Sheru vs Deputy Commissioner Of Police, ...
1993 Latest Caselaw 124 Del

JUDGMENT

Jaspal Singh, J.

1. Two questions need to be answered. They are :-

"1. Whether under section 17(3) of the Arms Act there is power to suspend an arms license pending enquiry into its revocation ?

2. Whether the notice given to the petitioner under section 17(3) of the Arms Act is valid ?"

2. First the facts.

On March 24, 1984 the petitioner was granted of arms license by the Licensing Authority. The same was renewed from time to time and, at present, it stands renewed till February 23, 1993. On July 7, 1991 a case was registered against the petitioner and others under sections 147/148/149/323 of the Penal Code. Admittedly, a cross case bearing F.I.R. No. 202/91 was also registered against the opposite party. On March 27, 1992 the Deputy Commissioner of Police (Licensing) Delhi issued an "Order Cum Show-Cause Notice" suspending the arms license "with immediate effect" and directing the petitioner to show cause why his arms license be not cancelled.

3. Since the "Order Cum Show Cause Notice" referred to above is the centre storm, I would like to reproduce the same, It runs as follows :-

"ORDER CUM SHOW CAUSE NOTICE

Whereas Shri Sheru s/o Shri Suban r/o village Chandan Holla, P.S. Mehrauli, New Delhi is holding an arms license No. SDMH-020020 for one .12 bore DBBL Gun No. 013141 issued by this office valid up to 23-2-1993.

2. And whereas, DCP/South Distt., New Delhi has intimated that on 7-7-91 one Shakruddin has reported that when he was working at Anrool Farm, Sh. Fazloo and Saeed came and started abusing and beating him. He escaped from there and entered the house of Noor Mohd. ex-Pardhan of vill. Chandan Holla. In the meantime supporters of Fazloo and Saeed were gathered and started pelting stones and bricks on the house of Ex-pradhan. In this connection FIR No. 203/91 under sections 147/148/149/323, IPC PS Mehrauli has been registered. Shakruddin and others got injuries in the quarrel and all the accused were arrested. DCP/South Distt. has further stated that Shri Sheru, who is also an accused in the said case has a licensed gun and there is likelihood that he may create some tension by using his licensed gun in the village and as such recommend that his arms license may be cancelled.

2. And whereas, the above act of Shri Sheru renders him unfit to hold an arms license under section 17(3) of Arms Act, 1959 in the interest of public safety and peace.

4. Now, there from, I, Kanwaljit Deol, Deputy Commissioner of Police, Licensing, Delhi by virtue of powers conferred upon me under sections 17(3) of Arms Act, 1959 do hereby suspend his arms license with immediate effect. He is directed to deposit his weapon along with its cartridges, if any in the nearest Police Station under intimation of this office and his arms license in this office. He is also called upon to show cause as to why his arms license should not be cancelled for the reason mentioned above. His reply to show cause notice should reach this office within 15 days from the date of receipt of this notice, failing which, it will be presumed that he had nothing to say in his defense and matter will be decided ex parte on merits of the case.

5. He is also allowed to appear before the undersigned on 20-4-1993 at 11 a.m. to explain his case in person, if he so desires.

Sd/-

(KAMALJIT DEOL)

DEPUTY COMMISSIONER OF POLICE

(LICENSING) DELHI.

No. 8160/DCP/Lic. (Arms) dated Delhi, the 27/3/92"

4. Before proceeding to deal with the arguments advanced, Section 17(3) of the Arms Act may be noticed. It says :

17(3) The licensing authority may by order in writing suspend a license for such period as it thinks fit or revoke a license, -

(a) if the licensing authority is satisfied that the holder of the license is prohibited by this Act or by other law for the time being in force, from acquiring, having in his possession or carrying any arms or ammunition, or is of unsound mind, or is for any reason unfit for a license under this Act; or

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

(c) If the license was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the license or any other person on his behalf at the time of applying for it; or

(d) If any of the conditions of the license has been contravened; or

(e) If the holder of the license has failed to comply with a notice under sub-section (1) requiring him to deliver-up the license.

5. Mr. O. N. Vohra Advocate appearing for the petitioner drew our attention to a Full Bench judgment of the Allahabad High Court in Chhanga Prasad Sahu v. State, in support of his contention that the Deputy Commissioner (Licensing) could not suspend the license pending enquiry into its revocation. The judgment does support him, for it holds that (Para 22) :

"Having regard to the scheme and purpose of the provisions contained in Sections 17 and 18 of the Act and the nature of the enquiry that a licensing authority is to make before directing revocation/suspension of an arms license, it has no power to suspend the arms license pending enquiry into its cancellation/suspension."

