Bombay High Court
Kunal Vinod Deshpande vs Divisional Commissioner And Ors S on 25 July, 2023
Bench: Amit Borkar
2023:BHC-AS:20619
2-crwp976-2021.(f).doc
VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.976 OF 2021
Kunal Vinod Deshpande,
Age - 40 years, Occupation - Business,
R/o.2602, A Ward, Deshpande Galli,
Infront Kolhapur High School,
Shivaji Peth, Kolhapur
... Petitioner
V/s.
1. Divisional Commissioner,
Pune Division, Camp,
Pune, Maharashtra
2. District Magistrate, Kolhapur,
The District Collector Office,
Swarajya Bhawan,
Assembly Road, Kolhapur,
Maharashtra
3. The State of Maharashtra
... Respondents
Mr. Shrikrishna R. Ganbavale with Mr. Kush Lahankar
for the petitioner.
Mr. Arfan Sait, APP for the State.
CORAM : AMIT BORKAR, J.
RESERVED ON : 28 APRIL, 2023
PRONOUNCED ON : 25 JULY, 2023
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JUDGMENT.:
1. The challenge in this petition is to the order dated 16 th June
2020 passed by respondent No.1 dismissing the appeal arising out
of the order dated 3rd September 2019 passed by respondent No.2,
whereby the petitioner's application for arms licence under section
13 of the Arms Act, 1959 has been rejected.
2. The petitioner, on 29th April 2019, filed an application before
respondent No.2 for obtaining a licence under the provisions of the
Arms Act, 1959. According to the petitioner, in connection with his
scrap trading business, he needs to travel out of Kolhapur district
at night. He has a construction business in the city and, therefore,
he requires to carry cash in connection with his business. On 19 th
December 2018, the petitioner suffered an incident of robbery. He
had lodged a report with Shahupuri Police Station, Kolhapur.
3. Respondent No.2, by order dated 3rd September 2019,
rejected the application based on the following reasons:
i. No evidence or sufficient reason is proved to the satisfaction
of respondent No.2 that there is a threat to the petitioner's life.
ii. The police report recommended not granting the petitioner a
revolver/pistol licence for self-protection.
4. Respondent No.2, therefore, refused to grant a licence
mainly based on the police report.
5. Learned advocate for the petitioner submitted that
considering the nature and context of sections 13 and 14, the
opportunity for an oral hearing needs to be given to the petitioner.
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According to him, the impugned order is passed without
application of mind as the reasons in the order are not germane to
the inquiry contemplated under sections 13 and 14 of the Arms
Act, 1959. The right to possess a firearm is a fundamental right.
The petitioner's business requires to carry cash. Therefore, the
petitioner's application ought to have been allowed by respondent
No.2. According to him, a pre-decisional oral hearing is an
inherent and intrinsic right in an inquiry under section 13 of the
Arms Act, 1959. According to him, a clear record of satisfaction
that there is no specific threat to the petitioner's life in the past
would not constitute a good reason as contemplated under section
13(3)(b) of the Arms Act, 1959. The next submission on behalf of
the petitioner is the lack of opportunity for an oral hearing to the
petitioner.
6. In support of his submission, he relied on the following
judgments:
a) Automotive Tyre Manufacturers vs. Designated Authority
And Others reported in (2011) 2 SCC 258.
b) Madhyamam Broadcasting Limited vs. Union of India &
Others reported in 2023 SCC OnLine SC 366.
c) Canara Bank And Others vs. Debasis Das And Others
reported in (2003) 4 SCC 557.
d) Union of India vs. Jyoti Prakash Mitter reported in 1971(1)
SCC 396.
e) Union of India And Others vs. Sanjay Jethi And Another
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reported in (2013) 16 SCC 116.
f) Vinay Ruthia vs. State of Madhya Pradesh and Others
reported in 2020 SCC OnLine NGT 1481.
g) Sadashivrao Mandlik Kagal Taluka Sahakari Sakhar
Karkhana Ltd. vs. Regional JT. Director (Sugar) Kolhapur And
Others reported in 2011 (5) Mh.L.J. 68.
h) Harbhajan Singh vs. Minister of Employment and
Immigration reported in 1985 CanLII 65 (SCC).
