Rajkumar Pandey vs Additional Commissioner Of ...
2015 Latest Caselaw 7430 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 29th September, 2015

+                                 W.P.(C) No.8000/2013

       RAJKUMAR PANDEY                                     .... Petitioner
                  Through:               Ms. Urvashi Singh, Adv.

                                     Versus

    ADDITIONAL COMMISSONER OF
    POLICE & ANR.                           ..... Respondents

Through: Mr. Rishikesh Kumar & Ms. Neha Rastogi, Advs.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

CM No.21624/2015 (of petitioner for early hearing)

1. For the reasons stated, the application is allowed.

2. The writ petition is taken up for hearing today itself.

3. The application is disposed of.

W.P.(C) 8000/2013

4. The petition impugns the order dated 20th March, 2013 of the

Lieutenant Governor, Delhi acting as an Appellate Authority under Section

18 of the Arms Act, 1959 of dismissal of the appeal preferred by the

appellant against the decision dated 9th March, 2012 of the respondent No.1

Licensing Authority under the said Act of rejection of the application of the

petitioner for grant of an arms license.

5. Notice of the petition was issued and a counter affidavit has been filed

by the respondents and to which a rejoinder has been filed by the petitioner.

Rule was issued and the petition ordered to be listed in the category of

"Regular Matters" as per its turn. The counsel for the petitioner has been

heard.

6. It is the case of the petitioner, i) that the petitioner was brutally

attacked by some anti-social elements with an intent to grab the property of

the petitioner and suffered grievous hurt in the said attack and of which

FIR No.314/2009 was registered and the prosecution is pending; ii) that the

said anti-social elements continue to threaten the petitioner, to coerce the

petitioner into withdrawing the prosecution; in view of the said threats,

apprehension and danger, the petitioner on 4th November, 2011 applied for

an arms license "for his personal safety"; iii) that the Licensing Authority

however rejected the said application on the ground that there was no

specific threat against the petitioner; iv) though the petitioner preferred an

appeal but the same was also dismissed; v) that the impugned orders suffer

from non application of mind and overlooking the facts; vi) that once the

petitioner is the main complainant in a prosecution, the possibility of danger

to his safety cannot be ruled out. Reference in the writ petition itself is inter

alia made to:

(a) Kapildeo Singh Vs. State of Bihar AIR 1987 Patna 122 to

contend that arms license can be refused only where the

Licensing Authority has reasons to believe that the petitioner is

unfit for the licence.

(b) Ganesh Chandra Bhatt Vs. District Magistrate, Almora AIR

1993 Allahabad 291 to contend that the general rule is to grant

the arms license when sought and refusal is an exception.

(c) Judgments all dated 9th October, 2013 of this Court in W.P.(C)

No.1631/2012 titled as Vinod Kumar Vs. The State, in W.P.(C)

No.5959/2013 titled as Sahil Kohli vs. Additional Deputy

Commissioner of Police and in W.P.(C) No.6471/2013 titled as

Amardeep Vs. Additional Commissioner of Police to contend

that presence of specific threat is not necessary for the grant of

a arms license and the authority dealing with application should

exercise its discretion on subjective consideration.

7. The Lieutenant Governor, Delhi, while dismissing the appeal of the

petitioner vide the impugned order dated 20th March, 2013 has recorded, a)

that the local police had not found any specific threat to the appellant; b) that

during the pendency of the appeal, the concerned DCP was also directed to

submit a report and had also reported that the accused in the FIR aforesaid

who was earlier residing in proximity to the house of the petitioner had

shifted his residence and there was no apprehension of quarrel / harassment

between the said accused and his wife with the appellant.

8. The respondents in their counter affidavit have reiterated that the need

of the petitioner for a arms license was on enquiry not found to be genuine

and that as far as the threat presumed by the petitioner from the accused in

the prosecution aforesaid is concerned, preventive action under Sections 107

and 150 Cr.P.C. had been taken. It is also pleaded that W.P.(Crl.)

