Delhi High Court
Ashish Talgotra vs Addl.Dy.Commissioner Of Police ... on 23 November, 2015
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23rd November, 2015.
+ W.P.(C) 6105/2014
ASHISH TALGOTRA ..... Petitioner
Through: Mr. R. Satish Kumar, Adv.
Versus
ADDL.DY.COMMISSIONER OF POLICE ARMS AND
EXPLOSIVE LICENSING UNIT ..... Respondent
Through: Mr. Raman Duggal with Ms. Aayushi
Gupta, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petition impugns the order, dated 21st May, 2014 of Hon'ble the
Lt. Governor, Delhi acting as an Appellate Authority under Section 18 of the
Arms Act, 1959, of dismissal of appeal preferred by the petitioner against the
order dated 21st March, 2014 of the respondent Additional Deputy
Commissioner of Police (Licensing) of refusing the application of the
petitioner for an arms licence.
2. Notice of the petition was issued. In the order dated 28th January,
2015, two judgments of a learned Single Judge of this Court, dated 9th
September, 2013 in W.P.(C) No.1631/2012 titled Vinod Kumar Vs. The
State and dated 20th September, 2013 in W.P.(C) No.5959/2013 titled Sahil
W.P.(C) No.6105/2014 Page 1 of 7
Kohli Vs. Additional Commissioner of Police relied upon by the counsel for
the petitioner and the response of the counsel for the respondent thereto that
the same rely upon the judgments of the Allahabad High Court which have
been considered by the Full Bench of that Court, were noted. In subsequent
order dated 13th April, 2015, the contention of the counsel for the respondent
that the issue was being examined by the Division Bench of this Court in
LPA No.41/2015 (incorrectly recorded in the order as LPA No.14/2015), is
recorded. On 28th July, 2015, the counsel for the respondent handed over a
copy of the judgment dated 29th April, 2015 of the Division Bench in LPA
No.41/2015 titled Parveen Kumar Beniwal Vs. Govt. of NCT of Delhi. On
request of the counsel for the petitioner, liberty was given to him to file
written arguments and judgment reserved.
3. The respondent, vide order dated 21st March, 2014 refused arms
licence to the petitioner reasoning (i) that the petitioner does not have any
good reason for grant of an arms licence; (ii) that the petitioner does not have
any specific threat; and (iii) that the local police had reported that the
petitioner does not have any requirement or need of weapon.
4. The petitioner, born on 26th September, 1991 and carrying on
construction business in the name and style of M/s. Khemraj & Sons
W.P.(C) No.6105/2014 Page 2 of 7
Construction Pvt. Ltd. appealed to Hon'ble the Lt. Governor contending that
the respondent Licensing Authority had applied the wrong test in refusing
arms licence to the petitioner inasmuch as the test to be applied was not
whether the applicant had a need or requirement for a licence but whether the
petitioner is disentitled from possessing or carrying firearm. During the
course of hearing before the Appellate Authority, he further contended that
in the course of his business he has to handle large amount of cash daily,
particularly when returning home late at night and thus needs to have a
firearm on his person for his protection.
5. The Appellate Authority however applied the same test and held that
the petitioner had not established any genuine need to justify the grant of an
arms licence and there was no need for interference in the order of the
Licensing Authority.
6. A Co-ordinate Bench of this Court in the judgments supra relied upon
by the petitioner in the petition itself indeed held that except in cases covered
by Section 13(3)(a) which do not fall under Section 14(1), though the
Licensing Authority has a discretion whether to grant licence or not, such a
discretion is not absolute nor can it be exercised on subjective
considerations. It was accordingly held that an arms licence cannot be
W.P.(C) No.6105/2014 Page 3 of 7
denied to a person in whose case a situation contemplated by Section 14(1)
of the Act does not exist and solely on the ground that there is no specific
threat to him or his family members. It was reasoned that it is not possible
for the police to be present everywhere and every time to protect the citizens
and therefore a prudent citizen is justified in taking adequate steps to protect
himself and his property and such steps would include acquiring a licensed
weapon so as to avoid any crime against his body and property. Reliance
was placed on the judgments of the Allahabad High Court in Abdul Kafi Vs.