6. The Full Bench was persuaded to so hold principally on the ground that the power to suspend the license pending enquiry into its revocation could not be regard as inherent/incidental power of the licensing authority as the existence of such power was not absolutely essential for the discharge of the power conferred.

7. It may be noticed that the Full Bench judgment in Chhanga Prasad Sahu which was deliver by a Bench of three Judges was followed by another Full Bench judgment in Kailash Nath v. State, . The Bench comprised of five Judges. The Court held that although normally or ordinarily before cancelling a license for fire arms the license holder must be given an opportunity of being heard but in extraordinary cases like the existence of an emergency where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action, the absence of hearing before the action, can be adequately compensated for by a hearing ex post facto. The Court further observed that (at P. 300 of AIR) :

"The licensing authority can also for the furtherance of his immediate remedial action exercise the incidental power of directing the license holder to surrender his license until the objection have been decided."

8. The observation extracted above were interpreted by a Division Bench in Awadesh Kumar Misra v. District Magistrate, Kanpur, 1988 ALL LJ 363, as admitting the power of suspension pending enquiry under section 17(3) of the Arms Act. It was further observed (Para 8) :

"Power of suspension is a necessary concomitant of power of cancellation for effective control and regulation. It was necessary and expedient that the licencing authority should be clothed with power to suspend a license when it detects or finds it to be in the interest of law and order. Otherwise, a license-holder can commit breach of the terms and conditions of his license with impunity, without any check or control. What appeal (sic) to us to be flowing from Section 17(3) of the Arms Act the power of suspension is necessary adjunct to the power to grant a license. Sub-section (3) of Section 17 when it empowers the licensing authority may, by order in writing, suspend a license for such period as it thinks fit. It obviously means that it implies within itself the power of suspension pending enquiry."

9. The Judgment in Awadesh Kumar Misra's case (1988 All LJ 363) was followed by yet another Full Bench judgment in Balram Singh v. State, 1989 ALL LJ 23 wherein, while holding that the power to suspend a license is inherent in the power to cancel it, it was observed (at P. 26, Para 12) :

"We have not a minute's hesitation in holding that the effect of a combined reading of sub-section (3) and clause (b) thereof is that whenever a proceedings under sub-section (3) is initiated for suspending or revoking 'a license' and the licensing authority deems it necessary for security of public peace or for public safety to suspend or revoke 'the license', the said authority can in exercise of that power suspend the license during pendency of the proceedings, without any hindrance from other provisions of the Act."

The Court observed that in view of the judgment in Kailash Nath's case , the ratio in Sahu's case that there was no power to suspend the license rendering enquiry "had lost ground" and that the judgment in Awadesh Kumar's case had laid down the correct law.

10. Section 17(3) gives power to suspend or revoke the license. 'Suspend' means to make to stop for a time : to defer. & Revoke, on the other hand means to recall : call back : to withdraw. Thus whereas suspension of an arms license would only mean deferment or a temporary withholding of the license, finality attaches to the order of revocation as by it the license is withdrawn or taken back. The power of revocation is thus grater than the power of suspension. And, if it is so, the greater power always includes the less. Even otherwise, I do feel, the power to suspend is incidental to the power of revocation and follows as a matter of course being necessary compliment to the order of revocation without which, in cases of emergency etc., the show cause proceedings against revocation may be rendered ineffective. According to Stroud's judicial dictionary, a thing is said to be incidental to another when it appertains to the principal thing and I have no manner of doubt that the power to suspend an arms license does appertain to the principal thing, that is, the power to revoke.

11. The word "or" used in Section 17(3) is not distinctive. It is used here not so much as to separate two wholly different concepts as to show than they are concepts which are too closely allied and may be used together in one order or simultaneously in the form of two separate orders. For example, the Authority may issue a notice to show cause why the license be not revoked and may simultaneously suspend the license by a separate order. And, if the Authority can resort to it, I see no reason why a combined or composite cannot be passed.

12. This much on the first question. However, a few more words before I travel on to the next. Jenkins says that an Advocate is a teacher of sorts and instructs the Judge as to what the law is and what are the underlying facts and circumstances, so that an informed choice can be made. (See : Jankins Communication in the Courtroom. The lawyer as an educator, 48 AM Banker, L.J. 377 (1984). In short, the Advocate must know more and help the decided more. (See : Charles W. Joiner, University of San Francisco Law Review Vol. 24 Fall 1989.) He must also remember that when the duty to the client conflicts with the duty to the system, it is the duty to the system which must prevail (Ibid). I am sure Mr. Vohra is fully alive to his role and hope that his misplaced reliance on Sahu's case and failure to bring to our notice the order judgments referred to by me above, was only an unintended slip.