No.1788/2009 filed by the petitioner had been dismissed on 21 st December,

2009 and with respect to the judgment of the Allahabad High Court relied

upon by the petitioner, it is pleaded that the same, in terms of the judgment

of the Full Bench of the Allahabad High Court in Kailash Nath Vs. State

AIR 1985 Allahabd 291 and Rana Pratp Singh Vs. State of Uttar Pradesh

1996 Crl LJ 665, is no longer good law.

9. I may notice that else the consistent view of this Court and other

Courts in (i) Sunil Kumar Bharala Vs. State of U.P. MANU/UP/0481/2015

(DB); (ii) Gulab Radhwaj Vs. State of U.P. MANU/UP/0498/2015 (DB);

(iii) Dr. Pankaj Tripathi Vs. State of U.P. MANU/UP/0558/2014 (DB);

and, (iv) Om Prakash Rai Vs. State of U.P. MANU/UP/0846/2014 (DB)

has been that a perception of threat is a question of fact which cannot be

assessed by the individual himself but can only be assessed by the

investigating agencies and it is not the domain of the Writ Court to consider

whether a threat perception exits in favour of a particular person or not. I

have in Shiv S. Sharma Vs. Union of India MANU /DE /1024 /2010 held

that the Court cannot foray into determining whether there is any threat to

any individual and the same is purely in the domain of executive functions

and that the level / scale of perception is subjective; what an impartial person

adjudicating with an objective view may perceive as a threat of a lesser level

/ scale, is bound to be a threat of a higher level / scale to the threatened

person. Similar observations are to be found in Suhaib Ilyasi Vs. Union of

India MANU/DE/1153/2002 where also, it was observed that a person may

overreact or over-play the threat and the decision of security agencies and

experts in this regard is not to be substituted by the opinion either of the

petitioner or of the Court unless it is shown that the decision is wholly

arbitrary or perverse and has failed to consider the relevant material

produced. The Division Bench of this Court in Shri Ashwini Kr. Chopra Vs.

Union of India AIR 2011 Delhi 154 also held that right under Article 21 of

the Constitution of India is not absolute and grant of security cover is within

the executive domain and it is the executive which is in the best know of

when and what sort of security cover be granted to a particular person. It was

further held that no one can claim as a matter of legal right to be given a

particular security cover. Another Division Bench, in People for Animals

Vs. Union of India 180 (2011) DLT 460, held that grant of a licence for

acquisition and possession of firearms is only a statutory privilege and not a

matter of fundamental right under Article 21 of the Constitution; such a

licence is materially different from a licence for manufacture, sale etc. and

that 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 is unlawful, grant of such

privilege does not involve adjudication of right of individual nor does it

entail civil consequence.

10. A Division Bench of this Court in Parveen Kumar Beniwal Vs. Govt.

of NCT of Delhi MANU/DE/1304/2015 held that a citizen cannot assert a

right to hold a firearm licence on the ground of threat perception and that

whether there is a perception of threat to the security of a citizen has to be

considered by the licensing authority and not by the Courts. A Division

Bench of High Court of Andhra Pradesh has taken the same view in G.

Subas Reddy Vs. State of Andhra Pradesh 1997 Cri LJ 1296. A Division

Bench of the Bombay High Court in Devendra Tukaram Katke Vs. The

State of Maharashtra MANU/MH/0271/2009 also has held that once the

concerned authority has for reasons recorded cancelled the arms licence, the

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

disputed questions of fact.

11. I have in judgment dated 5th October, 2011 in W.P.(C) No. 7360/2011

titled Dharambir Khattar Vs. Government of NCT of Delhi & Ors. dealt in

details with the law in the Allahabad High Court particularly with reference

to Ganesh Chandra Bhatt supra. In view thereof, need is not felt to state

anything further here.

12. The counsel for the petitioner has contended that arms license is to be

granted unless there are sufficient reasons to refuse the same.

13. I am afraid, the aforesaid is contrary to the dicta of the Division Bench

in Parveen Kumar Beniwal supra holding that, i) the scheme of the Arms

Act and the Arms Rule indicate that a wide discretion has been given to the

Licensing Authority; ii) that maintenance of law and order and public peace

and safety is the responsibility of the State; iii) that a citizen cannot assert a

right to hold a firearm license; iv) that the discretion which is conferred upon

the Licensing Authority cannot be confined to fixed categories; v) whether

there is a perception of threat to the security of a citizen has to be considered

by the licensing authority; vi) that the Court cannot substitute its own

opinion for consideration of the Licensing Authority; and, vii) the scope of

judicial review is limited.

14. There is thus no merit in the petition. Dismissed.

No costs.

RAJIV SAHAI ENDLAW, J SEPTEMBER 29, 2015 „gsr‟0 ++