Mohammad Sharif vs State Of U.P. Thru' D.M. & Another
2012 Latest Caselaw 2233 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								Reserved on 25.4.2012
 
								Delivered on 28.5.2012
 
Case :- WRIT - C No. - 47115 of 2003
 

 
Petitioner :- Mohammad Sharif
 
Respondent :- State Of U.P. Thru' D.M. & Another
 
Petitioner Counsel :- K.K. Singh
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Sri Sunil Kumar, learned  counsel for the petitioner and learned  Standing  Counsel.

The present petition has been filed for quashing of the order dated 30.10.2000 passed by the District Magistrate, Bulandshahr and order dated 28.11.2002 passed by the Commissioner, Meerut Division, Meerut.

Brief facts giving rise to the present petition is that the petitioner is a licencee of DBBL gun no. 24771/12-Bore with licence no. 662, Police Station Kotwali Dehat. The licence granted to the petitioner in the year 1991 was renewed from time to time upto 31.12.2001.

On the basis of report of Senior Superintendent of Police, Bulandshahr, a show cause notice dated 6.5.2000 was issued to the petitioner and the petitioner was asked to deposit the gun. It was mentioned in the show cause notice that the case crime no. 133 of 2000 under Section 302 IPC has been registered against the petitioner on account of the incident of murder took place on 18.3.2000 inside the campus of Bharat Circus at Exhibition Ground, Bulandshahr. It was mentioned therein that one of the workers of the Bharat Circus died on the spot due to gun shot. This apart, the reference of 7 cases including the case crime no. 133 of 2000 under Section 302 IPC has been mentioned in the show cause notice and the petitioner was called upon to submit his reply as to why his licence be not cancelled. In the show cause notice it was mentioned that the petitioner is a man of criminal history and the licenced firearm can be misused by him at any time.

The petitioner submitted his reply on 21.9.2000. In the reply, it has been stated that the report of Inspector, Kotwali, Bulandshahr is totally false in as much as the petitioner has been acquitted in the previous cases registered against him. He further submits that the criminal case registered against him earlier got no concern with the opposite parties now and could not be taken into consideration for the purpose of cancellation of gun licence. The report of the Senior Superintendent of Police, Bulandshahr is without making enquiry into the matter. He further submits that the licenced gun was being kept by him in Bharat Circus for the purpose of safety as he is partner of Bharat Circus. In any case, the licence cannot be cancelled by the District Magistrate on the ground of pendency of criminal case. He further submits that he has been enlarged on bail on 30.8.2000 by this Court. Alongwith the reply, the petitioner has also filed an affidavit dated 23.9.2000.

The District Magistrate/Licensing Authority vide order dated 30.10.2000 has considered the explanation submitted by the petitioner in detail and has come to the conclusion that there has been criminal history of the petitioner. The petitioner is a man of criminal tendency and was involved in criminal activities. The District Magistrate further considered that the incident, on account of which case crime no. 133 of 2000 has been registered against the petitioner, occurred inside the Bharat Circus campus and a girl working therein was murdered. There is clear apprehension that the petitioner may misuse his licence again and may create threat to public peace and tranquility.

In the appeal preferred by the petitioner against the order of District Magistrate, the Commissioner, Meerut Division, Meerut while passing order dated 28.11.2002 has recorded a finding that cases of heinous crimes have been registered against the petitioner from time to time and not on one or two occasions. The description of cases registered against the petitioner are under Section 302, 307 IPC including 2/3 of Gangsters Act. The appellate authority has further recorded a finding that though the petitioner is acquitted in the case registered against him in absence of sufficient evidence produced by the prosecution but the fact that various cases were registered against the petitioner from time to time, it is clear that the petitioner is a man of criminal tendency and allowing him to retain the licenced gun would create serious threat to the public peace and public safety. With these observations, the appeal filed by the petitioner was dismissed.

Learned counsel for the petitioner vehemently argued that orders passed by the administrative authorities suffer from serious errors of law and have been passed in an arbitrary manner. He categorically submits that in view of various decisions of this Court, it is well settled that mere involvement in a criminal case or pendencey of criminal cases cannot be a ground for rejection of the licence under the Arms Act and the issue has been dealt with by the Division Bench of this Court in Sheo Prasad Misra vs. District Magistrate, Basti & others wherein the Division Bench relied upon the earlier decision reported in Masi Uddin vs. Commissioner, Allahabad that mere involvement in a criminal case cannot in any way affect the public security or public interest and the order cancelling or revoking of licence of the firearm is not tenable. Learned counsel for the petitioner relied upon the judgment of this Court passed in 2005(2)JIC 705 (All) (Harprasad vs. State of U.P.); 2010(70) ACC 39 (Pramod Kumar vs. State of U.P. & others; 2010(2)JIC 364(All) (Kamal Prakash @ Kamal Nath @ Suddan vs. Commissioner, Kanpur Division, Kanpur Nagar & others; 2009(4) ADJ 33 (LB) (Satish Singh vs. District Magistrate, Sultanpur & others); 2009(4) ADJ 549 (Raj Bahadur Singh vs. Sate of U.P. & others); 2006(1) JIC 63(All) (Arun Kumar Singh vs. State of U.P. & others). On the basis of all these judgments learned counsel for the petitioner submits that in any case, the cancellation of firearm licence of the petitioner could not have been done on the ground of criminal case or pendency of criminal case against him.

