Ramesh Chandra Yadav vs State Of U.P. Thru Special Secy. ...
2022 Latest Caselaw 21345 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
A.F.R.
 
Reserved On: 30.11.2022
 
Delivered On: 16.12.2022
 

 
Court No. - 30
 

 
Case :- WRIT - C No. - 49973 of 2005
 

 
Petitioner :- Ramesh Chandra Yadav
 
Respondent :- State Of U.P. Thru Special Secy. And Others
 
Counsel for Petitioner :- Devendra Kumar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Umesh Chandra Sharma,J.

Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State-respondents. Perused the record.

The present petition has been filed with the following prayer:

"(a) issue a writ, order or direction in the nature of certiorary to quash the orders dated 17.2.2004 (Annexure No.1) passed by respondent no.2 and order dated 26.4.2005 (Annexure No.3) passed by respondent no.3.

(b) issue a writ, order or direction in the nature of of Mandamus directing the respondents not to compel the petitioner for depositing of Arms Licence No. 1316 and Revolver before anyone."

As per the petition and the documents annexed with the petition, following cases were pending against the petitioner:

(a) Case Crime No. 16 of 2000, under Section 323, 307 IPC, Police Station Civil Lines Etawah, in which I.O. has submitted final report no 265 of 2001 on 14.3.2000 which was accepted by the trial Court on 2.6.2005.

(b) Case Crime No. 442 of 1999, under Section ¾ of Goondas Act, Police Station- Civil Lines, Etawah in which a report was sent by the police to the respondent no.2, but he had returned all the papers on 8.9.1999 to the concerning Station House Officer and in this regard question-answer dated 27.5.2005 (annexed as No. 4) wherein it is stated that neither the case is pending nor the challani report has been received.

(c) Case Crime No. 167 of 1999 under Section 323, 504 and 506 IPC, Police Station Ushrahar, District- Etawah.- In this case police has submitted charge-sheet only for the Section 504 I.P.C. and final order was passed by the Trial Court on 27.4.2005 discharging the petitioner. (Annexure No. 6 to the writ petition).

According to the petitioner the arms license and revolver has not been surrendered before the competent Court and both the properties are still in possession of the petitioner. The license was valid upto 31.12.2006. The respondents were bound to afford opportunity of personal hearing and if they would have provided the opportunity of hearing, they would have not passed such order. The orders have been passed on the basis of false and fabricated report sent by the police with the collusion of inimical persons to the petitioner. Hence the impugned orders are liable to be quashed with cost.

On the aforesaid grounds the petitioner has prayed to issue a writ, order or direction in the nature of mandamus directing the respondents not to compel the petitioner for depositing of Arms License No. 1316 and revolver before anyone.

Against the petition no counter affidavit has been filed by the respondents nor instructions have been sent by the respondents to the learned Standing Counsel to enable him to argue the case. Hence this order is being passed after considering the material available on record.

From the perusal of records it transpires that Case Crime No. 16 of 2000, under Section 323, 307 IPC, Police Station Civil Lines, Etawah, final report number 265 of 2001 has been accepted by the trial court on 2.6.2005.

Case Crime No. 442 of 1999, under Section ¾ of Goondas Act, Police Station- Civil Lines, Etawah, question-answer dated 27.5.2005 shows that no challani report regarding the Goondas Act has been sent to the District Magistrate, Etawah.

So far as Case Crime No. 167 of 1999 under Section 323, 504 and 506 I.P.C. is concerned, only charge-sheet under Section 504 I.P.C. was produced from which petitioner has been discharged as evident from the perusal of annexure no. 6.

It would be proper to see the case in view of the cases decided by the Courts of Records on the point. Hence some relevant cases are referred and discussed to reach at the correct conclusion.

In Ram Prasad Vs. Commissioner And Others 2020 0 Supreme (All) 104, District Magistrate cancelled the arms license on the basis of pendency of criminal cases against the petitioner. Petitioner was later on acquitted from the criminal cases. Order of Acquittal was not showing use of fire arm of the petitioner. It was held that after acquittal the very basis of the order of cancellation vanished and mere apprehension expressed in the impugned orders that the petitioner would misuse the fire arm and would extend threat to the persons of the weaker section of the society, the arm licence could not be cancelled.

Section 17 of the Arms Act is 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 be 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.

In Masiuddin Vs. Commissioner, Allahabad Division, Allahabad and Another, 1972, A.L.J. 573, it is held that ' After a license is granted, the right to hold the license and possess a gun is a valuable individual right in a free country."

Further it is held that " a license may be cancelled, inter alia on the ground that it is necessary for the security of the public peace or for public safety, to do so. Mere existence of enmity between the licensee and another person would not establish the necessary connection with the security of public peace or public safety.

In this case, the Magistrate has based his order on three criminal cases which have been decided in favour of the petitioner. Nature of all the cases was not heinous. There is no proof that the fire arm was used in commission of any of the crimes. The District Magistrate and Commissioner have merely expressed the apprehension that the petitioner may breach the public peace and tranquility by misusing the fire arm. Grounds of Section 17 of Arms Act 1961, do not exist. Since the year 2005, no material has been placed to establish that the petitioner has been involved in any criminal activity.

