Smt. Archana Dixit vs State Of U.P. & Others
2011 Latest Caselaw 4608 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 35
 
Case :- WRIT - C No. - 28098 of 2008
 
Petitioner :- Smt. Archana Dixit
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- Sudhanshu Singh
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sunil Hali,J.

Petitioner had applied for grant of arm licence under Section 13 of the Arms Act 1959. Inquiry contemplated under the act was initiated by the Addl. Superintendent of Police (City) Bareilly and revenue authorities and a report was submitted by the Addl. S.P. (City), Bareilly to the respondent no. 3 indicating therein that two criminal cases are pending against the husband of the petitioner and based upon the said report respondent no. 3 rejected the application of the petitioner vide order dated 6.1.2007 on the ground that it is not in public interest to grant licence to the petitioner. Aggrieved by the said order petitioner preferred an appeal under Section 18 of the Act before the Commissioner, Bareilly Region Bareilly and the same has also been dismissed vide order dated 17.12.2007 solely on the findings recorded by the District Magistrate in a mechanical way. This order is subject matter of challenge before this Court.

Petitioner has assailed the aforesaid orders inter alia on the grounds that the Licensing Authority and the Appellate Authority have not considered the claim of the petitioner properly for granting fire arm license and in an arbitrary manner without application of their mind passed the impugned orders and thus committed manifest error in law.

Learned counsel for the petitioner has contended that the two cases mentioned in the report of Addl. Superintendent of Police, Bareilly bearing Case Crime No. 253 of 1982, under Sections 302/307 IPC the husband of the petitioner has been acquitted by this Court vide order dated 20.12.2007 and in Case Crime No. 35 of 2002, under Section 147, 148, 307/34 IPC the proceedings have been stayed by this Court and hence mere registration of these cases against the husband of the petitioner cannot be a basis for rejecting the application for grant of licence unless the conduct of the person seeking licence affects the public peace and safety.

Heard learned counsel for the parties and perused the material on record.

In order to adjudicate the matter, provisions of Sections 13 and 14 of the Arms Act, 1959 are necessary which are reproduced hereunder:-

13. Grant of licenses -- (1) An application for the grant of a license under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed.

(2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time.

(2A) The licensing authority, after such inquiry, if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same:

Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.

(3) The licensing authority shall grant --

(a) a license under Section 3 where the license is required --

(i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or spot or in respect of a muzzle loading gun to be used for boan fide crop protection:

Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection; or

(ii) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognized by the Central Government;

(b) a license under section 3 in any other case or a license under sub 4, section 5, section 6, section 10 or section 12, if the licensing authority is satisfied that the person by whom the license is required has a good reason for obtaining the same.

Section 14 provides the circumstances under which an application for licence could be refused. The said provision reads thus:

Section 14. Refusal of licences.- (1) Notwithstanding anything in section 13, the licensing authority shall refuse to grant-

(a) a licence under section 3, section 4 or section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition;

(b) a licence in any other case under Chapter II,- (i) where such licence is required by a person whom the licensing authority has reason to believe-

(1) to be 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

(2) to be of unsound mind, or

(3) to be for any reason unfit for a licence under this Act; or

(ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence.

(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.

(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person 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.

On a careful reading of the aforesaid quoted provisions,  it emerges that under Section 3 of the  Act it is essential to obtain an arms possession license issued by a competent licensing authority by any person for acquisition, possession or carrying any firearms or ammunition. Section 13 of the Arms Act, 1959 contains provisions relating to grant of arms licenses by the licensing authority concerned. On receipt of an application, the licensing authority is required to call for a report from the officer in-charge of the nearest police station and such officer is required to send his report about the bona fide of the antecedent of the applicant to the licensing authority, within the prescribed time. The licensing authority is required to take a decision whether to grant or to refuse to grant the arms possession license, based on the report of the police authorities and subject to fulfilment of other conditions stipulated under the Arms Act. However, there is a provision to Section 13 (2A), which empowers the licensing authority to grant an arm license where the report of the police authorities has not been received within the prescribed time. It is relevant to point out that the quantum of prescribed time referred to in Section 13 of the Arms Act, 1959 has not been specifically defined under the said At.

Considering the importance of the police verification report in the grant of arms licenses to any person, the Government of India by way of amendment decided to delete the proviso to Section 13 (2A) of the Arms Act, 1959 and prescribe a period of 60 days for the police authorities to send their report, to obviate chances of discretion being used by the licensing authority to issue any arms license without police verification report. Now, the position is that the licensing authority will be obliged to take into consideration the report of the police authorities before grant of arms license in each case, with the deletion of the proviso to Section 13 (2A) of the Arms Act, 1959.

In view of the prescription provided under Section 14 of the Act, it is obligatory upon the District Magistrate/Licensing Authority to record the reasons in writing, in case he refused to grant a license and communicate the same to the applicant.

In the instant case, neither the Licensing Authority nor the Appellate Authority considered the facts and circumstances of the case and simply rejected the application solely on the ground that the husband of the petitioner is involved in criminal cases. There is no stipulation in the Section mentioned above that in the event of any case being registered against a person the licence can be refused. However, Section 14 of the Act contemplates that the licence can be refused if it is necessary for maintaining security and public peace or public safety.

Perusal of the impugned orders shows that the satisfaction of the District Magistrate in this behalf appears to be of subjective in nature. Such formation of opinion by him has to be on the basis of objective materials while declining the licence on the ground that it will be in the interest of security of the public peace and safety. Mere registration of the case necessarily does not lead to a conclusion that the offence has been committed. Findings on this question has to be determined by the Court trying the offences. So on mere registration of the cases cannot be a ground for rejection of the grant of licence unless the conduct of the person seeking licence affects the public peace and safety. The satisfaction of the authority has to be derived from other circumstances i.e. conduct of the applicant, his antecedents and instances relating to his behaviour. What is being emphasized is that while recording a satisfaction reliance has to be placed on specific instances of conduct of the applicant regarding his behaviour, his profile in the area and the consequence of his action or act in the society, if such a licence is granted. There may be instances where a person seeking licence for possession of arms may be with an intent to create terror in the area or overawe the public by resorting to acts which impliedly create fear in the mind of the public at large. In such a situation object and purpose of granting licence gets defeated. These instances are required to be indicated showing the date, time and place where such alleged act is committed by the person.  There are some other factors which might weigh with the authority in formation of the said opinion while allowing or refusing the application for grant of arm licence. While doing so, it has to be kept in mind by the licensing authority that such an act or instance/behaviour of the person should have co-relation with the object of maintaining peace and security in the area. Vague allegations not supported by specific instances cannot become a ground for rejecting or accepting the application for grant of arm licence. Reliance and credence has to be placed on the report submitted by the concerned police officer.

This Court is of the opinion that power of a statutory authority has to be based on certain reasons which such authority must believe to exist, such exercise of power cannot be left to the subjective satisfaction of the authority. The issue was not objectively considered by the statutory authority. Therefore, it is clear that the Licensing Authority has proceeded on an erroneous basis in the exercise of his power under Section 14 of the said Act.

In the result, the impugned orders are hereby set aside and the matter is remitted to the District Magistrate, respondent no. 3 for fresh consideration in an objective manner in accordance with the provisions of Arms Act, 1959 and pass appropriate orders on merits and as per law as expeditiously as possible and in any case, within a period of two months from the date of receipt of a copy of this order. It is open to the petitioner to produce materials to substantiate his case regarding the necessity to possess the arm licence.

The writ petition is allowed. No order as to costs.

Order Date :- 14.9.2011

RKS/