Radhey Shyam Maurya vs State Of U.P. & Others
2012 Latest Caselaw 1660 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 19.4.2012
 
                                                                                Delivered on 14.5.2012
 
Case :- WRIT - C No. - 57380 of 2009
 

 
Petitioner :- Radhey Shyam Maurya
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- R.S. Ram
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Shri M.P. Yadav, learned counsel for the petitioner and learned Standing Counsel appearing for the respondents.

The present writ petition has been filed challenging the order dated 6.2.2009 passed by the District Magistrate Mau, whereby firearm licence of the petitioner has been cancelled.

Petitioner preferred an appeal against the order of the District Magistrate, which was also rejected by the order dated 3.9.2009.

Petitioner is licencee of 315 Bore rifle bearing number 06280 and 32 Bore revolver. The show cause notice dated 8.5.2008 has been served upon the petitioner and the petitioner submitted his explanation denying all the allegations made therein.

The case of the petitioner is that he is contractor of Central Storage Corporation and also a member of Kshettra Panchayat. During contract-ship some antisocial elements have opened fire upon him on 9.5.1993. As a result of which he lodged First Information Report under section 307 I.P.C. and after trial accused were convicted for five years rigorous imprisonment with fine. Because of enmity against the petitioner in the locality, licence for rifle and revolver is necessary for safety and security of his life and property.

Counsel for the petitioner further submits that in the case crime no. 55 of 2008 under sections 188 I.P.C and case crime no. 56 of 2008 under sections 147, 148, 149, 353, 332, 504 and 506 I.P.C. and 7 of Criminal Law Amendment Act, apart from the petitioner, seven other persons were also named and show cause notices have been issued against them on 15.3.2008.

The cases of these seven persons whose names have been mentioned in paragraph-16 of the petition, notices dated 15.3.2008 has been cancelled and their arms licence have been restored vide separate orders dated 25.2.2009 passed by the District Magistrate. The copies of the orders in cases of seven persons namely Kasif son of Imtiyaj Ali, Tauqir Ahmad s/o Maqbool Ahmad, Ansar Ahmad s/o Ashfaq Ahmad, Arvind Singh s/o Mahendra Nath Singh, Shakeel Haider s/o late Hasan Haider, Zakir Husain s/o Safat Husain, Kamata Ram s/o Kuber Ram have been annexed as annexures- 9 to 15 to the writ petition. In all these matters finding has been recorded by the District Magistrate that there is nothing on record to show that they or any other person has misused their licensed firearms. In the cases of these persons District Magistrate in its order dated 22.5.2009 has recorded the finding that the criminal case registered against them is pending before the competent court. He further concluded that as per law laid down by this court, pendency of a criminal case can not be a ground for cancelling the firearm licence. It has also been recorded that no other criminal case has been registered against these persons and as such there is no justification for cancelling the firearm licence of the seven persons whose names have been mentioned in the case.

Counsel for the petitioner submits that copy of the orders dated 22.5.2009 passed by the District Magistrate, Ghazipur restoring the arms licence of other persons who were co-accused in case crime no. 56/2008, and 55/2008 were placed before the Commissioner, Azamgarh Division, Azamgarh but the Commissioner had dismissed the appeal without taking into consideration the said order passed in favour of other co-accused. On the other hand, the Commissioner simply affirmed the order of the District Magistrate dated 6.2.2009 and concluded that as the criminal cases have been registered against the petitioner, he cannot be allowed to retain the firearms as it would be against public interest.

Counsel for the petitioner further submits that there is no finding of the District Magistrate that petitioner has misused the licenced firearm and there is no allegation of criminal history against the petitioner except the three cases in which he was falsely implicated by the Police of Police Station Cantt. District Lucknow. Petitioner was arrested and has been released on bail. The allegation levelled against the petitioner are politically motivated and Administrative Authorities with ulterior motive under the pressure of local political leader had cancelled the firearms licence of the petitioner without any lawful cause. The Commissioner, Azamgarh, Division Azamgarh, committed illegality and acted arbitrarily in overlooking the orders passed by the District Magistrate, Ghaziabad, whereby he has restored arms licence of other accused persons, who were prosecuted along with petitioner. The dismissal of the appeal of the petitioner is totally unjustified and the orders passed by the authorities cannot be sustained.

Learned counsel for the petitioner relied upon the judgements of this court in 2011 (74) ACC 140(Ashish Tripathi Vs. State of U.P.), 1978 AWC 122(Sheo Prasad Misra Vs. District Magistrate, Basti) (D.B.); 2011 (74) ACC 304(HiraMani Singh Vs. State of U.P. and another); 2010 (3) JIC 630 (All) (L.B) (Satish Singh Vs. District Magistrate, Sultanpur and others); 2004 (2) JIC 239 (All) (Ishwar @ Bhuri Vs. State of U.P. & Others) ; and 2002 (1) JIC 501(All) (Iftikhar Khan Vs. State of U.P. & others) and submitted that the mere involvement of licensee in criminal case cannot be made the basis for coming to the conclusion that continuance of his licence would affect public peace and security.

