Aasad Ali vs State Of U.P. Thru. Prin. Secy. Home And ...
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Allahabad High Court

Aasad Ali vs State Of U.P. Thru. Prin. Secy. Home And ... on 5 March, 2025

Author: Manish Mathur

Bench: Manish Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:13420
 
Court No. - 19
 

 
Case :- WRIT - C No. - 6987 of 2018
 

 
Petitioner :- Aasad Ali
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home And Ors.
 
Counsel for Petitioner :- Dinesh Kumar Ojha,Manoj Kumar Mishra,Yugal Kishor Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manish Mathur,J.
 

1. Heard Mr. Yugal Kishor Tripathi learned counsel for petitioner and learned counsel for opposite parties.

2. Petition has been filed challenging order dated 9th June, 2011 passed by District Magistrate concerned under Section 17(3) of the Arms Act cancelling petitioner's arms license. Also under challenge is the order dated 29th November, 2013 passed by Commissioner rejecting his appeal.

3. Petitioner is granted liberty to amend the date of appellate order indicated in the prayer clause of petition.

4. Learned counsel for petitioner submits that impugned orders have been passed cancelling petitioner's arms license only on the ground of pendency of case crime No. 52 of 2009 registered under Section 307 IPC with police station concerned.

5. It is also submitted that conditions indicated in Section 17(3) of the Arms Act have not been considered in their correct prospective nor is there any finding recorded with regard thereto. He submits that the impugned orders could not have been passed merely on the basis of involvement of petitioner in a single criminal case.

6. It is also submitted that the appellate authority has not considered the aforesaid aspects which is already settled by various laws enunciated by this Court in the cases of Writ C No. 56378 of 2006 (Ram Prasad versus Commissioner and others), Writ C No. 1002737 of 2011 (Shahab Bux Singh @ Bachchu Singh versus State of U.P.), Writ C No. 1005215 of 2015 (Muslim versus State of U.p. and others) and Writ No. 1207(M/S) of 2010 (Narendra Pal singh versus Commissioner Lucknow Division Lucknow and others).

7. He has also adverted to the supplementary affidavit dated 13th December, 2024 to submit that even otherwise in the aforesaid case, the petitioner has already been acquitted by means of judgment and order dated 10th April, 2024 and therefore also the sole basis of passing of impugned orders no longer exists.

8. Learned State Counsel has refuted submissions advanced by learned counsel for petitioner with the submission that the impugned order itself clearly indicates the aspects required to be considered under Section 17(3) of the Arms Act which has been done by the authorities concerned. It is submitted that petitioner has criminal antecedents and therefore in order to preserve public peace, the impugned orders have been passed.

9. It is also submitted that the aspect of acquittal of petitioner is required to be seen in the context whether the acquittal is clean and honourable or has been passed only granting benefit of doubt to the petitioner.

10. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, particularly the impugned orders, it is evident that arms license of petitioner has been cancelled in view of first information report being registered as case crime No. 52 of 2009 indicating petitioner's involvement therein. The impugned orders do not indicate any other case pending against petitioner.

11. The aspect of cancellation of arms license only on the basis of involvement of the licensee in a criminal case has already been adjudicated in a number of decisions of this Court.

12. In Masiuddin Vs. Commissioner, Allahabad Division, Allahabad and another reported in 1972 A.L.J. 573 this Court held in paragraph Nos. 4 and 7 as follows:

"4. After a license is granted, the right to hold the license and possess a gun is a valuable individual right in a free country. The security of public peace and public safety is a valuable social interest. Section 17 shows that Parliament had decided that neither of the two valuable interests should unduly impinge on the other Section 17 seeks to establish a fair equilibrium between the two contending interests. It says: Hear the licensee first; and then cancel the license "if necessary for the security of the public peace or for public safety". True, there is no express provision for hearing. True, there is no express provision for hearing. But the nature of the right affected, the language of Sec. 17, the grounds for cancellation, the requirement of a reasoned order and the right of appeal plainly implicate a fair hearing procedure. Jai Narain Rai v. District Magistrate, Azamgarh. While cancelling a licence, the District Magistrate acts as a quasi-judicial authority.

7. 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. The District Magistrate has not recorded a finding that it was necessary for the security of the public peace or for public safety to revoke the license. The mere existence of enmity between a licensee and another person would not establish the ''necessary' connection with security of public peace or public safety. There should be something more than mere enmity. There should be some evidence of the provocative utterances of the licensee or of his suspicious movements or of his criminal designs and conspiracy in reinforcement of the evidence of enmity. It is not possible to give an exhaustive list of facts and circumstances from which an inference of threat to public security or public peace may be deduced. The District Magistrate will have to take a decision on the facts of each case. But in the instant case there is nothing in his order to indicate that it was necessary for the security of the public peace or for public safety to cancel the license of the petitioner. Mere enmity is not sufficient."

