Dharambir Khattar vs Gnctd & Ors.
2011 Latest Caselaw 4959 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 5th October, 2011

+                           W.P.(C) 7360/2011

%        DHARAMBIR KHATTAR                                     .......Petitioner
                    Through:              Mr. S.K. Rungta, Sr. Adv. with Mr.
                                          Prashant Singh, Adv.

                                       Versus
         GNCTD & ORS.                                        ..... Respondents
                            Through:      None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 20th July, 2011 of the Lieutenant

Governor, Delhi, dismissing the appeal preferred by the petitioner under

Section 18 of The Arms Act, 1959 against the order dated 14th February,

2011of the Licencing Authority rejecting the request of the petitioner for

renewal of arms licence.

2. The petitioner claims that arms licence having all India validity was

issued to him in the year 1974 and was renewed from time to time upto 17th

November, 2003.

3. The Licencing Authority (Additional Commissioner of Police) vide

order dated 14th February, 2011, after issuance of show cause notice and

considering the reply of the petitioner, cancelled the arms licence of the

petitioner for the reasons of the petitioner, i) being involved in four criminal

cases; ii) having concealed the factum of his involvement in these cases by

not informing the Licencing Authority immediately after involvement and

having so mislead the Licencing Authority; and, iii) giving his wrong

address. The Licencing Authority thus concluded that the petitioner is not a

fit person to hold an arms licence and issuance /renewal of arms licence to/of

the petitioner is not in the interest of public safety at large.

4. The Lieutenant Governor, in the order impugned in this petition has

observed that the petitioner has not shown due diligence and sincerity in

informing the authorities of the relevant facts at the relevant time and has

held that such concealment of material facts makes him unfit to hold an

Arms Licence.

5. The orders of the Licencing Authority and the Appellate Authority

being detailed orders giving reasons and having been made in compliance of

the principles of natural justice and it being not disputed that the petitioner is

an accused in a DDA scam case under the Prevention of Corruption Act,

1988 and being of the view that this Court in exercise of power of judicial

review is not to sit in appeal over the perception of the Licencing Authority

and the Appellate Authority of petitioner being not a fit person to possess an

arm albeit under licence, it was at the outset enquired from the counsel for

the petitioner as to what is the right of the petitioner which has been

infringed.

6. The counsel for the petitioner contends that the petitioner has not been

accused in any offence relating to arms; that the reasons given in the orders

impugned have no nexus to public safety or public peace; that the grounds

for cancellation do not constitute a ground under Section 17 of the Act; that

the orders are in contravention of Chattar Mohan Singh Vs. Additional

District Magistrate AIR 1991 Allahabad 111 laying down that in the

absence of an allegation of misuse of weapon and without recording any

finding of danger to public peace, cancellation cannot be effected. Reliance

is also placed on:

A. Chhanga Prasad Sahu v. State of Uttar Pradesh AIR 1986

Allahabad 142 (FB) but which only lays down that the

Licensing Authority under the Arms Act has no power to

suspend arms licence without holding inquiry and is thus of no

application in the present situation;

B. Judgment dated 5th July, 2010 of a Single Judge of the

Allahabad High Court in Writ -C No.48839/2005 titled

Indrapal Singh v. State of U.P. holding that a firearm licence

cannot be cancelled on the ground of mere involvement of

licencee in a criminal case;

C. Mahendra Singh Bhaduria v. State of M.P. 2009(2) Recent

Criminal Reports 799 where a Division Bench held that arms

licence cannot be suspended for the reason of the licencee being

an accused of a petty crime, not of serious nature and when he

is not a hardened criminal;

D. Judgment dated 7th December, 2004 of a Single Judge of the

Allahabad High Court in Hausala Prasad Tiwari v. State of

U.P. MANU/UP/1783/2004 again laying down that for mere

involvement in a criminal case not affecting public security or

public interest the arms licence cannot be revoked;

