Veerpal Singh vs State Of U.P. And Anr.
2011 Latest Caselaw 3248 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
COURT NO. 2
 
'RESERVED'
 

 
CIVIL MISC. WRIT PETITION NO. 39831 OF  2010
 
Veerpal Singh
 
Versus
 
State of U.P. & Ors.
 
-------- 
 
Hon'ble Ran Vijai Singh, J.

The petitioner who happened to be licence holder of a rifle bearing Licence No. 278/03, has filed this writ petition with the following prayer:-

	"i. issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 28.04.2010 and 21.07.2008 passed by Respondent No. 2 & 3 respectively (filed as Annexure No.     to this writ petition).
 
	ii. issue a writ, order or direction in the nature of mandamus directing the respondents to release the rifle No. AB 03/2407 in favour of the petitioner.
 
	iii. issue any other order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
 
	iv. Award the cost of the petition to the petitioner."
 
	It appears vide order dated 21.07.2008, the petitioner's fire arm licence was cancelled by the District Magistrate, whereas by the subsequent order dated 28.04.2010, the petitioner's appeal filed against the order of cancellation was dismissed by the Commissioner, Jhansi Division.
 
	The aforesaid orders have been challenged on the ground that the cases on which petitioner's fire arm licence was cancelled have ended in acquittal and at present no criminal case is pending, therefore allegation of handing over rifle to his brother Shri Virendra Singh became non-existent.
 

The facts giving rise to this case are that a licence of rifle, being Licence No. 278/03 was issued to the petitioner on 06.02.2003, which was valid upto 30th November, 2008. On 29.06.2006, a notice under Section 17 of the Arms Act, 1959 was issued to the petitioner requiring him to show cause as to why the fire arm licence belonging to him be not cancelled. The show cause notice contained that the petitioner had handed over his rifle on 21.04.2006 to his brother Virendra Singh, son of Natthu Singh, who by that rifle murdered one Krishna Kumar, son of late Udal Singh, resident of Village Sirsa Ki Garhi, Police Station Madhogarh, District Jalaun, and consequently, an F.I.R. was lodged against Virendra Singh in Case Crime No. 225 of 2006, under Sections 25/27/30 of the Arms Act and an other F.I.R. was lodged in Case Crime No. 224 of 2006 under Section 302 I.P.C, therefore he contravened the Condition No. 17 (3) (d) of the Arms Act. To explain the aforesaid charge, the petitioner was required to file his reply. The reply of the aforesaid notice was given by the petitioner on 07.06.2007. It is stated that the petitioner's brother has been falsely implicated in the murder of Krishna Kumar and in Case Crime No. 224 of 2006 his brother has been implicated due to enmity. In fact, the petitioner's brother was not present on the date of incident and the police has falsely implicated him by lodging an F.I.R. It is also stated that the petitioner has never handed over his rifle to his brother as alleged in the impugned notice. Further, he is a peace loving citizen and has got no criminal history as not even NCR has been lodged against the petitioner.

It appears before the final order, in pursuance of the show cause notice, the petitioner has produced a copy of the judgment and order dated 12.09.2007, passed in Sessions Trial No. 257 of 2006 (State Vs. Virendra Singh) and Sessions Trial No. 259 of 2006 (State Vs. Manvendra Singh) before the District Magistrate, in which the petitioner's brother was acquitted. However, the District Magistrate disbelieving the petitioner's case that he has not handed over his rifle to his brother, has held that only in the case of murder his brother has been acquitted, and so far as the case against the petitioner under Section 30 Arms Act is concerned, that is still pending, and the petitioner's version with regard to not handing over the rifle can only be seen from the judgment passed in the case pending against him under Section 30 of the Arms Act. Taking all this into account, the District Magistrate by the impugned order dated 21.07.2008 has cancelled the licence of the petitioner and directed to deposit the rifle bearing No. AV 03/2407 within 24 hours at Police Station Punchh, District Jhansi. Aggrieved by that order, the petitioner preferred an appeal before the Commissioner, Jhansi Division, but the Divisional Commissioner without looking into the relevant aspect of the matter dismissed the appeal taking note of the finding recorded by the District Magistrate.

Learned counsel for the petitioner has submitted that the show cause notice does not contain any case pending against the petitioner under Section 30 of the Arms Act and the cases mentioned in the show cause notice are related to the petitioner's brother and the only allegation against the petitioner was that he has given his fire arm to his brother by which Krishna Kumar was murdered. In the Sessions Trial the petitioner's brother has been acquitted and the charges leveled against the petitioner's brother was disbelieved by the Sessions Court as no independent witness could be produced to establish before the Court that the rifle was recovered from the possession of Virendra Singh, brother of the petitioner. Therefore, the allegations made against the petitioner to the extent that petitioner had handed over his rifle to his brother is false. It is also contended that although the pendency of the case under Section 30 of the Arms Act against the petitioner is not part of the show cause notice, but in that case also, the petitioner has been acquitted on 25.05.2010 (copy of this judgment has been brought as Annexure '7' to the writ petition), factum of which has not been denied by the respondent in his counter affidavit.

Learned counsel for the petitioner has further submitted that the petitioner's village falls under the dacoity affected area and having a firearm is very essential for the safety of the petitioner as well as his family. In his submission right to life and property are guaranteed under Article 221 of the Constitution. Therefore, the licence of the petitioner which was obtained for personal safety and security could not be cancelled by the District Magistrate without there being any proper reason for the same. In the submission of the learned counsel for the petitioner, the impugned orders of cancellation of fire arm licence of the petitioner, passed by the respondents are totally illegal, arbitrary and without application of mind. Therefore, these orders are liable to be quashed.

