Delhi High Court

Parveen Kumar Beniwal vs Govt. Of Nct Of Delhi & Anr on 29 April, 2015

Author: Rajiv Sahai Endlaw

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision:29th April, 2015.

+                              LPA No.41/2015

       PARVEEN KUMAR BENIWAL                      ..... Appellant
                  Through: Mr. Sunil K. Mittal with Mr. Vipin K.
                           Mittal, Advs.

                               Versus

    GOVT. OF NCT OF DELHI & ANR.              ..... Respondents
                  Through: Ms. Zubeda Begum and Ms. Sana
                           Ansari, Advs. for GNCTD.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra court appeal impugns the judgment dated 22nd December,

2014 of the learned Single Judge of dismissal of W.P.(C) No.8111/2014

preferred by the appellant. The said writ petition was filed impugning the

order dated 6th August, 2014 of the Lt. Governor of Delhi of dismissal /

rejection of the appeal under Section 18 of the Arms Act, 1959 preferred by

the appellant against the order dated 1st April, 2014 of the Additional

Commissioner of Police (ACP) (Licensing) revoking the arms licence of the

appellant.

2. This appeal came up for admission on 12th February, 2015 when the

counsel for the respondents Govt. of NCT of Delhi (GNCTD) and ACP

(Licensing) appeared on advance notice and with the consent of the

counsels, arguments in the appeal were finally heard and judgment reserved.

3. The appellant, claiming to be carrying on business as a Cable TV

Service Provider, in the year 2006 applied for and was granted an arms

licence which was renewed from time to time. The ACP (Licensing), vide

order-cum-show cause notice dated 31st October, 2013 suspended the arms

licence of the appellant with immediate effect and called upon the appellant

to deposit the licenced weapon with the nearest Police Station immediately

and to show cause, as to why the arms licence of the appellant should not be

cancelled on the ground of the appellant, at the time of applying for renewal

of the licence, having not intimated the factum of his being involved in case

FIR No.409/2010 dated 27th December, 2010 under Sections 302/34 IPC of

Police Station K.N. Katju Marg, New Delhi and in case FIR No.280/2013

dated 24th August, 2013 under Sections 323/341/336/506/34 IPC of Police

Station Rani Bagh, New Delhi, and for which reason the ACP (Licensing)

was of the view that the appellant was "not a fit person to hold an arms

licence in the interest of public safety at large".

4. The appellant submitted a reply dated 8th November, 2013 to the

aforesaid show cause notice stating, that he had been falsely implicated in

case FIR No.409/2010 and had been acquitted on 8 th August, 2012 and that

the complainant in case FIR No.280/2013 had himself, when the appellant

had applied for bail thereunder, filed an affidavit that the FIR had been

lodged as a result of misunderstanding and further that with the consent of

the complainant, the said FIR stood quashed on 16th December, 2013. The

appellant further replied that his licenced weapon had never been used in the

commission of any crime nor was the case property in any crime and that he

"had not intentionally concealed" the said facts, while applying for renewal

of the licence and the said facts remained to be stated out of "sheer

inadvertence".

5. The ACP (Licensing) vide order dated 1st April, 2014 cancelled the

arms licence of the appellant, observing; (i) that a perusal of the order dated

8th August, 2012 in case FIR No.409/2010 supra showed that the appellant

had been acquitted by giving benefit of doubt and the Court had passed

strictures against the local police for faulty investigation etc.; (ii) that FIR

No.280/2013 had also been quashed on the ground of settlement with the

complainant and subject to cost of Rs.25,000/- on the appellant and the

same also did not constitute an honourable acquittal; (iii) rather, the FIRs

against the appellant showed the propensity of the appellant to indulge in

quarrel with the others; (iv) that the failure of the appellant to disclose the

said facts was in violation of the Arms Act; and, (v) that the appellant was

thus indeed not a fit person to hold an arms licence.

6. The Lt. Governor, Delhi dismissed / rejected the statutory appeal

preferred by the appellant, further noting that perjury proceedings had been

initiated against the person on whose statement the appellant had been

acquitted in case FIR No.409/2010 and observing that the order of the ACP

(Licensing) of revocation of licence was fair and there was no reason to

interfere therewith.

