Ram Pratap Singh vs State Of U.P.And Others
2022 Latest Caselaw 21566 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR				 	   
 
Reserved on 08.12.2022 
 
Delivered on 19.12.2022
 
Court No. - 30
 

 
Case :- WRIT - C No. - 7078 of 2004
 
Petitioner :- Ram Pratap Singh
 
Respondent :- State of U.P. and others
 
Counsel for Petitioner :- C.H. Singh Gautam, C.S. Gautam
 
Counsel for Respondent :- C.S.C.,S.C.
 

 
Hon'ble Umesh Chandra Sharma,J.

1. This writ petition has been instituted by the petitioner-arm licence holder to quash the arm licence cancellation order dated 17.02.1999 passed by the District Magistrate, Ghazipur/Licencing Authority and order dated 06.01.2004 passed by the Appellate Authority/Commissioner, Varanasi Region, Varanasi confirming the cancellation order.

2. In brief, facts of the case are that the petitioner is the resident of Village Jamuaon, Post Office Barsara, Police Station Karanda, District Ghazipur. He is a reputed person of his locality and he also possesses an arm licence of SBBL as Licence No.303/P/11 (SBBL No.15868). One Mithai Lal, active member of the naxali organization namely Bhartiya Communist Party (Male), Block Prabhari of the said organization, on 24.02.1997 lodged an FIR against the petitioner including six other persons. He wanted to spread the effect and influence of his organization in the concerned area to grab some property of the State Government with the help of other active members of the said organization, as a result, the villagers of the petitioner's village made an application before the revenue authorities as well as police authorities also and when he did not succeed in his purpose, he lodged the alleged FIR on the vexatious ground, however, there was no any specific role of the petitioner as mentioned in the alleged FIR. The FIR was lodged in Case Crime No.26 of 1997, under Sections 147, 148, 149, 323, 342, 504, 506 IPC in which SHO, Karanda submitted report dated 28.10.1997 to respondent no.3 for cancellation of the licence of the petitioner. After receiving the report dated 28.10.1997, the respondent no.3 issued a show cause notice on 05.11.1997 (annexure no.2) to the petitioner directing him to appear before him on 02.12.1997 and explain as to why his licence may not be cancelled. The petitioner appeared before the respondent no.3 and submitted his reply on 20.04.1998 mentioning therein that he neither has criminal antecedent nor has committed any such offence as alleged and only on the political pressure, the FIR has been lodged on the false and vexatious grounds. It was also mentioned in the reply that no person of his village has lodged any FIR regarding the alleged incident and no such offence took place in the village but afterthought for mounting pressure on the reputed persons of the said area, the aforesaid FIR was lodged by the active member of naxali organization. However, without applying his judicial mind and on the ground of said FIR and police report, the respondent no.3 cancelled the arm licence issued to the petitioner vide order dated 17.02.1999 (annexure no.3 to the writ petition).

3. Being aggrieved by the order dated 17.02.1999, the petitioner filed an appeal under Section 18 of the Arms Act before respondent no.2 on 15.03.1999 praying for setting aside the order dated 17.02.1999. After hearing the matter, the respondent no.2, Commissioner, Varanasi Region, Varanasi, dismissed the appeal vide judgment and order dated 06.01.2004 (annexure no.5).

4. The dispute as alleged in the FIR is that number of persons have beaten the informant by kick and foot and also tried to burn him but neither any injury report nor any medical examination report was produced by the informant till date. Further in the FIR, the petitioner has been assigned the role of beating the informant with lathi and danda and by kick and foot but there is no mention of use of arms at all. The informant is not the resident of the same village and there is no explanation about the presence of the petitioner at the place of occurrence and neither any person of that village lodged an FIR/complaint against the petitioner nor has given any statement before the police or the Magistrate. The village of the petitioner falls within the naxali affected area and on every day unsocial elements as well as members of the naxali organization try to attack and threaten the villagers and threatening letters of the naxali organization have also been received by number of villagers. Even then the respondents without considering the relevant facts cancelled the arm license of the petitioner. The petitioner neither possessed nor used his arm at the time of the alleged incident and in number of decisions of Hon'ble Supreme Court and this Court, it is settled law that if the arm/gun is not used in the incident, no question would arise to cancel the arm licence.

