Allahabad High Court
Brijendra Pratap Singh vs State Of U.P. And 3 Others on 13 September, 2018
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reportable
Court No. - 36
Case :- WRIT - C No. - 27629 of 2018
Petitioner :- Brijendra Pratap Singh
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Amit Singh
Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sunita Agarwal,J.
The written instructions supplied by the learned Standing Counsel are taken on record.
Heard Sri Amit Singh, learned counsel for the petitioner and learned Standing Counsel.
The present petition is directed against the order dated 21.6.2018 passed by the District Magistrate, Fatehpur whereby he has refused to grant licence for firearm to the petitioner of the DBBL Gun belonging to his father on the ground of family heirloom policy (being legal heir of the licensee).
The ground for refusal of the licence is the decision taken by the Regional Level Committee in its meeting held on 27.4.2018 which had opined that since the applicant already possessed a firearm licence, which is sufficient for his need, he does not seem to have necessity for the second licence.
This order is being challenged in the present petition with the assertion that the application to grant firearm licence to a legal heir is required to be dealt with in accordance with the Rule 25 of the Arms Rules, 2016 (In short as "the Rules") and the requirement of necessity as contemplated under Rule 12 of the Rules would not be attracted. With reference to Section 3 of the Arms Act, 1959 (In short as "the Act"), it is contended that there is no prohibition under the statute to keep more than one firearm. Rather sub-section (2) of Section 3 of the Act permits a person to possess three firearms, after getting a licence for the same.
It is, thus, submitted that the order of rejection of application of the petitioner passed by the licensing authority is a result of complete non-application of mind.
As the decision has been taken by the Regional Committee chaired by the Commissioner, the remedy of filing appeal under Section 18 cannot be availed by the petitioner.
Further submission is that the decision taken by the Regional Level Committee is wholly uncalled for, inasmuch as, the licensing authority under the Arms Act, 1959 is the District Magistrate in relation to the area concerned. The scrutiny of the application by a Regional Level Committee is not contemplated under the Act. The procedure as provided under the Act has not been followed and as such the order impugned cannot be sustained.
Reliance is placed upon the judgments of this Court in Sardar Ahamad Khan vs. District Magistrate Kanpur Nagar, Kanpur reported in Laws (All) 1999 (9) 94; Sunil Shukla vs. State of U.P. reported in Laws (All) 2009 (10) 209 and Chandra Pratap Singh vs. State of U.P. and another reported in 2002 (5) AWC 3476 to submit that there is no prohibition under the Act to obtain second licence.
To appreciate the arguments of the learned counsel for the petitioner, it would be appropriate firstly to go through the relevant provisions of the Arms Act, 1959 and the Arms Rules, 2016 framed under the Act.
Relevant provisions of the Act and the Rules are quoted as under:-
"Section 3. License for acquisition and possession of firearms and ammunition-- (2) Notwithstanding anything contained in sub-section (1), no person, other than a person referred to in sub-section (3), shall acquire, have in his possession to carry, at any time, more than three firearms:
Section 13. Grant of licenses- (1) An application for the grant of a license under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed.
(2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time.
(2A) The licensing authority, after such inquiry, if any, as it may, consider necessary, and after considering the report received under sub-section(2), shall, subject to the other provisions of this Chapter, by order in writing either grant the license or refuse to grant the same.
(3) The licensing authority shall grant- (a) a license under section 3 where the license is required-
(i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of muzzle loading gun to be used for bona fide crop protection:
(ii) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of rifle club or rifle association licensed or recognized by the Central Government;
(b) a license under section 3 in any other case or license under section 4, section 5, section 6, section 10 or section 12, if the licensing authority is satisfied that the person by whom the license is required has a good reason for obtaining the same.
Section 14. Refusal of licenses- 1. Notwithstanding anything in section 13, licensing authority shall refuse to grant-
(a) a license under section 3, section 4, or section 5 where such license is required in respect of any prohibited arms or prohibited ammunition;
(b) a license in any other case under Chapter II,-
(i) where such license is required by a person whom then licensing authority has reason to believe-
(1) to be 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
(2) to be of unsound mind, or
(3) to be for any reason unfit for a license under this Act, or
(ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such license.
2. The licensing authority shall not refuse to grant any license to any person merely on the ground that such person does not own or possess sufficient property.
3. Where the licensing authority refuses to grant a license to any person it shall record in writing the reasons for such refusal and furnish to that person 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.
Rule 12 of the Rules. Obligations of licensing authority in certain cases.─ (1) Save as otherwise provided in the Act, every licensing authority granting a licence in Form III to an individual for the restricted or permissible arms or ammunition as specified in category I(b) and I(c) or category III respectively in Schedule I, shall have due regard to the application of norms specified in sub-rules (2) and (3).
