Allahabad High Court
Girish Mishra vs State Of U.P & Others on 17 August, 2012
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 26
Case :- WRIT - C No. - 30724 of 1999
Petitioner :- Girish Mishra
Respondent :- State Of U.P & Others
Petitioner Counsel :- Tripathi B.G.Bhai
Respondent Counsel :- C.S.C.
Hon'ble B. Amit Sthalekar,J.
By means of this petition the petitioner is challenging the order dated 22.6.1999 whereby his license for possession of firearm has been suspended.
The facts of the case, in brief, are that the petitioner is the holder of a S.B.B.L gun. It is stated that a first information report was lodged against him on 29.5.1999 alleging therein that the petitioner had assaulted an employee of the Telecom Department and had also used abusive language against him. A case under Sections 332,323,504 and 506 I.P.C. was registered against him. Pending trial, by the impugned order his firearms licence was placed under suspension.
I have heard Sri Tripathi B .G. Bhai, learned counsel for the petitioner and learned Additional Chief Standing Counsel appearing for the respondents.
From a perusal of the impugned order dated 22.6.1999 it is nowhere disclosed that prior to passing of the order of suspension any show cause notice or an opportunity of hearing was given to the petitioner.
Submission of the learned counsel for the petitioner is that before passing the impugned order at least a show cause notice and an opportunity of hearing ought to have been given to him.
Sri Tripathi further submits that in the impugned order the only allegation is of assault and use of abusive language. There is no allegation that any firearm of any kind was used, much less the firearm of which licence has been granted to the petitioner and, therefore, there was absolutely no ground or material before the District Magistrate, Siddharth Nagar, the competent authority, to suspend the licence of the petitioner. His further submission is that mere assault or use of abusive language was not an indicia of the fact that the petitioner was likely to be a threat to public peace and order at any future date.
Sri Tripathi further submits that a show cause notice, which was issued to him on 16.7.1999 was issued after his arms licence had already been suspended and, therefore, in the circumstances, once a decision to suspend arms licence has already been taken any decision subsequent thereto is only an empty formality being a post decisional hearing.
Sri Tripathi has placed reliance upon a decision of five judges Full Bench of this Court reported in 1985 (22) ACC 353, Kailash Nath and others vs. State of U.P. and others. The relevant paragraph -10 of the Full Bench reads as follows:-
"10.........Normally or ordinarily a notice before an action should be given to the person affected but in such extraordinary cases as mentioned above, the absence of hearing before the action can be adequately compensated for by a hearing ex post facto. A prior hearing may be better than subsequent hearing, but a subsequent hearing is better than no hearing at all; and in some cases the Courts have held that statutory provisions for an administrative appeal or even full judicial review on the merits are sufficient to negative the existence of any implied duty to hear before the original decision is made. See St. James and St. John, Clerkenwell vestry vs. Feary (200, R.V. Randalph (21) interim mail stop order) assessments) Furnell vs. Whangard High Schools Board, (23) (suspension of teacher pending full hearing; See also Maymard Osmand (24) (right of legal representation on appeal a reason for not implying the same right in original proceedings). Likewise, a full judicial review on the merits has also been regarded as sufficient for a hearing before the proposed action is taken. See Literature Board of Review vs. H.M.H. Publishing Co.Inc. (25) (order prohibiting distribution of Playbody magazine); Twist v. Randwick Municipal Council (26). The rule is not inflexible. The ultimate test is whether in a particular context the procedure as a whole afforded the individual an opportunity for hearing."
At the time of admission on 27.7.1999 this Court has been pleased to pass following interim order :-
"In view of the law laid down in the case of C.P.Sahu vs. State of U.P. and others reported in 1984 AWC 145 and Kailash Nath Singh vs. State of U.P. and others reported in 1985 AWC 493, the impugned order at Annexure no.1 to the writ petition suspending the licence of the petitioner pending enquiry relating to cancellation of his licence, will remain stayed until further orders. The respondents will complete enquiry in respect of cancellation of the licence in accordance with law expeditiously and will be entitled to take action in terms of the decision in such enquiry."
In the counter affidavit filed on behalf of respondents there is no recital that the enquiry has been completed.
However, the impugned order nowhere indicates that the petitioner had used his licenced firearm or for that matter any firearm at all. The allegation in the impugned order is of physical assault (without use of firearm) and use of abusive language. Such an allegation, in my opinion, cannot be the foundation of an impression by the District Magistrate that the petitioner, if allowed to retain his firearm licence, would be a threat to future public peace and order.
In the circumstances, the impugned order dated 22.6.1999 cannot survive and is accordingly quashed.
The writ petition is allowed.
There shall be no order as to costs.
Order Date :- 17.8.2012
Asha