7. The ACP (Licensing) in the counter affidavit to the writ petition filed

before the learned Single Judge also pleaded; (a) that the appellant, on 17 th

August, 2012 had applied for renewal of his arms licence; (b) that in

Column No.15 of the prescribed form for renewal of arms licence, the

appellant was asked "whether presently / previously involved in any

criminal case (whether convicted / acquitted or pending trial), if yes details

of the case"; (c) that the appellant against the said Column wrote "N/A"; (d)

that on the basis of the information so furnished by the appellant, his arms

licence was renewed till 30th April, 2015; (e) that concealment of material

facts, while applying for or seeking renewal of arms licence, is a ground for

revocation of licence; (f) that the appellant neither in the reply to the show

cause notice nor in the personal hearing given to him could give any

justifiable reason, as to why he indulged in suppression of material facts; (g)

that the Supreme Court in Chandrakant Hargovindas Shah Vs. Deputy

Commissioner of Police (2009) 7 SCC 186 has held that the statutory

authority is justified in revoking the licence, where the licencee is guilty of

„suppressio veri' and „suggestio falsi‟; (h) that the Full Bench of the Patna

High Court in Kapil Deo Singh Vs. State of Bihar AIR 1987 Patna 122 held

that registration and pendency of criminal case for a major offence is an

adequate reason to justify the suspension or revocation of arms licence.

8. The learned Single Judge dismissed the writ petition finding /

observing / holding: (I) that the argument of the appellant that since he had

been acquitted and / or since the FIRs had been quashed, his arms licence

could not be cancelled / revoked, has no merit as the issue is not, whether

the appellant is guilty but whether a reasonable person could infer that the

appellant was involved in those incidents; (II) that the standard of proof

required for conviction in a criminal proceeding, of the guilt being proved

beyond reasonable doubt, is materially different from the consideration that

the licensing authority has to bear, while forming an opinion, whether to

revoke a licence; (III) that for licensing authority to take note of possible

involvement of the licencee in an offence, conviction is not essential--all

that is required to be considered is the likely involvement in the incident;

(IV) that the offence of which the appellant was accused in both the FIRs

were serious; (V) that this Court in exercise of powers under Article 226 of

the Constitution of India would not supplant its opinion over that of the

concerned authority; (VI) that there would be no interference in the opinion

of the ACP (Licensing), unless the decision was found to be arbitrary,

capricious, unreasonable or for extraneous considerations or the decision

making process was faulty; (VII) that it could not also be said that the

decision of the statutory authorities was so unreasonable which no prudent

person could have formed; (VIII) that merely because the appellant had

been acquitted, did not mean that the appellant in response to Column No.15

of the application form for renewal of licence, was not required to disclose

the FIRs; (IX) that the judgment of a Division Bench of this Court in Sheru

Vs. Deputy Commissioner of Police (Licensing), Delhi 50 (1993) DLT 390

could not be read as laying down that arms licence could never be revoked

on the ground of mere involvement in criminal cases, if the licensed weapon

was not used.

9. The counsel for the appellant before us, besides reiterating the

contentions urged before the ACP (Licensing), Lt. Governor and the learned

Single Judge, has relied on para 14 of the opinion of one of the Judges of the

Division Bench in Sheru supra, on para 12 of Braham Parkash Vs. State

(1994) 53 DLT 454 (DB) and on the judgment dated 5th July, 2010 of a

learned Single Judge of the Allahabad High Court in Writ (C)

No.22659/2006 titled Govind Singh Vs. State of U.P.

10. Per contra, the counsel for the respondents has taken us through the

form filled up by the appellant on 17th August, 2012 for renewal of his arms

licence and has drawn attention to Section 17(3)(c) of the Arms Act which

empowers the licensing authority to suspend / revoke an arms licence, if

inter alia satisfied that the holder of the licence for any reason is unfit for a

licence under this Act or if so deems necessary for the security of the public

peace or for public safety or if the licence was obtained by suppression of

material information or on the basis of wrong information.

