Ram Charan vs State Of U.P. And 2 Others
2016 Latest Caselaw 6645 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 34
 

 
Case :- WRIT - C No. - 3075 of 2014
 

 
Petitioner :- Ram Charan
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Vishesh Kumar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rakesh Srivastava,J.

1. The order dated 04.02.2009 whereby the firearm licence of the petitioner has been cancelled, and the order dated 30.11.2013 whereby the appeal preferred by the petitioner against the said order has been dismissed, are under challenge in the present writ petition.

2. The petitioner held a licence for D.B.B.L. Gun 9400-860. On the basis of an FIR dated 5.7.2007 lodged by one Smt. Prema Devi, a criminal case was registered against the petitioner as Case Crime No.130 of 2007 under sections 323, 294, 504, 506, 427 IPC at Police Station Paschim Sharira, District Kaushambi. On 22.06.2008, the Superintendent of Police, Kaushambi submitted a report to the District Magistrate, Kaushambi - the respondent no.2 recommending revocation of firearm licence of the petitioner. The relevant portion of the report dated 22.6.2008 is extracted below:-

"अनुज्ञापी रामचरण पुत्र अवधप्रसाद मिश्र ने दिनांक २३-६-०७ को ४ बजे शाम को श्यामनारायण पुत्र सदाशिव मिश्र निवासी सरसवां के दरवाजे पर जाकर उसकी पत्नी प्रेमादेवी को गाली गलौज करके जान से मारने की धमकी देते हुए पकड़कर अश्लील हरकत किया और मारापीटा, जिसका मु.अ.सं.-१३०/०७ धारा ३२३/ २९४/ ५०४/ ५०६/ ४२७ भा.द.वि. पंजीकृत हुआ है। शस्त्र का दुरूपयोग करता है तथा दहशत फैलाये हुए है, शस्त्र बना रहा तो कोई संगीन घटनाएं करेगा और दहशत फैलाएगा। इसलिए शस्त्र का बना रहना जनहित में नहीं है।"

3. On 21.7.2009 the respondent no.2 passed an order under sub section (3) of the Arms Act, 1959 (for short the 'Act') suspending the firearm licence of the petitioner till the disposal of the criminal case mentioned above and requiring the petitioner to show cause as to why his firearm licence be not cancelled. On 10.08.2008, the petitioner filed his reply to the show cause notice refuting the allegations made against him. The respondent no. 2, thereafter passed the impugned order dated 04.02.2009, by means of which the firearm licence of the petitioner was cancelled/ revoked. The relevant part of the said order is extracted below:-

"मैंने पत्रावली पर उपलब्ध समस्त अभिलेखों का विधिवत अवलोकन किया। पत्रावली पर उपलब्ध समस्त अभिलेखों के अवलोकन के पश्चात मैं इस निष्कर्ष पर पहुँचता हूँ की विपक्षी एक दबंग किस्म का व्यक्ति है। जिसके विरुद्ध थाना स्थानीय में मु.अ.सं. १३०/०७ धारा ३२३/ २९४/ ५०४/ ५०६/ ४२७ आई.पी.सी. में अपराध पंजीकृत है। ऐसे आपराधिक किस्म के व्यक्ति के पास जनहित में लाइसेंस रखने योग्य नहीं है। विपक्षी के इस कृत्य को दृष्टिगत रखते हुए शस्त्र लाइसेंस का बना रहना जनहित, न्यायहित एवं शांति व्यवस्था की दृष्टि से उचित नहीं है।"

4. The order dated 04.02.2009 passed by respondent no.2 was assailed by the petitioner before the Commissioner, Allahabad Mandal, Allahabad - the respondent no.3. During the pendency of appeal, by judgment and order dated 27.06.2013 passed by Sri Lal Babu Yadav, Judicial Magistrate, Kaushambi the petitioner was acquitted of the charges levelled against him in Case Crime No. 130 of 2007. On 30.11.2013, the respondent no.3 rejected the appeal preferred by the petitioner. The relevant portion of the order dated 30.11.2013 passed by the respondent no. 3 is extracted below:-