(2) For grant of a licence for the restricted arms or ammunition specified in category I(b) and I(c) in Schedule I, the licensing authority, may consider the application of─
(a) any person who faces grave and anticipated threat to his life by reason of -
(i) being resident of a geographical area or areas where militants, terrorists or extremists are most active; or
(ii) being the prime target in the eyes of militants, terrorists or extremists; or
(iii) facing danger to his life for being inimical to the aims and objectives of the militants, terrorists or extremists; or
(b) any Government official who by virtue of the office occupied by him or by the nature of duty performed by him and/or in due discharge of his official duty is exposed to anticipated risk to his life; or
(c) any Member of Parliament or Member of Legislative Assembly, who by virtue of having close or active association with anti-militant, anti-terrorist or anti-extremist programmes and policies of the Government or by mere reason of holding views, political or otherwise, exposed himself to anticipated risk to his life; or
(d) any family member or kith and kin of a person who by the very nature of his duty or performance (past or present) or position occupied in the Government (past or present) or even otherwise for known or unknown reasons exposed himself to anticipated risk to his life; or
(e) any other person, for any legitimate and genuine reason, to the satisfaction of the licensing authority, by passing of a speaking order in this regard:
(3) For grant of a licence for the permissible arms or ammunition specified in category III in Schedule I, and without prejudice to the provisions contained in clause (a) of sub-section (3) of section 13, the licensing authority, based on the police report and on his own assessment, may consider the applications of ─
(a) any person who by the very nature of his business, profession, job or otherwise has genuine requirement to protect his life and/or property; or
(b) any dedicated sports person being active member for the last two years, of a shooting club or a rifle association, licensed under these rules and who wants to pursue sport shooting for target practice in a structured learning process; or
(c) any person in service or having served in the Defence Forces, Central Armed Police Forces or the State Police Force and has genuine requirement to protect his life and/or property.
Rule 25. Grant of licences to legal heirs.─ (1) The licensing authority may grant a licence ─
(a) after the death of the licensee, to his legal heir; or
(b) in any other case, on the licensee attaining the age of seventy years or on holding the firearm for twenty-five years, whichever is earlier, to any legal heir nominated by him:
(2) Where a licensee leaves behind more than one legal heir and the legal heirs decide amongst themselves to retain the arm or arms of the deceased, one of the legal heirs nominated by all other legal heirs may apply for a licence under sub-rule (1) along with the following documents, namely:-
(i) a declaration of no-objection from the remaining legal heirs;
(ii) an indemnity bond executed by the applicant giving full details of the licence and the arm or arms endorsed thereupon; and
(iii) a copy of the death certificate of the deceased licensee.
(3) Where the legal heirs decide to dispose of the arm or arms endorsed on the licence of the deceased licensee, they may apply to the licensing authority for grant of a limited period permission to sell the arm or arms, within the time allowed by such authority, to any licensed dealer or to any other person entitled to possess an arm under these rules.
A perusal of the aforesaid provisions of the Act and the procedure provided under the Rules framed thereunder, makes it apparent that though there is a prohibition under the rules to acquire, possess or carry any firearm or ammunition by a person without holding a licence issued in accordance with the Act and the Rules made thereunder, but there is no prohibition to carry more than one firearm though the ceiling is upto three firearms.
Section 13 contemplates that any application made for grant of firearm licence under Chapter II shall be placed before the licensing authority in such form and particulars and shall be accompanied by the fee as prescribed.
Rule 11 provides for the manner in which the application is moved by a person seeking grant of licence.
Section 13 is an enabling provision which confers discretion upon the licensing authority to deal with an application for grant of licence.
Section 13(2) and (3) states that on receipt of the application, the licensing authority shall call for the police report of the concerned police station and may grant or refuse to grant the licence after considering the report so received.
Section 13(3)(b) provides that if the licensing authority is satisfied that a person who has applied for the licence, has a good reason to obtain the same, he may grant licence.
Thus, the satisfaction of the licensing authority to grant licence is based on the scrutiny of the application and the enquiry regarding the background and character of the person seeking licence. The subjective satisfaction of the District Magistrate in such cases cannot be put to any straight-jacket formula. There may be many circumstances which may weigh in the mind of the District Magistrate to record satisfaction that the applicant does not carry good reputation or background and character of the person is not such that the licence may be granted to him.
Section 14 contemplates those conditions, in existence of which, the licence cannot be granted.
Rule 12 further provides that every licensing authority in granting a licence shall have regard to the norms provided in sub-rules (2) and (3) of the said rule.
Rule 12(3)(a) of the Rules provides that for grant of a licence for the permissible arms and ammunition specified in category III in Schedule I, the licensing authority based on the police report and on his own assessment may decide to grant licence to a person who requires the same genuinely to protect his life and/or property, by the very nature of his business, profession, job or otherwise.