Refuting the submissions of the learned counsel for the petitioner, the learned Standing Counsel appearing for State respondent has supported the impugned orders, passed by the respondents by submitting that handing over of the fire arm to a person by the owner of the fire arm amounts to breach of condition of the Licence Act, and for that, the petitioner's licence has rightly been cancelled.

I have heard the learned counsel for the parties and perused the record.

It is not in dispute that the petitioner's fire arm licence was cancelled pursuant to the show cause notice dated 22.09.2006, according to which, petitioner has handed over his fire arm to his brother Virendra Singh, and by that fire arm one Krishna Kumar was murdered. For that, two F.I.Rs were lodged against Virendra Singh in Case Crime No. 225 of 2006 under Sections 25/27/30 Arms Act and Case Crime No. 224 of 2006 under Section 302 I.P.C. The District Magistrate while cancelling the licence of the petitioner, has also taken note of Case Crime No. 227 of 2006 under Section 30 Arms Act pending against the petitioner.

From the perusal of show cause notice, it do not transpire that for aforesaid case, the show cause notice was issued to the petitioner. The petitioner in his reply, has stated that the petitioner's brother was falsely implicated as he was not present on the date of incident being out of station, prior to the passing of the order of cancellation by District Magistrate, a certified copy of the judgment in Sessions Trial No. 257 of 2006 with respect to Case Crime No. 224 of 2006, under Section 302 I.P.C., Case Crime No. 225 of 2006, under Sections 25/27/30 Arms Act and Case Crime No. 226 of 2006 under Section 25/27 of the Arms Act, in which petitioner's brother was acquitted, was also brought on record, but the District Magistrate without giving proper weight to the judgment of acquittal of the petitioner's brother, to whom petitioner's fire arm is alleged to have been handed over and without recording any finding that how and in what manner the petitioner has handed over his rifle to his brother, has cancelled the licence of the petitioner.

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, 1951. 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 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.

(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 (d) of Section 17 provides that the licence can be suspended, revoked or cancelled if any of the conditions of the licence has been contravened. From the perusal of the conditions of the licence, it transpires that the condition prohibits the transfer of fire arm to other person.

According to the case of the respondents, as the petitioner had handed over his rifle to his brother, who had used the same in murder of one Krishna Kumar, therefore, his licence was cancelled. The petitioner before the District Magistrate had produced the certified copy of the judgment and order dated 12.07.2009, passed in Sessions Trial No. 257 of 2006 connected with other cases, where the petitioner's brother Virendra Singh was acquitted. In the judgment finding has been recorded that the prosecution has not been able to prove that the rifle was recovered from the possession of Virendra Singh. The District Magistrate ought to have taken note of this fact before cancelling the fire arm licence of the petitioner, but in stead of doing so, he has chosen to cancel the licence on the ground that the Case Crime No. 227 of 2006 under Arms Act is pending against the petitioner, and unless the petitioner is acquitted in that case, it cannot be said that the petitioner has not handed over his rifle to his brother and has not breached the condition of the licence.

Along with the writ petition, the petitioner has brought on record the copy of the judgment of the Case No. 115 of 2010 (State Vs. Veer Pal Singh) dated 22.05.2010, passed by the C.J.M., Court No. 7, Jhansi, where the petitioner has been acquitted, meaning thereby, the alleged transfer of rifle to Virendra Singh has been found to be false by the learned Additional Sessions Judge in Sessions Trial No. 257 of 2006 and learned Magistrate in Case No. 115 of 2010 pending against the petitioner under Section 30 of the Arms Act.

As I have noticed, sub section 3 (d) of Section 17 of the Arms Act provides that licence can be suspended, revoked or cancelled for breach of any of the conditions of the licence. As per allegation in the notice, the petitioner has contravened the condition of the licence by handing over his rifle to his brother, by which murder took place. Now, it is not in dispute that in the criminal prosecution lodged against the petitioner's brother under Section 302 I.P.C. and the case pending under the Arms Act against the petitioner's brother, the petitioner's brother has been acquitted and the finding has been recorded that the prosecution had not been able to prove that the rifle was recovered from the possession of Virendra Singh (the brother of the petitioner), and subsequently, the case under Section 30 of the Arms Act which was lodged against the petitioner being Case No. 115 of 2010, the petitioner has been exonerated from the charge levelled against him.

Now, from the above development, it is clear that the ground on which petitioner's fire arm licence was cancelled, has become non-existent. The petitioner obtained the licence for having fire arm for his personal security as well as security of the family. The petitioner's village falls under the dacoity affected area, therefore, the District Magistrate ought to have taken due care before cancelling the fire arm licence of the petitioner, and even after filing of the judgment of the acquittal of the petitioner's brother, the District Magistrate did not pay any heed and cancelled the licence without recording any finding of his own that how and when the petitioner had handed over his rifle to his brother. In absence of his own finding, after considering the relevant material on record, the impugned order of cancellation cannot be sustained, coupled with the fact that, the cases lodged against the petitioner's brother and the petitioner have ended in acquittal and the ground for which licence was cancelled became non-existent.

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."

In view of the foregoing discussions, as I have reached to the conclusion that the charge for which fire arm licence of the petitioner was cancelled has now become non-existent, therefore, the writ petition succeeds and is allowed. The impugned orders 21.07.2008 and dated 28.04.2010 are hereby quashed. The District Magistrate is directed to renew the licence of the petitioner after completion of the formalities for renewal within a period of four weeks from the date of receipt of certified copy of this order of the Court.

29.07.2011

AKSI