11. We are entirely in agreement with the reasoning given by the learned

Single Judge and after having considered the contentions raised and the

judgments relied upon by the counsel for the appellant, do not find any

reason to, in exercise of our jurisdiction under the Letters Patent, interfere

therewith.

12. Section 17(3) of the Arms Act is as under:

"(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."

13. Suppression of material information or furnishing of wrong

information at the time of obtaining the licence has expressly and

specifically been made a ground for revocation of the licence. It is not

controverted that the same applies to obtaining renewal of licence as well.

It is not as if, it has been left to the discretion of the applicant for arms

licence, as to what information should be furnished. The information which

the ACP (Licensing) requires for forming an opinion, whether to grant /

renew an arms licence is prescribed in the form, format whereof is contained

in the Arms Rules, 1962 framed under the Act. It thus follows that all the

information required to be furnished in the said form is material

information. One of the information sought is in Column No.15 as noticed

above. Thereunder, the applicant is required to disclose not only, whether at

the time of filling up of the form but previously also, if he / she was

involved in any criminal case and whether he / she was convicted or

acquitted therein along with the details thereof. The same is undoubtedly a

material information for the ACP (Licensing) to form an opinion, whether to

grant an arms license or not. To be fair to the counsel for the appellant, he

has not even argued that the said information is not material. Section

17(3)(c) makes the mere suppression of said information a ground for

revocation. Again, to be fair, the counsel for the appellant has not even

controverted that the appellant did indeed suppress the information which he

was required to furnish in Column No.15. What he however contends is

that since on the date of filling up of the form, the said cases were not

pending and in one the appellant had been acquitted and in another the FIR

had been quashed, the appellant inadvertently did not furnish the said

information. However, the column leaves no manner of doubt that even any

previous involvement in a criminal case alongwith the outcome thereof, is

required to be disclosed. Section 17(3)(c) of the Act does not qualify the

words "suppression of material information" with the words "intentional".

Thus, we are not required to go into the question, whether the suppression

was intentional and / or bona fide and / or inadvertent. Once it is found that

there was suppression of material fact or wrong information was given at

the time of obtaining / renewing arms licence, the same, without anything

more, constitutes a ground for revocation of licence. The said ground of

revocation is independent of the other grounds of revocation i.e. of the

Licensing Authority deeming revocation to be necessary for the security of

the public peace or for public safety. Thus, once the ground of revocation

under Section 17(3)(c) i.e. of suppression of material information /

furnishing of wrong information is made out, the concerns of public peace

or public safety are irrelevant.

14. The Supreme Court in Kendriya Vidyalaya Sangathan Vs. Ram

Ratan Yadav (2003) 3 SCC 437 was concerned with an application for an

employment also requiring the applicant to disclose whether he had ever

been prosecuted / kept under detention / bound down / fined, convicted by a

Court of law of any offence and whether any case was pending against him

in any Court of law and a consequent term of appointment that suppression

of any information may lead to dismissal from service. Finding the answers

given in the application form to the said queries to be negative and which

turned out to be false, the order of dismissal from service was passed and

which was challenged by a writ petition in the High Court. The High Court

allowed the writ petition accepting the explanation that the said queries in

the application form were not understood properly and that the criminal case

had been withdrawn by the State Government and holding that the charge in

the criminal case also was not so serious. The Supreme Court set aside the

judgment of the High Court and held that the object of requiring the said

information was to ascertain and verify the character and antecedents of the

applicant, to judge his suitability. It was further held that suppression of

material information and making a false statement had a clear bearing on the

character and antecedents of the applicant and a candidate who had

suppressed material information / given false information could not claim a

right to continue in service and the employer was within its right to

terminate the employment.

