Behind Shahnoormiya Darga vs The State Of Maharashtra
2013 Latest Caselaw 156 Bom

                                        1                                Cri.W.P.899.13.odt



      IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                       BENCH AT AURANGABAD




                                                                        
             CRIMINAL WRIT PETITION NO. 899 OF 2013




                                                
     Sheshrao @ Vijay Bhikaji Salve
     Age : 46 years, Occ : Construction and Plotting Business,
     R/o C-11, Anjali Niwas, Devanagari




                                               
     Behind Shahnoormiya Darga,
     Aurangabad.
                                                         ..PETITIONER
           -VERSUS-




                                 
     1.    The State of Maharashtra
                      
           Through its Chief Secretary,
           Home Department, Mantralaya,
           Mumbai.
                     
     2.    The Police Commissioner,
           Aurangabad.
                                                            ..RESPONDENTS
      


                                        ...
   



     Advocate for Petitioner : Mr. P.S. Pawar
     APP for Respondents : Mr. P.N. Muley
                                        ...





                                            CORAM : A.M. THIPSAY, J.

Dated: November 18, 2013 ORAL JUDGMENT :-

Rule. By consent, Rule made returnable forthwith. By consent,

heard finally.

2. The petitioner had made an application for a licence to acquire,

2 Cri.W.P.899.13.odt

hold and possess a firearm, to the licensing authority i.e.

Commissioner of Police, Aurangabad. This application was rejected

by the said licensing authority by an order dated 19.07.2011.

The petitioner filed an appeal as contemplated under Section

18 of the Arms Act, 1959 challenging the said order, but the appellate

authority dismissed the said appeal.

Being aggrieved thereby, the petitioner has approached this

Court invoking its constitutional jurisdiction.

3. Amongst other things, it is contended that the licence came to

be refused to the petitioner on the basis that two criminal cases were

pending against him. It is submitted that these cases were already

over and had resulted in the acquittal of the petitioner. On this, it is

submitted that the order passed by the competent authority and the

order passed by the appellate authority are bad in law and need to be

set aside.

4. I have gone through the reasons on which the licence came to

3 Cri.W.P.899.13.odt

be refused to be issued in favour of the petitioner, as found in the

communication dated 19.07.2011 addressed to the petitioner by the

Assistant Commissioner of Police (administration) on behalf of the

Commissioner of police, Aurangabad, who is the authority in the

matter. The first reason, as mentioned in the said communication, is

that two criminal cases vide C.R. No. 1306/2002 at Kranti Chowk

Police Station and vide C.R. No. I-136/2001 at Jawaharnagar Police

Station 'are pending against him.' The second reason mentioned is

that the grounds on which the petitioner is seeking to acquire or

possess a firearm were not believed to be true or genuine.

5. It is not in dispute that the cases arising out of the said C.Rs.

had already been disposed of at the material time and the petitioner

had been acquitted from both the cases. That is clear from the letter

dated 26.05.2011 addressed by the Inspector of Police, Special

branch, Aurangabad to the Assistant Commissioner of Police of the

said branch, a copy of which is annexed to the Petition.

6. The appellate authority did not touch this aspect viz:- that

cases said to be pending against the petitioner were actually not

4 Cri.W.P.899.13.odt

pending and had resulted in his acquittal.

7. It is clear that the decision of the competent authority was

influenced by the belief of pendency of two criminal cases against the

petitioner on the given date. Since no such cases were pending on

the given date, the said ground was not available for consideration.

The decision has been influenced by a consideration that 'two

criminal cases were pending against the petitioner' which was

factually not correct. Since a non-existent fact was taken into

consideration for arriving at a decision not to grant licence to the

petitioner, the decision is clearly vitiated.

8. The Petition succeeds.

The order dated 19.07.2011 passed by the respondent

No.2 and the order dated 09.01.2013 passed by the respondent no.1

are set aside.

The respondent no.2 is directed to consider the

application for issuance of licence made by the petitioner afresh, by

5 Cri.W.P.899.13.odt

keeping in mind that no criminal cases were pending against the

petitioner on the date of his application, or on the date of the decision

of the respondent no.2 to refuse a licence to the petitioner.

9. Rule is made absolute in the aforesaid terms.

Sd/-

                                  
                                              ( ABHAY M. THIPSAY, J. )
                    ig                 ***
     sga/-