Haseeb Ahmed @ Rassu vs The Commissioner, Kanpur Mandal ...
2011 Latest Caselaw 6496 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 31
 
Civil Misc. Writ Petition No. 44148 of 2008
 

 
Haseeb Ahmed @ Rassu			...		Petitioner
 
Vs.
 
The Commissioner, Kanpur Mandal
 
Kanpur and others				...		Respondents. 
 

 

 
Hon'ble Ran Vijai Singh,J.

This writ petition has been filed with the following prayers:

"A. Issue a writ, order or direction in the nature of certiorari calling for the records of the case and quashing the imkpugned order dated 29.2.2008 passed by respondent no. 1 and order dated 25.10.2007 passed by respondent no. 2 (Annexure 5 and 2 to this writ petition)

B. Issue a writ, order or direction in the nature of writ of mandamus commanding the respondents to release the weapon of the petitioner during the pendency of the writ petition before this Hon'ble Court.

C. Issue any other writ, order or direction, as this Hon'ble Court may deem fit and proper in the circumstances of the case.

D. An award of the petition in favour of the petitioner."

Vide order dated 25.10.2007 the petitioner's firearm license no. 53 D.B.B.L.,gun no. 29450 was cancelled by the District Magistrate, Kanpur Dehat. Whereas vide order dated 29.02.2008 petitioner's appeal against the said order has been dismissed by the Commissioner, Kanpur Division, Kanpur.

On an application of the petitioner for firearm licence, a license no. 53 of 2000 was issued to the petitioner for having DBBL gun. The license of the petitioner was renewed from time to time and it was lastly renewed on 31.12.2008. It appears that a first information report was lodged against the unnamed persons bearing case Crime No.50 of 2007 under Section 324/308 I.P.C., taking note of that the Superintendent of Police Kanpur Nagar has sent a report on 02.07.2007 to the District Magistrate, Kanpur Dehat on the basis of the report of Station House Officer dated 13.06.2007 stating therein, that the licencee no. 53 of 2000 has now entered in the crime, therefore, having license with him will be detrimental to the pubic peace and safety. Taking note of that, a show cause notice was issued to the petitioner by the District Magistrate requiring the petitioner to show cause as to why his license of D.B.B.L., gun be not cancelled.

The petitioner, herein, has filed a detailed reply on 9.8.2007, denying the allegation of the show cause notice. It has been stated in the notice that the father and dada of the petitioner were Gram Pradhans of the village about 30 years. However, dada of the petitioner, late Sultan Ahmed, was murdered by one Bikar Ahmed, Saqil and Atik on 11.1.1994. The Pairvi of that case was being done by the father of the petitioner. Because of that, he was also murdered, in which the petitioner's brother, Mujib Ahmed, is an eye witness. Taking all those into consideration, the firearm licence was issued to the petitioner for personal security and safety of the

petitioner. It is also stated that the brother of the petitioner has complained against the Station House Officer, Sri B.D. Awasthi, and in inquiry, he was found guilty and later on he was transferred. The petitioner, being brother of Mujib Ahmed @ Guddu, has been made victim and proceeding for cancellation of the firearm licence of the petitioner has been initiated. It has also been stated that the petitioner was neither present on the spot when the incident took place nor he ever had used firearm. It is also contended that except the present case, on account of which, notice has been issued to the petitioner, no other F.I.R. has been lodged against the petitioner. Petitioner is a peace loving citizen and his entire family is respectable, but due to election enmity, and hostility of police against petitioner's brother, this proceeding has been initiated against the petitioner. It is also stated that the petitioner has never breached any condition of the licence.

The District Magistrate, after considering the contents of show cause notice, police report and the petitioner's reply, has come to the conclusion that continuance of the firearm licence of the petitioner will not be in public interest and safety and cancelled the same by the impugned order dated 25.10.2007.

The appeal filed by the petitioner too was dismissed by the Divisional Commissioner on 29.2.2008.

While assailing these impugned orders, learned counsel for the petitioner submitted that merely on the basis of the apprehension of breach of peace and public safety, the

firearm licence of the petitioner could not have been cancelled. There is also no material on record to suggest that the petitioner is a man of criminal nature, which has been made basis for cancellation of the firearm licence of the petitioner. It is also contended that for the cases lodged against the petitioner's brother, the petitioner cannot be blamed as he is living independently of his brother. Therefore, also this could not have been made basis for cancellation of firearm licence.