5. On the aforesaid grounds, it has been contended that the both the impugned orders are wholly illegal, mala fide and not sustainable in the eyes of law, and they must be quashed.

6. No counter affidavit has been filed by the respondents. However, a supplementary affidavit has been filed by the petitioner bearing no.139886 of 2006 annexing certified copy of the Case No.959 of 1997 (State Vs. Shiv Singh and others) wherein he has reiterated the contents of the petition. Perusal of the order-sheet of aforesaid revealed that till the date of filing only one witness has been examined.

7. 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."

8. 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.

9. 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.

10. 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.

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

12. In Masiuddin Vs. Commissioner, Allahabad Division, Allahabad and another, 1972 ALJ 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".

13. 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".

14. 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 malpractice. 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".

15. 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".

16. 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. and others, 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 levelled against the accused, it can possibly be said that the accused was honorably acquitted".

17. In Chhanga Prasad Sahu Vs. State of U.P. and others, 1984 AWC 145 (FB), after noticing the provisions of Section 17(3) of the Arms Act the Full Bench in paragraphs-5 and 9 held as follows:

"5. A perusal of abovementioned provisions indicates that the licensing authority has been given the power to suspend or revoe an arms licence only if any of the conditions mentioned in sub-clauses (a) to (e) of sub-section (3) of Section 17 of Act exists." sub section (5) of Section 17 makes it obligatory upon the licensing authority to, while passing the order revoking/suspending an arms licence, record in writing the reasons therefore and to, on demand, furnish a brief statement thereof to the holder of the license unless it considers that it will not be in the public interest to do so."

"9. ...it is true that in order to revoke/suspend an arms licence, the licensing authority has necessarily to come to the conclusion that the facts justifying revocation/suspension of licence mentioned in grounds (a) to (e) of section 17 exist"

18. In Ilam Singh Vs. Commissioner, Meerut Division and others, 1987 ALJ 416 this Court held that under Section 17(3) (b) the licencing authority may suspend or revoke a licence if it becomes necessary for the security of public peace or public safety. In this case no report was lodged against the licensee indicating that he had used the gun in the incident which led to the breach of public peace or public safety. It was held that there must be some positive incident in which the petitioner participated and used his gun which led to breach of public peace or public safety and in the absence of the use of the gun by the licencee against the security of public peace or public safety the licence of the gun could not be suspended or revoked. The relevant paragraphs-4 and 5 of the judgment in Ilam Singh (supra) are being reproduced as under:

"4. Having heard the learned counsel for the petitioner I am of the view that the submissions raised by the learned counsel for the petitioner cannot be said to be without substance. Section 17(3) (b) of the Arms Act enacts that licensing authority may by order in writing suspend a licence or revoke the same if it becomes necessary for the security of public peace or the public safety. When once a person has been granted a licence and he acquires a gun, it becomes one of his properties. In the present case no incident of breach of security of the public peace or public safety at the behest of the petitioner has been pointed out. Even no report was lodged against the petitioner indicating that he used his gun in the incident which led to the breach of public peace or public safety. Even though some reports might have been lodged but that could not be said to be a sufficient reason to cancel the licence.

5. There must be some positive incident in which the petitioner participated and used his gun which led to the breach of the public peace or public safety. In the absence of the use of the gun by the petitioner against the security of public peace or public safety the licence of the gun of the petitioner was not liable either to be suspended or revoked. The licensing authority as well as the Commissioner committed errors on the face of the record in cancelling the licence of the gun held by the petitioner in utter disregard of the provisions of Section 17 (3) (b) of the Arms Act. In view of these facts the impugned orders cannot be sustained and deserves to be quashed."

19. In Jageshwar Vs. State of U.P. and others 2009 (67) ACC 157 this court held that in view of the settled law the licence under the Arms Act cannot be suspended on the ground of mere involvement in a criminal case or criminal trial or on the basis of mere apprehension of misuse of fire arm by the licensee.