13. Coming to the second question posed in the introductory part of this order. I find absolutely no justification for the order of suspension. The incident on which the action is founded is of 7-7-91. The order of suspension is of 27-3-92. The long lapse of about 8 months militates against any emergency or urgency or need for immediate remedial action. The order itself speaks of no such urgency or need.

14. Besides, what has been noticed by me above it may be mentioned that an order of the description must pass three tests. Firstly it must show that the Licensing Authority applied its mind to the material placed before it and thereafter deemed it necessary for the security of the public peace or for public safety to initiate action under section 17(3)(b) of the Act. What the impugned order does is that it makes mere reference to the police report. The police report, however, is not a part of the order and there is nothing on the record to show as to whether that report or any part thereof was accepted and made the basis of the order. Anyhow, although the pendency of a minor or capital crime case may possibly lead to an action under clause (a) of Sub-section (3) of Section 17 on the ground that such a person is "unfit for a license under this Act" more so where the licensed weapon is used or employed in the alleged crime, the pendency of one single criminal case of the nature as in the present case where admittedly no forearm was used and only simple hurt was allegedly caused cannot attract clause (b) of sub-section (3) of Section 17. For that reason also the 'Order Cum Show Cause Notice' cannot be sustained.

15. The rule is, therefore, made absolute and the order of the Deputy Commissioner (licensing) dated 27-3-92 is quashed and a rule in the nature of mandamus be issued directing the respondents to forbear giving effect to it.

MAHINDER NARAIN, J.

16. I have had the advantage of reading the judgment of my learned brother Jaspal Singh, and although I agree with his conclusions that the writ petition needs to succeed, I do not agree with all that is said in that erudite judgment, which necessitates my reason.

17. The way I see it, the only question involves in this case is whether the order-cum-show cause notice dated 27-3-1992 is in accordance with law, and if not, whether the same has to be quashed.

18. The law in question being Section 17(3) of the Arms Act.

19. The facts which are not disputed are that on 24-3-1984, the petitioner was granted an Arm license by the Licensing Authority, and the same was renewed from time to time, and on the basis of the last renewal, same is valid till 23-2-1993.

20. On 7-7-1992, a case was registered against the petitioner and others under sections 147/148/149/323 of the Indian Penal Code. Admittedly, a cross case bearing F.I.R. No. 202 of 1991 was also registered against the opposite party.

21. On 27-3-1992, the Deputy Commissioner Police (Licensing) issued an "Order-cum-show cause Notice", suspending the Arm license with immediate effect, and directing the petitioner to show cause why the Arm license be not cancelled.

22. The question which needs to be decided is whether there can be suspension of Arms license with immediate effect.

23. The "Order cum show cause notice" referred to, read as under :-

"ORDER CUM SHOW CAUSE NOTICE

Whereas, Shri Sheru r/o Shri Suban r/o village Chandan. Holla, P.S. Mehrauli, New Delhi is holding an arms license No. SDMH-020020 for one .12 bore DBBL Gun No. 013141 issued by this office valid up to 23-2-1993.

2. And whereas, DCP/South Distt., New Delhi has intimated that on 7-7-91 one Shakruddin has reported that when he was working at Anrool Farm, Sh. Fazloo and Saeed came and started abusing and beating him. He escaped from there and entered the house of Noor Mohd. ex-Pardhan of vill. Chandan Holla. In the meantime supporters of Fazloo and Saeed were gathered and started pelting stones and bricks on the house of Ex-Pradhan. In this connection FIR No. 203/91 under sections. 147/148/149/323 IPC PS Mehrauli has been registered. Shakruddin and other got injuries in the quarrel and all the accused were arrested. DCP/South Distt. had further stated that Shri Sheru, who is also an accused in the said case has a licensed gun and there is likelihood that he may create some tension by using his licensed gun in the village and as such recommended that his arms license may be cancelled.

3. And whereas, the above act of Shri Sheru renders him unfit to hold an arms license under Session 17(3) of Arms Act, 1959 in the interest of public safety and peace.