13. In the Full Bench decision of this Court in the case of Chhanga Prassad Sahu versus State of U.P. reported in 1984 AWC 145 (FB) it has been held that it is obligatory upon the licensing authority while revoking/suspending arms license to record reasons in writing pertaining to existence of aspects indicated in Section 17(3) of the Act. Relevant paragraphs of the judgment are 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"

14. Similarly a Division Bench of this Court in the case of Sheo Prasad Misra versus District Magistrate Basti and others reported in 1978 Allahabad Weekly Cases, 122, (D.B.) has also held as follows:-

4. "Learned Counsel for the petitioner contended that, while there was material before the licencing authority, viz., the District Magistrate, to show that some reports had been lodged against the petitioner, there was neither any material to warrant a conclusion that it was necessary to cancel the licence for security of public peace or public safety nor was a finding to that effect recorded. Learned Counel referred us to a decision of this Court in case of Masi Uddin v. Commissioner, Allahabad, 1972 ALJ 572, where this Court held:

"A licence may be cancelled, inter alia, on the ground that it is "necessary for the security of public peace or for public safety, to do so. The District Magistrate has not recorded a finding that it was necessary for the security of the public peace or for public safety to revoke the licend. The mere existence of enmity between a licencee and another person would not establish the "necessary" connection with security of the public peace or public safety."

In case before us also the District Magistrate has not recorded any finding that it was necessary to cancel the licence for the security of public peace or for public safety. All that he has done is to have referred to some applications and reports lodged against the petitioner. The mere fact that some reports had been lodged against the petitioner could not form basis for cancelling the licence. The order passed by the District Magistrate and that passed by the Commissioner cannot, therefore, be upheld on the basis of any thing contained in Sections 17(3) (b) of the Act"

15. In the case of Thakur Prasad versus State of U.P., reported in 2013(31) LCD 1460 (LB) the distinction between public peace or public safety has been indicated to mean safety of public at large and not ordinary disturbance of law and order considering only a few persons. Relevant paragraphs of the aforesaid judgment are as follows:-

"10. "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 safety of few persons only and before passing of the order of cancellation of arm license as per Section 17 (3) of the Act the Licensing Authority is under an obligation to apply his mind to the question as to whether there was eminent danger to public peace and safety involved in the case in view of the judgment given by this court in the case of Ram Murli Madhukar v. District Magistrate, Sitapur [1998 916) LCD 905], wherein it has been held that license can not be suspended or revoked on the ground of public interest (Jan-hit) merely on the registration of an F.I.R. and pendency of a criminal case."

11. Further, this Court in the case of Habib v. State of U.P. 2002 ACC 783 held as under:

"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 in Sheo prasad Misra Vs. District Magistrate, Basti and Others, 1978 AWC 122, wherein the Division Bench relying upon the earlier decision in Masi Uddin Vs. Commissioner, Allahabad, 1972 ALJ 573, 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. The present impugned orders also suffer from the same infirmity as was pointed out by the Division Bench in the above mentioned cases. I am in full agreement with the view taken by the Division Bench that these orders cannot be sustained and deserves to be quashed and are hereby quashed.

There is yet another reason that during the pendency of the present writ petition, the petitioner has been acquitted from the aforesaid criminal case and at present there is neither any case pending, nor any conviction has been attributed to the petitioner, as is evident from Annexure SA-I and II to the supplementary affidavit filed by the petitioner. In this view of the matter, the petitioner is entitled to have the fire-arm licence."

16. Upon applicability of the aforesaid judgments in the present facts and circumstances of the case, it being evident that impugned orders have been passed only on the basis of alleged involvement of petitioner in the single incident, can not be sustained since it is not a ground for cancellation of arms license in terms of Section 17(3) of the Arms Act.

17. In view thereof, the impugned orders dated 9th June, 2011 and 29th November, 2013 are hereby quashed by issuance of writ in the nature of certiorari. The opposite party No.3 i.e. District Magistrate, District Pratapgarh is directed to revive the arms license of petitioner subject to completion of relevant formalities by the petitioner. Directions with regard to same shall be passed within a period of six weeks from the date a certified copy of this order is produced before the concerned authority. The aspect of acquittal of petitioner not being subject matter of impugned orders is not being ventured into.

18. Resultantly the petition succeeds and is allowed. Parties to bear their own cost.

Order Date :- 5.3.2025

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