Krishna Pratap Singh vs State Of U.P Thru Secy Home Lko And ...
2022 Latest Caselaw 14556 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 22
 

 
Case :- WRIT - C No. - 22561 of 2016
 

 
Petitioner :- Krishna Pratap Singh
 
Respondent :- State Of U.P Thru Secy Home Lko And Ors
 
Counsel for Petitioner :- P.K. Singh Bisen
 
Counsel for Respondent :- C.S.C
 

 
Hon'ble Manish Kumar,J.

1. The present writ petition has been preferred for quashing of the appellate order dated 04.06.2018 passed by respondent no. 2 i.e. the Commissioner, Allahabad Division, Allahabad and the cancellation order dated 19.10.2006 passed by respondent no. 3 i.e. the District Magistrate, District Pratapgarh under the provisions of the Arms Act, 1959.

2. Learned counsel for the petitioner has submitted that initially the firearm license of the petitioner was cancelled vide order dated 16.04.2003 against which the petitioner had preferred an appeal which was allowed by the appellate authority vide its order dated 25.01.2006 and remanded the matter to the District Magistrate to re-investigate the matter and pass a fresh order.

3. In pursuance of the remand order dated 25.01.2006, the arm license of the petitioner was again cancelled vide order dated 19.10.2006 on the ground that there are three criminal cases lodged against the petitioner.

4. Learned counsel for the petitioner has submitted that in three criminal cases lodged against the petitioner, in case crime no. 335/2003, the petitioner had already been acquitted and the copy of the same was filed before the District Magistrate. In case crime no. 30/1993, the District Magistrate had withdrawn the notice issued against the petitioner after hearing the parties and in one case crime no. 363/1996 under Section 107/116 Cr.P.C., which had automatically come to an end after the expiry of the six months period, so at the time of passing of the cancellation order, no criminal case was pending against the petitioner.

5. It is further submitted that mere pendency of criminal cases does not empower the competent authority either to revoke or cancel the arm license under Section 17 of the Arms Act, 1959 (hereinafter for the sake of brevity referred to as 'the Act, 1959') thus, the orders impugned herein have been passed without application of mind.

6. In support of his submission, learned counsel for the petitioner has placed reliance on the judgments passed by this Court in the cases of Ram Murti Madhukar vs. District Magistrate, Sitapur [1998 (16) LCD-905] and Ram Prasad vs. Commissioner and Ors. decided on 07.02.2020 in Writ-C No. 56378 of 2006, wherein it has been held that mere pendency of criminal case or apprehension of misuse of arms are not sufficient grounds for passing the order of suspension or revocation of licence under Section 17 of the Act.

7. In Ram Murti Madhukar (supra), this Court has held in paragraph no. 8, is quoted as under :-

"(8) It is also well settled in law that mere pendency of criminal case or apprehension of abuse of Arms Act, are not sufficient ground for passing of the order of suspension or revocation of licence under Section 17 of the Act. A reference in this regard may be made to the decisions of this Court in Ganesh Chandra Bhatt v. D. M. Almora, AIR 1993 All 291"

8. This Court in the case of Ram Prasad (supra) has held as under. Relevant paragraphs of the said judgments i.e. 16, 22, 24, 32 and 36 are being quoted hereunder:-

"16. The matter which requires consideration is, whether on the ground of pendency of the criminal case the petitioner's fire arm licence could be cancelled and his appeal could be dismissed, notwithstanding his acquittal on 17.1.2003. It also requires consideration if the ground in the impugned orders that if the petitioner's fire arm licence remain with the petitioner, it would not be in the public interest and public security, are justified for cancellation and based on substantial material."

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

"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."

In paragraph-9 it has been emphasised as under:-

"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"

24. In Habib v. State of U.P. and others [2002 (44) ACC 783] this Court 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. Paragraph 3 of this judgment reads as under:

"3. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of the licence under Arms Act, has been dealt with by a Division Bench of this court reported in Sheo Prasad Misra Vs. The District Magistrate, Basti and others, wherein the Division Bench relying upon the earlier decision reported in Masi Uddin v. Commissioner, Allahabad, found that mere involvement in criminal case cannot in any way affect the public security or public interest and the order cancelling or revoking the licence of fire arm has been set aside."

32. In Ghanshyam Gupta v. State of U.P. and others [2016 (34) LCD 3035] this Court has again held that the necessary ingredients to invoke jurisdiction of the licencing authority in terms of Section 17 were clearly lacking and no finding had been returned on the basis of materials produced in that regard by the licencing authority, which must justify passing of the order of cancellation. Paragraph 9 of the said judgment is being quoted as under:

"9. In a recent decision of Lucknow Bench of this court in Surya Narain Mishra v. State of U.P. and others, reported in 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 tranqulity 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.

36. In the present case the petitioner's licence was cancelled by the District Magistrate on the ground of pendency of criminal case against him. The petitioner was later on acquitted of the criminal case by order dated 17.1.2003. A perusal of the order of acquittal does not show the use of fire arm. After acquittal the very basis of the order of cancellation vanished. The finding of the District Magistrate as affirmed by the Commissioner, that it was not in the interest of public peace and the public security that the licence remained with the petitioner/licencee, is not based on any evidence/material, except the police reports which in their turn were in view of the pendency of the criminal case against the petitioner. On 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.

9. On the other hand, learned Standing Counsel has submitted that in case crime no. 30/1993, the investigation is still going on as mentioned in the appellate order. The petitioner was involved in a criminal case thus, revival of his arm license may disturb the public peace or public safety.

10. After hearing learned counsel for the parties, going through the records and the judgments relied by the learned counsel for the petitioner, the position which emerges out in the present case is that cancelling the arms license of the petitioner as he was involved in the criminal case is not in consonance with Section 17 of the Act, 1959. Mere involvement in a criminal case or pendency of a criminal case cannot be in any way affect the public safety or public peace.

11. Public peace or public safety does not mean ordinary disturbance of law and order, public safety means safety of the public at large and not safety of few persons only and before passing of the order of cancellation of arm license as per Section 17 (3) of the Act, 1959, the licensing authority is under an obligation to apply his mind which is not present in the instant case.

12. For the foregoing reasons, the orders impugned herein cancelling and revoking the arms license of the petitioner are not justified and not tenable in law and hence the appellate order dated 04.06.2018 passed by respondent no. 2 i.e. the Commissioner, Allahabad Division, Allahabad and the cancellation order dated 19.10.2006 passed by respondent no. 3 i.e. the District Magistrate, District Pratapgarh under the provisions of the Arms Act, 1959 are hereby quashed.

13. In view of the aforesaid, the writ petition is allowed.

Order Date :- 20.10.2022

Nitesh