Baboo Khan vs State Of U.P Thru Prin Secy Home Lko ...
2019 Latest Caselaw 4402 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 25
 

 
Case :- MISC. SINGLE No. - 757 of 2016
 

 
Petitioner :- Baboo Khan
 
Respondent :- State Of U.P Thru Prin Secy Home Lko & Ors
 
Counsel for Petitioner :- Dheeraj Srivastava
 
Counsel for Respondent :- C.S.C
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Oral

Heard learned counsel for the parties and perused the record.

The petitioner challenges the order dated 18.07.2013 passed by the Licensing Authority, District Magistrate, Lakhimpur Kheri, cancelling the fire arm License no.2972 and the order passed in Appeal no.361 of 2012-13 on 11.03.2015 by the Appellate Authority.

Learned counsel for the petitioner submits that the order passed by the Licensing Authority, District Magistrate, Lakhimpur Kheri, was ex-parte and the Appellate Authority also rejected the case summarily. This Court has perused the order passed by the Licensing Authority, Lakhimpur Kheri, on 18.07.2018. In the said order it has been mentioned that initially the license was cancelled by the Licensing Authority, and in the appeal the matter was remanded on 11.02.2011 on the ground that the petitioner had been acquitted in the criminal cases said to have been pending against him on the basis of which his License no.2972 had been cancelled. On merits, when the case was argued a fresh, a report was called for from the local police and in the report it has come out that the petitioner had shown a wrong residential address for obtaining fire arm license. The licensee was permanent resident of village Baraichee, Police Station Pasgawan but he had, because of pendency of two criminal cases against him, not disclosed his original place of residence but had shown himself to be the original resident of Gram Baraicha. The Licensing Authority considered the arguments that gram Baraichee and Baraicha are on the border of Police Station Mohammadi and Police Station Pasgawan. The ration card of the petitioner had been issued for Gram Baraicha, Police Station Mohammadi, the driving license as well as license issued for trade in fertilizers was also issued from Gram Baraicha and Domicile Certificate was also issued from the same village falling under PS Mohammadi. The Licensing Authority, has thereafter considered the original order cancelling the fire arm license of the petitioner on 05.08.2010 where it was mentioned that the licensee had been issued the fire arm license on 17.06.2004. The petitioner while applying for the fire arm license had filed an affidavit on 23.10.2003 in which in paragraph no.3 he had mentioned that not even a single case has either been instituted or is pending against him in the entire country.

After the license was issued, the petitioner had filed a fresh affidavit in which in paragraph no.6 he had mentioned that in the State of U.P. in no police station any F.I.R. has been filed and in no criminal court any proceedings were pending.

The police had however, reported that even before the license was applied for, the petitioner was an accused in a Criminal Case no.14 of 1990 under Sections 452, 323 IPC and a Criminal Case No.258 of 1996, under Sections 323, 504, 506 IPC read with Section 3 (1) & 10 of the SC/ST Act had already been registered and he was undergoing trial.

The Licensing Authority has also recorded that an affidavit was filed by the petitioner before the Appellate Authority that he had been acquitted in Criminal Case No.14 of 1990, under Sections 452, 323 IPC but it could not be substantiated by him by filing a copy of the acquittal order.

The Licensing Authority has cancelled his license on two grounds; firstly due to filing of affidavits concealing material facts from the licensing authority regarding pendency of the criminal cases and secondly that the petitioner had not been able to substantiate his claim of his having been acquitted in Criminal Case No.14 of 1990.

Learned counsel for the petitioner has placed reliance upon a co-ordinate Bench decision of this Court in the case of Arun Kumar Singh V. State of U.P. & Others reported in [2006 (1) JIC 63]. In the said case two grounds had been taken for cancellation of fire arm license; firstly the pendency of criminal case had not been disclosed and secondly the address of the applicant had been wrongly disclosed. This Court had held that the applicant was acquitted in the criminal case and the address on which the applicant was residing at the time of giving his application was mentioned and he cannot be held guilty of mis-representation. The judgment is inapplicable in the facts of this petition.

It is apparent from the perusal of the Licensing Authority's order impugned in this petition that on two occasions the petitioner had filed specific affidavits, in which he had stated that no criminal case was registered against him in any police station and no criminal case was pending against him in any court of law throughout the country nor had he been convicted earlier. Even after the license was approved the petitioner has given second affidavit in which in paragraph no.6 he had stated that neither against the petitioner nor against his family, any criminal case had been registered in any police station, was pending in any competent court of law throughout the country, and they had also not been convicted.

