Mahipal Singh vs State Of U.P.And 2 Others
2023 Latest Caselaw 4791 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 09.02.2023
 
Delivered on 14.02.2023
 
Court No. - 34
 

 
Case :- WRIT - C No. - 1080 of 2023
 

 
Petitioner :- Mahipal Singh
 
Respondent :- State Of U.P.And 2 Others
 
Counsel for Petitioner :- Mohd.Aslam Azhar Khan,Rajeev Ratan Shukla
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Petitioner is an Ex army personnel and is involved in two criminal cases, i.e., Case Crime No. 169 of 2021, under Sections 171F, 332, 353 IPC and Case Crime No. 171 of 2021, under Section 3/25 Arms Act, wherein after investigation charge sheet has been filed. Firearm licence of petitioner was issued by concerned authority in State of Jammu and Kashmir, however, it is not in dispute that residential address of petitioner was Shamli (Uttar Pradesh) and petitioner is presently residing at said place.

2. Licensing Authority on the basis of above facts and police report, that petitioner being a person of criminal antecedents and it was deem necessary for security of public peace or for public safety, revoked firearm licence of petitioner vide order dated 28.02.2022 and appeal thereof was also rejected vide order dated 17.11.2022.

3. Sri Mohd. Aslam Azhar Khan, learned counsel for petitioner has vehemently argued that petitioner is an Ex army personnel having a good reputation in society. Firearm licence was issued to him when he was in army and there was a threat being witness in a criminal case. After his retirement with mala fide intentions above referred two criminal cases were lodged against him wherein till date trial is not proceeded. Competent Licensing Authority was in State of Jammu and Kashmir, therefore, Licensing Authority at State of U.P. has no jurisdiction to cancel firearm licence of petitioner. Only on the basis of pendency of two criminal cases where trial is still not commenced and without any basis that keeping firearm licence will be detrimental for security of public peace or for public safety, firearm licence of petitioner was erroneously cancelled. Learned counsel for petitioner placed reliance on Chhanga Prasad Sahu vs. State of U.P., 1984 AWC 145 (FB); Kailash Nath vs. State, 1985 AWC 493 (FB); Rana Pratap Singh vs. State of U.P., 1996 Supp AWC 92 (FB); Kulvinder Singh vs. State of Uttarakhand, 2012(1) Crimes (HC) 148; Suresh Singh Yadav vs. State of U.P. and others, 2022 Supreme (All) 1162; Firasat Ali alias Munna vs. State of U.P. and others, 2011(1) ADJ 109; Indra Pratap alias Ram Pratap vs. State of U.P. and others, 2019 Supreme (All) 222; Badri Prasad Yadav vs. Commissioner Lucknow Division, Lucknow, 2019 Supreme (All) 2425; Abhishekh Upadhaya vs. Prin. Secy. Home U.P. Civil Secretariat U.P. Lucknow and others, 2014 Supreme (All) 1004; Rajesh Kumar Singh vs. State of U.P., 2013 Supreme (All) 862; and, Rekha Singh vs. State of U.P., 2017 Supreme (All) 2003.

4. Per contra, Sri Awadhesh Kumar, learned Standing Counsel appearing for State-Respondents, has submitted that petitioner was admittedly living at Shamli (State of U.P.), therefore, the authority at State of Uttar Pradesh was well within its jurisdiction to revoke firearm licence of petitioner on the basis that he was involved in two criminal cases where, after investigation charge sheet has been filed. The subjective satisfaction of Licensing Authority that it was deem fit for security of public peace or for public safety to revoke firearm licence, is based on police report which cannot be interfered in writ jurisdiction.

5. Heard learned counsel for parties and perused the material available on record as well as the judgments cited at Bar.

6. The Court first proceed to consider various judgments relied by learned counsel for petitioner.

7. Relevant paragraphs of Full Bench judgments in Chhanga Prasad Sahu (supra); Kailash Nath (supra); and, Rana Pratap Singh (supra) are mentioned hereinafter:

Chhanga Prasad Sahu (supra)

"22. In the result, we are of opinion that having regard to the scheme and purpose of the provisions contained in Sections 17 and 18 of the Act and the nature of the enquiry that a licensing authority is to make before directing revocation/suspension of an arms licence, it has no power to suspend the arms licence pending enquiry into its cancellation/suspension. The first question referred to us is accordingly answered in the negative. In view of our answer to the first question, the controversy sought to be resolved by the second question does not arise for consideration and it is not necessary to answer the same."

Kailash Nath (supra)

"22. In my opinion, the observations made in C.P. Sahu's case do not carry any such implication. What was intended to be laid down therein was that in view of the statutory provisions contained in the Arms Act the licensee could not, on the principles of natural justice, claim a right of hearing before the order of revocation or suspension of his arms licence was made and that it was open to him to have his grievances redressed by way of appeal wherein he was to get in accordance with principles of natural justice a full hearing to defend himself. The question whether in accordance with the principles of natural justice the party whose licence had been revoked/suspended was entitled to a post-decisional remedial hearing before the licensing authority and whether the question of principles of natural justice did not stand excluded to that extent was neither canvassed before, nor dealt with by the Full Bench. Accordingly, we are of opinion that nothing should be read in the Full Bench decision of this Court in C.P. Sahu's case which may imply that in cases of revocation/suspension of arms licence the licensee is not, on the principles of natural justice, entitled to post-decisional remedial hearing before the licensing authority itself. In such cases the licensee has at his option, two remedies, namely, one to apply for post-decisional remedial hearing to the licensing authority itself, and the other by going up in appeal against the order revoking/suspending his licence. It is open to the licensee to follow either of the two remedies or even to claim a post-decisional remedial hearing before the licensing authority followed by an appeal in accordance with the provisions of Section 18 of the Arms Act."