15. As far as the judgment relied upon by the counsel for the appellant in

Sheru supra is concerned, the challenge therein was to the order of

suspension of arms licence-cum-show cause notice against revocation

thereof. The two members of the Division Bench rendered separate

opinions. While one (Jaspal Singh, J.) held that Section 17(3) permits

suspension of arms licence but found fault with the ground of suspension

inter alia observing that though pendency of major or capital crime case

may possibly lead to the conclusion that the person is unfit for licence, more

so, when the licensed weapon is used or employed in the alleged crime but

the pendency of a single criminal case where admittedly no firearm was

used, cannot attract Section 17(3)(b), the other learned Judge (Mahender

Narain, J.) held that there could be no order of suspension of arms licence,

without hearing the licencee and holding an enquiry and giving reasons

therefor. Sheru supra was thus concerned only with a ground of suspension

under Section 17(3)(b) and the ground of suspension / revocation under

Section 17(3)(c) i.e. of suppression of material facts, while applying for

licence / renewal of licence, did not fall for consideration therein. We

therefore do not find the opinion of one of two Judges of the Division Bench

in Sheru supra to be of any relevance to the present controversy.

16. Similarly, Braham Parkash supra also is not found to be of any

relevance to the present controversy. The outcome therein was as a result of

a conclusive finding of fact that the arms licence holder had not concealed

any facts and that the Court of competent jurisdiction had held the criminal

case against him to be false and fabricated. The position here is entirely

different. Not only is the appellant guilty of suppression within the meaning

of Section 17(3)(c) supra but the culmination of the criminal cases against

the appellant is not on a finding of the same being false and fabricated but as

a result of settlement and / or by giving benefit of doubt to the appellant.

We may in this regard also notice that the appellant has also shied away

from filing before us the judgment of his acquittal or the proceedings in the

petition filed for quashing of the other FIR and which would have thrown

light on the nature of the involvement of the appellant. Though during the

hearing, we asked the counsel for the appellant for the same but he did not

have the same in his file also. Even after the judgment has been reserved,

no copies thereof have been filed.

17. Govind Singh supra also merely holds that mere involvement of the

licence holder in a criminal case cannot ipso facto lead to the conclusion

that it is not in the interest of security of public peace or public safety that

the licence should be revoked. The same is also not a judgment on Section

17(3)(c).

18. Per contra, the counsel for the respondents has drawn our attention to

a recent judgment dated 15th January, 2014 of a Division Bench of the

Allahabad High Court in Special Appeal No.62/2014 titled State of U.P. Vs.

Mahipat Singh 2014 (2) ALJ 443 holding; (A) that the scheme of the Arms

Act and the Arms Rules indicates that a wide discretion has been given to

the licensing authority; (B) that maintenance of law and order and public

peace and safety is the responsibility of the State; (C) that a citizen cannot

assert a right to hold a firearm licence; (D) that the discretion which is

conferred upon the licensing authority cannot be confined to fixed

categories; (E) whether there is a perception of threat to the security of a

citizen has to be considered by the licensing authority; (F) that the Court

cannot substitute its own opinion for that of the licensing authority about a

perception; (G) that the scope of judicial review is limited; (H) that where

the relevant circumstances have been taken into consideration and no

extraneous considerations were taken into account, it would be outside the

purview of judicial review of the Court to substitute its own opinion with

the opinion of the licensing authority.

19. We respectfully concur with the view aforesaid of the Division Bench

of the Allahabad High Court.

20. Mention may also be made of the judgment of the Division Bench of

this Court in People for Animals Vs. UOI 180 (2011) DLT 460 holding 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.

21. Similarly, a Division Bench of the Bombay High Court in Devendra

Tukaram Katke Vs. 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.

22. One of us (Mr. Rajiv Sahai Endlaw, J.) sitting singly has in judgment

dated 5th October, 2011 in W.P.(C) No.7360/2011 titled Dharambir Khattar

Vs. GNCTD inter alia held as under:

"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."

The aforesaid applies to the present controversy also. Once the rules

require an applicant for arms licence / renewal thereof to disclose his

previous involvement in a criminal case alongwith the particulars, acquittal

is no defence to such non-disclosure. It is for the licensing authority to

judge the effect of such acquittal and acquittal in a criminal case does not

take away the duty of the applicant for arms licence / renewal thereof to

disclose the same. As aforesaid, the statute has made mere non-disclosure, a

ground for revocation of licence. The Supreme Court in A.P. Public Service

Commission Vs. Koneti Venkateswarulu (2005) 7 SCC 177 while following

Kendriya Vidyalaya Sangathan supra negatived the argument that there was

no mala fide intention in not giving full particulars by holding that of the

purpose for which the information is called, the authority seeking the