Ahmed Mustafa Sunsara vs District Magistrate And ...
2021 Latest Caselaw 4647 Guj

           C/SCA/3235/2021                         JUDGMENT



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO.            3235 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI   :    Sd/­
=======================================================

1    Whether Reporters of Local Papers may be                     YES
     allowed to see the judgment ?

2    To be referred to the Reporter or not ?                      YES

3    Whether their Lordships wish to see the
     fair copy of the judgment ?                                   NO

4    Whether this case involves a substantial
     question of law as to the interpretation
     of the Constitution of India or any                           NO
     order made thereunder ?

=======================================================
                 AHMED MUSTAFA SUNSARA
                         Versus
    DISTRICT MAGISTRATE AND COLLECTOR, BANASKANTHA
=======================================================
Appearance:
MR MA KHARADI(1032) for the Petitioner(s) No. 1
MR RB RAVAL AGP (99) for the Respondent(s) No. 1­2
=======================================================

CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                             Date : 24/03/2021

                               ORAL JUDGMENT

1. Rule. Learned AGP Mr. Ronak Raval waives service

of notice of rule for respondents.

2. Looking to the issue involved in this petition,

learned advocates appearing for the parties have

jointly requested that this matter be heard and

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decided at an admission stage and, hence, this

matter is being heard and decided finally.

3. By way of this petition, which is filed under

Articles 226 and 227 of the Constitution of India,

the petitioner has challenged the order dated

05.12.2020 passed by the respondent no.2, whereby

the respondent no.2 has revoked the fire arm

licence of the petitioner.

4. Heard learned advocate, Mr. M.A. Kharadi appearing

for the petitioner and learned AGP Mr. Ronak Raval

appearing for the respondents.

5. Learned advocate for the petitioner submitted that

the petitioner got the fire arm licence under the

provisions of the Arms Act in the year 1997, which

was issued to the petitioner for the purpose of

self­protection. It is submitted that the said

licence has been renewed from time to time,

however lastly when the petitioner submitted an

application for the renewal of the said licence in

the prescribed form, the respondent no.2, vide

impugned order dated 05.12.2020, has revoked the

licence of the petitioner mainly on the ground

that the petitioner is more than 55 years of age.

Learned advocate for the petitioner has referred

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to the impugned order, copy of which is placed on

record at Page No.19 of the compilation.

6. Learned advocate would submit that the respondent

no.2 is not authorized to revoke the licence

issued under the provisions of the Arms Act on the

ground of age of the petitioner. At this stage,

learned advocate referred to provision contained

in Section 17 of the Arms Act and, thereafter,

submitted that the licence issued under the Arms

Act can be revoked on the grounds mentioned/

stipulated in the said section.

7. Learned advocate has thereafter placed reliance

upon the order dated 12.06.2017 passed by the

Division Bench of this Court in Letters Patent

Appeal No.290/2016 in case of Ashokkumar Bhikhaji

Thakor Vs. State of Gujarat & Ors. Learned

advocate has also placed reliance upon the order

dated 29.08.2011 passed by this Court in Special

Civil Application No.8691/2011 in case of Sorab

Jehangir Bamji Vs. State of Gujarat, copy of which

is placed on record during the course of hearing.

8. Learned advocate has, therefore, urged that the

impugned order be quashed and set aside and the

matter be remitted back to the respondent no.2 for

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deciding the application filed by the petitioner

for renewal of the license afresh.

9. On the other hand, learned AGP, though has opposed

this petition, is not in a position to dispute the

fact that while passing impugned order by which

the license of the petitioner has been revoked,

the respondent no.2 has considered the age of the

petitioner, which is not permissible as per the

provisions contained in Section 17 of the Arms

Act.

10. I have considered the submissions canvassed by

learned advocates appearing for the parties. I

have also perused the material placed on record.

From the records, it transpires that the fire arms

licence under the provisions of the Arms Act was

issued to the petitioner in the year 1997, which

was renewed from time to time. Now when the

petitioner has submitted an application for the

renewal of the said licence, the respondent no.2 has

revoked the licence on permanent basis on the ground

that the petitioner is more than 55 years of age.

11. Section 17 of the Arms Act reads as under, "17. Variation, suspension and revocation of licences--

      (1)    The       licensing         authority              may     vary        the






       C/SCA/3235/2021                                            JUDGMENT

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 deliver­up 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 periods 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

C/SCA/3235/2021 JUDGMENT

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 sub­section (1) requiring him to deliver­up 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 sub­section (1) or an order suspending or revoking a licence under sub­section (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 licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as maybe, 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 thereunder may also suspend or revoke

C/SCA/3235/2021 JUDGMENT

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 sub­section (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 throughout India or any part thereof.

(10) On the suspension or revocation of a licence under this 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."

12. Thus from the aforesaid provision, it can be said

that the respondent authority is empowered to

revoke the licence issued under the Arms Act on

the grounds stipulated in the said provision and

not otherwise.

