Ajay Jayawant Bhosale vs The Commissioner Of Police And Ors
2016 Latest Caselaw 3837 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             APPELLATE JURISDICTION




                                                                                             
                         CRIMINAL WRIT PETITION NO. 594 of 2013




                                                                     
     Ajay Jayawant Bhosale
     R/o. 381, Nanapeth, Pune.                                                      ...   Petitioner




                                                                    
              V/s.

     1. The Commissioner of Police,
        Pune City, Pune.




                                                
     2. The State of Maharashtra,
        Through the Minister of State
                             
        (Home), Mantralaya, Mumbai.

     3. The State of Maharashtra                                                    ...   Respondents
                            
     Mr. S.B. Shetye a/w. Mr. Manish Bohra a/w Mr. Imran Shaikh for the applicant.
     Mr. K.V. Saste, APP for the State.
      


                                    CORAM :                 NARESH H. PATIL AND
                                                            PRAKASH D. NAIK, JJ.
   



                            RESERVED ON: 30th June, 2016.
                          PRONOUNCED ON: 15th July, 2016





     JUDGMENT (PER NARESH H. PATIL, J)

Rule. Rule made returnable forthwith. Heard finally by consent of

parties.

2. The petitioner challenges order of revocation of his arms licence

passed by the Commissioner of Police, Pune on 8 th February, 2011 under

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Section 17(3) of the Arms Act, 1959 (hereinafter referred to as "Arms Act"

for short).

3. The petitioner contends that during the relevant period he was

elected as Municipal Councilor and was working as Upshahar Pramukh of

Shiv Sena party in Pune district of the State. He had applied for licence

under Section 13 of Chapter III of the Arms Act for possessing a Fire

Arm (Revolver) for self protection. The Commissioner of Police, Pune

being a licensing authority had granted licence to the petitioner in the

year 2003 bearing licence No. 47/2003. The petitioner purchased one

0.32 crystal pistol bearing no. 194 on 5th August, 2003. It is contended

that the Licensing Authority renewed the licence in the year 2005, 2007

and 2009. On 31st December, 2010 petitioner was served with a show-

cause notice by the Police Commissioner, Pune intimating him as to why

licence issued in favour of the petitioner should not be cancelled/revoked

on the grounds mentioned in the said show-cause notice. On 10 th

January, 2011 and 13th January, 2011 the petitioner filed reply to the said

show-cause notice. On 24th January, 2011 the petitioner appeared in

person before the Licensing Authority. He was heard by the Licensing

Authority. The Licensing Authority by an order dated 8 th February, 2011

revoked the licence.

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4. Being aggrieved by the said order the petitioner filed an appeal to

the State Government on 5th March, 2011. By an order dated 21 st March,

2012 Hon'ble Minister of the State, Home Department,State of

Maharashtra being appellate authority dismissed the appeal filed by the

petitioner.

5. The petitioner preferred this petition on 8 th January, 2013 against

the said orders.

ig Learned Counsel appearing for the petitioner Mr. S.B.

Shetye submitted that the appellate order passed by the State was

erroneous and unreasonable one. The matter is required to be remanded

back to the appellate authority. On the order passed by the learned

Commissioner revoking the licence of the petitioner, it is submitted that

subjective satisfaction of the licensing authority is not reflected in the said

order. During period of last ten years no criminal case was registered

against the petitioner. It is submitted that from the date of issuance of

licence onwards no incidence was reported to the police alleging that the

petitioner misused his licenced weapon. Learned Counsel submitted that

in the year 2008 the petitioner's licence was renewed on the same

material which was subject matter of the show-cause notice. The show-

cause notice itself was issued on extraneous material. It was submitted

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that in fact petitioner and his driver were attacked which was reported to

the police but the said fact was not considered by the authority. Learned

Counsel submitted that show-cause notice refers to various criminal

cases filed against the petitioner from the year 1991 onwards and the

preventive steps taken in the year 2006 and 2007 but while passing final

order the licensing authority had referred to two criminal cases being C.R.

No. 13/2005 registered for offences under Section 143, 148, 149, 506,

452 and C.R. No.150/2006 registered for the offences punishable under

Sections 143, 147, 149, 363, 365, 368, 447, 120B, 427 read with 34 IPC.

Learned Counsel submitted that revocation of licence under Section 17B

of the Arms Act, was not supported by any convincing material.

According to Counsel petitioner requires the licenced weapon as he is

engaged in business, political and social activities. For his personal

safety the licence was applied for and was granted. In the past the

petitioner had applied to the State for getting All India licence and at that

stage the State had called for comments from the Commissioner at Pune.

It seems that the Police Commissioner thereafter issued show-cause

notice to the petitioner and revoked the licence itself.

