Umesh Chandra Gupta vs State Of U.P. Thru Secy. And 2 ...
2021 Latest Caselaw 11362 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 18
 

 
Case :- WRIT - C No. - 60228 of 2013
 

 
Petitioner :- Umesh Chandra Gupta
 
Respondent :- State Of U.P. Thru Secy. And 2 Others
 
Counsel for Petitioner :- Prabha Shankar Pandey,Santosh Kumar Pandey,Shobhit Pathak
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Santosh Kumar Pandey, learned counsel for the petitioner, learned Standing Counsel for the State and perused the record.

2. The present writ petition has been filed by petitioner under Article 226 of the Constitution of India with the following prayers:

"(i) issue a writ order or direction in the nature of certiorari quashing the impugned order dated 11.1.2013 passed by the respondent no.2 (Annexure no.1 to this writ petition) and order dated 5.9.2013 passed by the respondent no.3 (Annexure no.2 to this writ petition).

(ii) issue a writ order or direction in the nature of mandamus commanding the respondents to return / issue the arm licence no.A.B. 13832017 of the petitioner.

(iii) issue a writ order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case.

(iv) Award the cost to the petitioner."

3. Brief facts of the case as stated in the writ petition are that petitioner was granted an arms licence for rifle bearing no. A-B 13832017 after due enquiry. A criminal case bearing Case No.1189 of 2010, under Sections 452, 323 504, 506 and 427 I.P.C. was lodged against the petitioner by his brother which was pending at that time. The above mentioned rifle was robbed from the petitioner by the elder brother- Munish Chandra Gupta hence F.I.R. was also lodged by petitioner on 21.02.2012, under Section 395, 397 I.P.C. Petitioner was issued show cause notice as to why his licence be not cancelled under Section 17 (3) (b) of the Arms Act, petitioner replied the notice but respondent no.2- District Magistrate, Moradabad cancelled the petitioner's firearm licence by order dated 11.01.2013 in view of pendency of criminal case against the petitioner as well as on the ground that petitioner can misuse his firearm in future.

4. Aggrieved from the order dated 11.01.2013 petitioner filed an appeal under Section 18 of the Arms Act before respondent no.3- Commissioner Moradabad, District- Moradabad, which was registered as Appeal No. 25 of 2012-13 (Umesh Chandra Gupta Vs. State of U.P.), the appeal filed by petitioner was also dismissed by cryptic order dated 05.09.2013 hence this writ petition.

5. During pendency of the writ petition before this Hon'ble Court petitioner was acquitted by judgment dated 04.04.2015 passed by Chief Judicial Magistrate, Moradabad in Case Crime No. 1189 of 2010, under Sections 452, 323, 504, 506 & 427 I.P.C., P.S. Civil Lines, District- Moradabad. The copy of the judgment has been annexed as Annexure No. RA-1 to the rejoinder affidavit filed by petitioner on 01.05.2019.

6. Learned counsel for the petitioner has submitted that petitioner was implicated in a false criminal case in which he was acquitted by judgment dated 04.04.2015 and from the judgment, it reveals that firearm of the petitioner has not been used at all. He further submits that mere involvement in criminal case cannot in any way affect the public security or public safety, as such, firearm licence of the petitioner could not be cancelled. He further submits that at the time of cancellation of firearm licence of the petitioner i.e. 11.01.2013, criminal case was pending but during pendency of the writ petition before this Hon'ble Court, petitioner was acquitted in the criminal case. Learned counsel for the petitioner finally submits that ground for issue of show cause notice, suspension and ultimately cancellation of the petitioner's firearm licence is that one and precisely one criminal case which was registered against the petitioner and in view of the provisions contained under Section 17 of the Arms Act, petitioner's firearm licence cannot be cancelled. Learned counsel for the petitioner placed reliance upon the five judgments of this Hon'ble Court in which it has been held that firearm licence cannot be cancelled on the ground of mere involvement in criminal case, Honb'le Court has also noticed that the licensee have been subsequently acquitted in the criminal case lodged against him. The reference of above judgements are given hereunder:

(I) 2020 (113) ACC 1 (Suneel Vs. State of U.P. and Others).

(ii) 2020 (113) ACC 571 (Ram Prasad Vs. Commissioner & Others).

(iii) 1972 AIR (Allahabad) 510 (Masiuddin Naimuddin Vs. Commissioner, Allahabad and Others).

(iv) 2002 (44) ALL Cri Cases 783 (Habib Vs. State of Uttar Pradesh).

(v) 1978 AWC 122 (Sheo Prasad Misra Vs. District Magistrate, Basti and Others).

