Akil vs State Of U.P. And Others
2012 Latest Caselaw 1666 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 18.4.2012
 
                                                                                       Delivered on 14.5.2012
 
Case :- WRIT - C No. - 48615 of 2010
 
Petitioner :- Akil
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- N.I. Jafri
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Shri N.I. Jafri, learned counsel for the petitioner and learned Standing Counsel appearing for the respondents.

The present writ petition arose from the order dated 20.11.2009 passed by the District Magistrate, Bulandshahar and the order dated 23.7.2010 passed by the Commissioner, Meerut Division Meerut.

The petitioner is licencee of 32 Bore revolver no. F-6791 bearing licence no. 2663/2004. The show cause notice dated 24.4.2009 was served upon the petitioner on the ground that case crime no. 31 of 2009 under sections 307/504 I.P.C. has been registered against him and during investigation it was found that the licensed firearm has been used in the said incident. The petitioner was called upon to show cause as to why his licence be not cancelled. The reply was submitted by the petitioner on 30.5.2009 that false criminal case has been registered against him. The complainants and witnesses gave statements that they did not see the petitioner using firearm.

Learned counsel for the petitioner submits that petitioner along with co-accused were tried by the trial court and had acquitted them by judgement and order dated 14.9.2009.The order of acquittal dated 14.9.2009 has been brought to the notice of the District Magistrate. Despite the said fact District Magistrate had committed illegality in cancelling the firearm licence of the petitioner saying that the petitioner is a man of criminal mentality and there is apprehension that he may misuse firearm licence in future which may result in breach of public peace and tranquillity and may affect the public security. The District Magistrate cancelled the licence only on the ground that it is not in a public interest to allow the petitioner to retain the licenced firearm. With these observations the firearm licence of the petitioner was cancelled.

The petitioner preferred an appeal before the Commissioner, Meerut Division, Meerut. The Commissioner concurred with the District Magistrate and dismissed the appeal by order dated 23.7.2010.

Learned counsel for the petitioner vehemently argued that cancellation of firearm licence was on the ground of his involvement in the criminal case and his subsequent acquittal by the competent court clearly shows that ground for cancellation of the licence did not exist and the District Magistrate has committed illegality and cancelled the firearm licences of the petitioner on extraneous consideration. The finding recorded by the District Magistrate that petitioner was named in a criminal case registered against him and he is a person of criminal mentality.

Learned counsel for the petitioner further submits that finding recorded by the District Magistrate that retention of firearm by the petitioner would result in disturbance of public peace and tranquillity is based on no material on record. Petitioner was falsely implicated in the criminal case .

Repelling the submission of the learned counsel for the petitioner learned standing counsel appearing on behalf of respondents submits that during the course of investigation it was found that licensed firearm was used in the incident occurred. Petitioner and co-accused have been acquitted as the prosecution has failed to establish the case beyond doubt. It was not a case of honourable /clean acquittal of the petitioner. Petitioner was named in the First Information Report registered against him and the criminal case registered against him is grave in nature. The finding recorded by the District Magistrate does not call for any interference by this court in as much as it is decision of the licensing authority.

Learned Standing Counsel further submits that licensing authority is clothed with power to cancel/ suspend the licence. The assessment of the administrative authorities with regard to grant or cancellation of the licence which has already been granted, should not be ordinarily interfered by this court in exercise of its extra ordinary jurisdiction. The petitioner has been rightly assessed be a person not fit to hold the firearm licence.

The licensing authority has power to revoke or suspend the licence under section 17 of the Arms Act, 1959. Sub-sections (1) to 5 of Section 17 of the Act are reproduced as under :

"17.Variation, suspension and revocation of licences-(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"

Section 17 (3) (b)provides that the licensing authority may by order in writing suspend or revoke a licence, if licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence.

The question before the court is as to whether finding recorded by the District Magistrate that the petitioner is a man of criminal mentality and can be allowed to retain the firearms even if he has been acquitted in the criminal case registered against him can be sustained or not.

The perusal of the order of the District Magistrate shows that he was aware of the fact that petitioner has been acquitted as the prosecution has failed to establish the case beyond doubt and it was not a clean/honourable acquittal.

Be that as it may, the District Magistrate has cancelled the firearm licence only on the ground that criminal case was pending against the petitioner and there was apprehension of his having misused the firearms in incident. But once the petitioner stood acquitted in the criminal case, the said ground vanished and was no more in existence

The fact of acquittal was brought to the knowledge of the District Magistrate. However, District Magistrate has made out a new case, which was not the basis of issuance of show cause notice to the petitioner. There is no material on record to show that petitioner is a man of criminal mentality.

In the present case, charges of involvement, was of solitary criminal case in which the petitioner has been acquitted. Thus nothing exist so as to warrant the authorities to proceed to cancel the firearms licence of the petitioner.

So far as the finding recorded by the District Magistrate that in case petitioner is allowed to retain the firearm licence there is apprehension of its misuse in future by the petitioner and there may be threat of law and order situation is concerned, the same is without any material on record. Finally the District Magistrate has concluded that allowing the petitioner to retain the firearm is not in public interest.

In the case of Illam Singh Vs. Commissioner Meerut Division Meerut and others reported in 1986, AWC 1166, distinction between law and order and public order has been explained. In another case of Ram Manohar Lohia Vs. The State of Bihar and another reported in AIR 1966 SC 740, the distinction drawn between the expression of 'maintenance of law and order' 'public order or public safety' has been drawn.

It has been held in the case of Sheo Prasad Mishra Vs. The District Magistrate Basti and others, reported in 1978 AWC 122 that mere report and involvement of the petitioner in criminal case could not form the basis for cancellation of the firearm licence. The District Magistrate in the impugned order stated that revocation of licence is necessary in the public interest though the petitioner has been acquitted in the criminal case registered against him 'which was the basis of initiation of proceeding against the petitioner' Public interest can not be equated to the term 'for the security of the public peace or public safety.

In the instant case it is only a solitary incident which did not arose out of any disturbance of public law and order. Moreover the apprehension of District Magistrate even after acquittal of the petitioner is based on no material on record. The Appellate Authority simply affirmed the order of the District Magistrate without recording any finding of its own.

Having considered the facts of the present case as well as the settled position of law, this court finds that the impugned orders passed by the District Magistrate dated 20.11.2009 and Commissioner, Meerut Division, Meerut dated 23.7.2010 are unsustainable and are accordingly set aside. The writ petition is allowed.

The court, however, is not aware of the fact as to whether petitioner has been involved thereafter in any criminal activities. It would, therefore, be proper for competent authority to consider the matter afresh and pass appropriate order on the arms licence of the petitioner after calling for a fresh report in accordance with law within a period of three months from the date of production of certified copy of the order before him.

The release of firearm of the petitioner would depend upon the fresh orders passed by the District Magistrate/Licencing Authority.

Dated:14.5.2012

Aks.