District Magistrate, Allahabad 2003 ALJ 1959, Dinesh Kumar Pandey Vs.
State of U.P. 2013 (1) ALJ 449 and Syed Afzal Mehdi Vs. The State of A.P.
2010 (4) ALT 377.
7. However the Division Bench of this Court in Parveen Kumar Beniwal
supra approved of the reasoning given by the Single Judge that the High
Court, in exercise of powers under Article 226 of the Constitution of India,
would not supplant its opinion over that of the Licensing Authority and that
there would be no interference in the opinion of the Licensing Authority
unless the decision was found to be arbitrary, capricious, unreasonable or for
extraneous considerations or the decision making process was faulty. A
recent judgment dated 15th January, 2014 of the Division Bench of the
W.P.(C) No.6105/2014 Page 4 of 7
Allahabad High Court in Special Appeal No.62/2014 titled State of U.P. Vs.
Mahipat Singh 2014 (2) ALJ 443 laying down (i) that maintenance of law
and order and public peace and safety is the responsibility of the State; (ii)
that a citizen cannot assert a right to hold a firearm licence; (iii) that the
discretion which is conferred upon the Licensing Authority cannot be
confined to fixed categories; (iv) whether there is a perception of threat to
the security of a citizen has to be considered by the Licensing Authority; (v)
that the Court cannot substitute its own opinion for that of the Licensing
Authority about a threat perception; (vi) that the scope of judicial review is
limited; (vii) 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, was noticed and
concurred with. The Division Bench further referred to the judgment of
another Division Bench in People for Animals Vs. UOI 180 (2011) DLT 460
holding that grant of a licence for acquisition and possession of firearms is
only a statutory privilege and not matter of fundamental right under Article
21 of the Constitution of India and that such a licence is materially different
from a licence for manufacture, sale etc. and while latter confers a right to
W.P.(C) No.6105/2014 Page 5 of 7
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, was also noticed. The Division Bench further held that
no citizen has a blanket right to carry firearms and the application for
firearms can be made mostly with the object of protecting the person or
property but which too is the function of the State.
8. It would thus be seen that the judgments in Vinod Kumar and Sahil
Kohli supra cannot be said to be good law. I may also notice that the view
therein is contrary to, at least earlier judgment dated 5th October, 2011 in
W.P.(C) No.7360/2011 titled Dharambir Khattar Vs. Government of NCT
of Delhi and other judgments of this Court noticed therein.
9. I have recently further dealt with the said subject in order dated 18th
September, 2015 in W.P.(C) No.8893/2015 titled Nirankar Rastogi Vs.
Joint Commissioner of Police, order dated 23rd September, 2015 in W.P.(C)
No.8928/2014 titled Arvind Kumar Chauhan Vs. Lt. Governor, order dated
2nd November, 2015 in W.P.(C) No.6520/2015 titled Yashpal Singh Vs.
Licensing Authority, Joint Commissioner of Police and order dated 18th
November, 2015 in W.P.(C) No.6514/2014 titled Ajay Leekha Vs. Assistant
Commissioner of Police, Arms & Explosive.
W.P.(C) No.6105/2014 Page 6 of 7
10. The counsel for the petitioner in his written arguments has merely
reiterated the proposition in Vinod Kumar and Sahil Kohli supra and
following which the petitioner has been pursuing his zeal for an arms
licence. However the same are no longer good law, as aforesaid.
11. Before parting, I may also state that the need felt by the petitioner for
carrying a firearm, to protect himself while bringing large amounts of cash
when returning home from work, can also be met by the petitioner stopping
dealing in cash. There is no reason for the petitioner to not transact his
business through banking channels. There does not appear to be any reason
for the petitioner to deal in cash. No law requires so. In fact the law requires
to the contrary.
12. There is therefore no merit in the petition. Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 23 2015
'bs'