"अपीलकर्ता के विद्वान अधिवक्ता तथा विद्वान शासकीय अधिवक्ता (फौजदारी) की बहस को सुना तथा अवर न्यायालय की पत्रावली में उपलब्ध अभिलेखों व साक्ष्यों का अवलोकन एवं अध्ययन किया। पत्रावली के अवलोकन से यह स्पष्ट है कि पुलिस अधीक्षक कौशाम्बी कि आख्या दिनांक २२.०६.२००८ के आधार पर अवर न्यायालय द्वारा नोटिस निर्गत की गयी। अपीलकर्ता द्वारा उक्त नोटिस का प्रत्युत्तर अवर न्यायालय के समक्ष प्रस्तुत किया गया। अपीलकर्ता द्वारा अपने प्रत्युत्तर में कहा गया कि नोटिस में वर्णित घटना पूर्णतया फर्जी है क्योंकि इस तरह कि कोई घटना नहीं हुई है। अपीलकर्ता को परेशान करने व उसके शस्त्र लाइसेंस निरस्त कराये जाने हेतु झूठी घटना का सहारा लिया गया है। पुलिस अधीक्षक की रिपोर्ट में भी शस्त्र के दुरूपयोग का उल्लेख नहीं किया गया है। अपीलकर्ता द्वारा ग्राम प्रधान सरसवां, ग्राम प्रधान कुमियांवां तथा ग्राम प्रधान अजरौली तथा ग्राम प्रधान अन्धावां द्वारा निर्गत प्रमाण पत्र भी प्रस्तुत किया गया जिसमे यह उल्लेख किया गया कि अपीलकर्ता का कभी भी किसी से कोई विवाद नहीं हुआ है। अपीलकर्ता का कोई आपराधिक इतिहास नहीं है और न ही आपराधिक किस्म के लोगों से नाता है। पत्रावली के अवलोकन से यह बात स्पस्ट है कि अपीलकर्ता एक दबंग किस्म का व्यक्ति है उसके विरुद्ध १३०/०७ अन्तर्गत धरा २३२/ २९४/ ५०४/ ५०६/ ४२७ भा.द.वि. दर्ज हुआ, जिसमे सक्षम न्यायालय के आदेश दिनांक २७.०६.२०१३ द्वारा उसे दोषमुक्त कर दिया गया है। आपराधिक प्रवृति के व्यक्ति के पास शास्त्र लाइसेंस बने रहने से शास्त्र के दुरूपयोग की सम्भावना बनी रहती है, जिसके दृष्टिगत लोक शांति एवं लोक सुरक्षा के खतरा उत्पन्न होने के इंकार नहीं किया जा सकता। उपरोक्त के दृष्टिगत अपीलकर्ता का आचरण जनहित में लोक सुरक्षा एवं लोक व्यवस्था के दृष्टिगत शास्त्र रखने योग्य न पाए जाने के कारण अवर न्यायलय द्वारा प्रश्नगत आदेश पारित किया गया है, जिसमे किसी भी प्रकार से हस्तक्षेप की आवश्यकता प्रतीत नहीं होती है।

अतः अवर न्यायालय द्वारा पारित उपरोक्त आदेश यथावत कायम रखा जाता है। अपीलकर्ता द्वारा प्रस्तुत अपील आधारहीन, तथ्यहीन होने के कारण निरस्त की जाती है। अवर न्यायालय की पत्रावली इस न्यायालय द्वारा पारित आदेश की प्रमाणित प्रति के साथ वापस की जाय एवं अपील पत्रावली राजस्व अभिलेखालय में संचित की जाय।"

Hence this writ petition.

5. Sri Vishesh Kumar, learned counsel for the petitioner, has submitted that the petitioner was implicated in a false criminal case in which he was ultimately acquitted. The counsel submits that mere involvement in a criminal case cannot in any way affect the public security or public safety and as such the firearm licence of the petitioner could not be cancelled. Consequently, the counsel submits, the impugned orders cancelling the firearm licence of the petitioner cannot be sustained and are liable to be set aside.

6. Per contra, learned Standing Counsel has supported the impugned order and has submitted that the writ petition is devoid of merit and deserves to be dismissed.

7. Heard learned counsel for the parties and perused the record.

8. Section 17 of the Act empowers the licensing authority to vary, suspend or revoke any firearm licence. Sub section (3) of section 17 of the Act being relevant is reproduced below:-

17. Variation, suspension and revocation of licenses.-

(1) & (2) (omitted as unnecessary)

(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 subsection (1) requiring him to deliver-up the licence.