In the submissions of the learned counsel for the petitioner, merely on account of the apprehension, lodging of an F.I.R., the firearm licence cannot be cancelled. It is also submitted that before cancelling the licence, the District Magistrate ought to have recorded his own satisfaction with respect to the breach of peace and public safety on the basis of the material available on record, but the District Magistrate, without recording his satisfaction, after considering the material available on record, has merely endorsed the report of the police authorities and passed the impugned order. The appellate court too has committed the same error and dismissed the appeal. In the submissions of learned counsel for the petitioner, the impugned orders are unsustainable and deserve to be quashed.

Refuting the submissions of the learned counsel for the petitioner, learned Standing Counsel submits that the petitioner and the petitioner's brother are living together and

since the petitioner's brother is a notorious criminal and large number of cases are pending against him, therefore, continuance of firearm licence in favour of the petitioner will not be in public interest, public peace and safety. In the submissions of the learned Standing Counsel, the orders passed by the authorities cannot be said to be arbitrary as the same have been passed only after considering the material available on record. Therefore, the writ petition deserves to be dismissed.

I have heard Sri Shailendra Singh, holding brief of Sri Ankur Goyal, learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the records.

In substance, the proceeding of cancellation of firearm licence of the petitioner has been initiated on account of case crime no. 50 of 2007 under sections 324 and 308, I.P.C. Taking note of the aforesaid F.I.R., a show cause notice was issued to the petitioner, indicating therein that the petitioner has entered into crime world and continuance of firearm licence in his favour would not be in the public interest, public peace and safety. The copy of the F.I.R. has been brought on record as Annexure 6 to this writ petition, in which balled allegations have been made against the Muslim community.

The power of variation/suspension and revocation of licence is vested with the licensing authority but licensing authority can do so in accordance with the provisions contained under Section 17 of the Arms Act, 1959. For apprehension, the

relevant portion of Section 17 is reproduced below:

"17. Variation, suspension and revocation of licenses :- (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 subsection (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.

(6) The authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority.

(7) A court convicting the holder of a licence of any offence under

this Act or the rules made thereunder may also suspend or revoke the licence :

Provided that if the conviction is set aside on appeal or otherwise the suspension or revocation shall become void.

(8) An order of suspension or revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision.

(9) The Central Government may, by order in the Official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any

licenses granted under this Act throughout India or any part thereof.

(10) On the suspension or revocation of a licence under this section the holder thereof shall without delay surrender the licence to the authority by

whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation."

Sub section (3) (a to d) of section 17 deals with conditions for which licensing authority may pass an order for suspending, revoking / varying the licence. Sub section (4) empowers the licensing authority to revoke a licence on the application of holder thereof. Sub section (5) provides that if the licensing authority makes an order varying the lincence under sub section (1) of section 17 or an order suspending or revoking a licence under sub section (3), it shall record, in writing, the reasons thereof and furnish to the holder of licence with the demand of brief statement of the same, unless in any case the licensing authority is of the opinion that it will not be in public interest to furnish such statement.

From the cogent reading of sub section (1) to sub section (5), it will transpire that for various reasons, as enumerated in sub section (3) (a to d), the licensing authority may suspend the

licence and for those reasons, after a show cause, cancel the licence also, but before cancelling the same, a show cause notice is necessary to the licensee and after having the reply, in view of the language used in sub section 3(a) of section 17, the licensing authority must get him satisfy and record a definite satisfaction to the effect that the continuance of the licence, would not be in the interest of public peace or public safety.

Here in this case, it appears, the action has been taken, taking note of the provisions contained in sub section (b) of sub section (3), the licensing authority has issued a notice that continuance of the firearm licnece would not be in the security of the public peace and public safety. The basis for such notice is the unnamed F.I.R.

I have gone through the impugned order passed by the District Magistrate (the licensing authority). The licensing authority has not recorded his own satisfaction after considering the material available on record and only observed as under while cancelling the licence :

^^mijksDr foospuk ds vk/kkj ij 'kL= vuqKkih glhc vgen mQZ jklw iq= rkSlhQ vgen fuoklh xzke o Fkkuk lV~Vh dks U;k;ky; }kjk nh xbZ uksfVl fnukad 06-07-2007 dh iqf"V dh tkrh gS rFkk mldh Mh0ch0ch0,y0 xu ua0 29450 ds ykblsUl ua0 53 dks yksd 'kkfUr o yksd lqj{kk ds vuqj{k.k gsrq rRdky izHkko ls fujLr fd;k tkrk gSA Fkkuk/;{k lV~Vh dks funsZf'kr fd;k tkrk gS fd ;fn vuqKkih dks mijksDr 'kL= vHkh rd u tek fd;k x;k gks rks rRdky tek djk ysaA vkns'k dh ,d izfr iqfyl v/kh{kd

dkuiqj nsgkr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr dh tk;A 'kL= fyfid vkns'k dk vuqikyu lqfuf'pr djsa ckn vko';d dk;Zokgh ;g i=koyh nkf[ky n¶rj gksA^^