Learned counsel for the petitioner further submits that he has been acquitted in a criminal case no. 133 of 2000 which was registered on account of incident occurred on 18.3.2000 inside Bharat Circus Campus. The order of acquittal is dated 12.12.2000 passed by the IV Additional Sessions Judge, Bulandshahr. The acquittal order was placed before the appellant authority and the appellate authority had acted illegally in not giving proper consideration to the said fact of acquittal. He vehemently submits on the basis of the judgments relied by him that it is settled law that after acquittal, the very basis for cancellation of the firearm licence stands vitiated and hence there was no justification for cancellation of the petitioner's firearm licence. There was no material on record before the authorities to record a finding that the petitioner is having criminal history and is a man of criminal tendency.

In the judgment relied upon by the learned counsel for the petitioner the Division Bench judgment of this Court in Sheo Prasad Misra(supra) has been considered.

Refuting the submissions of the learned counsel for the petitioner, learned Standing Counsel submits that the cancellation of licence of the petitioner has not been done solely on the ground of his involvement/ registration in a criminal case but the licensing authority i.e. District Magistrate has considered the complete record of the petitioner and the cases registered against him, and only after satisfying itself about the conduct of the petitioner, it has come to the conclusion that the petitioner is having criminal history and is a man of criminal tendency. In view thereof, he cannot be allowed to retain the firearm licence as it would entail serious consequence of breach of public peace and tranquility.

The appellate authority has considered the fact of  acquittal of the petitioner and various cases registered against him but came to the conclusion that the cases  registered  against him from time to time  are  heinous  in nature, and somehow the petitioner got acquitted as the cases could not be proved beyond doubt.

The  record  reveals  that   seven cases   were  registered  against the petitioner  from time to time  i.e.  in the year 1978, 1995 and  lastly in2000.  The   order dated 12.12.2000 passed  by the  IV ADJ, Bulandshahr  in  case  crime no. 133 of  2000 under  Section 302  IPC  registered  on the incident  occurred on 18.3.2000 inside the   Bharat  Circus  Campus was  dropped  against the petitioner on  account of the  fact that all the  witnesses  had  turned  hostile.

This  Court   can  take  judicial  notice of the fact that  the incident  had  occurred   on 18.3.2000 in broad daylight at about 10:30 A.M. and the victim was murdered inside her tent in the Bharat Circus at the Exhibition Ground, Bulandshahr. The Court cannot close its eyes to the fact that the petitioner was the owner/partner of the Circus and victim was residing inside the tent in the campus. The prosecution witnesses namely PW 1 Om Prakash, PW2 Km. Sushma, PW 3 Jivika, PW 4 Km. Bharti Chand, PW5 Shikha Biswas were working in the Bharat Circus at the relevant point of time. PW 1 Om Prakash who was the Manager of the circus in March, 2000 has admitted in his examination that these witnesses turned hostile. Two other witnesses PW 6 Sri Ritu, PW 7 Raghuvir also turned hostile. In view of the said fact, the prosecution could not establish offence of murder registered against the petitioner.

It is a matter of common knowledge that heinous crimes are committed by several persons but on account of fear, threat to life, lack of proper support for their personal safety etc., the witnesses turn hostile. In the present case, the situation is much more glaring in view of the fact that the incident occurred inside the tent of the campus of Bharat Circus and all the witnesses produced by the prosecution were employees of the said circus. The petitioner being owner/partner of the Bharat Circus, there is high probability of witnesses being turned hostile on account of fear or pressure, whatsoever it may be.

In the facts of the present case, it is clear from the record that the petitioner has been acquitted on technical ground because all the witnesses turned hostile. However, the Administrative authorities had cancelled firearm licence not only on the ground of solitary case of murder under Section 302 IPC registered against him but also has considered the entire criminal history of the petitioner and recorded a category finding that the petitioner is a man of criminal tendency and is having criminal history. From the acquittal of the petitioner on technical ground, it cannot be said that the petitioner's conduct is fully proved and he is a man of clean history. In view of the said observations, the appellate authority as also the Licensing Authority concluded that the petitioner cannot be allowed to retain the firearm licence.

The cases relied upon by the petitioner are distinguishable on the facts and circumstances of the present case.

The administrative authorities are bound to take appropriate action in the matter of grant of licence and also its cancellation for the purpose of maintaining peace and harmony in the society. It is well settled that the assessment of the administrative authorities with regard to grant of licence or cancellation of licence should not be interfered with by the Court in its extraordinary jurisdiction unless the same is so illegal or arbitrary so as to prick the conscience of the Court.

In the present case, the licensing authorities considered various aspects of the matter and after considering the conduct of the petitioner and his involvement in several cases from time to time, have recorded their findings that allowing the petitioner to continue with firearm licence would amount to nuisance disturbing the public tranquility.

In view of above observations, the assessment of the administrative authorities in the facts of present case, is to be given its proper weightage and not to be ordinarily interfered with. There is no illegality or arbitrariness in the assessment of the authorities below in concluding that the firearm licence of the petitioner be cancelled. In view thereof, the order dated 30.10.2000 passed by the District Magistrate, Bulandshahr and order dated 28.11.2002 passed by the Commissioner, Meerut Division, Meerut do not warrant any interference by this Court.

The writ petition is, accordingly, dismissed.

No order as to costs.

Order Date :- 28.5.2012

P.P.