13. The Division Bench of this Court in an order in

case of Ashokkumar Bhikhaji Thakore (supra), after

considering the provision contained in Section 17

C/SCA/3235/2021 JUDGMENT

of the Arms Act, has observed in Para Nos.15 and

16 as under,

"15. From the aforesaid provision, it is clear that the licensing authority is empowered to suspend or revoke the licence under the circumstances which are enumerated in aforesaid sub­section (3) of Section 17. As observed hereinabove the respondent No.3 has placed reliance upon the negative opinion given by the Superintendent of Police and pendency of the criminal proceedings against the petitioner. However, the respondent No.3 has not considered whether the registration of FIR against the petitioner and pendency of criminal proceedings for the offence of criminal breach of trust, forgery and under the provisions of the Prevention of Corruption Act in any way affect the public safety, security or public peace. Further, the respondent No.3 has also committed an error by observing that the petitioner has failed to produce any documentary evidence in favour of his claim that risk is involved in his business and therefore arms licence is required. It is required to be noted that the respondent No.3 was not for the first time issuing the licence in favour of the petitioner but he was exercising the powers under Section 17 of the Act for revocation of the licence and

C/SCA/3235/2021 JUDGMENT

therefore also the order passed by the respondent No.3 is required to be set aside. From the order passed by the respondent No.3 it is not reflected that he has exercised the powers under Section 17(3) (a) of the Act on the ground that petitioner is unfit to have licence. Thus, the submission canvassed by learned AGP is misconceived.

16. Further, the respondent No.3 has revoked the licence of the petitioner on the basis of pendency of criminal proceedings as discussed hereinabove. However, arms licence of the coaccused of the same FIR against whom the criminal proceeding is still pending has been restored by the Appellate Authority."

14. Further, in the order passed by this Court in case

of Sorab Jehangir Bamji (supra), this Court has

observed in Para Nos.17, 18 and 19 as under,

"17. In light of the statutory provisions and decisions referred to above, it would be necessary to revert to the impugned orders. A perusal of the impugned orders indicates that the sole reason for rejection of the application of the petitioner, is based upon the opinion of the Police authorities that the licence may not be granted as the petitioner is aged 63 years. Apart from that, the District Magistrate and the State Government have concluded in their

C/SCA/3235/2021 JUDGMENT

respective orders, that no reasonable ground exists for granting a licence to the petitioner. As has been noticed hereinabove, Section 13(2A) vests the licencing authority with power to either grant a licence or refuse the same, as thought necessary, after considering the report of the officer in charge of the nearest Police Station, as provided under Section 13(1)(2). As per Section 14(1)(b)

(ii), the licencing authority shall refuse to grant a licence, among other reasons mentioned in Section 14(1), if it is found necessary to refuse it for the security of the public peace or public safety. As already discussed above, the report of the Police authorities in the case of the petitioner, does not indicate that he has any criminal antecedents, or that granting the licence to him will endanger the security and safety of the public or hinder public peace. In fact, the Police authorities have not given any adverse opinion in the case of the petitioner. The only ground mentioned is that the petitioner is 63 years of age which, in the view of this Court, cannot be considered as being a prohibition, as it is nowhere so stated in the Act.

18. Though Section 9 prohibits a person, who has not completed the age of 21 years, from acquiring, possessing or carrying a firearm

C/SCA/3235/2021 JUDGMENT

or ammunition, there is no prohibition regarding a person of any age above the age of 21 years from doing so. The grounds for refusal of a licence under Section 14 do not apply to the petitioner in any manner. The discretion for exercise of power vested in the licencing authority by virtue of Section 13(2A) is to be exercised in relation to, and in the context of, the provisions of the Act, in a reasonable and rational manner. The reasons for refusal of a licence would have to have a nexus to, and be in context with, the provisions of the Act. Merely refusing to issue a licence for a reason not prohibited by the Act, such as being aged 63 years, is unjustified and not in consonance with the provisions of the Act. It is stated in the impugned orders passed by the District Magistrate and the State Government, that there are no reasonable grounds for grant of licence to the petitioner. On the contrary, in view of the relevant provisions of the Act, it is evident that the respondents have failed to show any valid grounds for refusal of the licence.

19. The petitioner is, and has been, a member of Billimora Rifle Club since the year 1988, and has participated in a number of Rifle Shooting tournaments and won several certificates and awards. One of the grounds on which the petitioner has requested for

C/SCA/3235/2021 JUDGMENT

grant of the licence is for participation in sports activities, namely, Rifle Shooting. As per Section 13(3)(I), the licencing authority can grant a licence in respect of a smooth bore gun having a barrel of not less than twenty inches in length, for protection of crops or for sports. Apart from sports, the petitioner has cited the reason of self protection in his application for grant of the licence. As the petitioner was 63 years old at the relevant point of time, and is now aged about 67 years, it cannot be said that the reason of self protection is unjustified as older people would require to be more secure and to have a licenced firearm would provide such security. Both the grounds for which the petitioner has requested for the issuance of a firearm licence, cannot be said to be unreasonable or inadequate. It is not understandable on what premises the respondents have come to such a conclusion."

15. Thus from the aforesaid decision rendered by this

Court, it is clear that the concerned petitioner

was aged about 63 years at the relevant point of

time and at the time of passing order, he was aged

about 67 years and, therefore, this Court has

observed that it cannot be said that the reason of

self­protection is unjustified as older people

C/SCA/3235/2021 JUDGMENT

would require to be more secure and to have a

licenced firearm would provide such security. In

the said case, the licence was denied to the

concerned petitioner on the ground of age, whereas

in the present case, the licence has been revoked

by the respondent no.2 on the ground of age of the

present petitioner, which is not permissible.

16. In view of the aforesaid discussion, this Court is

of the view that the impugned order dated

05.12.2020 is required to be set aside and is

hereby quashed and set aside. The matter is

remitted back to the respondent no.2 for deciding

the renewal application filed by the petitioner

afresh. The respondent no.2 shall decide the

renewal application of the petitioner in

accordance with law keeping in view the provision

contained in the Arms Act within a period of six

weeks from the date of receipt of this order.

17. With the aforesaid observation and directions, the

present petition stands allowed. Rule is made

absolute to the aforesaid extent. Direct service

is permitted.

Sd/­ (VIPUL M. PANCHOLI, J.) Gautam