4. Now, therefore, I Kanwaljit Deol, Deputy Commissioner of Police, Licensing, Delhi by virtue or powers conferred upon me under section 17(3) of Arms Act, 1959 do hereby suspend his rams license with immediate effect. He is directed to deposit his weapon along with its cartridges, if any in the nearest Police Station under intimation to this office and his arms license in this office. He is also called upon to show cause as to why his arms license should not be cancelled for the reasons mentioned above. His reply to show cause notice should reach this office within 15 days from the date of receipt of this notice, failing which, it will be presumed that he has nothing to say in his defense and matter will be decided ex parte on merits of the case.

5. He is also allowed to appear before the undersigned on 20-4-1993 at 11 a.m. to explain his case it person, if he so desires.

Sd/-

(KAMALJIT DEOL)

DEPUTY COMMISSIONER OF POLICE

(LICENSING) DELHI.

No. 8160/DCP/Lic. (Arms) dated Delhi, the 27/3/92."

24. The relevant provision of the Arms Act in the instant case, which need to be considered, are Section 17(3)of the Arms Act, Section 17(5)of the Arms Act and Section 21 of the Arms Act. The said provisions read as under :-

17(3) The licensing authority may by order in writing suspend a license for such period as it thinks fit or revoke a license, - - - -

(a) if the licensing authority is satisfied that the holder of the license is prohibited by this Act or by any other law for the time being in force, from acquiring, having in his possession or carrying any arms or communication, or is of unsound mind, or is for any reason unfit for a license under this Act; or

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

(c) If the license was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the license or any other person on his behalf at the time of applying for it; or

(d) If any of the conditions of the license has been contravened; or

(e) If the holder of the license has failed to comply with a notice under sub-section (1) requiring him to deliver up the license.

17(5) Where the licensing authority makes an order varying a license under sub-section (1) or an order suspending or revoking a license under sub-section (3), it shall record in writing the reasons therefore and furnish to the holder of the license on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.

21. Deposit of arms etc., on possession ceasing be lawful. - (1) Any person having in his possession any arms or ammunition the possession whereof has, in consequences of the expiration of the duration of a license or of the suspension or revocation of license or by the issue of a notification under section 4 or by any reason whatever, ceased to be lawful, shall without unnecessary delay deposit the same either with the officer in charge of the nearest police station or subject to such conditions as may be prescribed, with a licensed dealer or where such person is a member of the armed forces of the Union, in a unit armoury.

Explanation. - In this sub-section "unit armoury" includes an armoury in a ship or establishment of the Indian Navy.

(2) Where arms or ammunition have or has been deposited under sub-section (1) the depositor or in the case of his death, his legal representative shall, at any time before the expiry of such period as may be prescribed, be entitled -

(a) to receive back anything so deposited on his becoming entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, or

(b) to dispose, or authorise the disposal, of anything so deposited by sale or otherwise to any person entitled by virtue of this Act or any other law for the time being in force to have, or not prohibited by this Act or such other law from having, the same in his possession and to receive the proceeds of any such disposal;

Provided that nothing in this sub-section shall be deemed to authorise the return or disposal of anything of which confiscation has been directed under section 32.

(3) All things deposited and not received back or disposed of under sub-section (2) within the period therein referred to shall be forfeited to Government by order of the District Magistrate :

Provided in the case of suspension of a license no such forfeiture be ordered in respect of a thing covered by the license during the period of suspension.

(4) Before making an order under sub-section (3) the District Magistrate shall, by notice in writing to be served upon the depositor or in all case of his death, upon his legal representative, in the prescribed manner, require him to show cause within thirty days from the service of the notice why the things specified in the notice should not be forfeited.

(5) After considering the cause, if any, shown by the depositor, or, as the case may be, his legal representative, the district Magistrate shall pass such order as he thinks fit.

(6) The Government may at any time return to the depositor or his legal representative things forfeited to it or the proceeds of disposal thereof wholly or in part.

25. From the above said provisions of the Arms Act, it will be noted that the power to suspend and the power to revoke a license is a statutory power conferred by the Arms Act. Power to grant license is also statutory power conferred by the Arms Act.

26. It is also to be noted that there exists a well settled principle of law to the effect that, when the statute makes provision for exercise of a power, that power can only be exercised in that manner, and all other manners of its exercise are forbidden. This has been said by the English Courts in (1875) 1 Ch D 426, by the Privy Council in AIR 1936 PC 253 (2) and reiterated by our Supreme Court in .

27. All these judgments give effect to a rule of law that when a statutory manner of exercise of any power is provided by the statute, then all other manners of exercise of that power are prohibited. In view of the prohibition of exercise of power in any other manner, it is not permissible to any person who is required to exercise a statutory power to exercise such power in a manner different from the one postulated by the statute.