6. The State filed affidavit through Shri Shivaji Dnyanoba Shelar,

Assistant Commissioner of Police (Establishment). In reply the deponent

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in paragraph 9 submits as under:

With respect to the ground (b) of the petition, I deny the averments made in the said paragraph and say that the office

of the Police Commissioner Pune City, Pune, used to follow practice, while processing renewal of Arm Licence, that only to verify the address of the Arm Licence holder and to verify

whether the Arms Licence holder is possessing same Arm/Weapon endorsed in his Licence. As such criminal record of the petitioner was not verified, hence not known, aware to

the Police Commissioner Pune City, Pune. In the above facts and circumstances of the petitioner's case the Petitioner's

Licence was renewed twice by the Police Commissioner Pune City, Pune. I say that at the time of said renewal of Licence,

fact situation that the serious criminal Cognizable cases registered against Petitioner, was not aware to the License Renewing Authority, hence the said renewal orders were

passed. I therefore, say that on that ground the Petitioner is not entitled to continue with the licence issued in his favour.

I say that the Petitioner had filed an application to the Home Department, State of Maharashtra, Mumbai, for

extension of area validity of Licence throughout India. I say that the Home Department, issued a letter to the Police Commissioner Pune City, Pune, thereby calling upon the authority to submits its report with opinion regarding the said

application. I say that the office of the Commissioner of Police, to verify antecedents of the petitioner, called details of criminal record from the Samarth Police Station, in response to the said enquiry, the Samarth Police Station submitted its report,

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disclosing with details of number of cases registered against Petitioner and preventive actions and externment proceeding

initiated against Petitioner, thereafter the Police Commissioner

Pune City, Pune, submitted its report to the Home Department, State of Maharashtra, Mumbai, stating that there is no recommendation to grant the said application filed by the Petitioner for extension of area validity of licence. I say that

during the course of said enquiry the Police Commissioner, Pune City, noticed and came to knowledge that there are number of cases registered against Petitioner, hence,

immediately thereafter show-cause notice was issued against

the Petitioner and finally passed an order dated 8.2.2011.

7. Learned APP placed reliance on the said affidavit filed by the State.

It was submitted that in the facts of the case, Police Commissioner Pune

rightly exercised powers under Section 17B of the Arms Act. The earlier

renewal of arms licence was done in regular course which would not dis-

entitle the authorities to look into the record of the petitioner, his

antecedents and adverse report if any. The petitioner faced number of

criminal cases and at the relevant time one or two cases were pending

against the petitioner. Considering his antecedents, criminal record the

Police Commissioner revoked the licence which order was confirmed by

the State. Therefore, no interference is warranted in the said order

according to learned APP.

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8. The relevant provisions in respect of grant of licence are

enumerated under Chapter III of the Arms Act. Section 13 refers to grant

of licence. Section 14 refers to refusal of licence. Section 15 refers to

duration and renewal of licence and Section 17 refers to variation,

suspension and revocation of licences. Section 13(2) reads as under:

"13. Grant of licences. (1) ........

(2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police

station on that application, and such officer shall send his report within the prescribed time.

(2-A) The licensing authority, after such enquiry, if any, as it may, consider necessary and after considering the report

received under sub-section (2), shall subject to the other provisions of this Chapter, by order in writing either grant the

licence or refuse to grant the same.

Provided that where the officer in charge of the nearest police

station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time,

without further waiting for that report."

Section 14 speaks that notwithstanding anything contained in Section 13,

the licensing authority could refuse to grant licence on grounds stipulated

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under Section 14. Under Section 17(2) the licensing authority gets

power to vary, suspend or revoke the licence which was already granted.

In the present case, the licensing authority exercised powers under

Section 17(3)(b) which reads as under:

"17. Variation, suspension and revocation of licences.- (1) .......

(2) ......

(3) The licensing authority may be order in writing suspend a

licence for such period as it thinks fit or revoke a licence-

(a) .....

(b) if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or"

9. It is significant to note that Section 17(3)(b) authorises the licensing

authority to cancel or revoke the licence for the security of public peace or

for public safety. The provisions indicate that in case the licensing

authority is subjectively satisfied that in a given case if continuation of

licence endangers public peace or public safety then the Licensing

authority is empowered to cancel or revoke the licence. In the present

case the licensing authority had exercised the said power. The show-

cause notice refers to cases right from 1991 to 2006 and 3 cases of

preventive action taken against the petitioner. The licensing authority had

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also observed in the show-cause notice that the registration of criminal

case indicated that the petitioner was of criminal mind set. It was further

observed that law and order problem was likely to arise. The licensing

authority was of the opinion that due to law and order situation and

danger to public peace, the licence granted in favour of the petitioner was

required to be cancelled.

10. While passing final order reliance was placed by the licensing

authority on only two cases i.e. one C.R. No. 13/2005 and C.R. No.