20. In Surya Narain Mishra Vs. Stae of U.P. and others, 2015 (7) ADJ 510, similar view has been taken by this Court relying upon subsequent decisions. Para-14 of the judgment is reproduced:

"14. In the case of Raj Kumar Verma v. State of U.P, 2013 (80) ACC 231 this court in paragraph No.3 held as under:-

"The ground for issue of show-cause notice, suspension and ultimately cancellation of the licence is that one and precisely one criminal case was registered against the petitioner. The District Magistrate has also held that the petitioner has been enlarged on bail. He has gone further to observe that if the licence remained intact, the petitioner, may disturb public peace and tranquility. The same findings have been given by the Commissioner, Unmindful of the fact that this Court is repeating the law of the land, but the deaf ears of the administrative officers do not ready to succumb the law of the land. The settled law is that mere involvement in a criminal case without any finding that involvement in such criminal case shall be detrimental to public peace and tranquility shall not create the ground for the cancellation of armed licence. In Ram Suchi v. Commissioner, Devipatan Division reported in 2004 (22) LCD 1643, it was held that this law was relied upon in Balram Singh Vs. Satate of U.P. 2006 (24) LCD 1359. Mere apprehension without substance is simply an opinion which has no legs to stand. Personal whims are not allowed to be reflected while acting as a public servant."

21. In Raghuveer Singh Vs. Commissioner and others, 2020 SCC OnLine All 192 following principles of law have been laid down regarding revocation of arm licence:

"(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."

22. In this case there is only one criminal case against the petitioner in which it is no where mentioned that the petitioner has used the arm in commission of alleged crime. There is no counter of the fact that the village and the area of the petitioner does not fall in naxali affected area. If the petitioner is residing in a naxali affected area certainly there would be need of a licensed arm. Respondents have not produced any evidence that the petitioner is having previous criminal antecedents and is a person of criminal nature. In the aforementioned judicial precedents it is ruled that mere pendency of a case does not create ground to cancel the arm licence. It is often seen that crimes are not generally committed by licensed arms but generally offence are observed to be committed by use of unlicensed country-made firearms, therefore, only on the basis of pendency of one case and apprehension, arm licence cannot be cancelled.

23. In this case earlier on 10.11.2006 the operation of the order dated 17.02.1999 and order of Commissioner dated 06.01.2004 regarding cancellation of petitioner's Licence No.303P11SBBL Gun No.15868 was stayed and it was further directed that licence of the petitioner shall be restored to him pending disposal of the writ petition. The original order is as under:-

"In spite of the order passed by this Court to learned Standing counsel to file counter affidavit, no counter affidavit has been filed.

Admit.

Till further orders of this Court, operation order dated 17.2.1999 passed by the District Magistrate and order dated 6.1.2004 passed by Commissioner, Varanasi Region, Varanasi in the matter of cancellation of license of petitioner's license no. 303P11SBBL Gun no. 15868 shall remain stayed and it is further directed that license of petitioner shall be restored to him pending disposal of writ petition."

24. From the aforementioned order of this Court it is concluded that the arm licence of the petitioner still survives and is continuing. Hence, there is no need to pass an order to move a fresh application for grant of revival of licence. This Court is of the considered view that both the impugned orders suffer from manifest error in the eyes of law and are liable to be quashed.

ORDER

25. The petition is allowed. The order passed by the District Magistrate, Ghazipur/Licencing Authority dated 17.02.1999 and the order of Appellate Authority/Commissioner, Varanasi Region, Varanasi dated 06.01.2004 are quashed.

26. If the arm licence is into operation, it shall be continued and shall be renewed time to time as per the existing law. If it is discontinued and has not been renewed, in that case the petitioner shall move an application before the District Magistrate, Ghazipur who shall decide the application of the petitioner in accordance with the observations made in this judgment.

Order Date :- 19.12.2022

Shahroz/S.Verma

(Umesh Chandra Sharma,J.)