Court No. - 49
Case :- WRIT - C No. - 36114 of 2015 Petitioner :- Suraj Singh Respondent :- State Of U.P. And 2 Ors. Counsel for Petitioner :- Akash Mishra Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J.
1. Heard learned counsels for the parties.
2. By means of this writ petition under Article 226 of the Constitution of India, the petitioner has questioned the order dated 24.03.2014, whereby, the licensing authority under the Arms Act, 1959, namely the District Magistrate, Etawah has cancelled the fire arm license of the petitioner bearing no. 5070 for a Rifle, in purported exercise of power under Section 17(3) of the Arms Act.
3. The petitioner, who was having the license of fire arm bearing no. 5070 for a Rifle, was subjected to notice by the licensing authority on 05.12.2011 requiring him to explain about his conduct which has been complained against, as of a criminal nature and that a criminal case bearing Case Crime No.
135 of 2011, under Sections 452, 323, 504, 506 IPC, P.S. Jaswantnagar, District Etawah was pending. Petitioner submitted his reply and in that he submitted that he was having good conduct in the society; there was no report of use or misuse of the fire arm; the complaint had been lodged with an ill motive; and that the solitary case was registered against him in which though the allegations were of some physical assault against the petitioner but there was no such allegation with regard to use of fire arm or even threatening being issued at the behest of the petitioner indicating possible use of any such fire arm.
4. However, the licensing authority has proceeded to consider the complaint and also examined the matter and having regard to the solitary criminal case pending against the petitioner of which the trial was going on, had found the applicant to be of not good conduct in the society and held that there was every chance of threat to public peace and therefore in the public interest license was cancelled on 24.03.2014. Appeal against the same, filed by the petitioner has also come to be dismissed by the appellate authority concurring with the findings recorded by the licensing authority.
5. The argument advanced by learned counsel for the petitioner is that there is a solitary criminal case registered against the petitioner in connection with case crime no. 135 of 2011 and there was no other case nor, even non-cognizable report had been registered so as to derive any conclusion that the petitioner was of any criminal nature or otherwise bully any one in the society that may compel the licensing authority to cancel the fire arm license of the petitioner in public interest. It has been further argued that there is no police report called for in the matter and the Collector has not recorded any objective satisfaction with regard to complaint in question. It is submitted that in the absence of any police report, there was no occasion for the Collector to form an opinion regarding the over all conduct and character of the petitioner and therefore, it is urged that the licensing authority has not been justified in cancelling the fire arm license. He has further relied upon a judgment of this Court in Akil v. State of U.P. & others, 2013 (1) ADJ 592 = 2013 (2) All LJ 408 in which this Court has already hold that in cases where only solitary criminal cases is registered and otherwise there is no complaint regarding the conduct and character of the licensee, such a circumstance may not warrant the cancellation of the fire arm license. Vide paras 18 and 19 the Court held thus:
"18. It has been held in the case of Sheo Prasad Mishra Vs. The District Magistrate Basti and others, reported in 1978 AWC 122 that mere report and involvement of the petitioner in criminal case could not form the basis for cancellation of the firearm licence. The District Magistrate in the impugned order stated that revocation of licence is necessary in the public interest though the petitioner has been acquitted in the criminal case registered against him 'which was the basis of initiation of proceeding against the petitioner' Public interest can not be equated to the term 'for the security of the public peace or public safety.
19. In the instant case it is only a solitary incident which did not arose out of any disturbance of public law and order. Moreover the apprehension of District Magistrate even after acquittal of the petitioner is based on no material on record. The Appellate Authority simply affirmed the order of the District Magistrate without recording any finding of its own."
6. Per contra, learned Standing Counsel argued that the pendency of the criminal case would be indicative of an important factor that a person is involved in a criminal case and therefore, in the larger interest of the public if the licensing authority has come to conclude that the petitioner does not deserve to continue with the fire arm license, this Court may not interfere with such finding of fact in exercise of power under Article 226 of the Constitution.
7. Having heard learned counsel for the petitioner and learned Standing Counsel and the arguments raised across the Bar and having perused the record, I find that there is a solitary case registered against the petitioner. In so far as the criminal case registered against the petitioner in which the trial was going on at the time when the license came to be cancelled by the impugned order, subsequently the petitioner has been acquitted in the said case.
8. From the perusal of the order impugned passed by the licensing authority, this Court finds that there was no such intrinsic evidence available with the licensing authority so as to come to a definite conclusion that the petitioner was not a person of good conduct in the society and that he was of short temperament or of aggressive behaviour or of such character that the continuance of fire arm license with him would endanger the public peace. It is further worth noticing that the District Magistrate in order to form an opinion at least should record satisfaction keeping in mind the materials placed and genuineness of complaint, while passing order in purported exercise of power under Section 17(3) of the Arms Act. It was incumbent upon the licensing authority to have obtained a police report regarding the general behaviour of the licensee in the society so as to form an ultimate opinion that the licensee would continue with the fire arm or not. Having not obtained any police report, in the considered opinion of the Court, the licensing authority is not justified in cancelling the fire arm license by recording a finding of fact to the effect that the petitioner is not a person of good conduct in the society and that he cannot be continue with fire arm license. The finding of fact, in the opinion of the Court, recorded by the licensing authority is absolutely perverse and the order cancelling fire arm license of the petitioner cannot be sustained in law. Even otherwise this Court finds that the law has came to be crystallized that in the cases where the solitary criminal case is registered and otherwise the licensee is not found to be of any criminal conduct or behaviour in the society, the cancellation of fire arm license is not proper.
9. Since the basic order cancelling the fire arm license of the petitioner suffers from the vice of perversity no amount of order of appellate authority cannot remedy the wrong and, therefore, the order passed by appellate authority also deserves to be set aside.
10. In view of the above, the order dated 24.03.2014 passed by the District Magistrate, Etawah and of the appellate authority dated 28.08.2014 passed in Appeal No. 278/13-14 are hereby quashed. The fire arm license of the petitioner is restored. Consequences to follow.
11. With the aforesaid observations and directions, the writ petition is allowed.
Order Date :- 30.4.2019/IrfanUddin