(4) to (10) (omitted as unnecessary)

9. A perusal of sub section (3) of section 17 of the Act would show that the firearm licence could be suspended or revoked by the licensing authority inter alia on the following grounds:-

(i) if the licensing authority is satisfied that it was necessary for the security of the public peace or for the public safety to suspend or revoke the licence.

(ii) if any of the conditions of the licence has been contravened.

10. Before dealing with the rival contentions advanced by the counsel for the parties, it will be appropriate to refer to the law bearing on the matter.

11. The distinction between the concept of public order and that of law and order has been adverted to by the Apex Court in a catena of decisions. The question whether a man has only committed a breach of law and order or acted in a manner leading to disturbance of public order is a question of degree of the reach of the act upon society is no more res integra. In the case reported in AIR 1966 SC 740, Dr Ram Manohar Lohia v. State of Bihar it was observed that the contravention 'of law' always affects 'order' but before it could be said to affect 'public order', it must affect the community or the public at large. One has to imagine three concentric circles, the largest representing "law and order", the next representing "public order" and the smallest representing "security of State". An act may affect "law and order" but not "public order", just as an act may affect "public order" but not "security of the State".

12. The principles settled way back in the year 1966 in the case of Dr. Ram Manohar Lohia (Supra) has been repeatedly quoted with respect and approval.

13. In 1998 (16) LCD 905, Ram Murti Madhukar Vs. District Magistrate, Sitapur, in paragrah 8 & 9 of the said report this Court has held as follows:-

"8. It is also well settled in law that mere pendency of criminal case or apprehension of abuse of Arms Act, are not sufficient ground for passing of the order of suspension or revocation of licence under Section 17 of the Act. A reference in this regard may be made to the decisions of this Court in Ganesh Chandra Bhatt v. D.M. Almora (AIR 1993 Allahabad-291).

9. It is also well settled in law that before passing of the order of suspension or revocation, under clause (b) of sub section (3) of Section 13 of the Act, the licensing authority must apply its mind to the question as to whether there was eminent danger to public peace and safety involved in the case. Licence cannot be suspended or revoked on the ground of 'Jan Hit'."

14. In 2002 (44) ACC 783, Habib Vs. State of U.P. & Ors. in paragraph 3 & 4 of the said report it has been held as follows:-

"3. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of the licence under Arms Act, has been dealt with by a Division Bench of this Court reported in Sheo Prasad Misra v. The District Magistrate, Basti and others, wherein the Division Bench relying upon the earlier decision reported in Masi Uddin v. Commissioner, Allahabad, found that mere involvement in criminal case cannot in any way affect the public security or public interest and the order cancelling or revoking the licence of firearm has been set aside. The present impugned orders also suffer from the same infirmity as was pointed out by the Division Bench in abovementioned cases. I am in full agreement with the view taken by the Division Bench that these orders cannot be sustained and deserve to be quashed and are hereby quashed.

4. There is yet another reason that during the pendency of the present writ petition, the petitioner has been acquitted from the aforesaid criminal cases and at present there is neither any case pending, nor any conviction has been attributed to the petitioner, as is evident from Annexure SA-1 and II to the supplementary affidavit filed by the petitioner. In this view of the matter, the petitioner is entitled to have the fire-arm licence. It is submitted by petitioner's counsel that the petitioner has been acquitted of the charges."

15. In 2009 (10) ADJ 635, Ashiq Hussain Vs. Commissioner, Moradabad & Ors., in paragraph 6 of the report it has been held as under: -

"6. The mere involvement in a solitary criminal case cannot be a ground for cancellation of a firearm license as held by this Court in case of Mohd. Haroon Vs. The District Magistrate, Siddharth Nagar reported in 2003 (1) ACJ 124, unless and until it is shown on the basis of material on record that there was grave danger to public law and order. In the instant case it is only a solitary incident, which was not arising out of any disturbance of public law and order, that has been made the basis for ordering cancellation."

16. In 2011 (29) LCD 1045, Rama Kushwaha Vs. State of U.P. & Ors., a Single Judge of this Court in paragraph 10 & 11 of the said report has held as follows:-

"10. In Ram Murli Madhukar Vs. District Magistrate, Sitapur [1998(16) LCD 905], this Court has held that licence can not be suspended or revoked on the ground of public interest (Janhit).