i) Sunil Ramrao Chaudhari vs. The State of Maharashtra And
Ors. in Writ Petition No.9954 of 2013 decided on 22 nd August
2016.
j) Pawan S/o Ashok Bora vs. State of Maharashtra And Others
reported in 2017(4) Mh.L.J. 619.
k) V. P. Kalairajan vs. The Commissioner of Police, Egmore,
Chennai-8 reported in 2008 (3) CTC 817.
l) Sunil Kumar Jeevtani vs. State of M.P. & Ors. reported in
I.L.R. (2020) M.P. 2757 (DB).
m) Chhotelal Pachori vs. State of M.P. and Others reported in
2019 (2) M.P. L.J. 697.
n) Kapildeo Singh vs. State of Bihar and Others reported in
1987 SCC OnLine Pat 22.
7. Per contra, learned APP submitted that the right to hold a
firearm is not a fundamental right. It is a privilege. The expression
"good reason" mentioned in section 13 of the Arms Act, 1959,
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needs to be interpreted in the light of the object and purpose of
sections 13 and 14 of the Arms Act, 1959 and the absence of a
right of a citizen to hold a firearm. Per contra, the learned APP
relied on the following judgments:
a) Rama Pratap Singh vs. State of Uttar Pradesh reported in
1996 All L.J 301 (Full Bench).
b) Kapildeo Singh vs. State of Bihar And Ors. reported in 1987
Cri. L.J. 960 (Full Bench).
c) State of Uttar Pradesh And Others vs. Mahipat Singh
reported in 2014 (2) ALJ 443.
d) Sunil Ramrao Chaudhari vs. State of Maharashtra reported
in 2016 (6) Mh. L.J. 640.
e) Rajat Yadav vs. State of Uttar Pradesh And Others reported
in 2022 (2) ALJ 321.
f) Suned Kumar Singh vs. State of Madhya Pradesh reported in
2022 AIR OnLine MP 2211.
8. Learned APP submitted that the petitioner could not claim
such right in the absence of specific conferment under a statute of
affording oral hearing. The right to seek a licence is a privilege, not
a right. Order of refusal to grant a licence to possess a firearm has
no civil consequences; therefore, the opportunity of an oral
hearing is not contemplated.
9. I have heard learned advocate for the petitioner and
considered the material on record. It is necessary to first deal with
the submission of lack of opportunity for the oral hearing. It is well
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settled that there are no inflexible rules of natural justice of
universal application. Rules of natural justice vary with the varying
constitutions of statutory bodies and the rules prescribed by the
legislature under which they have to act. An authority or body
need not observe rules of natural justice where its decision,
although final, relates to the grant of licence. An application for a
grant of licence to carry an arm is neither a right to such grant nor
a reasonable expectation that such a grant would be made in his
favour. In refusing to grant a licence, the Collector is not obliged to
act judicially. The order refusing a licence under section 13 of the
Arms Act, 1959, is administrative. There is no link between the
Collector, and the person who refused such privilege.
10. The judgment relied on the petitioner in the case of
Automotive Tyre Manufacturers Association (supra), in paragraphs
80 and 81, held as under:
"80. It is, thus, well settled that unless a statutory provision,
either specifically or by necessary implication, excludes the
application of principles of natural justice, because, in that
event, the Court would not ignore the legislative mandate,
the requirement of giving reasonable opportunity of being
heard before an order is made, is generally read into the
provisions of a statute, particularly when the order has
adverse civil consequences which obviously cover infraction
of property, personal rights and material deprivations for the
party affected. The principle holds good irrespective of
whether the power conferred on a statutory body or Tribunal
is administrative or quasi-judicial. It is equally trite that the
concept of natural justice can neither be put in a strait-jacket
nor is it a general rule of universal application.
81. Undoubtedly, there can be exceptions to the said
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doctrine. As stated above, the question of whether the
principle has to be applied or not is to be considered bearing
in mind the express language and the basic scheme of the
provision conferring the power, the nature of the power
conferred and the purpose for which the power is conferred
and the final effect of the exercise of that power. It is only
upon a consideration of these matters that the question of
application of the said principle can be properly determined.
(See Union of India Vs. Col. J.N. Sinha & Anr. . (1970) 2 SCC
458)."