E. Jageshwar v. State of U.P. MANU/UP/1828/2009 also laying

down that the arms licence cannot be suspended/cancelled for

mere involvement in a criminal case or mere likelihood of

misuse of firearm;

F. Ganesh Chandra Bhatt v. District Magistrate, Almora AIR

1993 Allahabad 291 but which is found to have been expressly

overruled in Rana Pratap Singh v. State of U.P. 1996 Criminal

Law Journal 665 (FB);

G. A.C. Dhawan Gun House v. The Govt. of NCT of Delhi

MANU/DE/0791/2009 where an order of cancellation of arms

licence on the ground of the licencee being an accused under

the Prevention of Corruption Act, 1988 was quashed. I may

however note that the facts in the said case were peculiar.

There, for a period of two years after issuing a notice to show

cause for suspension of the arm licence, no action was taken. It

was for this reason that this Court held that the said delay alone

showed that there was no urgency or imminent threat to public

order. Rather the relief of quashing of the cancellation order

was granted for the reason of non-compliance with the

principles of natural justice;

H. Kailash Nath v. State of U.P. AIR 1985 Allahabad 291 (FB).

However the said judgment is not found to be of any assistance

to the petitioner. Rather it lays down that a licence for

acquisition and possession of fire arms is materially different

from a licence for manufacture, sale etc; while the latter confers

a right to carry on a trade or business and is a source of earning

livelihood, the former is merely a personal privilege for doing

something which without such privilege would be

unlawful. The Full Bench rather held that the grant of an arms

licence being a privilege, the decision to grant or not to grant

does not involve the adjudication of the right and does not

entail any civil consequences and even the principles of natural

justice are not to be complied at that stage.

7. I am afraid, none of the judgments relied upon by the petitioner

answer the query raised. I may, notice that recently a Division Bench of this

Court in People for Animals Vs. UOI 180 (2011) DLT 460 has also held

that grant of a licence for acquisition and possession of firearms was only

statutory privilege and not matter of fundamental right under Article 21 of

the Constitution of India; such a licence is materially different from a licence

for manufacture, sale etc. and while latter confers a right to carry on a trade

or business and is a source of earning livelihood, the former is merely a

personal privilege for doing something which without such privilege is

unlawful; grant of such a privilege does not involve the adjudication of the

right of individual nor does it entail civil consequences save that rejection of

an application for grant of licence or cancellation of a licence may become

legally vulnerable if arbitrary or capricious or without application of mind; it

was further held that no citizen has a blanket right to carry firearms and the

application for firearms may be made mostly with the object of protecting

the person or property but which too is mainly the function of the State.

8. A Division Bench of the Bombay High Court in Devendra Tukaram

Katke v. The State Of Maharashtra MANU/MH/0271/2009 has held that

once the concerned authority has for reasons recorded and for ensuring

security of public peace and public safety cancelled the arms licence, the

same ought not to be interfered with in writ jurisdiction since it raises

disputed questions of fact.

9. Our society has recently witnessed scenes/situations hitherto

unknown. There have been instances where people, owing to the tensions of

city life, have at the slightest provocation and in a fit of rage misused

firearms. There have been cases where firearms have been used to kill, it

appears for the sheer joy, without even any reason or provocation. The

assessment made by the authorities in whom the power is vested to assess

whether a person is a suitable person to hold a firearm or not and whether

allowing a person to continue holding a firearm is fraught with danger

cannot be lightly interfered with. As aforesaid the petitioner has no right to

possess a firearm. Though the petitioner has enjoyed the privilege for over

two decades but the recent developments qua the petitioner viz of being an

accused in a scam and hiding the same from the licensing authorities do

certainly constitute a cause for the licencing authorities to revoke such

licence.

10. No case for interference with the action of the licencing authorities is

thus made out. There is no merit in the petition; the same is dismissed. No

order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) OCTOBER 5 , 2011 'gsr'/pp

(corrected and released on 24th February, 2012)