 of 2012 decided on 7.8.2014 and Vishram Yadav vs. Commissioner Devi Patan Mandal Gonda and another, 2016 (9) ADJ 450 (LB).
6. However, learned Standing Counsel has tried to support the impugned orders for the reasons stated therein. He submits that once the petitioner has been implicated in the aforesaid criminal cases, then the authority has rightly proceeded to cancel the firearm licence of the petitioner and the same has also been approved by the appellate authority. The authority, while conferring the licence, had every right to scrutinize the credential and other details of the person as per the Arms Act.
7. Heard rival submissions and perused the record.
8. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of licence under the Arms Act, has been dealt with by a Division Bench of this Court reported in 1978 AWC, 122 (Sheo Prasad Mishra vs. District Magistrate). The Division Bench relied upon the earlier decision of another Division Bench of this Court in the case of Masi Uddin vs. Commissioner, Allahabad, 1972 ALJ 573 wherein it has been held:-
"A licence may be cancelled, inter-alia, on the ground that it is "necessary for the security of public peace or for public safety, to do so. The District Magistrate has not recorded a finding that it was necessary for the security of the public peace or for public safety to revoke the licence. The mere existence of enmity between a licencee and another person would not establish the "necessary" connection with security of the public peace or public safety.
In the case before us also the District Magistrate has not recorded any finding that it was necessary to cancel the licence for the security of public peace or for public safety. All that he has done is to have referred to some applications and reports lodged against the petitioner. The mere fact that some reports had been lodged against the petitioner could not form basis for cancelling the licence. The order passed by the District Magistrate and that passed by the Commissioner cannot, therefore, be upheld on the basis of anything contained in Section 17(3)(b) of the Act."
9. In 2004(1) JIC 507 (Bhagwan Das vs. Commissioner, Agra Division, Agra) this Court has held that once the licencee has been acquitted, even if it is assumed to be a ground justifying cancellation, the same is no more in existence.
10. In Ram Chandra Yadav vs. Commissioner, Allahabad Division & ors (supra) it was observed as follows:-
"3. The only ground on which the application for grant of arms licence of the petitioner has been rejected is that he has not stated in his application that there is any threat to his life and that the Column No.
17 of the application (which is with regard to any special circumstances for which arms licence is required), has been left blank by the applicant. The appeal of the petitioner has also been rejected on similar ground.
4. In both the orders, it has been noted that although the police has submitted his report in favour of the petitioner, but it has been mentioned therein that there has been no case of dacoity, loot or murder etc. reported to have occurred in the case in the property or family of the petitioner.
5. It is not the case of the respondents that the petitioner is a person of criminal antecedents. It is also not their case that the petitioner is likely to misuse his arms licence. Merely because there has never been a case of dacoity, loot or murder in the house of the petitioner, the respondents cannot refuse to grant arms licence to such person. Possessing an arms licence is right of every citizen, unless for certain reasons enumerated in the Arms Act, he would be prohibited from possessing the same.
6. In the present case, the police report, as well as the report of the Tahsil authorities, are both in favour of the petitioner. The grounds on which the application for grant of arms licence of the petitioner has been rejected are not tenable in law. The appeal has also been rejected on baseless grounds. Accordingly, the orders dated 13.5.2002 and 7.7.2003 passed by respondents no. 2 and 1 respectively impugned in this writ petition deserves to be quashed. Since the petitioner does not have any criminal antecedents and there is no apprehension that he is likely to misuse the arms licence, the District Magistrate ought to have allowed his application.
7. Accordingly, this writ petition is allowed. The impugned orders dated 13.5.2002 and 7.7.2003 are quashed. The District Magistrate is directed to reconsider the application of the petitioner in the light of the observations made hereinabove, and pass appropriate orders within one month of the filing of a certified copy of this order before him. No costs."
11. The provision of Sub-section (3) & (4) of Section 17 of the Arms Act provides various conditions for variation/cancellation or suspension of the arms licence. Sub Sections(1) to (5) of Section 17 of the Act are reproduced as under:-
"17.Variation, suspension and revocation of licences-(1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the licence holder by notice in writing to deliver-up the licence to it within such time as may be specified in the notice.
2. The licensing authority may, on the application of the holder of a licence , also vary the conditions of the licence except such of them as have been prescribed.
3. The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence-
(a) if the licensing authority is satisfied that the holder of the licence is 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 is of unsound mind, or is for any reason unfit for a licence under this Act ; or
(b) if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or
(c) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for it;or
(d) if any of the conditions of the licence has been contravened; or
(e) if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver-up the licence.
4. The licensing authority may also revoke a licence on the application of the holder thereof.
5. Where the licensing authority makes an order varying a licence under sub-section (1) or an order suspending or revoking a licence under sub-section(3), it shall record in writing the reasons therefor and furnish to the holder of the licence 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"
12. Even otherwise, it is well settled that mere involvement in a criminal case is no ground for cancelling a licence under Section 17 of the Act.
13. Similar view has been taken by this Court in various decisions relying upon the Division Bench judgment passed in Sheo Prasad Mishra (supra). There is no doubt that the District Magistrate and the Commissioner i.e. administrative authorities are bound to take appropriate action in the matter of grant of licence and also its cancellation for the purpose of maintaining peace and harmony in the society. The assessment of administrative authorities with regard to grant or cancellation of licence should not be interfered in usual course by the Court in its extraordinary jurisdiction unless there is illegality or arbitrariness.
14. In the case in hand, the firearm licence of the petitioner has been cancelled on the charges of mere involvement in criminal cases.
15. In view of the aforesaid facts and circumstances, this Court is also of the considered opinion that the impugned orders cannot sustain and are, accordingly, set aside.
16. The Court, however, is not aware of the fact as to whether the petitioner has been involved thereafter in any criminal activities. It would, therefore, be proper for competent authority to consider the matter afresh and pass appropriate order on the arms licence of the petitioner after calling for a fresh report in accordance with law within a period of three months from the date of production of certified copy of this order before him. The release of gun to the petitioner would be subject matter of enquiry and fresh orders passed by the licensing authority.
17. The writ petition is allowed to the extent indicated above.
Order Date :- 27.10.2018 SP/