11. In the case of Madhya Pradesh Industries Ltd. vs Union of
India reported in AIR 1966 SC 671, the Apex Court, in paragraph
10, considered the distinction between the right to make
representation in writing and personal hearing. It is held that the
opportunity to make representation need not necessarily be by
personal hearing. It can be by written representation. Whether said
opportunity should be by written representation or by personal
hearing depends upon the facts of each case, and ordinarily, it is at
the discretion of the tribunal. In the facts of the present case, since
the refusal to grant a licence to the petitioner has no civil
consequences, it is not necessary that opportunity of an oral
hearing needs to be provided to the petitioner.
12. The parameters of the grant of an arm's license are laid
down by the Single Judge of this Court in Pawan S/o Ashok Bora
(supra), which takes into consideration the earlier Division Bench
judgment of this Court in the case of Khan Abdul Wahab Usman vs
the State of Maharashtra in Criminal Writ Petition No.2688 of
2008 decided on 12th February 2009. Single Judge of this Court,
after considering sections 13 and 14 of the Arms Act, 1959 in
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paragraphs 7 and 8, held as under:
"7. Reading these sections, it would become clear that the
licensing authority has to consider the issue of grant of
licence or otherwise by following the procedure laid down
under section 13 of the Act. This procedure includes calling
for the report of the officer in charge of the nearest police
station and also making an inquiry, if any, to consider
whether the discretion should be exercised in favour of the
applicant or not. After following this procedure, sub-section
3 of section 13 mandates that the licensing authority must
grant a licence where the conditions as specified in the sub-
sections are fulfilled. In the instant case, the licence was
sought to be obtained particularly under section 4 of the
Arms Act and, therefore, clause (b) of sub-section 3 of the
Arms Act would be relevant. This clause (b) makes it
mandatory for the licensing authority to grant a licence if the
licensing authority is satisfied that the person by whom the
licence is required has a good reason for obtaining the same.
It can be noticed that this section does not say that only
when there is a favourable recommendation by the police
authority that the licence be granted. This section, on the
other hand, lays down that the licence can be issued for any
good reason. Now, what can be the good reason that has not
been clarified anywhere in the Act? An insight into what
constitutes a good reason for the grant of a licence could be
had by considering the provisions of section 14 of the Arms
Act.
8. Section 14 is about refusal of licence. It delineates the
situations where the licence is to be mandatorily refused.
These situations are as under :
1 Where licence under section 3, or 4 or 5 is
required in respect of any prohibited arm or prohibited
ammunition;
2 Where the licensing authority is satisfied that the
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person requiring a licence is prohibited by Arms Act or
by any other law from acquiring or possessing, or
carrying any arms or ammunition.
3 Where the person requiring a licence is of
unsound mind;
4 Where the person desirous of having a licence is
unfit for holding the licence under the Arms Act;
5 Where the licensing authority considers it
necessary for the security of the public peace or public
safety to refuse the licence.
These are the only grounds on the basis of any one or
more of which the licence could be refused. It is also
worthwhile to note that under this section, there is no such
ground as the absence of any threat to the life or property of
a person to refuse the grant of licence. It would then mean
that the presence or absence of a threat to the life or
property of a person from the perspective of police authority
cannot be a good ground for refusal within the meaning of
the section
14. It would then follow that a police report saying there is
no threat to the life or property of a person is not relevant for
either refusing or even granting a licence under section 14
and section 13, respectively. Relevant rather a criterion
would be the genuineness of the need of the person,
examined from the individual's own perception and his
security wants in the light of his mental and physical make-
up and factors serving as express disqualifications for a
person to hold the licence under section 14 of the Arms Act.
This is what constitutes the "good reason" for grant of licence
under section 13(3)(b), Arms Act. The authority, however,
must be wary of those needs which are fanciful or simply
pretentious or purely fired by a desire to flaunt or parade in
public the firearm as a fashion trend. This is not to say that a
need felt by a person to possess a firearm is false only
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because police do not think it to be real. As said earlier, an
individual's own feeling of insecurity is an important factor.
So, it needs to be respected and considered on the touch-
stone of his own psyche, physical and mental makeup and
other factors contained in section 14 of the Arms Act. After
all, it is now a settled law that as possession of a non-
prohibited firearm helps effectuate a person's right to protect
himself, the right is considered as a part of a fundamental
right under Article 21 of the Constitution of India, subject, of
course, to reasonable restrictions. Therefore, generally
speaking, granting a licence should be the rule and refusal an
exception, for reasons be recorded in writing."