From the reading of the aforesaid lines of the order of the District Magistrate, it transpires that the District Magistrate has only confirmed the police report and contents of the show cause notice. The confirmation of the police report and the contents of show cause notice cannot be put at par with the word ''satisfaction.' Satisfaction of the District Magistrate is required for cancellation of firearm licence in view of sub section (3) (a) of section 17. The satisfaction ought to have been recorded taking note of the petitioner's reply and the police report.

Here the word, ''satisfy' has been mentioned and the word, ''satisfy/satisfaction' cannot be synonyms of word ''apprehension.' The initiation of the proceeding on the basis of apprehension cannot be ruled out, but apprehension has to be proved with supporting materials, in which the police has utterly failed and the District Magistrate has erred in cancelling the firearm licence without recording the satisfaction. It is well settled that the right to life and liberty have been guaranteed under Article 21 of the Constitution of India and the firearm licences are granted for personal safety and security. As has been noticed here in this case, after the consecutive murders in the petitioner's family, the firearm licence to the petitioner was granted and that could not be

cancelled in a way in which it has been cancelled.

A Division Bench of this Court in the case of Satish Singh Vs. District Magistrate, Sultanpur, 2009 (4) ADJ 33 (LB), has observed as under:-

"Needless to say that right to life and liberty are guaranteed under Article 21 of the Constitution of India and the arms licenses are granted for personal safety and security after due inquiry by the authorities in accordance with the provisions contained in Arms Act,

1959. The provisions of section 17 of the Arms Act with regard to suspension or cancellation of arms licence cannot be invoked lightly in an arbitrary manner. The provisions contained under section 17 of the Arms Act should be construed strictly and not liberally. The conditions provided therein, should be satisfied by the authorities before proceeding ahead to cancel or suspend an arms licence.

We may take notice of the fact that for any reason whatsoever, the crime rate is raising day by day. The Government is not in a position to provide security to each and every person individually. Right to possess arms is statutory right but right to life and liberty is fundamental guaranteed by Article 21 of the Constitution of India. Corollary to it, it is citizen's right to possess firearms for their personal safety to save their family from miscreants. It is often said that ordinarily in a civilized society, only civilized persons require arms licence for their safety and security and not the criminals. Of course, in case the Government feels that arms licence are abused for oblique motive or criminal activities, then appropriate measures may be adopted to check such mal-practice. But arms licence should not be suspended in a routine manner mechanically, without application of mind and keeping in view the letter and spirit of section 17 of the Arms Act."

The police has utterly failed to bring any material on record to indicate that except the unnamed F.I.R., on account of which proceeding has been initiated, there was anything against the petitioner. Not even a single incident has been cited in the show cause notice or in the order of the District Magistrate. The lodging of the F.I.R. or pendency of the cases against the petitioner's brother, in my considered opinion, should not

have been made basis for cancelling the firearm licence of the petitioner.

After going through the reply of the petitioner to the show cause notice, it transpires that on account of two murders in petitioner's family, for his personal safety, the petitioner has applied for firearm licence and he was granted the same in the year 2000. There is no allegation, except the present one, that the petitioner has ever misused his firearm licence or have ever committed any crime. Merely by saying that a person has entered into world of crime, cannot be said to be sufficient for cancelling the firearm licence of a person, which was granted after due deliberations and due inquiry and after verifying the credentials of the petitioner. The apprehension cannot be made basis for cancellation of the firearm licence. The relevant section for cancellation of firearm licence is very unambiguous and clear in this regard.

In view of the foregoing discussions and taking note of the dictum of Division Bench of this Court, I am of the considered opinion that the orders impugned dated 29.2.2008 and 25.10.2007 are unsustainable in the eye of law and the same are being quashed. The writ petition succeeds and is allowed. The District Magistrate is directed to take follow up action in accordance with law by restoring the petitioner's firearm licence.

Date of Order: 15.12.2011

Amit Mishra

WP 44148/2008