Rana Pratap Singh (supra)

"42. It will thus be seen that branding the observation in Kailash Nath's case (supra), with regard to the right to carry firearms and it not coming under Article 21 of the Constitution, as being merely per incuriam was not founded upon any law or precedent and was, therefore, wholly unwarranted, rather it constitutes a striking instance of the manner in which the per incuriam rule never can or should be applied. It follows, therefore, that the right to carry firearms does not come within the purview of Article 21 of the Constitution. We are thus, again constrained to hold that both Ganesh Chandra Bhatt's case 1993 (30) ACC 204 as also Devendra Pratap Singh's case Civil Misc. Writ Petn. No. 29963 of 1993, D/- 7-10-1993, do not lay down correct law and are consequently hereby over-ruled."

8. Crux of above referred paragraphs of judgments is that firearm licence is not a fundamental or Constitutional right rather it is simply a privilege. There is a procedure for post decision hearing or to file appeal and I find no error in the procedure adopted by Licensing Authority.

9. In the judgments of different Coordinate Benches, referred above, it is held that merely on the ground of a criminal case and in absence of any material that it is deem fit for security of public peace or for public safety, a firearm licence may not be cancelled and for that the Licensing Authority can take cognizance of nature of allegations.

10. In order to appreciate the rival submissions, I have carefully perused the impugned order. Undisputedly, petitioner was involved in above referred two criminal cases. Petitioner has not enclosed copy of FIR of said criminal cases as well as present status of cases except a bald statement that they are at the stage of filing of charge sheet. Contention of learned counsel for petitioner that since only charge sheet has been submitted, therefore, at this stage alleged involvement of petitioner in above referred criminal cases, cannot be a ground to revoke firearm licence.

11. This Court in Indrajeet Singh vs. State of U.P. and others, 2021(10) ADJ 471 has an occasion to consider the similar submissions wherein it has been held that:

16. The words "public peace and public order" are normally considered to maintain peace and order at public at large. However, there may be instances where though the immediate danger may be to an individual, but it may have threat to the public at large. For example a fire arm licensee entered inside the house of a neighbour and threatened him or undertook blank firing by licensed weapon or otherwise, though it may be itself be violative or not violative of conditions fire arm license, but this act is not only a threat to an individual, but is definitely likely to cause disturbance of public peace and public order to public at large, therefore, in these circumstances for security of public peace or for public order, the licensing authority may suspend or revoke the arms licence under Section 17 (3) of the Act, of 1959. Similarly, a person/licensee who is involved in a case of murder or attempt to murder or any offence affecting human body or any other serious offence, there may be likelihood of breach of public peace or public order.

17. The words used in Section 17 (3) (b) of the Act, 1959 is "deems it necessary for the security of the public peace or for public safety" i.e. in order to secure public peace or for public safety, the licensing authority if deems necessary, may suspend or revoke the licence. It is not necessary that actual disturbance of public peace or public safety may take place to revoke or suspend the arms licence. The licensing authority on the basis of material available, if deems necessary for security of public peace or for public safety may revoke the arms licence. Therefore, at this stage subjective satisfaction of the licensing authority comes into picture and if the licensing authority finds that due to certain act whether it is affecting to an individual or public at large, may for the security of public peace or for public safety, may suspend or revoke the arms licence. This is a precautionary measure, therefore, it is not necessary that actual disturbance of public peace or public safety may occur. Therefore, even the criminal antecedent of the licensee are very important factor for consideration for granting license. In these circumstances, even pendency of a criminal case involving serious offence may be sufficient to suspend or revoke the arms licence. Similarly, even after the acquittal, the nature of acquittal may be an important factor to consider whether there may be a likelihood of disturbance of public peace and safety especially in cases where the offences are against the State, offence against public tranquillity, offences affecting human body, offences affecting life, and sexual offences etc.

18. The licensing authority is in the field, therefore, is the best judge who can assess the situation on the basis of material which are before him. Such an assessment cannot be substituted by this Court which is no way connected or does not have any inkling of situations. This Court cannot undertake any exercise to determine the facts leading to the subjective satisfaction of the licencing authority on the basis of situation then existing, except there are material to show as to how the satisfaction is perverse or based on no material. (See Jagat Pal Singh Vs. State of U.P. 1997 (34) ACC 499).

19. There must be subjective satisfaction of the licensing authority that the licensee is not fit to continue holding of licence. If the licensing authority is satisfied of the fact that a continued existence of fire arms licence with a person charged with various offence may endanger security of public peace and public safety then revocation of licence under Section 17 cannot be said to arbitrary or without jurisdiction. (See, 1999 SCC Online Pat 206, (1999) 3 PLJR 203, Tej Narayan Singh Vs. State of Bihar and others)"

12. In the present case after investigation charge sheet has been filed against petitioner in two criminal cases referred above. Therefore, a prima facie case is made out against petitioner as well as petitioner is involved in a criminal case which is punishable under Arms Act itself. Therefore, prima facie it is evident that petitioner has violated conditions of licence.

13. Further contention of learned counsel for petitioner is that there was no material before Licensing Authority to conclude that it was necessary for security of public peace or for public safety to revoke firearm licence, however, the same is contrary to record as there is specific finding in impugned order that petitioner is involved in two criminal cases and his reputation in society is bad, therefore, it is more than a sufficient ground for Licensing Authority to reach to a subjective satisfaction and it was deem necessary for security of public peace or for public safety to revoke firearm licence of petitioner. The subjective satisfaction being based on material available, therefore, it cannot be interfered.

14. In view of above discussion, I do not find any ground to interfere with impugned order. Writ petition is accordingly dismissed.

Order Date :-14.02.2023

AK