Mahesh Kumar Tomar vs State Of U.P. And 2 Others
2023 Latest Caselaw 5358 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 34
 

 
Case :- WRIT - C No. - 740 of 2023
 

 
Petitioner :- Mahesh Kumar Tomar
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Akhilesh Kumar Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. It is not in dispute that petitioner is facing trial in Case Crime No. 81 of 2021, under Section 3/25 Arms Act wherein he was arrested and later on granted bail. Present status of trial is not placed on record.

2. According to FIR petitioner was arrested from an open place where he was found in possession of a country made firearm alongwith live cartridges. On basis of FIR and that there was violation of conditions of firearm licence, the Licensing Authority has come to conclusion that in these circumstances it was deem necessary for security of public peace or for public safety to revoke firearm licence of petitioner. Accordingly firearm licence of petitioner was cancelled vide order dated 23.07.2021 passed under Section 17(3) of Indian Arms Act, 1959 (in short "Act, 1959") by District Magistrate, Hapur and petitioner's appeal filed under Section 18 of Act, 1959 was also rejected vide order dated 02.05.2022 passed by Commissioner, Meerut Division, Meerut.

3. Sri Akhilesh Kumar Mishra, learned counsel for petitioner, submits that licensed firearm was never used by petitioner. On false allegation he was arrested and till date he has not been convicted, therefore, only on basis of a criminal case firearm licence cannot be revoked. There is no material before Licensing Authority that it was necessary for security of public peace or for public safety to revoke firearm licence of petitioner. Learned counsel placed reliance on this Court's decision in Praveen Kumar Rai alias Jhillu Rai vs. State of U.P. (Writ-C No. 39601 of 2022), decided on 23.12.2022 wherein Court has relied on a Division Bench judgment of this Court in Sheo Prasad Misra vs. District Magistrate, Basti and others, 1978 AWC 122.

4. Above submissions are opposed by learned Standing Counsel appearing for respondents. He submits that keeping a country made firearm alongwith live cartridges is a clear violation of conditions of firearm licence and it also shows criminal intent of petitioner, which is a sufficient ground for Licensing Authority to arrive at a subjective satisfaction that it was deem necessary to revoke firearm licence of petitioner for security of public peace or for public safety.

5. Heard learned counsel for parties and perused the material available on record.

6. Recently, this Court in Mahipal Singh vs. State of U.P. and others (Writ-C No.1080 of 2023), decided on 14.02.2023 has an occasion to consider the similar submissions wherein it has referred to its earlier judgment in Indrajeet Singh vs. State of U.P. and others, 2021(10) ADJ 471, 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)."

7. In order to consider rival submissions, I have carefully perused the allegations made in First Information Report that petitioner was arrested from an open place where he was found in possession of a country made firearm alongwith live cartridges. Division Bench of this Court in Sheo Prasad Misra (supra), while remanding the matter back for fresh consideration has stated that firearm license cannot be cancelled on ground that some reports has been lodged against petitioner and there must be a finding that it was necessary to cancel licence for security of public peace or for public safety i.e. allegations in First Information Report can be considered by Licensing Authority to arrive a subjective satisfaction that facts and circumstances of particular case, it was deem necessary for security of public peace or for public safety to revoke firearm license.

8. It is well settled that firearm license is a privilege and it does not fall in the category of Constitutional or Fundamental Right as held by Full Bench of this Court in Kailash Nath vs. State, 1985 AWC 493 (FB).

9. In the present case it is not in dispute that petitioner was arrested from an open place with country made firearm and live cartridges and a case has been lodged under Section 3/25 of Act, 1959 to carry a unlicensed firearm. Such a person, who is prima facie indulged in such illegal activity of carrying unlicensed firearm in open place with live cartridges, is not entitled for firearm licence and it is sufficient ground for Licensing Authority to arrive at a subjective satisfaction that for security of public peace or for public safety it was deem necessary to revoke firearm licence of petitioner.

10. The outcome of above discussion is that there is no illegality in orders impugned in this writ petition.

11. The writ petition lacks merit. Dismissed accordingly.

Order Date :- 17.02.2023

AK