13. Reading of judgment of the Single Judge of this Court in the
case of Pawan S/o Ashok Bora (supra), it appears that one of the
relevant factors for exercise of discretion under section 13 is a
genuineness of need of person, examined from his own perception
and his security wants in the light of mental and physical makeup
and factors serving as express disqualification for a person to hold
licence under section 14 of the Arms Act, 1959. However, fanciful
or pretentious or purely fired by a desire to flaunt or parade the
firearm in public is also a relevant factor. The Single Judge
thereafter, in paragraph 9, has observed as under:
9. This view is consistent with the legislative intent
discernible from section 14(2) of the Act. This provision of
law creates an embargo upon the power of the authority to
refuse a grant of licence by laying down that it shall not
refuse a licence merely on the ground that such person does
not possess sufficient property. The Legislature intends that
possession of the property would have no bearing on the
exercise of the power to refuse a grant of licence. It would
also then mean that the absence of a threat to the property is
no criterion for refusal of the licence. So, if the absence of a
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threat to the property is not a criterion for refusal of a
licence, it can also be found inferentially that the absence of
a threat to the person of the applicant would be no criterion
for refusal of the licence. This is what has been held
consistently by the learned Judges, as the Honourable Judges
then were, in the cases relied upon by the
petitioner...............
..................I fully agree with the views expressed by the
learned Single Judge of Delhi High Court. In the present
scenario, where crime is ever on the rise, one can never
know as to when and where the evil will strike him or his
near and dear ones. This is the reason why in the matter of
granting of licence for a non-prohibited firearm, the
applicant's own perception of the threat to his life or
property is very relevant and is required to be given due
consideration and respect. In a disturbed society, an
individual may, without being armed with a weapon, feel
very insecure and helpless to protect himself and his family
members. Enabling such a person to possess the firearm, if
not otherwise disqualified to hold it, would be like boosting
his confidence to protect himself and his family members on
one hand and busting the morale of criminals casting an evil
eye on him on the other. Therefore, due consideration is
required to be given to the perception of the person
interested in acquiring and possessing the firearm. Of course,
there are other conditions that are referable to the provisions
of sections 13 and 14 of the Act, which must also be
considered while granting or refusing a licence. This view
finds support in other cases as well, which are discussed in
the foregoing paragraphs.........."
14. On perusal of the material on record, it appears that the
reasons for rejection of the licence are not based on the factors
held to be relevant by the Single Judge of this Court. It is
necessary to consider whether the grounds given by the petitioner
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for issuing a licence are reasonable and consistent with the
purpose for which he intends to procure a firearm. It needs to
consider whether the petitioner's physical and mental condition is
suitable for acquiring and possessing the firearm. It is also required
to consider whether the petitioner resides in or anywhere near the
wildlife sanctuary or national park. It is also necessary to consider
that the type of firearm for which the petitioner has sought a
licence is consistent with the purpose for which he is desirous of
keeping a firearm. It also needs to be recorded a satisfaction that if
a firearm is issued to the petitioner, there is a guarantee that he
would not misuse it.
15. Unfortunately, reading of orders passed by authorities below,
it appears that no relevant factors have been considered by
authorities below in passing the impugned orders. Therefore, it is
necessary that respondent No.2 shall reconsider the petitioner's
application under section 13 afresh in the light of the parameters
referred to in aforesaid paragraphs. Hence, the following order:
a) Rule is partly made absolute.
b) The impugned orders passed by the District Magistrate,
Kolhapur, on 3rd September 2019 and Divisional
Commissioner, Pune Division, Camp, Pune, on 16th June
2020, are set aside.
c) The matter is remanded back to respondent No.2 for a
decision afresh in the light of parameters laid down in
aforesaid paragraphs and in the light of sections 13 and 14 of
the Arms Act, 1959.
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VAIBHAV
RAMESH
JADHAV
Digitally signed by
VAIBHAV RAMESH
16. The criminal writ petition stands disposed of. No costs.
JADHAV
Date: 2023.07.25
14:36:40 +0530
(AMIT BORKAR, J.)