Learned counsel for the petitioner has further placed reliance upon another co-ordinate Bench decision in the case of Pratap Narayan @ Hemraj v. State of U.P. & Others reported in [2006 (2) JIC 405] wherein the petitioner's license was cancelled on the ground of non-disclosure of pendency of criminal case in the application for grant of license. This Court had observed that there is no clause under Form 'A' to furnish the particulars of criminal case pending against the applicant, hence, there cannot be any suppression of factual information given by the licensee.

This Court has carefully perused the judgment rendered by a co-ordinate Bench. The facts of the case were that the father of the petitioner Pratap Narayan @ Hemraj was the licensee of Double Barrel Breech Loading Gun (DBBL gun). After his death the petitioner filed an application for grant of an arm license and on completing all formalities the license was issued in the name of the petitioner and the gun of his father was transferred in his favour on such license. The license was later on, cancelled and the appeal was dismissed also. This Court considered Section 13 of the Arms Act, 1959, dealing with the application for arms license and observed that under Sub Section (1) it was provided that an application for the grant of a license under Chapter II was to be made to the Licensing Authority in such form and containing such particulars alongwith fee, if any, as may be prescribed. Rule 51 of the Arms Rules, 1962, provided that an application for grant of an arms license would be on prescribed Form 'A'. In Form 'A' column 9 put a query to the applicant whether the applicant has been convicted, if so the details of the offences, the sentence and the date of sentence. In case of the writ petitioner Pratap Narayan @ Hemraj at the time of application being made the criminal case was only pending and there was no conviction, therefore, it could not be said that there was any suppression of any factual information or any wrong information had been given in the application form.

This Court finds that the affidavits filed by the petitioner twice before the Licensing Authority clearly stated about the non-registration and non-pendency of criminal cases in any court of law. The petitioner cannot wriggle out of affidavits sworn by him which have been referred to by the Licensing Authority.

Learned counsel for the petitioner has also placed reliance upon the judgment dated 30.01.2013 passed in Writ Petition No.1901 (M/S) of 2010 Sarwar Khan V. State of U.P. through the Principal Secretary Home, Lko and Others. It is a short order which is being quoted hereinbelow:-

"Heard Mr. M.R. Satyarthi, learned counsel for the petitioner as well as learned Standing Counsel.

The petitioner has challenged the order dated 06.11.2008 passed by the District Magistrate, Kheri as also the order dated 12.03.2010 passed by Additional Commissioner, Lucknow Division, Lucknow. By means of order dated 06.11.2008 the District Magistrate has cancelled the petitioner's arms licence which has been upheld by the order dated 12.03.2010 passed by the Additional Commissioner, Lucknow Division, Lucknow. The ground for cancellation of petitioner's arm licence is his involvement in Case Crime No. 258/96 under Sections-323, 504, 506 IPC and 3(1) X of S.C. S.T. Act, Police Station-Pasgawan, District-Kheri.

The learned counsel for the petitioner submits that in the said case the petitioner has been discharged by means of order dated 06.08.2010 passed by Additional Sessions Judge, F.T.C.-4, Kheri in Session Trial No. 920/2004, therefore he is entitled to get restore his arm licence.

Through the supplementary affidavit he has brought on record the order passed by the Sessions Judge, upon perusal of which I find the submission of learned counsel for the petitioner is correct, therefore, I hereby quash the orders impugned and issue direction to the District Magistrate to reconsider the petitioner's case for grant of licence after calling report of subordinate officers for the antecedent of the petitioner for which the petitioner shall move a fresh application before the licensing authority alongwith certified copy of this order.

With the aforesaid observations, the writ petition stands disposed of finally."

It is apparent that in the aforesaid case neither any argument were raised by the counsel for the petitioner which related to suppression of material facts from the Licensing Authority, nor the same was considered. Therefore, the judgment as relied upon by the learned counsel for the petitioner is not applicable in his case.

Learned counsel for the petitioner has produced a copy of acquittal order of Criminal Case No.14 of 1990.

This Court still finds that when the petitioner had applied for the fire arm license a criminal case was pending against him which he had not disclosed to the Licensing Authority. Hiding of material facts from the Licensing Authority is a ground enough for cancellation of the fire arm license.

This writ petition is, therefore, dismissed.

Order Date :- 13.5.2019

PAL