Rule 25, however, specifically deals with the procedure for disposal of the application for grant of firearm licence moved by the legal heir of the deceased licensee; or of the licensee having attained the age of seventy years or on holding the firearm for twenty-five years, whichever is earlier.
Proviso to sub-rule (1) of Rule 25 commences with the phrase "notwithstanding the provisions contained in rule 12 of the Rules", the licensing authority may grant licence to such a legal heir who fulfills eligibility conditions under the Act and the Rules and there is no adverse mark in the police report.
The proviso thus provides the manner in which the application of a legal heir of the licensee is to be dealt by the licensing authority. For the proviso beginning with the non obstante clause, it has an overriding effect to the general requirements of the Rule 12 of the Rules. Thus, the requirement of the person showing need for licence for his self-defence or for the defence of his property under rule 12 has been specifically done away by the legislature in a case of application of a legal heir.
To deal with the application moved by a legal heir of the deceased or aged licensee, the requirement is that the applicant legal heir shall be held to be eligible person under the Act to hold the licence and is a person of good character. The police report as required under Section 13(2) of the Act is necessarily needed and an enquiry is to be made by the licensing authority under sub-section 2A of Section 13, after receipt of the said report. The satisfaction of the licensing authority in examining the said application is confined to the requirements of the proviso to sub-rule (1) of Rule 25. The result is that the licensing authority cannot reject the application of a legal heir on the ground that he does not need the firearm to protect his life and/or property or that he has not made out any special/good reasons for obtaining the licence. The subjective satisfaction of the licensing authority in such cases has to be based on objective considerations as per the requirement of the rule 25 of the Arms Rules, 2016.
By saying so, this Court does not mean to infer that the conditions for refusal of licence provided under Section 14 of the Act would not be attracted. The combined reading of the Sections 13, 14 and Rule 25, thus, makes it evident that in case, a legal heir of the licensee is eligible and has been found to be a man of a good moral character and his antecedents are found not doubtful, after necessary enquiry made by the licensing authority, his application may not be rejected merely on the ground that he has failed to show his necessity or need to keep firearm or is not facing or anticipating threat to his life or property. The enquiry in such a case would necessarily be made regarding the conduct of the legal heir who applies for grant of a licence and he being found fit to hold the licence, application may be granted.
It may also be necessary to make it clear that the Court is conscious of the fact that no one has a right to carry firearm and it is only a privilege granted to a person. The security of public peace or public safety would always be of paramount importance and if, to protect and preserve the same, it is necessary, the licensing authority will always have a power to refuse to grant licence to an individual including the legal heir of a licensee. [See Balram Singh vs. State of U.P. & Ors reported in 1989 ALL.L.J. 23; Hari Shanker vs. State of U.P. and others reported in 2008 (4) ADJ 518; Kailash Nath & Ors., vs. State of U.P. & another reported in AIR 1985 Allahabad 291; Parvez Ahmad vs. State of U.P. & Ors. reported in 2006 (55) ACC 669; Rana Pratap Singh vs. State of Uttar Pradesh reported in 1996 Cri. L.J. 665 and State of U.P. and others vs. Mahipat Singh reported in 2014 (2) ACR 1605].
At the same time, wide discretion given to the licensing authority while deciding applications filed for grant of licence cannot be exercised arbitrarily or whimsically but for just and sound reasons. The grant of a licence for a firearm is governed by the licensing provisions which are contained in the Act and the Rules.
The discretion which is conferred upon the statutory authorities has to be exercised in a judicious manner so as to see that the requirements of the Rules are satisfied and the act done by such authority is done in the same manner as has been provided in the Rules. The settled law is that where a statute provides for an act to be done in a particular manner, the said act can be done only in that manner and not in any other manner.
For the said discussion, this Court reaches at an irresistible conclusion that the application moved by a legal heir of the licensee cannot be rejected for simple reason that since he possess one firearm for his personal security and as such he does not need second one.
Moreover, in the instant case, the decision on the application has not been taken by the licensing authority namely the District Magistrate rather he has only communicated the decision taken by the Regional Level Committee. There is no contemplation under the Act to examine such an application by the Regional Level Committee chaired by the Commissioner.
For the above reasons, the order dated 21.6.2018 passed by the District Magistrate, Fatehpur/licensing authority based on the resolution of the Regional Level Committee dated 27.4.2018, cannot be sustained.
The same is hereby quashed. The present petition is allowed.
The matter is relegated to the District Magistrate, Fatehpur for fresh consideration in the light of the above observations and the requirements of the Act and the Rules.
An expeditious decision, in accordance with law, shall be taken within a period of two months from the date of submission of certified copy of this order, after seeking requisite reports regarding credentials of the petitioner.
Order Date :- 13.9.2018
Brijesh (Sunita Agarwal, J.)
