Rajendra Kantilal Chopda vs State Of Mah
2016 Latest Caselaw 4856 Bom

                                          1                Cri. W.P. 475/2005



           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD




                                                                            
                    CRIMINAL WRIT PETITION NO. 475 OF 2005




                                                   
    Rajendra S/o Kantilal Chopda,
    Age - 50 years, Occu.- Business &
    Agriculturist, 




                                                  
    R/o - 41, Sattha Colony, Station Road,
    Ahmednagar                                                .. Petitioner


       Vs.




                                             
    The State of Maharashtra
    Through District Magistrate,
                                  
    Ahmednagar & Divisional Commissioner,
    Nasik                                                     .. Respondent
                                 
                                 ----
    Mr. A.M. Gholap, Advocate for the petitioner
    Ms. R.P. Gour, APP for the respondent/State
                                 ----
       


                                           CORAM : V.K. JADHAV, J.

DATE : 24/08/2016

ORAL JUDGMENT :

Heard.

2. The petitioner has challenged the legality,

propriety and correctness of condition no.3 imposed vide

judgment and order dated 20/1/2005 in Arms Appeal No.29

of 2004 passed by the learned Divisional Commissioner,

Nasik.

2 Cri. W.P. 475/2005

3. Brief facts giving rise to the present writ

petition are as follows :-

. The petitioner is an agriculturist and also an

insurance agent. He has also entered into construction

business. Thus, due to the nature of the work, the

petitioner is required to travel throughout India and

many times he is also required to carry cash with him.

In such circumstances, the petitioner is holding the

license i.e. the license no.493 for Ahmednagar city

(area of operation-A11 India), which is renewed till

31.12.2005 and in that connection possessing 0.32 N.P.

bore revolver No. ADE-2242. Furthermore, the petitioner

was also constrained to apply for license of 0.12 bore

gun, as the said the gun is useful for protection in

agricultural field from wild animals and same is also

having long range compared to the revolver.

. On 19/7/2000, the concerned authorities, after

holding an enquiry, granted license for 0.12 bore gun

under form no.III for acquisition, possession and

protection and accordingly in that connection, the

petitioner has purchased 0.12 bore B.L. gun.

                                        3                 Cri. W.P. 475/2005



    .              On   21/9/2004,   the   District   Magistrate,




                                                                          

Ahmednagar, vide his order directed the petitioner to

surrender the arms license, arms and ammunition with

Kotwali Police Station from 25/9/2004 to 1/10/2004 in

view of the ensuing Assembly Elections, scheduled to be

held in the month of October, 2004 and further directed

that the said arms and ammunition will be returned

within one week after the declaration of the election

results. However, the petitioner was out of station in

connection with his work and thus he could not comply

with the order as aforesaid.

. On 12/10/2004, the petitioner was served with

the order dated 9/10/2004 passed by the District

Magistrate, Ahmednagar, whereby his arms license bearing

no.493 in respect of his revolver was revoked.

Consequently, on 12/10/2004, the petitioner had

immediately approached the District Magistrate,

Ahmednagar and tendered his apology by admitting his

mistake. The petitioner repeatedly approached the

District Magistrate and requested for review of the

order and to re-grant the arms license and has pointed

4 Cri. W.P. 475/2005

out the exigency, however, the learned District

Magistrate has not paid any heed to his request.

. The petitioner was therefore constrained to

approach the appellate authority i.e. the Divisional

Commissioner, Nasik by filing appeal under the Arms Act

bearing Appeal No.29 of 2004. The Divisional

Commissioner, Nasik by order dated 20/1/2005 passed in

appeal set aside the order dated 9/10/2004 passed by the

District Magistrate, Ahmednagar, by imposing condition

no.3 therein, directing the petitioner to surrender his

gun license no.915 for restoration of the revolver

license.

. Being aggrieved by the same, the petitioner has

approached this Court by filing the present writ

petition.