11. It is well settled in law that mere pendency of criminal case or apprehension of abuse of arms act are not sufficient grounds for passing the order of suspension or revocation of licence under Section 17 (3) of the Act. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of licence under Arms Act, has been dealt with by a Division Bench of this Court Sheo Prasad Misra Vs. The District Magistrate, Basti & others, wherein the Division Bench relying upon the earlier decision of Masiuddin Vs. Commissioner, Allahabad, found that mere involvement in criminal case cannot in any way affect the public security or public interest. The law propounded in the said decisions has been subsequently followed in Habib Vs. State of U.P. Reported in 2002 ACC 783, Ram Sanehi Vs. Commissioner, Devi Patan Division, Gonda & another."

17. In 2011 (29) LCD 829, Hiramani Singh Vs. State of U.P. & Ors. it was held as under:-

"8. This Court in the case of Ashok Rao v. State of U.P. and others, reported in 2010 (68) ACC 441 while considering the authority to be exercised under Section 17 of the Indian Arms Act has taken the view that mere pendency of criminal case cannot be ground for cancellation of firearm license unless and until finding is returned by the authority concerned that possession of firearm has the tendency of threatening public peace and public safety."

18. In 1994 (12) LCD 1109, Anil Kumar Singh Vs. Distt. Magistrate, Pratapgarh, in paragraph no. 6 of the said report it has been held as follows:-

"6. ...Therefore, it is clear that at the time of passing the order order dated 6-2-79 by the Commissioner, there was no ground on which the gun licence of the petitioner could have been cancelled. Both the grounds were wiped off before passing of the order of the learned Commissioner and the learned Commissioner could not have passed this order unless there was some fresh material against the petitioner be that date. In this connection it will by useful to refer to the case of Ram Bodh Singh v. State of U.P. & others, 1985 (11) Allahabad Law Reports, 114, in which it has been held that once petitioner was acquitted those cases could not furnish material for cancellation of his licence. Therefore, on the date on which the Commissioner passed his licence. Therefore, on the date on which the Commissioner passed his order, it cannot be said that the cancellation of licence was in the public interest and this fact could not be substantiated by the State."

19. The contentions raised by the petitioner are to be now dealt with bearing in mind the above principles of law.

20. A perusal of the impugned order dated 4.2.2009 would show that the licence of the petitioner has been cancelled only on the ground of pendency of a solitary criminal case mentioned in the said order. It is no more res integra that mere pendency of a criminal case or apprehension of abuse of arms is not a sufficient ground for passing of an order of suspension or revocation of licence under section 17 of the Act.

21. The firearm licence of the petitioner could not have been cancelled in "public interest" as has been done in the present case. In view of the settled legal position, a finding on the question of disturbance of law and order has to proceed before the firearm licence is cancelled under section 17(3)(b) of the Act.

22. No incident of breach of security of the public peace or public safety at the behest of the petitioner has been pointed out. The petitioner has no criminal history. The police report on the basis of which the proceedings were initiated against the petitioner does not indicate that the petitioner had utilized the firearm during the said occurrence. There is no averment in the FIR or in the counter affidavit that the gun possessed by the petitioner was used by the petitioner. There must be some positive incident in which the petitioner participated and used his gun which led to the breach of public peace and public safety. There is nothing on record to establish that the petitioner was involved in any act resulting in disturbance to public peace or public safety.

23. Moreover, in the case in hand, the petitioner, after the passing of the impugned order dated 04.02.2009, was acquitted in the criminal case lodged against him and, therefore, there was nothing adverse against the petitioner at the time the appeal preferred by the petitioner was decided by the respondent no. 3. The reason for cancelling the firearm licence mentioned in the impugned order dated 04.02.2009 had been wiped out and, as such, the Commissioner could not have upheld the order dated 04.02.2009 unless there was some fresh material against the petitioner on the said date. The respondent no. 3 has committed a grave error in not considering the facts in correct perspective and has failed to appreciate the grounds mentioned in sub section (3) of Section 17 of the Act regarding revocation or suspension of the licence. The order passed by respondent no. 3 cannot be sustained.

24. In view of the settled legal position mentioned above, the writ petition is allowed. The order dated 04.02.2009 passed by the District Magistrate, Kaushambi and the order dated 30.11.2013 passed by the Commissioner, Allahabad Mandal, Allahabad are hereby set aside.

25. The matter is remitted back to the respondent no. 2 for fresh consideration. Since the matter is pending since 2009, the respondent no. 2 is directed to decide the matter afresh within a period of three months from the date of production of a certified copy of this order before him.

Order Date :- 25.10.2016

Anupam-Pradeep/-