HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 24 Case :- MISC. SINGLE No. - 735 of 2010 Petitioner :- Vishwanath Singh Respondent :- Commissioner Lucknow Mandal Lko.And Ors. Counsel for Petitioner :- Anurag Srivastava Counsel for Respondent :- C.S.C. Hon'ble Dr. Devendra Kumar Arora,J.
By means of the instant writ petition, the petitioner has sought for quashing of the impugned order dated 07.01.2010 passed by the appellate authority/Commissioner and the order dated 29.06.2009 passed by opposite party no.2/District Magistrate, Raibareli, by which fire arm license of the petitioner has been cancelled.
Submission of learned counsel for petitioner is that petitioner is a law abiding person of District Raebareli, where he is engaged in business and is also a Center Incharge of Dariyapur Sugar Mill. In the village the family of petitioner and Sri Shiv Narain Singh, due to political rivalry, is on inimical terms. It is said that in the by-election of the year 2000, the family members of Sri Shiv Narain Singh with the help of anti-social elements grievously assaulted the brother of the petitioner, namely, Sri Dal Bahadur Singh for which an FIR at Case Crime No. 88 of 2000 was registered against the accused persons. In the year 2005, during election when the wife of the petitioner was contesting, the family members of Sri Shiv Narain Singh with the help of anti-social elements badly assaulted the petitioner on 16.10.2005, FIR of which was registered at Case crime No. 64 of 2005. It is said that on the very same day i.e. 16.10.2005 another FIR has again been registered at Case Crime No. 66 of 2005 against Sri Vinod Singh and other persons, who were the family members of Sri Shiv Narain Singh in respect to Marpeat took place in the night of 16.10.2005 with the family members of the petitioner. Learned counsel for petitioner also submitted that as a counter blast, a false FIR was lodged at Case Crime No. 6431 of 2005 against the petitioner by the wife of Sri Shiv Narain Singh. In the meantime also another false FIR has been lodged against the petitioner on account of murder of the son of Sri Shiv Narain Singh.
Learned counsel for petitioner further submits that Superintendent of police Raebareli-opposite party no.3, wrote a letter dated 30.10.2007 to the Station Incharge, Police Station Jagatpur, District Raebareli-opposite party no.4 seeking information in respect of the matter relating to cancellation of arm licenses of the petitioner on the basis of some parameters given therein as per Section 17 of the Arms Act and in reply thereto the opposite party no.4 on 10.12.2007 submitted incorrect report in contravention to the provisions of Section 17(3)(b) of the Arms Act, 1959 and recommended for cancellation of license of the petitioner under the influence and pressure exerted by the rival group.
According to petitioner's counsel the petitioner challenged the order dated 29.06.2009 by filing an appeal (Appeal No. 603 of 2009-10 Vishwanath Singh vs. District Magistrate Raebareli) before the appellate authority i.e. the Commissioner, Lucknow Division, Lucknow-opposite party no.1, but the same was rejected vide order dated 07.01.2010 without appreciating the material documents available on record in an erroneous and unjustified manner.
It has been vehemently contended by the learned counsel for petitioner that under Section 17(3)(b) of the Act, power has been conferred upon the licensing authority to suspend or revoke a license of fire-arm, if he deems necessary to do so for the security of public peace, but in the present case the opposite party no.2 while passing the impugned order dated 29.06.2009 failed to show at least, prima-facie, that as to how the possession of the arms by the petitioner would endanger the public peace. Thus, it is clear that the same has been passed only on the basis of recommendations submitted by the opposite party no.3, who was influenced with political motivation of Sri Shiv Narain Singh.
Sri Badrul Hasan, learned Additional Chief Standing counsel, while opposing the writ petition, submitted that the impugned orders dated 29.06.2009 and 07.01.2010 have been passed in consonance with provisions of the Act as the licensing authority after considering the material facts on record has given a categorical finding of fact that the petitioner has violated the terms and conditions of arms license. It is submitted that the impugned orders are absolutely valid and the same are legal, valid and justified as the same have been passed after affording due opportunity to the petitioner. Therefore, the writ petition is liable to be dismissed.