Repelling the submissions of the learned counsel for the petitioner, learned standing counsel vehemently argued that the petitioner is a man having criminal history and is a member of Mafia gang. On 24.2.2008 at about 19.45 hours, petitioner was caught at Mohanlal Ganj crossing near Lucknow along with twenty members of the gang. Criminal cases no. 55/08, 56/08 and 75/08 were registered against the petitioner on 24.2.2008 at police station Cantt., Lucknow. The Senior Superintendent of Police, Lucknow has sent his report dated 13.3.2009 to the District Magistrate, Mau, along with report of Incharge Police station Cantt., Lucknow on 5.3.2009. The said reports have been annexed along with counter affidavit.

Learned Standing Counsel submits that petitioner is a hardcore criminal and there is every apprehension of breach of public peace and such person cannot be allowed to retain the firearms. Mere release of the petitioner on bail does not mean that petitioner has been absolved from the charges levelled against him. Learned Standing Counsel drawn attention of the court to paragraph-5 of the counter affidavit, where it has been stated that licensed arms of the petitioner was misused by him and other members of the gang which is apparent from the reports dated 13.3.2008 and 5.3.2008 of the Senior Superintendent of Police and Incharge police station Cantt. Lucknow, respectively.

Learned Standing Counsel placed reliance upon the judgement, 2011 (1) JIC 417, (All) Rajeswar Singh Yadav Vs. State of U.P. and others) and 2011(73) ACC 846(Ram Sanehi Vs. Commissioner Lucknow, Division, Lucknow and others).Learned standing counsel also placed reliance on the Full Bench judgement of this court in Chhanga Prasad Sahu Vs. State of U.P. and others) and Gaya Din Vs. State of U.P. and others reported in 2005(3) JIC 774 (All).

Placing reliance upon these judgements, learned standing counsel submits that the assessment of the administrative authorities with regard to grant of licence, or cancellation of licence already granted should not be interfered ordinarily by this Court in exercise of its extra ordinary jurisdiction unless same is so illegal or arbitrary so as to prick the conscious of the court.

In the present case, considering the conduct of the petitioner and his association with antisocial elements, the decision taken by the District Magistrate and the appellate authority should be given its proper weightage and no interference be made.

Learned counsel for the petitioner drawn the attention of the court to the reply given by the petitioner to paragraph -5 of the counter affidavit, in paragraph 5 of the rejoinder affidavit, wherein it has been categorically stated that there is no mention of any other incident in the reports dated 13.3.2009 and 5.3.2009 annexed with counter affidavit, in which petitioner has misused the firearms. The said reports only speak of three cases having been registered on the same day over the alleged one incident. Hence the averments of paragraph-5 of the counter affidavit are totally false and incorrect in which it has been stated that licensed firearm of the petitioner was being misused by him and other members of the criminal gang.

Having considered the submission of the learned counsel for the petitioner and perusal of records, it is clear that licence of the petitioner has been cancelled by the District Magistrate , Mau by order dated 6.2.2009 on the ground of arrest of the petitioner made on 22.2.2008 and three cases as mentioned above had been registered against him. It is clear from the order of the District Magistrate and the reports of the S.S.P. and Incharge Police Station Cantt. Lucknow dated 13.3.2008 and 5.3.2008 that apart from three cases there is no reference of any other criminal case registered against him. There is no material on record to indicate that petitioner has been involved in any other criminal case or licensed firearms of the petitioner has been misused by him or any other person. The finding recorded by the District Magistrate that the petitioner is man of criminal mentality is based on no material on record.

It is well settled that mere fact that some reports had been lodged against the petitioner would not establish the "necessary connection with security of the public peace or public safety". Therefore, in view of the settled law unless there is some other report or material, only initiation of the criminal cases against the petitioner cannot be a ground to sustain the order of revocation of arms licence.

Petitioner has made out a case for setting aside the order of cancelling his firearm licence as well as order of appellate authority. The order dated 6.2.2009 passed by the District Magistrate, Mau and order of the Commissioner, Azamgarh Division, Azamgarh dated 3.9.2008 are hereby quashed .

The writ petition is allowed.

However, the Court is not aware of the fact whether the petitioner has been involved thereafter in any other criminal activities or that he is desirable or a fit person to be allowed to possess the firearms.

For the aforesaid reason , the District Magistrate, Mau will consider the matter afresh in the light of Section 14 of the Arms Act 1959 and consider the conduct of the petitioner subsequent to the year 2009 and pass a fresh order as regards to the firearm licence to be held by the petitioner within three months from the date a certified copy of this order is produced before him.

The release of the firearms of the petitioner shall depend upon the fresh order to be passed by the District Magistrate /Licencing Authority.

Date:14.5.2012

Aks.