4. Learned counsel for the petitioner submits that

there is no any bar for issuing two licenses under the

provisions of Arms Act to one person and the list of 16

such persons in Ahmednagar district, who are possessing

two licenses of different nature is placed on record

5 Cri. W.P. 475/2005

marked as Exhibit "M". Learned counsel for the

petitioner submits that the concerned authority, after

holding a due enquiry, granted license for 0.12 bore gun

under form no.III and in that connection, petitioner has

purchased 0.12 bore BL gun. Learned counsel submits

that, in-fact, there is no bar to issue two licenses as

per the provisions of Rule 123 of the Maharashtra Arms

Manual. Considering the provisions of Rule 123 of the

Maharashtra Arms Manual, after holding a due enquiry,

the said license of 0.12 bore gun came to be granted in

favour of the petitioner. Learned counsel for the

petitioner submits that for setting aside the order

passed by the learned District Magistrate revoking

thereby the revolver license, the appellate authority

i.e. the learned Divisional Commissioner has illegally

negotiated with the petitioner and the petitioner was

constrained to accept the negotiated terms and

accordingly given his statement to the authority, that

he is ready to surrender his gun license for restoration

of his revolver license. As per the provision of

section 17 of the Arms Act, 1959, the licensing

authority may, by order, revoke a license in terms of

6 Cri. W.P. 475/2005

the provisions of sub-section (3) clause (a) to (e).

In the case in hand, the provisions of sub-section (3)

clause (a) to (e) of section 17 of the Arms Act, 1959

are not attracted at all. Even when there is no bar to

possess more than one license, the appellate authority

i.e. the learned Divisional Commissioner has observed

that it would not be just and proper that one person

should possess two arms licenses and accordingly,

imposed condition no.3 while setting aside the order

passed by the learned District Magistrate. Learned

counsel submits that so far as imposition of condition

no.3 in the impugned order is considered, the same is

not legal, correct and proper.

5. Learned A.P.P. submits that the petitioner

himself was willing to surrender his gun license no.915

as condition precedent for restoration of the revolver

license. As per the provisions of rule 123 of the

Maharashtra Arms Manual, generally no permission is

given to a person who possess more than one arms

license. Learned A.P.P. submits that the petitioner

himself has given consent for revocation of his gun

license and thus provision of sub-section 4 of section

7 Cri. W.P. 475/2005

17 of the Arms Act, 1959 stands attracted.

6. It appears from the order dated 9/10/2004

passed by the learned District Magistrate, Ahmednagar

that the arms license bearing no.493 in respect of

revolver granted in favour of the petitioner was revoked

and there is no such order passed in respect of the gun

license possessed by the petitioner. Even though the

petitioner approached the learned District Magistrate,

Ahmednagar and tendered his apology by admitting his

mistake, the learned District Magistrate has not

bothered to review his order. The petitioner even had

pointed out to the learned District Magistrate that the

petitioner never committed such mistake in the last 25

years i.e. since the grant of arms license no.493 and

the said mistake has occurred due to the workload.

The petitioner was therefore constrained to approach the

appellate authority. The petitioner has succeeded in

convincing the appellate authority that there is no

willful dis-obedience of the order passed by the learned

District Magistrate and the order dated 9/10/2004 was

issued without holding any enquiry in this regard.

Furthermore, the petitioner has also pointed out the

8 Cri. W.P. 475/2005

need of the arms license, however, it appears from the

impugned order passed by the appellate authority that

the appellate authority was of the view that no any

person shall possess two arms licenses in view of the

provisions of rule 123 of the Maharashtra Arms Manual.

7. Even though, no ground, exist as provided by

clause (a) to (e) of sub-section 3 of section 17 of the

Arms Act, 1959, the appellate authority has imposed

condition no.3 for restoring the revolver license and

without there being any procedure prescribed in this

regard, recorded the statement of the petitioner to the

effect that the petitioner is ready to surrender his gun

license in lieu of restoration of his revolver license.

I do not think that the petitioner has filed an

application for revocation of his gun license as

provided under sub-section 4 of section 17 of the Arms

Act, 1959. Considering the provision of rule 123 of the

Maharashtra Arms Manual, and after due enquiry in the

year 2000, the gun license was granted in favour of the

petitioner. In terms of the provisions of sub-section 3

of section 17 of the Arms Act, 1959, the Licensing

Authority is empowered to revoke the license, however,

9 Cri. W.P. 475/2005

the appellate authority has imposed unjust condition

no.3 while restoring the revolver license of the

petitioner. In view of this, the aforesaid condition

no.3 in the impugned order dated 20/01/2005 is thus

liable to be quashed and set aside. Hence, the

following order:-

8. Writ Petition is hereby allowed in terms of

prayer clause (B). Rule is accordingly made absolute.

[V.K. JADHAV] JUDGE

arp/