28. In view of the aforesaid binding precedents, in my view, it is not possible to hold that power to suspend the license can be exercised in a manner, not postulated by the Arms Act, 1959. The only permissible power is that which accords with Sections 17(3)and 21 of the Arms Act, 1959, and it can be exercised only in accord therewith.

29. Rules of natural justice, particularly, rule of audi alteram partem has been held to apply to all proceedings and inquiries of administrative or quasi judicial nature. It is necessary that before an adverse order is passed against a party, he should be heard, and in the quasi judicial proceedings or in administrative inquiries, reasons for the order should be stipulated. It appears to me that Section 17(5) of the Arms Act is indicative of the fact that reasoned order needs to be given when powers under Section 17(3) which include power of suspension and revocation of arm license are to be exercised.

30. In support of the contention that the petitioner is entitled to the relief of quashing of the aforesaid notice, Mr. O. N. Vohra, Advocate, appearing for the petitioner relied upon a decision of the Full Bench (3 Judges) of the Allahabad High Court in Chhanga Prasad Sahu v. State, . That judgment concludes by saying ............. "having regard to the scheme and purpose of the provisions contained in Sections 17 and 18 of the Act and the nature of the enquiry that a licensing authority is to make before directing revocation/suspension of an arm's license, it has no power to suspend the arm's license pending enquiry into its cancellation/suspension." This was followed by a five Judge Bench in Kailash Nath v. State, . The five Judge Bench of the Allahabad High Court was called upon to examine the case of Chhanga Prasad Sahu. In some of the observations made in Chhanga Prasad Sahu's case, the licensing authority suspended the arm license without notice.

31. The majority of the Judges in the Kailash Nath's case observed that, "the law laid down in para 16 in Chhanga Prasad Sahu's case extracted in the earlier part of this judgment must be supplemented by the further observations that after taking the provisional action of immediate revocation of the license the licensing authority must issue notice to the license holder giving him an opportunity to file objections against the preliminary order and after hearing him proceed to pass the final order which may either affirm or revoke the provisional order. In other words, it is incumbent upon the licensing authority to refrain from attaching finality to the order of cancellation until the aggrieved petitioner has been heard by such authority and his objections have been adjudicated." The majority of the Judges, therefore, superadded to Chhanga Prasad Sahu's case the requirement of ex post facto hearing.

32. The majority of the Judges also further observed that, "the licensing authority can also for the furtherance of his immediate remedial action exercise the incidental power of directing the license holder to surrender his license until the objections have been decided."

33. I regret my inability to agree with the proposition laid down by the Full Bench that there is incidental power in the authority to act. In my view, in view of the existence of statutory power of suspension and revocation, question of incidental powers would not arise at all. Similarly in view of Section 21 of the Arms Act, there is no question of the power to require deposit of arms being incidental power. The same is clearly a statutory power, and the power to require deposit of fire arm can only be exercised if circumstances postulated by that section exist and not incidental.

34. If it was necessary to give incidental power in cases of emergency, which emergency situation the legislature must have been aware of provision therefore would have been made, but was not. As provision for "emergency" situation was not made, one can assume that the legislature did not wish to confer such powers. Such emergency power, cannot be considered by me, as "incidental power" as such power cannot be conferred on statutory authority by judicial pronouncement, when the statute did not contemplate to give any such power.

35. The Allahabad High Court in Balram Singh's case (1989 All LJ 23) (FB) said that the power to suspend is inherent. For the reasons aforesaid, I am unable to agree that any inherent power of "suspension" can be invoked inasmuch as clear statutory powers are conferred by Section 17(3) of the Arms Act, and only such powers as are conferred by statute can be exercised, and they have to be exercised only in the manner postulated by the statute, and other manners of its exercise (including alleged inherent powers) are forbidden.

36. In the facts and circumstances, in agreement with brother Jaspal Singh, I also hold that there is no jurisdiction in the instant case for an order of suspension of the arm license. The incident on the basis of which the suspension order is founded, is dated 7-7-1991, and the order of suspension is passed on 27-3-1992. There is an apparent lapse of eight months between the two events. A long gap of eight months negate existence of any alleged emergency or urgency, and in any case, the order in question, even if emergency or urgency was relevant, which in my view is not statutorily recognised, the order speaks of no such emergency or urgency.

37. For the aforesaid reasons, I hold that the petitioner is entitled to the reliefs sought in the petition, and the order dated 27-3-1992 is liable to be and is hereby quashed, and mandamus prayed for by the petitioner is issued, restraining the respondents from giving effect to the order dated 27-3-1992, purporting to suspend Arm license granted to the petitioner.

38. Petition allowed.