150/2006. These two cases were also pending when the licence of the

petitioner was renewed in the year 2009. On the same material licence

was renewed from time to time. Since after grant of licence/renewals

there was no new material placed before the licensing authority to revoke

the said licence. Learned Counsel appearing for the petitioner submitted

that as on today one case i.e. C.R. No. 13/2005 is pending. The Counsel

submitted that since last ten years not a single criminal case was

registered against the petitioner. It was submitted that there was no

incidence reported of any misuse of licenced Fire Arm by the petitioner.

Learned Counsel appearing for the petitioner submitted that in cases

listed at serial no. 1 to 8 in show-cause notice petitioner was already

acquitted. Order of externment was stayed by the State Government on

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4th January, 1999 (Exhibit 1). The only case pending is at serial no.9 as

mentioned in the show-cause notice.

11. The question, therefore, arises as to whether there was sufficient

material placed before the Commissioner of Police for arriving at

subjective satisfaction that continuation of licence or renewal would be

endangering public peace or public safety. It seems that the show-cause

notice was issued by the Commissioner, Pune consequent to filing of

application by the petitioner to the Home Department of the State

Government for getting all India arms licence. Nevertheless at any stage

the licensing authority after getting subjectively satisfied and on the basis

of material placed before it could revoke licence under Section 17 of the

Act but whether there was sufficient material with the licensing authority

to pass order of revocation.

12. The right to life and liberty are guaranteed under Article 21 of the

Constitution of India. Arms licence is granted for personal safety and

security after due enquiry by the authorities in accordance with provisions

contained in the Arms Act, 1959. The provisions of Arms Act with regard

to suspension or cancellation of Arms licence cannot be invoked lightly in

an arbitrary manner. The provisions of the Arms Act particularly Section

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13 to 17 indicate that once a licence is granted under the Act, the same

shall be renewed from time to time unless there exist a ground of refusal

as enumerated under Section 14 of the Act. Protection to life, property of

citizen is responsibility of the State. It is only when person apprehends

that machinery of State would not come to his help for protection, he/she

applies for licence under the Act. The provisions of Section 17 A of the

Arms Act indicate that arms licence can be cancelled or suspended if the

licensing authority finds it necessary for the security of public peace or

public safety. Merely because a criminal case is pending, the provisions

of Section 17 of the Arms Act would not be attracted. Such provisions

would be attracted in case the licensing authority finds that continuance

of licence is detrimental to public peace or public security and safety. But

the authority concerned will have to record a finding that how and under

what circumstances and in what manner possession of arms licence

could be contrary to the provisions of Section 17 B of the Arms Act. Each

case is required to be considered on its own merits.

13. Nothing was placed before us by the respondents to indicate that

the petitioner had misused the licenced weapon at any point of time in

past. The order of revocation of license refers to two criminal cases

registered against the petitioner. In the facts we find that mere registration

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of criminal case/cases could not be a ground to revoke the license. The

order shall indicate clearly that continuance of licence would be against

public peace, safety and security.

14. Learned Counsel appearing for petitioner submits that in fact

petitioner and his driver were attacked in the year 2009 regarding which

he had filed a complaint. Considering the business activities, political and

social work of the petitioner, it was submitted that to protect petitioner's

life and property, arms licence was applied for and it was granted. The

petitioner still requires the same. The licensing authority has not given

any opinion as to whether the petitioner requires licence to protect his life

and property. The subjective satisfaction of the authority, therefore, plays

a vital role while assessing merits of a case before passing orders under

the provisions of Section 13, 14 or 17(b). Each case needs to be

assessed, tested on its own merits. Therefore, it is imperative that

before arriving at a conclusion of invoking powers under the provisions of

Section 17(b), the licensing authority ought to have considered the entire

material, threat perception of the licencee and pass appropriate orders.

15. Counsel placed reliance on the order dated 12 th February, 2009

passed by Division Bench of this Court (Bilal Nazki and A.R. Joshi,JJ) in

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the case of Khan Abdul Wahab Usman v/s. The State of Maharashtra

& Ors. in Criminal Writ Petition No. 2688 of 2008.

16. We have noticed that the order passed in the appeal filed by the

State Government is short of appropriate reasoning. As the petition is

pending since last three years, in the facts, we are not inclined to remand

the matter back to the appellate authority.

ORDER

(I) The impugned order dated 8th February, 2011 passed

by Commissioner of Police, Pune and impugned order dated 21st March, 2012 passed by the Hon'ble Minister (Home), Government of Maharashtra are hereby quashed

and set aside.

(II) The respondent no.1, the Commissioner of Police, Pune City, Pune is directed to consider whether any

ground enumerated under Section 17(b) of the Arms Act, 1959 for cancelling the Arms licence granted to the petitioner still exists. If no such circumstances exist, we

direct that the petitioner's Arms licence shall be renewed. The entire exercise shall be completed within a period of Two months from the date of receipt/production of copy of this judgment.

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15. Rule is made absolute in the above terms. No order as to costs.

            (PRAKASH D. NAIK, J.)                                         (NARESH H. PATIL, J.)




                                                                    
     L.S. Panjwani, P.S.