Sukhdev Singh vs State Of Uttarakhand & Others
2014 Latest Caselaw 2232 Del

       IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL
         Writ Petition No. 2687 of 2013 (M/S)

Sukhdev Singh                                    .....Petitioner
                       Versus
State of Uttarakhand and others                  .....Respondents
Mr. S.R.S. Gill, Advocate for the petitioner.
Mr. R.C. Arya, Standing Counsel for the State.

Hon'ble Alok Singh, J.

Present petition is filed assailing the order dated 17th December, 2012, passed by the District Magistrate, Udham Singh Nagar as well as judgment / order dated 20.09.2013, passed by the Commissioner, Kumaon, Nainital whereby arms licence of the petitioner was revoked and appeal filed by the petitioner was dismissed.

Brief facts of the present case, inter alia, are that petitioner was granted arms licence No.1257/G11/GPR/90 to have D.P.L. An F.I.R. No. 35 of 2008 was got registered against the petitioner under Sections 147 and 323 I.P.C. on 16.05.2008 at Police Station Kunda, District Udham Singh Nagar. Petitioner ultimately acquitted in F.I.R No. 35 of 2008, Police Station Kunda, District Udham Singh Nagar by the Judicial Magistrate, Kashipur, Udham Singh Nagar vide judgment dated 26.02.2010, annexure No.3 to the writ petition. Petitioner was issued a show cause notice by the District Magistrate, Udham Singh Nagar as to why arms licence granted to the petitioner be not revoked. Petitioner filed his explanation to the show cause notice on 25.02.2010. District Magistrate, vide impugned order dated 17th December, 2012 was pleased to revoke

the arms licence of the petitioner on the ground that although petitioner was acquitted in Criminal case being F.I.R. No. 35 of 2008, however as per the report of the police, he was found to be quarrelsome man, therefore, his arms licence was liable to be revoked. Petitioner, filed appeal before the Commissioner which was also dismissed by the learned Commissioner vide order dated 20.09.2013.

I have heard Mr. S.R.S. Gill, learned counsel for the petitioner and Mr. R.C. Arya, learned Standing Counsel for the State / respondents and have carefully perused the record.

Section 17 of the Arms Act, 1959 reads as under :- "Section 17 - Variation, suspension and revocation of licences (1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the licence-holder by notice in writing to deliver-up the licence to it within such time as may be specified in the notice.

(2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed.

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

(a) if the licensing authority is satisfied that the holder of the licence 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 ammunition, or is of unsound mind, or is for any reason unfit for a licence 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 licence; or

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

(d) if any of the conditions of the licence has been contravened; or

(e) if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver-up the licence. (4) The licensing authority may also revoke a licence on the application of the holder thereof. (5) Where the licensing authority makes an order varying a licence under sub-section (1) or an order suspending or revoking a licence under sub- section (3), it shall record in writing the reasons therefor and furnish to the holder of the licence 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.

(6) The authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority.

(7) A court convicting the holder of a licence of any offence under this Act or the rules made there under may also suspend or revoke the licence: Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void.

(8) An order of suspension or revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision.

(9) The Central Government may, by order in the Official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licences granted under this Act thought India or any part thereof.

(10) On the suspension or revocation of a licence under the section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation." Arms licence can be revoked or suspended if either of the conditions mentioned in sub-section (3) of Section 17 of the Act is satisfied. Besides this, arms licence can also be revoked on the application of the licence holder.

Learned Standing Counsel, appearing for the State, vehemently argued that arms licence was cancelled/revoked by invoking sub-section (3) of Section 17 of the Act.

As per Section 17 (3) (b) of the Act, if licensing authority deems it necessary for the public peace and public safety, may suspend or revoke the licence. Undisputedly, there was no criminal case registered against the petitioner except F.I.R. No. 35 of 2008, Police Station Kunda, District Udham Singh Nagar wherein petitioner was acquitted by the learned Judicial Magistrate vide order dated 26.02.2010 which has attained finality.

Learned Standing Counsel could not point out any material to say that there were other criminal complaints / F.I.R., too, against the petitioner. Learned

Standing Counsel also could not tell as to weather petitioner was ever challened under Sections 107, 116 and 151 of the Cr.P.C.

In my considered opinion to invoke Section 17 (3)

(b) of the Arms Act, 1959, it must be established that petitioner is threat to pubic peace and public safety. In view of the observation made hereinbefore, it cannot be established that petitioner is threat to the public peace and public safety.

Undisputedly, petitioner remains ex-parte before the learned District Magistrate when District Magistrate passed the impugned judgment. Perusal of the impugned judgment passed by the learned Commissioner would reveal that learned Commissioner/appellate authority was pleased to dismiss the appeal by observing that petitioner could not prove that he was not threat to public safety and public peace. This observation of the Appellate Court is totally irresponsible, uncalled for and unheard of.

As observed hereinbefore to invoke Section 17 (3)

(b) of the Arms Act, State has to establish that licence holder is a threat to public safety and public peace. It is not for licencee to prove in negative that he is not a threat to public peace and safety. Judgment passed by the learned Commissioner seems to be outcome of non- application of judicial mind.

In view of the discussion made hereinbefore, impugned orders do not sustain in the eyes of law. Consequently, writ petition is allowed. Both the

impugned orders are hereby quashed. Learned District Magistrate, Udham Singh Nagar is directed to restore the arms licence in favour of the petitioner, in any case, within a week from today.

(Alok Singh, J.) Dated 2nd May, 2014 Shiv