In Habib Vs. State of U.P. And Others, 2002 (44) ACC 783, it has been held that "mere involvement in a criminal case cannot in any way affect the public security or public interest and the order cancelling or revoking licence of fire arm was not justified.

In Satish Singh Vs. District Magistrate, Sultanpur 2009 (4) ADJ (LB), it has been held that, "Right to possess arms is statutory right but right to live and liberty is fundamental right guaranteed by Article 21 of the Constitution of India. Corollary to it, it is citizen's right to possess firearms for their personal safety to save their family from miscreants. It is often said that ordinarily in a civilised society, only civilised persons require arms licence for their safety and security and not the criminals. Of course, in case the government feels that the arms licence are abused for oblique motive or criminal activities, then appropriate measure may be adopted to check such mal-practice. But arms licence should not be suspended in a routine manner mechanically, without application of mind and keeping in view the letter and spirit of Section 17 of the Arms Act."

In Chandrabali Tewari Vs. The Commissioner, Faizabad, 2014 (32) LCD 1696, it has been held that "mere pendency of criminal case is no ground to cancel fire arm licence. It has also been held that as in that case there were no allegations that the licenced gun was ever taken out by the licensee and was used in the act, the order canceling petitioner's fire arm licence was quashed."

In Ram Prasad (Supra), following principles have been laid down regarding licence possession of firearms and its suspension and revocation;

(i) Right to hold fire arm licence granted by the authorities in accordance with the provisions contained in the Arms Act, 1959 is a valuable right of an individual.

(ii) Licencing authority has the power to suspend or revoke an arm's licence only if any of the conditions mentioned in Sub-Clauses (a) to (e) of Sub Section (3) of Section 17 of the Arms Act exists.

(iii) The provisions of Section 17 of the Act cannot be invoked lightly in an arbitrary manner.

(iv) The licencing authority has to satisfy itself if it is necessary for the security of public peace or for public safety to suspend or revoke the licence.

(v) Such satisfaction of the licencing authority must be expressed in the order and must be based on relevant material.

(vi) Public peace or public safety do not mean ordinary disturbance of law and order. Public safety means safety of the public at large and not of few persons only.

(vii) Mere involvement or pendency of a criminal case does not, of its own, necessarily affect public peace or public safety. The licencing authority in each case has to record a finding as to how and under what circumstances the possession of the arm licence is detrimental to the public peace or public safety.

(viii) On mere apprehension of misuse of fire arm or that the licencee would extend threat to the persons of the weaker section, the arm licence cannot be cancelled. There must be some positive incident in which the licencee participated or used his arm, leading to breach of public peace or public security.

(ix) After acquittal of the licencee from the criminal case, the very basis of cancellation of arm licence is vanished.

In the light of the above principles, the impugned order does not satisfy the test.

However, learned Standing Counsel has tried to support the impugned orders and placed reliance on the judgment of this Court passed in Indrajeet Singh Vs. State of U.P. & Ors. (Writ C No. 4947 of 2019) decided on 22.10.2021, wherein relying upon the judgment given in the case of Deputy Inspector General of Police and Another Vs. S.Samuthiram, 2013(1) SCC 598, it has been held that- "The expressions 'honorable acquittal', 'acquitted of blame,' 'fully exonerated' are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression 'honorably acquitted'. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges leveled against the accused, it can possibly be said that the accused was honorably acquitted."

In this case, in all the three cases no case against the petitioner has been made out and in one case final report has been submitted, in another case, the petitioner was discharged and in the case of Goondas Act, the proceedings were dropped. Therefore, it can safely be said that even no trial started against the petitioner. Hence, both the judicial precedents cited above, do not apply against the petitioner.

Thus, on the basis of the papers annexed with the petition and discussions made hereinabove, it transpires that no criminal case is pending against the petitioner on which basis Arms License No. 1316 police station Civil Lines, could have been terminated, hence, the order dated 17.2.2004 passed by the District Magistrate, Etawah, and the order dated 26.4.2005 passed by the Commissioner, Kanpur Region, Kanpur, canceling the arms license of the petitioner Ramesh Chandra Yadav s/o of Shri Taleh Singh, r/o Ashok Nagar, Police Station Civil Lines, District- Etawah, are liable to be quashed.

Order

The writ petition is allowed and the impugned order dated 17.2.2004 passed by respondent no.2, District Magistrate/Licencing Authority, District Etawah and the order dated 26.4.2005 passed by respondent no.3, Commissioner, Kanpur Region, Kanpur are hereby quashed.

If no any other reason exists for cancellation of the arms license of the petitioner, the arms license, already granted to the petitioner, shall continue and if it is terminated or revoked, it shall be revived/reissued.

Order Date :- 16.12.2022

S.Verma

{Umesh Chandra Sharma,J.}