Thus, the trivial question involved in this writ petition is as to whether licensing authority is vested with the power under the Arms Act to revoke/cancel the license of a public person mere on involvement in a criminal case or pendency of a criminal case.
To answer the aforesaid question, it would be apt to refer relevant paragraphs of Rakesh Kumar Vs. District Magistrate, Raebareli and others; [2013(31) LCD 1313], wherein it has been held that merely because of pendency of a criminal case, the arms- licenses of the petitioner cannot be cancelled. Relevant paras 12, 13, 14 and 15 read as under:
"12. Further, this Court in the case of Sahab Singh Vs. Commissioner Agra Region, Agra and others, 2006 (24) LCD 374 , in paragraph No. 3 held as under:-
The submission of the petitioner is That merely because of pendency of a criminal case, the arms licence of the petitioner cannot be cancelled. in support of the said submission, learned counsel for the petitioner has placed reliance on two decisions of this Court in the case of Hausla Prasad Tiwari v. State of U.P. and Ishwar @ Bhuri v. State of U.P. . It has further been submitted that in view of the Full Bench decision of this Court in the cases of Balaram Singh v. State of U.P. and Ors. Kailash Nath v. State of U.P. 1985 A.W.C. 493 as well as the Division Bench decision of this Court in the case of Sadri Ram v. District Magistrate, Azamgarh and Ors. , the arms licence of the petitioner cannot be placed under suspension pending enquiry."
13. In the case of Mulayam Singh v. State of U.P., 2013 (80) ACC 786 in paragraph Nos. 11 and 12 held as under:-
"Para No. 11 - 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."
Para No. 12 - 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 of Raj Kumar Verma Vs. State of U.P. , 2013 (80) ACC 231 this Court in paragraph No. 3 held as under:-
"The ground for issue of show-cause notice, suspension and ultimately cancellation of the licence is that one and precisely one criminal case was registered against the petitioner. The District Magistrate has also held that the petitioner has been enlarged on bail. He has gone further to observe that if the licence remained intact, the petitioner, may disturb public peace and tranquility. The same findings have been given by the Commissioner, Unmindful of the fact that this Court is repeating the law of the land, but the deaf ears of the administrative officers do not ready to succumb the law of the land. The settled law is that mere involvement in a criminal case without any finding that involvement in such criminal case shall be detrimental to public peace and tranquility shall not create the ground for the cancellation of Armed Licence. In Ram Suchi vs. Commissioner, Devipatan Division reported in 2004 (22) LCD 1643, it was held that this law was relied upon in Balram Singh vs. State of UP 2006 (24) LCD 1359. Mere apprehension without substance is simply an opinion which has no legs to stand. Personal whims are not allowed to be reflected while acting as a public servant. "
15. Further, in the case of C.P. Sahu v. State, 1984 AWC 145, this Court while interpreting the provisions of Section 17(3) of the Act held as under:-
"The object of the enquiry that a licensing authority may, while proceeding to consider the question as to whether or not an arms licence should be revoked or suspended, like to make, clearly is to enable the licensing authority to come to a conclusion as to whether or not the facts stated in clauses (a) to (e) of Section 17(3) exist and as already explained, it is not obliged to before considering that a case for revocation/suspension of license has been made out, associate the licensee in such enquiry, in this view of the matter it can safely be taken that where a licensing authority embarks upon such an enquiry it is, till then not convinced about existence of the conditions mentioned in clauses (a) to (e) of Section 17(3) , of the Act. So long as it is not so convinced no case to make an order either revoking or suspending an arms licence as contemplated by the section will be made out."
The aforesaid view has been reiterated in Hridaya Narain Tiwari v. State of U.P. and others; [2014 (4) ADJ 744 (LB)], Rama Kushwaha vs. State of U.P. & others, reported in 2011 (29) LCD 1045, Hiramani Singh vs. State of U.P. & others, reported in 2011(29)LCD 829 and Rajendra Singh vs. Commissioner, Lucknow Division, Lucknow and others, reported in 2011 (29) LCD 1041, wherein it has been propounded that involvement in criminal case or pendency of criminal case cannot be a ground for cancellation/revocation of firearm license.