7. Per contra, learned Standing Counsel has supported the impugned orders and submitted that even after acquittal petitioner can misuse his firearm if the firearm licence of the petitioner is restored, so impugned orders deserve to be maintained.

8. I have considered the submissions made by the parties and perused the record.

9. Section 17 of the Act empowers the licensing Authority to vary, suspend or revoke any firearm licence. Section 17 is 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 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.

(6) The authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority.

(7) A court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence: Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void.

(8) An order of suspension or revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision.

(9) The Central Government may, by order in the Official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licences granted under this Act throughout India or any part thereof.

(10) On the suspension or revocation of a licence under this section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation."

10. A perusal of sub-section (3) of Section 17 of the Act would show that firearm could be suspended or revoked by the licencing authority on the ground that it was necessary for public peace or for the public safety and if any of the condition of the licence has been contravened.

11. Now it will be appropriate to refer to the law bearing on the matter.

12. In Dr. Ram Manohar Lohia Vs. State of Bihar AIR 1966 SC 740, 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 orders" 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 state".

13. In Sheo Prasad Mishra Vs. District Magistrate, Basti & Others reported in 1978 AWC 122, a Division Bench of this Hon'ble Court relaying upon the earlier decision in Masiuddin Vs. Commissioner Allahabad reported in 1972 AIR Allahabad 510 held that mere involvement in criminal case cannot in any way affect the public security or public interest and hence an order cancelling or revoking a firearm licence only on the ground of licensee's involvement in a criminal case cannot be sustained.

14. In the matter of Harprasad Vs. State of U.P. and Others reported in 2005 (52) ACC 226 (Alld) this Court after considering the law already pronounced on this point has finally allowed the petition and quashed the impugned order passed by the appellate Authority. Relevant paragraph of this judgment are being quoted here:-

"In full Bench decision of this Court rendered in Channga Prasad Sahu Vs. State of Uttar Pradesh 1984 (10) AIR 223 and Kailash Nath and Others Vs. Sate of U.P. and Others 1985 (22) ACC 353 and in the case of Rana Pratap Singh Vs. State of U.P. 1985 (Supp) ACC 235, it has been held that mere pendency of the Criminal case(s) is no ground for cancellation of arms licence. The full Bench decision of Channga Prasad Sahu was also considered in Sadri Ram Vs. District Magistrate Azamgarh and Others 1998 (37) ACC 830".

15. In Vishal Varshney Vs. State of U.P. and Others reported in 2009 (75) ALR 593, this Court held that cancellation of the firearm licence only on the ground of apprehension or likelihood of misuse of firearm by the licence is illegal.

16. In a recent decision which was cited by counsel for the petitioner in the case of Suneel Vs. State of U.P. and Others reported in 2020 (113) ACC 1 and Ram Prasad Vs. Commissioner and Others reported in 2020 (113) 571, this Court held that mere involvement in criminal case is no ground for cancellation of licensee's firearm as well as apprehension of abuse of arms is not a sufficient ground for passing of an order of cancellation of licence under Section 17 of the Act. It has also been held that in a pending criminal case against the licence if acquittal has been ordered by criminal Court then the very basis of the cancellation of arm licence will vanish.

17. In Ashiq Hussain Vs. Commissioner, Moradabad & Others reported in 2009 (10) ADJ 635, this Court has 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 law and order, that has been made the basis for ordering cancellation."

18. This Court after considering the contention raised by learned counsel for the parties, perusal of record and considering the case laws mentioned above observed here that in the present case, petitioner was involved in sole criminal case and has been acquitted also by criminal Court by judgment dated 04.04.2015, a perusal of acquittal order does not show the use of firearm. The reason for cancellation of the petitioner's firearm licence mentioned in the order dated 11.01.2013 has been wiped out. Respondent no.2 and 3 have failed to consider the provisions of Section 17 of the Act regarding revocation of the licence, accordingly, impugned orders passed by respondent nos.2 and 3 cannot be sustained.

19. In view of the settled legal position mentioned above, the writ petition is allowed. The order dated 11.01.2013 passed by respondent no. 2- District Magistrate- Moradabad and appellate order dated 05.09.2013 passed by respondent no.3- Commissioner Moradabad, District- Moradabad, are hereby set aside. The matter is remitted back before respondent no.2 to pass a reasoned and speaking order afresh for restoring the arms licence of the petitioner after calling a fresh report in accordance with law preferably within a period of two months from the date of production of certified copy of this order before him.

20. Writ petition is allowed. No orders as to costs.

Order Date :- 25.11.2021

Rameez