In the case of Jageshwar Vs. State of U.P. and others; [2009 (67) ACC 157], it has been held that mere involvement in criminal case cannot in any way affect the public Security or public interest.
In Thakur Prasad Vs. State of U.P. and others reported in [2013 (31) LCD 1460], this court propounded that "Public Peace" or "Public Safety" do not mean ordinary disturbance of law and order, but the public safety means safety of the public at large and not safety of few persons only. Relevant paras 9, 10 and 11 of the said case read as under:
"9. Further, while passing the impugned order also the licensing authority has not given any adequate finding that if petitioner holds the arms license then the same shall be against the public peace or public safety.
"10. Public peace" or "public safety" do not mean ordinary disturbance of law and order public safety means safety of the public at large and not safety of few persons only and before passing of the order of cancellation of arm license as per Section 17(3) of the Act the Licensing Authority is under an obligation to apply his mind to the question as to whether there was eminent danger to public peace and safety involved in the case in view of the judgment given by this Court in the case of Ram Murli Madhukar Vs. District Magistrate, Sitapur [1998(16) LCD 905], wherein it has been held that license can not be suspended or revoked on the ground of public interest (Jan-hit) merely on the registration of an F.I.R. and pending of a criminal case.
11. Further , this Court in the case of Habib Vs. State of U.P., 2002 ACC 783, 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 Arms Act, has been dealt with by a Division Bench of this Court in Sheo Prasad Misra Vs. District Magistrate, Basti and Ors,. 1978 AWC 122, wherein the Division Bench relying upon the earlier decision in Masi Uddin v. Commissioner, Allahabad, 1972 ALJ 573, found that mere involvement in criminal case cannot, in any way, affect the public security or public interest and the order cancelling or revoking the licence of fire arm has been set aside. The present impugned orders also suffer from the same infirmity as was pointed out by the Division Bench in the above-mentioned cases. I am in full agreement with the view taken by the Division Bench that these orders cannot be sustained and deserve to be quashed and are hereby quashed.
There is yet another reason that during the pendency of the present writ petition, the petitioner has been acquitted from the aforesaid criminal case and at present there is neither any case pending, nor any conviction has been attributed to the petitioner, as is evident from Annexure SA-I and II to the supplementary-affidavit filed by the petitioner. In this view of the matter, the petitioner is entitled to have the fire-arm licence. It is submitted by petitioner's counsel that the petitioner has been acquitted of the charges."
At this juncture, it would be relevant to add that Ram Karpal Singh vs. Commissioner, Devi Patan Mandal, Gonda and others ; [2006 (24) LCD 114] is quite applicable in the present case as in the present case, the District Magistrate while cancelling the license has not recorded any finding based on cogent material relating to breach of public peace or tranquility on account of continuance of Arms license in petitioner's possession. The mere existence of enmity between a licensee and another person would not establish "necessary" connection with security of public peace or public safety.
As averred above, in the case at hand, 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, 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 of 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) of the Act.
Having considered the submissions made by the learned counsel for the parties and the case laws, referred to above, I am of the view that the Appellate Court has committed an error in not considering the facts in its correct prospective and has also failed to appreciate the grounds mentioned in Section 17(3) of the Arms Act regarding revocation or for suspending a licence. In the backdrop of the aforesaid facts, the order passed by the Appellate Authority cannot be legally sustained.
For the reasons stated herein-above, the writ petition is allowed and the order dated 07.01.2010 passed by the Commissioner as also the order dated 26.06.2009 passed by the District Magistrate, Raebareli are hereby set aside. The District Magistrate shall pass a fresh order after taking into account all relevant aspects and the prescription provided under Section 17 of the Arms Act.
Costs easy.
Order Date :- 22 July 2015 MH/Tanveer/-